GRATUITOUS UNDERTAKING

[Note:  This posting is a continuation of a report on the development of a civics unit of study.  This unit is directing students to formulate informed positions on a governmental topic:  ground rules overseeing tort law.  It is being developed in real time.  Writer wants to identify his basic source of information, the Great Course’s course, Law School for Everyone.[1]]

In continuing this account’s review of tort law, this posting begins with an everyday sort of experience.  Everyone has driven down a road, usually paved, and seen one of those white X’s indicating one’s vehicle is about to cross a railroad track.  The X is there to provide a warning.

Since there is usually no train approaching, one does not stop, but one might slow down a bit and make the effort to hear if one is.  If a noise is heard, one would probably slow down even more and see if a train is coming and one knows to yield to it since the train won’t stop.  After all, that train is much bigger and, if hit by it, it will cause a great deal of damage to the vehicle and poses the possibility of serious injury if not death.

Then there are those crossings, the ones that are on busy streets, where there is a signal or even a descending barrier to indicate a train is about to cross.  But those warnings didn’t always exist; there were trains in the thirties, but no such warnings.  Well, instead, in those days, there were, at some crossings, watchmen.

A watchman (this writer does not know whether there were watchwomen) spent most of his days in a hut or shanty.  The job of this person was to, upon knowing a train was approaching, get out of the hut and warn people the train was about to arrive.  It should be noted, this was a voluntary service that apparently had been offered for some time.  In other words, there was no law mandating this service.

One day around the year, 1930, in Cleveland, Ohio, Stewart, in his truck, approached the crossing and there was no watchman present and so Stewart proceeded to drive his truck across the tracks.  Low and behold, a train came and smashed the truck.  Stewart sued claiming negligence on the part of the Erie Railroad Company who set up the watchman hut and hired a watchman to man it.

The trial court found in favor of the plaintiff and that decision was upheld on appeal.[2]  In the decision, the court used the term “trick.”  That is, by providing the watchman service initially – and in this instance depriving it – the railroad in effect tricked Stewart.  The court found this to be negligence and sided with Stewart.

This case illustrates another legal concept, gratuitous undertaking.  What’s that?  A look at another case demonstrates it more directly.  In a famous, former New York department store, Gimbels, a woman began showing symptoms of a heart problem.  This came to the attention of a sales clerk that took the woman to a store infirmary.  The store personnel then ignored her for hours.  She suffered a heart attack and died.  As this history earlier described – e.g., Yania v. Bigan – if the store personnel left her alone and let her die, the store would face no liability. 

But by initially assisting her, they became responsible as the court found in this 1935 case, Zelenko v. Gimbel Bros., Inc.  From the record of the case, the court judge wrote:  “Holding that, although the defendant may have had no duty to assist a customer taken ill in his store, once he undertook to render assistance, he assumed a duty of reasonable care in doing so …”[3] 

The “undertaking” refers to the Gimbel’s employee ushering the woman to the infirmary, something no legal duty called for; and, therefore, that act was gratuitous.  But once it was taken, a duty was formed.  There are various reasons for this duty.  For one, by placing the woman in the infirmary, it precluded anyone else providing help and this constituted a negligence and, therefore, subject to a viable tort claim. 

The act also established a relationship.  And certain relationships do entail duties.  They are contractual relationships that identify duties or are inherent in the contract one assumes.  A lifeguard has a duty to save a drowning person, a doctor has a duty toward his/her patients, etc. 

This reminds one of the Costa Concordia cruise ship captain who abandoned his ship when it ran aground.  The accident resulted in deaths and injuries and it also resulted in Captain Francesco Schettino serving a prison sentence.  That case was not American – it was Italian – but it does illustrate this contractual obligation and how the captain did not meet it.

This topic deserves the review of one more case, Kline v. 1500 Massachusetts Avenue Apartment Corporation.  In the next posting, this case will be highlighted.

[1] Edward K. Cheng, “Torts,” Law School for Everyone – a transcript book (Chantilly, VA:  The Teaching Company/The Great Courses, 2017), 230-445.

[2] “Erie R. R. v. Stewart,” Case Briefs, Erie R. Co. v. Stewart, 40 F. 2d 855, 1930 U.S. App. Lexis 3270 (6^th Cir. Ohio May 13, 1930, n. d., accessed September 30, 2018, https://www.casebriefs.com/blog/law/torts/torts-keyed-to-epstein/affirmative-duties/erie-r-r-v-stewart/ .

[3] “Zelenko v. Gimbil Bros., Inc.,” Case Text, 158 Misc. 904 (N.Y. Misc. 1935), n. d., accessed October 1, 2018, https://casetext.com/case/zelenko-v-gimbel-bros-inc .