dissenting:
I respectfully dissent and would reverse the trial court’s entry of summary judgment for Redmon. I agree with the majority that summary judgment cannot be sustained on the basis that Redmon’s conduct was not a proximate cause of Stone’s injury. I disagree that Redmon had no duty to Stone.
The areas covered in sections 323 and 324A of the Restatement are discussed in section 56 of Prosser. Liability for nonfeasance was slow to receive recognition in the law. Such liability eventually was extended to anyone who, for a consideration, "has undertaken to perform a promise.” From the earliest days, however, it was held that liability for misfeasance "may extend to any person to whom harm may reasonably be anticipated as a result of the defendant’s conduct, or perhaps even beyond.” Prosser § 56, at 373-74; see also Nelson, 31 Ill. 2d at 86, 199 N.E.2d at 779; Vesey, 145 Ill. 2d at 418, 583 N.E.2d at 545. It is not always easy to draw the line between misfeasance and nonfeasance. Failure to blow a whistle is inaction but is readily treated as negligent operation of a train, which is affirmative misconduct. Prosser § 56, at 374-75. "Where performance clearly has begun, there is no doubt that there is a duty of care.” Prosser § 56, at 380.
In the present case, we need not consider whether section 324A of the Restatement has been satisfied because we are dealing with misfeasance, not nonfeasance. This is not a case where Redmon refused to help with the stalled vehicle or promised to help but did not or started to help and then quit. Redmon actually entered into performance — he was under the hood. Having entered into performanee, Redmon had the same duty of care as anyone else working on a stalled vehicle. Again, "[i]t is axiomatic that every person owes to all others a duty to exercise ordinary care to guard against injury which naturally flows as a reasonably probable and foreseeable consequence of his act.” (Emphasis added.) Nelson, 31 Ill. 2d at 86, 199 N.E.2d at 779; see also Vesey, 145 Ill. 2d at 418, 583 N.E.2d at 545. Perhaps in the particular circumstances here Redmon acted reasonably, but that is not a question we may resolve by holding there is no duty. The jury was entitled to decide whether a reasonable person would have attempted to start a stalled vehicle in the dark without activating its flasher lights or attempting to remove it from the roadway.
Even assuming Redmon’s conduct cpnstituted nonfeasance, he still was subject to a duty under section 324A of the Restatement, which provides for liability on the part of those who undertake, gratuitously or for consideration, to render services. A large body of case law has been built up that a mere gratuitous promise to render service or assistance, with nothing more, imposes no tort obligation upon the promisor, even though the plaintiff may rely on the promise and suffer damage because of that reliance. Due to its apparent harshness, this old rule has served chiefly as a point of departure, and very little extra is required for the assumption of the duty. Prosser § 56, at 379. Initiation of the "undertaking” is commonly found in minor acts, of no significance in themselves and without any effect of their own upon the plaintiff’s interests. Prosser § 56, at 379; Restatement § 323, Comment d, § 324A, Comment f.
Looking first at section 324A(a) of the Restatement, the majority states that any failure of Redmon to illuminate Jones’ car or remove it from the highway did not increase the risk to Stone (citing Prosser § 56, at 381). Prosser, however, mentions some ways in which defendant has made the situation worse, "either by increasing the danger, by misleading the plaintiff into the belief that it has been removed, or by depriving him of the possibility of help from other sources.” (Emphasis added.) Prosser § 56, at 381. (Prosser also mentions there are a number of cases in which any requirement that defendant has made the situation worse has been rejected. Prosser § 56, at 381-82.) The majority mistakenly considers only Redmon’s failure to illuminate the car or remove it from the highway. It seems clear that by agreeing to repair the stalled vehicle Redmon deprived Jones (and thereby Stone) "of the possibility of help from other sources.” If Redmon had not agreed to help Jones, Jones would have gotten someone else to do so, and we must assume that "someone else” would have acted reasonably.
There is more involved in most projects than simply carrying out the assigned task. If I hire someone to paint my house (or if my brother volunteers to do so), he is expected to be careful not to drop a bucket on my neighbor’s head. It is not necessary that I or my neighbor contract with the painter to be careful. When the painter takes on the project, he takes on all that it involves, including roping off areas where things might be dropped, if a reasonable painter would rope off areas.
Section 324A(b) of the Restatement provides for liability where the promisor Redmon has “undertaken to perform a duty owed by the other [Jones] to the third person [Stone].” Restatement § 324A(b), at 142. Looking at that subsection, the majority recognizes that Jones owed a duty to Stone and other users of the highway to guard against vehicles hitting the stalled vehicle, but concludes that "the evidence gives no direct indication that Redmon undertook to perform that duty.” 281 Ill. App. 3d at 520. Again, the courts have tended to seize upon almost any act of the promisor as an undertaking of responsibility. Restatement § 324A, Comment f. Perhaps if Redmon and Jones had made it clear between themselves that Jones would arrange for the safety of the vehicle, and that Redmon assumed no responsibility in that regard, Redmon would have no liability. We should leave it to the jury to determine if there is any such evidence. In the absence of any evidence, Redmon should not be viewed as having agreed to do only part of the job of starting the stalled vehicle, the part not related to safety.
Section 324A(c) of the Restatement provides for liability where there is reliance upon the promisor, either by the one for whom the services are rendered or by the third party. Liability is expressly stated to exist in that situation even if the negligence of the promisor has not created any new risk or increased an existing one. Inducing another to forego other remedies or precautions is equated with the creation of the risk. The majority seems to recognize that section 324A(c) applies here, but chooses instead a “narrow construction” based on the supreme court’s decisions in Rhodes and Frye. Rhodes held that where a railroad, which had no duty in the first place, voluntarily phoned the police regarding an unconscious person, the railroad had no duty to follow up on that call. If all Redmon had done in this case was phone the police, I would agree he had no duty, but he did more than that. There may be no duty to take care of a man who is ill or intoxicated, but "if the defendant does attempt to aid him, and takes charge and control of the situation, he is regarded as entering voluntarily into a relation which is attended with responsibility.” Prosser § 56, at 378. Frye clearly involved a limited undertaking.
The majority explains its decision on the basis that it is necessary to protect "Good Samaritans.” Rhodes was much more limited: "[W]e do not think it appropriate to hold that a party voluntarily undertakes a legal duty to rescue an injured stranger by simply calling the police.” Rhodes, 172 Ill. 2d at 240. To some extent public policy favors requiring even "Good Samaritans” to act reasonably. "It is quite possible that this obligation of reasonable care under all the circumstances provides all the limitation that is really necessary. The defendant is never required to do more than is reasonable.” Prosser § 56, at 382. Who is a "Good Samaritan” who should be excused from any duty of due care? A mechanic who opens his shop at night to help (for a fee) a stranded traveler? A mechanic who charges no fee, during regular hours, for minor repairs? Defining "Good Samaritans” and relieving them of their duty to act reasonably is best left to the legislature. See 225 ILCS 60/30 (West 1994) (physicians who in good faith and without prior notice provide emergency care without fee liable only for wilful or wanton misconduct); 225 ILCS 25/53 (West 1994) (dentist who in good faith provides emergency care without fee at the scene of an accident liable only for wilful and wanton misconduct); 745 ILCS 20/1 (West 1994) (law enforcement officer who provides emergency care without fee liable only for wilful and wanton misconduct).
I question whether Redmon should be given any special treatment as a "Good Samaritan” under the facts of this case. This was not a case where Redmon came upon an accident scene and something had to be done immediately. Redmon or Jones could have called a tow truck from Redmon’s home, which apparently could have driven to the scene in the same time it took Redmon to drive there. The record does not indicate what relationship exists between Redmon and Jones, but if Jones called her brother or her father for help instead of incurring the expense of a tow truck, why should her brother or father have any less duty to the public than a tow truck operator?
There is some indication in the majority opinion that Redmon may have had some duty to Jones, the person with whom he dealt, but not to Stone, whom he had never met. I disagree. The quotation from Nelson that persons generally have a duty regarding their "acts,” continues, "and *** such duty does not depend upon contract, privity of interest or the proximity of relationship, but extends to remote and unknown persons.” Nelson, 31 Ill. 2d at 86, 199 N.E.2d at 779. When Redmon began to work on this unlighted vehicle in the middle of the roadway at night he had to concern himself with members of the public using the roads even though he had not contracted with them to use reasonable care.
Liability for nonfeasance is an area of the law which is expanding, not contracting. The majority decision runs counter to that trend and goes far beyond the carefully limited holdings of Rhodes and Frye. I dissent.