(concurring).
I reluctantly concur in the result reached; the majority opinion, however, does not discuss fundamental problems of law presented by this case.
In the first place, this court has been very reluctant to approve the dismissal of negligence actions by the summary judgment device. It is only in exceptional cases that negligence actions are susceptible of disposition by summary judgment.
In the second place, the ground of the majority decision is one only briefly alluded to in a single sentence in the appellee’s brief. The principal contention of the ap-pellee is that there is no duty to place a guardrail around a bridge pier. The other defense asserted is that the evidentiary material demonstrated that the proximate cause of the harm was not improper design.
Three children who were legally incapable of negligence are dead because they were passengers in a car using a modern toll road which is held out to the motoring public as safe for much higher speeds than is prudent on older roads of less sophisticated design.
It is undisputed that appellee, Brighton Engineering Company, was the consultant engineering firm which was employed by the state Department of Highways to de*282sign the road at the locale of the accident. The Restatement of Torts Second, Sec. 324 A, states that one who undertakes for a consideration to render services to another which he should recognize as necessary for the protection of a third person is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if his failure to exercise reasonable care increases the risk of such harm.
A well qualified engineer stated in affidavit that design requiring guardrails at the place of collision was reasonably necessary to protect the traveling public. He also stated that the design did not comply with national standards. He finally undertook to assert that had the bridge pier been properly protected in accord with design standards of a national society of state highway officials, the guardrail would have safely deflected the car with no serious injury to the occupants.
The appellee relies on cases that do not undertake to decide the issue of the extent of liability of a professional engineer who holds himself out as skilled in the design of modern multilane, high-speed toll roads. While no one is under a duty to design an accident-free road, it is open to serious question that the only duty is not to design a road containing a concealed hazardous condition. When one holds himself out as professionally expert in design, the law may require of him a standard of skill commensurate with the attendant circumstances which doubtless include the extent of the claim of expertise and the risk of harm to third parties by failure to perform skillfully.
Up to this point, it is apparent to me that summary judgment was inappropriate and denied a full-blown trial where all the facts could be developed and assessed. It certainly appears that a showing of a negligent design was made sufficient to create a trial issue. There was also evidence that a reasonably skillful design would have prevented the harm.
Nevertheless, it is undisputed that the state Department of Highways in effect directed that no guardrail be located at this place. It is also undisputed that had ap-pellee designed the road at this point in the fashion described as proper by appellant’s expert engineer the guardrail would have been omitted by direction of the Department of Highways.
Why a state highway department would employ an expert consultant engineer to design a modern, high-speed toll road and then tie his hands as to proper design for the safety of the traveling public in accordance with the practices and knowledge of his profession is unexplained. It would appear that either the highway department, having assumed control of design, should complete the design function without the expense of outside experts or it should leave to the outside expert the responsibility for proper design. In any event, the Department of Highways, which has the cloak of sovereign immunity, states in this case, through its engineeer, that it was responsible for the condition in question. Therefore, it would necessarily follow that the negligence present, if any there was, was that of the Department of Highways which assumed the role of designer so far as the condition in question was concerned. Hence, appellee was properly exonerated only because it did not design the claimed dangerous condition, the Department of Highways did.
NEIKIRK and OSBORNE, JJ„ join in this concurring opinion.