concurring.
I concur only in the result. The majority has gone too far in adopting section 324A of The Restatement (Second) of Torts (1965), because the facts in this case do not require that we adopt a rule broader in scope than is necessary.
Under the instant facts, Travelers may have assumed a duty to decedent, along with any others who might come into the boiler room, when it issued the Certificate of Operation for the State of Texas pursuant to article 5221c. TEX.REV.CIV.STAT. ANN. art. 5221c (Vernon Supp.1987). If Travelers did assume such a duty, then it would have to use ordinary care in inspecting the boilers and certifying them. I recognize that it is not necessary to prove that a legal relationship existed between the parties before one may be charged with a duty of care toward the other. In Bennett v. Span Industries, Inc., 628 S.W.2d 470 (Tex.App.—Texarkana 1981, writ ref’d n.r. e.), the court held that a subcontractor which built a roof containing skylights had a duty of care to a later workman who fell through one of the skylights due to a lack of safeguards. The court stated:
There was no special legal relationship between Span [the subcontractor] and Bennett [the workman] which would in itself bring him within the scope of Span’s duty, but the duty of ordinary care at common law may arise not only as a matter of legal relation, but it may also arise from a knowledge of the danger, which in turn depends upon the probability of injury. Prosser on Torts §§ 53 and 54, pp. 324, et seq. (4th ed. 1971); 57 Am.Jur.2d Negligence § 36, p. 382, 383 (1971). Whether or not there is a pre-existing privity in legal relationship between the actor and the person injured, if the circumstances are such that a person of ordinary common sense would recognize that if he did not exercise reasonable care in his conduct with regard to those circumstances, his acts would place another person in danger, the duty to use ordinary care to avoid such danger arises. 57 Am.Jur.2d Negligence § 37, pp. 384, 385; § 57, p. 407, and cases cited. As Dean Prosser noted, the concept of duty has expanded to the point that in many cases, the mere knowledge of serious danger threatening physical harm to another, which one may avoid with little inconvenience, creates a sufficient relation, recognized by every moral and social standard, to impose a duty of care. Prosser on Torts § 56, p. 343 (4th ed. 1971).
628 S.W.2d at 473-74. (Emphasis in original.)
*782Since Travelers may have assumed such a duty to decedent, summary judgment was inappropriate because issues of fact remain as to whether Travelers failed to follow proper boiler inspection standards, and, if so, whether such a failure was a proximate cause of decedent’s injuries.
I am unwilling to adopt Section 324A as the law of Texas. While the facts in this case, and in other cases, may lead to a result that is consistent with a portion of Section 324A, I am not willing to hold that Section 324A in its entirety is the law for all fact situations which may arise under its terms.
Therefore, I concur only with the majority’s result. For these reasons, I would remand for a trial on the merits.