Filed: Jan. 29, 2013
Latest Update: Mar. 26, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-2140 CARL TUEL, Plaintiff - Appellant, v. HERTZ EQUIPMENT RENTAL CORPORATION, Defendant – Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T. S. Ellis, III, Senior District Judge. (1:11-cv-00405-TSE-JFA) Argued: October 23, 2012 Decided: January 29, 2013 Before TRAXLER, Chief Judge, and WYNN and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. AR
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-2140 CARL TUEL, Plaintiff - Appellant, v. HERTZ EQUIPMENT RENTAL CORPORATION, Defendant – Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T. S. Ellis, III, Senior District Judge. (1:11-cv-00405-TSE-JFA) Argued: October 23, 2012 Decided: January 29, 2013 Before TRAXLER, Chief Judge, and WYNN and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. ARG..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-2140
CARL TUEL,
Plaintiff - Appellant,
v.
HERTZ EQUIPMENT RENTAL CORPORATION,
Defendant – Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:11-cv-00405-TSE-JFA)
Argued: October 23, 2012 Decided: January 29, 2013
Before TRAXLER, Chief Judge, and WYNN and THACKER, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Edward Kyle McNew, MICHIEHAMLETT PLLC, Charlottesville,
Virginia, for Appellant. Michael James Garnier, GARNIER &
GARNIER, PC, Herndon, Virginia, for Appellee. ON BRIEF: M.
Bryan Slaughter, MICHIE HAMLETT LOWRY RASMUSSEN & TWEEL, PLLC,
Charlottesville, Virginia, for Appellant.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This common law negligence dispute arises out of an
accident that occurred on a construction site in Sterling,
Virginia. Appellant Carl Tuel (“Tuel”) brought suit against
Appellee Hertz Equipment Rental Corporation (“Hertz”) alleging
Hertz owed him, as a foreseeable third party, a duty of
reasonable care in performing maintenance on its leased
construction equipment. Tuel alleged Hertz failed to exercise
reasonable care, and, as a result, Hertz’s negligence caused
Tuel physical injury when the equipment malfunctioned. The
district court granted summary judgment in favor of Hertz,
concluding that there was no triable issue of fact as to the
existence of a legal duty owed by Hertz to Tuel. Tuel now
appeals from that judgment.
We conclude that Tuel has failed to put forth
sufficient evidence to demonstrate that he was a foreseeable
third party to which Hertz could have assumed a duty of
reasonable care. We therefore affirm.
I.
In early 2009, Tuel worked as an electrician for Shine
Electrical Group, an electrical subcontractor helping construct
an addition to a Wal-Mart store in Sterling, Virginia. Another
subcontractor, R&R Steel, LLC (“R&R Steel”), was also involved
2
in the construction, performing structural steel work at the
Wal-Mart site.
During the course of its operations at the Wal-Mart
site, R&R Steel rented an aerial boom lift (“boom lift” or
“lift”) from Hertz. The lift was operated with the use of a
universal key that was used for a variety of other types of
construction equipment. The lease period ran from March 3, 2009
to March 31, 2009, and was renewed through April 27, 2009.
The lease contained a provision restricting who was
permitted to use the lift. The provision stated, in relevant
part:
2. WHO MAY OPERATE THE EQUIPMENT. Only Customer and
the following persons with Customer’s permission
(“Authorized Operators”) may operate the Equipment:
Customer’s employer, employees, fellow employees in
the course of such employee’s regular employment, or
persons approved by HERC in writing. . . .
J.A. 903. 1
Neither Tuel nor his employer, Shine Electrical Group,
was a party to this contract. Tuel, however, introduced expert
testimony indicating that the sharing of equipment was a common
practice in the industry, even in light of rental agreements to
1
The rental contract refers to Hertz as “HERC” and R&R
Steel is designated as the “Customer.”
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
3
the contrary. Tuel’s expert witness stated, “this common
practice of sharing rented construction equipment was known to
companies that rent this equipment, even when a rental contract
did not permit such sharing.” J.A. 915. Tuel’s expert witness,
however, made this broad statement in reference to the industry
as a whole, and did not provide testimony specific to Hertz.
The lease also contained a provision restricting use
of the equipment after the expiration of the rental period.
That provision stated, in relevant part:
4. CUSTOMER’S RESPONSIBILITIES. . . . The Equipment
must be returned to HERC at the renting HERC branch by
the Due Date specified on the Front, or sooner if
demanded by HERC. Customer acknowledges that it must
confirm return receipt of the Equipment by HERC at the
expiration or earlier termination of this Agreement.
Until such time as HERC receives actual possession of
the Equipment, Customer agrees to hold said Equipment
in a safe and secure manner. . . .
J.A. 903.
During the rental period, R&R Steel -- in violation of
its rental agreement with Hertz –- gave Shine Electrical Group
and its workers, including Tuel, permission to use the boom
lift. Robert Hendrickson, president of R&R Steel, testified
that he gave such permission to Tuel, Dave Fells, and other
members of the Shine Electrical Group crew.
Toward the end of the lease period, the boom lift
began malfunctioning. As a result, on April 21, a Hertz
mechanic examined the lift on the worksite but was unable to
4
identify any malfunction. On April 27, R&R Steel’s lease for
the boom lift expired. Nonetheless, in violation of the rental
agreement, the boom lift remained in use on April 28, when it
again malfunctioned. A Hertz mechanic examined the lift for a
second time, and the mechanic was again unable to identify the
source of the malfunction.
After experiencing a malfunction with the boom lift
for a second time, R&R Steel initially requested that the lift
be removed and replaced. Once the Hertz mechanic returned for a
second time and was unable to rectify the issue with the lift,
however, R&R Steel decided it no longer needed the lift and did
not demand replacement. Instead, on April 30, R&R Steel
designated the lift “off rent” and held the lift for Hertz to
pick-up and remove. Equipment designated “off rent” was
generally regarded as no longer in use and typically kept in a
fenced area off the jobsite.
On April 30, R&R Steel moved the lift to a designated
drop-off and pick-up area that was understood on the worksite to
be used for “off rent” equipment. Hertz agreed not to charge
R&R Steel for the extra days R&R Steel held the lift beyond the
lease period while awaiting pick-up.
On May 6, 2009, Hertz picked up the lift. Throughout
the time period from April 30, when the lift was placed “off
rent” and moved to the designated “off rent” location, to May 6,
5
when the lift was retrieved by Hertz, the boom lift remained at
the worksite. There is conflicting testimony, however,
regarding where on the worksite the lift was located on May 4,
2009, while it awaited pick-up from Hertz. Robert Hendrickson
testified that the lift remained in the designated drop-off
area, outside the construction site fence. Tuel testified that
on May 4, 2009, the lift, although “away” from the Wal-Mart
building, was still located inside the construction site fence.
J.A. 206.
Although the parties dispute where the lift was
located at the end of the day on May 4, 2009, the parties agree
that sometime during the night of May 4, an unknown person moved
the lift back into a general area inside the construction site
fence. On the morning of May 5, 2009, a foreman for another
subcontractor who was unfamiliar with the operation of the boom
lift, asked Tuel, a trained aerial equipment operator, to move
the lift out of the way. Tuel maintains that, at that time, he
was unaware the boom lift had been malfunctioning. Tuel further
maintains that he was also unaware the lease for the boom lift
had expired and the lift was awaiting pick-up by Hertz.
Without completing the required safety check on the
equipment, Tuel climbed into the boom lift’s basket to move the
lift. The lift basket was positioned between a cement wall and
a temporary stop sign mounted on a concrete pillar, limiting the
6
lift’s mobility. Tuel testified that he only performed a
“courtesy inspection” of the lift, checking the tires and for
leaked fluids, but did not perform a full safety check because
the constricted placement of the lift made a full safety check
of the lift’s controls impossible without first moving the
basket. J.A. 249, 575–76. Tuel began moving the basket, and in
doing so, the lift became unresponsive to his manipulation of
the controls. The lift basket dropped onto and broke the stop
sign, and then crashed to the ground. At the time, Tuel’s foot
was stuck in a safety guard, and the force of the accident broke
his foot.
In March 2011, Tuel filed suit in state court against
Hertz, alleging Hertz was negligent in its duty to exercise
reasonable care in maintaining the boom lift. Hertz removed the
case to the United States District Court for the Eastern
District of Virginia. After initial discovery, on July 19,
2011, Hertz moved for summary judgment. On August 19, 2011, the
district court held a hearing on Hertz’s motion. On September
16, 2011, the district court issued a Memorandum Opinion and
Order granting summary judgment in Hertz’s favor, finding Hertz
owed no legal duty in tort to Tuel. Tuel then timely filed this
appeal.
7
Because Tuel appeals the district court’s grant of
summary judgment in Hertz’s favor, this court possesses
jurisdiction pursuant to 28 U.S.C. § 1291.
II.
We review appeals of a district court’s grant of
summary judgment de novo and view the underlying facts in the
light most favorable to the nonmoving party. Austin v. Clark
Equip. Co., 48 F.3d 833, 835 (4th Cir. 1995). The moving party
has the burden to establish “through pleadings, affidavits,
depositions, and other discovery documents that there exists no
genuine issue of material fact,” and thus, summary judgment is
appropriate. Id.
In diversity actions such as this, we are bound by
governing state law. Talkington v. Atria Reclamelucifers
Fabrieken BV, 152 F.3d 254, 260 (4th Cir. 1998). Virginia’s
choice-of-law rules dictate that the substantive law to be
applied shall be “the law of the place of the wrong.” McMillan
v. McMillan,
253 S.E.2d 662, 663 (Va. 1979). Because the
alleged wrong occurred in Virginia, Virginia tort law applies.
But where Virginia law is not clear on a point of law, we must
predict how the Virginia Supreme Court would rule, being mindful
not to “surmise or suggest” an expansion of Virginia law.
8
Burris Chem., Inc. v. USX Corp., 10 F.3d 243, 247 (4th Cir.
1993); see also Talkington, 152 F.3d at 260.
III.
This case requires us to focus upon a narrow legal
issue within the familiar tort liability expanse. Appellant
Tuel argues that Hertz, as lessor of a chattel, had a duty to
third persons, such as himself, to perform all repairs on its
chattel with reasonable care, and that Hertz failed to fulfill
this duty, thus causing his injuries.
Our starting point in addressing this case is one
common to the basic principles of tort law. Under Virginia law,
“a plaintiff who seeks to establish actionable negligence must
plead the existence of a legal duty, violation of that duty, and
proximate causation which results in injury.” Kellermann v.
McDonough, 684 S.E.2d 786, 790 (Va. 2009) (quoting Delk v.
Columbia/HCA Healthcare Corp.,
523 S.E.2d 826, 830 (Va. 2000))
(internal quotation marks omitted).
Therefore, the first step any plaintiff must take in
establishing a viable negligence action must be the allegation
of a legal duty owed by the defendant to the plaintiff. If the
plaintiff’s allegations in his or her complaint are “legally
sufficient to establish the existence of a duty, then a jury,
9
upon consideration of the evidence, must determine whether the
duty has been performed.” Kellermann, 684 S.E.2d at 790.
Here, Tuel does not argue Hertz had a common law duty
to repair the boom lift, as such duties were governed by the
rental contract. Rather, Tuel argues that once Hertz undertook
to repair its leased boom lift, Hertz assumed a duty to third
parties to perform the repairs with reasonable care. The basis
for Tuel’s theory of recovery is commonly referred to as the
“assumption of [] duty” principle. Kellermann, 684 S.E.2d at
791. Thus, this case requires the following inquiries: (A)
whether under Virginia law, a party may assume a duty to third
parties to exercise reasonable care when rendering services
pursuant to a contract; and (B) whether Tuel was within the
category of third parties covered by the assumption of duty
principle.
A.
The Assumption of Duty Principle under Virginia Law
Virginia courts have repeatedly recognized the common
law principle that a duty may lie in tort where there has been
an “assumption of a duty” by a party. See, e.g., Kellermann,
684 S.E.2d at 791 (identifying numerous instances where the
Virginia Supreme Court has recognized the assumption of duty
principle). Under this principle, “one who assumes to act, even
though gratuitously, may thereby become subject to the duty of
10
acting carefully, if he acts at all.” Id. (quoting Nolde Bros.
v. Wray, 266 S.E.2d 882, 884 (Va. 1980)) (internal quotation
marks omitted).
The Virginia Supreme Court has addressed the
assumption of duty principle only in limited situations –-
typically those where there is no underlying contractual
obligation for the performing party to act. See generally Burns
v. Gagnon, 727 S.E.2d 634 (Va. 2012) (involving whether a school
principal undertook an effort to investigate a possible danger
to a student); Kellermann,
684 S.E.2d 786 (involving whether a
supervising adult assumed a duty to a visiting minor);
Fruiterman v. Granata,
668 S.E.2d 127 (Va. 2008) (involving
whether a physician affirmatively undertook the provision of
healthcare to a non-patient).
Indeed, we have recognized that Virginia courts have
not directly applied the assumption of duty principle in
instances where a lessor undertakes repairs to a leased chattel.
See Wert v. Jefferds Corp., 325 F. App’x 175, 177 (4th Cir.
2009) (“[Plaintiff] contends that, once [the lessor] undertook
to service the forklift . . . , that undertaking created a duty
11
to repair the vehicle in a reasonable manner. No Virginia case
explicitly recognizes such a duty . . . .”). 2
But, applying the assumption of duty principle in the
tort context does not appear to be foreclosed simply because of
the existence of a contract. The Virginia Supreme Court has
acknowledged, “a party can, in certain circumstances, show both
a breach of contract and a tortious breach of duty.” Richmond
Metro. Auth. v. McDevitt Street Bovis, Inc., 507 S.E.2d 344, 347
(Va. 1998). In order to do so, however, the plaintiff must show
that “the duty tortiously or negligently breached . . . [is] a
common law duty, not one existing between the parties solely by
virtue of the contract.” Id. (quoting Spence v. Norfolk & W.
R.R. Co.,
22 S.E. 815, 818 (Va. 1895)) (internal quotation marks
omitted). Put another way, a tort action cannot be based upon a
negligent breach of contract, but must arise from the breach of
a duty independent from the contract. See id.
The blurred lines of contractual and tortious duties
draw attention to Virginia’s economic loss doctrine. Under
Virginia law, lack of privity in contract will bar recovery in
tort for economic losses, but will not bar recovery for injuries
2
In Wert, we did not attempt to resolve whether, under
Virginia law, a common law duty to act in a reasonable manner
arises once a lessor undertakes repairs, but instead, we found
that assuming such a duty does exist, the plaintiff failed to
show a breach of that duty. 325 F. App’x at 177.
12
to persons or property. See Blake Constr. Co. v. Alley, 353
S.E.2d 724 (Va. 1987). Thus, courts have been careful to find a
duty of care owed to third parties independent of a contract
only so far as that duty protects one from personal injury or
property damage. See Rogers v. Dow Agroscience, LLC,
2006 WL
3147393, at *4 (W.D. Va. Oct. 31, 2006).
Given these guidelines, discerning whether an
independent duty in tort exists in the face of a contract is not
always a clear exercise, and Virginia courts have taken on the
task with some irregularity. In some circumstances, lower
courts in Virginia have found that when a party performs an act
pursuant to a contract, an independent duty may arise in tort to
perform that act with reasonable care. See Boland v. Rivanna
Partners, LLC, 69 Va. Cir. 308, 2005 WL 3105359 (Va. Cir. Ct.
Nov. 21, 2005) (finding snow removal contractor had duty to
foreseeable parties to use reasonable care in clearing parking
lot of snow and ice); Gonella v. Lumbermens Mut. Cas. Co., 64
Va. Cir. 229,
2004 WL 836031 (Va. Cir. Ct. March 15, 2004)
(finding roofing contractor had independent duty to homeowner to
avoid creating an unreasonably dangerous condition that could
cause serious personal injury). While in other circumstances,
courts applying Virginia law have found no duty in tort
independent from those found within the contract. See Jeannie’s
Jewelers, Inc. v. ADT Sec. Servs., Inc.,
2012 WL 1869319 (E.D.
13
Va. May 22, 2012) (finding security company had no common law
duty to provide security services under contract to jewelry
store owner); Bosworth v. Vornado Realty LP, 83 Va. Cir. 549,
2010 WL 8925838 (Va. Cir. Ct. Dec. 20, 2010) (finding security
company had no common law duty to provide security services to
third-party invitees at a mall security company was servicing
under contract). 3
Virginia courts have most clearly recognized a
tortious duty independent of a contract in the landlord-tenant
context. See Holland v. Shively, 415 S.E.2d 222, 224 (Va. 1992)
(“It has long been the law in Virginia that where a landlord
enters leased premises, . . . for the purpose of making repairs,
he must use reasonable care in performing the work. In order
for the tenant to recover for injuries caused by a defective
condition resulting from the repairs, he must show that the
repairs were made in a negligent manner.”) (quoting Oden v.
Hous. Auth.,
125 S.E.2d 843, 845 (Va. 1962)).
3
We note that the two negligence cases cited here involving
injury to third parties, Boland and Bosworth, were each resolved
in terms of foreseeability of injury to the third party. See
Boland, 2005 WL 3105359, at *4 (“It was foreseeable to the
Johnsons that a person entering the lot could be injured if they
performed their duty negligently.”); Bosworth,
2010 WL 8925838,
at *5 (“In this case, Plaintiff has not alleged facts sufficient
to support a finding of foreseeability.”).
14
Further guidance is found in the Virginia Supreme
Court’s recognition of the Restatement (Second) of Torts. In
Kellermann, 684 S.E.2d at 791, and Didato v. Strehler, 554
S.E.2d 42, 48 (Va. 2001), the Virginia Supreme Court recognized
the assumption of duty principle as embodied in § 323 of the
Restatement (Second) of Torts. Section 323 provides:
One who undertakes, gratuitously or for
consideration, to render services to another which he
should recognize as necessary for the protection of
the other's person or things, is subject to liability
to the other for physical harm resulting from his
failure to exercise reasonable care to perform his
undertaking, if
(a) his failure to exercise such care increases the
risk of such harm, or
(b) the harm is suffered because of the other's
reliance upon the undertaking.
Restatement (Second) of Torts § 323 (1965). Accordingly, the
Restatement appears to have envisioned circumstances where a
party, providing a service pursuant to a contract, may have a
duty in tort to take reasonable care in performing that service
to avoid physical injury to the person to whom the service is
being provided. But, we find no Virginia Supreme Court case
that has actually applied the assumption of duty principle in
this manner.
Likewise, the Virginia Supreme Court recently
recognized in Burns that the assumption of duty principle could
extend, not only to parties for whom one assumes to act, but to
15
third parties as well. See 727 S.E.2d at 643–44 (“In accordance
with the principle of assumption of a duty, an actor who fails
to exercise reasonable care in performing his undertaking may be
subject to liability for physical harm caused not only to the
one to whom he has agreed to render services, but also to a
third person.”). In Burns, the Virginia Supreme Court
subscribed to this principle as illustrated in the Restatement
(Second) of Torts § 324A, which provides:
One who undertakes, gratuitously or for
consideration, to render services to another which he
should recognize as necessary for the protection of a
third person or his things, is subject to liability to
the third person for physical harm resulting from his
failure to exercise reasonable care to protect his
undertaking, if
(a) his failure to exercise reasonable care increases
the risk of such harm, or
(b) he has undertaken to perform a duty owed by the
other to the third person, or
(c) the harm is suffered because of reliance of the
other or the third person upon the undertaking.
Id. at 644. Using this framework, the Virginia Supreme Court in
Burns held that a school principal, who is informed by one
student of a possible fight involving another student, may
assume a common law duty to the other student to reasonably
investigate the report and provide appropriate supervision. See
id. (noting that such a duty may be assumed by a party, but
remanding to the trial court to determine on the facts of the
16
case, whether or not it was in fact assumed). But again, in
Burns, the services were not triggered by an underlying contract
between the parties, and we find no Virginia Supreme Court case
that has applied the assumption of duty principle to third
parties in this manner.
As the district court pointed out, Virginia statutory
modifications to the common law on negligence provide greater
insight. In this regard, the assumption of duty principle has
arguably been modified by the Virginia General Assembly in
specific circumstances –- most germane to this case, when there
is a lessor/lessee relationship concerning commercial goods.
Virginia Code § 8.2A-216 provides in relevant part:
Lack of privity between the plaintiff and the
defendant shall be no defense in any action brought
against the . . . lessor of goods . . . to recover
damages for . . . negligence, although the plaintiff
did not lease the goods from the defendant, if the
plaintiff was a person whom the . . . lessor might
reasonably have expected to use, consume, or be
affected by the goods.
Va. Code Ann. § 8.2A-216 (West 2012). This necessarily implies
that a lessor will have a defense to liability to a third party
when the third party is one whom the lessor could not
“reasonably have expected to use, consume, or be affected by the
goods.” Id. This is in accord with the general principle in
Virginia tort law that one’s duty extends only to “anyone who
could reasonably and foreseeably be injured by one’s failure to
17
use ordinary care.” Khadim v. Lab. Corp. of Am., 838 F. Supp.
2d 448, 458 n.8 (W.D. Va. 2011). It is also in accord with the
principle found in Restatement § 324A and espoused by the
Virginia Supreme Court in Burns. But yet again, we find no
Virginia case law to provide any guidance as to § 8.2A-216’s
possible effect. 4
Nonetheless, based on Burns and the aforementioned
body of Virginia law, two guiding principles may be drawn.
Outside the landlord-tenant context, Virginia courts appear to
be most receptive to finding a party assumed a duty in tort
during the performance of a contract where the injured party (1)
was a foreseeable third party, not in privity to the contract;
and (2) suffered some physical injury, rather than mere economic
loss, as a result of the actor’s negligent performance.
Without clear guidance from the Virginia Supreme Court
on these points, however, we assume without deciding, that
Tuel’s initial premise is tenable under Virginia law; that is,
Hertz, once it began to render services under a lease, assumed a
duty to foreseeable third parties to exercise reasonable care in
performing those services to avoid physical injury.
4
We find no reference to § 8.2A-216 at all in Virginia case
law.
18
B.
Third Parties Covered by Hertz’s Assumption of a Duty
In light of Burns and its adoption of § 324A, Tuel’s
tort theory of recovery may be viable under Virginia law as a
general matter and an assumed duty may exist under such
circumstances in the abstract. But that does not end our
inquiry. The question remains whether under this set of facts,
Tuel could be within the class of third parties to whom the
assumed duty extended as required to survive summary judgment.
We conclude that under the facts presented in this case, he was
not.
When § 324A is unpacked, at its core it is simply a
formulation of the common law tort elements in the third party
assumption of duty context. Under § 324A, a party rendering
services may be subject to tort liability to a third person if
the party “should recognize [the services] as necessary for the
protection of” the third person (duty); the third person suffers
“physical harm” (damages); by way of the “failure to exercise
reasonable care” (breach); if either the breach “increases the
risk of such harm,” the undertaking was “a duty owed by the
other to the third person,” or their was “reliance” on the
undertaking (causation). Restatement (Second) Torts § 324A
(1965).
19
Therefore, Hertz could be said to have assumed a duty
to Tuel to exercise reasonable care to avoid physical injury in
repairing the lift if Hertz rendered services that it should
have recognized were necessary for the protection of an
individual such as Tuel. In other words, Hertz must show Tuel
has not presented facts from which a jury could reasonably
conclude he was a foreseeable third party whom Hertz should have
reasonably expected to be harmed by the malfunctioning lift. If
Tuel has done so, then the question of whether Tuel was in fact
a foreseeable third party, may be put properly before a jury.
See Burns, 727 S.E.2d at 643 (“[W]hether a defendant owes a
plaintiff a duty in tort is generally a question of law. But
when the issue is not whether the law recognizes a duty, but
rather whether the defendant by his conduct assumed a duty, the
existence of that duty is a question for the fact-finder.”).
Here, however, Tuel has not put forth sufficient evidence to
satisfy this foreseeability requirement. In fact, the evidence
supports the converse.
It is undisputed on appeal that Hertz’s technician
rendered services when he twice undertook to investigate the
reported malfunctioning lift. But Tuel has not put forth any
evidence that Hertz either recognized or should have recognized
that these services were necessary for his protection as a third
party. We find a number of facts persuasive in this regard.
20
First, Tuel has not put forth any evidence Hertz
possessed specific knowledge Tuel or other third parties would
use the lift. In fact, Hertz explicitly contracted with R&R
Steel not to have unauthorized third parties operate the lift.
The contract provides that the only people permitted to operate
the lift are “Customer[,] . . . Customer’s employer, employees,
fellow employees in the course of such employee’s regular
employment, or persons approved by HERC in writing. . . .” J.A.
903. While the contract may not be dispositive of
foreseeability, Tuel must put forth sufficient evidence to
permit a jury to draw the conclusion that he was in fact a
foreseeable third party. He has not done so.
Tuel’s concern that Hertz is attempting to “contract
away” all of its common law duties is misplaced. The contract
provisions between Hertz and R&R Steel do not foreclose the
possibility of a plaintiff being able to show, even in light of
those provisions, that Hertz was fully aware and reasonably
expected others to impermissibly use its rental equipment. Tuel
has simply not done so in this case.
Tuel has not provided any evidence that, despite the
explicit contract language regarding unauthorized use by third
parties, Hertz should have known third parties such as Tuel
would use the lift. In his argument to the contrary, Tuel
provides expert testimony indicating it is a common practice in
21
the construction industry to share rental equipment. But as the
district court correctly observed, this testimony is not
specific to Hertz, and also does not show that rental companies
such as Hertz are aware or should be aware that this practice is
so pervasive that it continues even after the expiration of the
lease period. In fact, Robert Hendrickson of R&R Steel
testified that he never provided any indication to Hertz that
individuals other than R&R employees would use the lift.
Furthermore, the lift in this case was “off rent” and
awaiting pick-up by Hertz. There is no evidence Hertz should
have been aware that its equipment is used by authorized users,
let alone unauthorized third parties, after the expiration of
the lease. The contract itself supports the opposite conclusion
in that it required R&R Steel to keep the lift in a “safe and
secure manner” at the expiration of the lease period. J.A. 903.
This highlights an important distinction between this
case and Burns involving the application of the § 324A regime.
In Burns, the principal had specific knowledge that once he
assumed the duty to investigate, whether or not he investigated
with reasonable care would affect one particular third party,
the student Gagnon. Here, there is no similar indication Hertz
had specific knowledge that the repairs were necessary to
protect either Tuel, or the class of third party workmen on the
construction site, as Hertz and R&R Steel explicitly contracted
22
to prohibit third parties from using the lift and because there
is no indication in the record Hertz had knowledge of any on
site sharing of its equipment.
In sum, the overwhelming weight of the evidence
indicates that Tuel was not a foreseeable third party that Hertz
could have reasonably expected to be endangered by the lift. As
noted, Hertz explicitly prohibited R&R Steel from allowing third
parties to operate the lift or from operating the lift at all
after the lease period. Hertz could have reasonably expected
R&R Steel to comply with the terms of the contract.
IV.
Accordingly, Tuel does not have an actionable
negligence claim because he has failed to show Hertz had a duty
to him in tort to exercise reasonable care in servicing its
leased equipment. While Hertz, in the abstract, may assume a
duty to third parties when it repairs its leased equipment, Tuel
has not produced sufficient evidence to show he was a
foreseeable third party whom Hertz should have reasonably
expected to be endangered by its repair of its equipment.
The district court’s grant of summary judgment is
therefore
AFFIRMED.
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