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Restatement (Second) of Torts 324 (1965)

Restatement of the Law - Torts
Database updated June 2014
Restatement (Second) of Torts
Division 2. Negligence
Chapter 12. General Principles
Topic 7. Duties of Affirmative Action
Title B. Duty to Aid Others and Services Gratuitously Rendered or Undertaken
324 Duty of One Who Takes Charge of Another Who is Helpless
Comment:
Reporter's Notes
Case Citations - by Jurisdiction
One who, being under no duty to do so, takes charge of another who is helpless
adequately to aid or protect himself is subject to liability to the other for any bodily
harm caused to him by
(a) the failure of the actor to exercise reasonable care to secure the safety of the
other while within the actor's charge, or
(b) the actor's discontinuing his aid or protection, if by so doing he leaves the other
in a worse position than when the actor took charge of him.

See Reporter's Notes.

Caveat:
The Institute expresses no opinion as to whether there may not be situations in which an actor
who has taken charge of a helpless person may be subject to liability for harm resulting from his
discontinuance of the aid or protection, where by doing so he leaves the other in no worse position
than when the actor took charge of him.

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Comment:
a. The rule stated in this Section is an application of the one stated in 323. Its particular feature
is that the plaintiff is in a helpless position, which is an important factor in determining whether
the actor may discontinue the aid or protection which he has undertaken to give.
b. The rule stated in this Section is applicable whenever one takes charge of another who is
incapable of taking adequate care of himself. It applies equally where the other is rendered helpless
by his own conduct, by the tortious or innocent conduct of the actor, or by other causes, as where
the actor takes charge of one who is ill, drunk, or made helpless by the act of a third person or
a force of nature. It applies also to one who takes charge of another who by reason of his youth
is incapable of caring for himself. As to the duty of one who injures another by his own tortious
or innocent conduct, see 322.
c. The bodily harm of which the actor's conduct is a legal cause may be either a further injury or
an increase in the existing injury, due to the improper manner in which the actor is giving the aid
or protection, or it may be an aggravation of the original harm which would have been avoided if
the actor had exercised reasonable care for the other's safety.

Illustrations:
Illustrations:
1. A is run over by an automobile and left lying in the street. B, seeing A's helpless
condition, takes him in his car for the purpose of taking him to a hospital. B drives the
car so negligently that he runs into a tree. The collision greatly increases A's original
injuries. B is subject to liability to A for so much of the harm to him as is due to the
collision.
2. A train of the A Railroad Company, without negligence, runs down a trespasser on
its right of way. The train crew remove B, the trespasser, from the track, and take him
to a nearby station of the company, and put him in the baggage room. They delay for
several hours in sending for aid, during which time the loss of blood from his wounds
causes his death. The A Company is subject to liability under a wrongful death statute
for the death of B.

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d. Care required. Where the actor's conduct has changed the other's position for the worse, the
fact that the actor was under no duty in the first instance to render the services is immaterial
in determining whether or not he has exercised reasonable care. On the other hand, where the
other's only ground of complaint is that he has failed to receive benefit from the actor's assistance,
the gratuitous nature of the services is an important factor in determining whether the actor has
exercised reasonable care. The care which the actor must exercise is only that which the recipient of
gratuitous services is entitled to expect. Thus the actor is not required to conform to a high standard
of diligence and competence, to possess any special skill, or to subordinate his own interests to
those of the other, to the same extent as would be necessary if the services were obligatory or for
compensation. He must, however, act in good faith and with common decency, with due allowance
made not only for physical infirmities of the actor but also for any inferiority in intelligence and
judgment.
e. Stipulation of aid to be given. Where the other makes a stipulation as to the character of the
assistance he is to receive, the rule stated in this Section applies. The actor is not liable, however,
for the mere failure to furnish the aid stipulated if his failure to do so does not put the other in a
prejudicial position. Whether the actor is liable for thus failing to furnish the promised assistance
under some other rule or principle of law is not within the scope of this Restatement.
f. Aid given in exercise of privilege. The rule stated in this Section is applicable where the actor
takes charge of another for his own purposes, and as a necessary measure in the exercise of a
privilege.

Illustration:
Illustration:
3. A, a passenger on a train of the B Railroad Company, becomes drunk and disorderly.
The conductor of the train, pursuant to the privilege of the Railroad Company, removes
A from the train and to the platform, from which a steep and unguarded stairway leads to
the street. The conductor takes A half way up the stairway and leaves him, although A's
condition makes it evident that his position is dangerous. A, while attempting to climb
the stairs, falls and is injured. B Company is subject to liability to A.
g. Discontinuance of services. The fact that the actor gives another gratuitous assistance does not
require him to continue his services until the recipient of them gets all of the benefit which the
actor is capable of bestowing. He is required only to act with reasonable consideration for the
other's safety. If the actor has succeeded in removing the other from a position of danger to one
of safety, he cannot change his position for the worse by unreasonably putting him back into the
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same peril, or into a new one. Thus, while A, who has taken B from a trench filled with poisonous
gas, does not thereby obligate himself to pay for B's treatment in a hospital, he cannot throw B
back into the same trench, or leave him lying in the street where he may be run over.

Reporter's Notes
Illustration 2 is taken from Slater v. Illinois Central R. Co., 209 F. 480 (M.D.Tenn.1911).
Other cases which support the rule stated in this Section are Gates v. Chesapeake & O. R. Co.,
185 Ky. 24, 213 S.W. 564, 5 A.L.R. 507 (1919); Yazoo & M. V. R. Co. v. Leflar, 168 Miss. 255,
150 So. 220 (1933); Zelenko v. Gimbel Bros., 158 Misc. 904, 287 N.Y.S. 134 (1935), affirmed
247 App.Div. 867, 287 N.Y.S. 136; Bascho v. Pennsylvania R. Co., 3 N.J.Super. 86, 65 A.2d 613
(1949); San Antonio Public Service Co. v. Wellman, 288 S.W. 582 (Tex.Civ.App.1926).
Illustration 3 is taken from Black v. New York, N.H. & H.R. Co., 193 Mass. 448, 79 N.E. 797,
7 L.R.A.N.S. 148, 9 Ann.Cas. 485 (1907). Cf. Atchison, T. & S.F.R. Co. v. Parry, 67 Kan. 515,
73 P. 105 (1903).
Comment g:As to the actor's discontinuance of his aid, see Owl Drug Co. v. Crandall, 52 Ariz.
322, 80 P.2d 952, 120 A.L.R. 1521 (1938); Ohio & Mississippi R. Co. v. Early, 141 Ind. 73, 40
N.E. 257, 28 L.R.A. 546 (1895); Baltimore & Ohio R. Co. v. State to Use of Woodward, 41 Md.
268 (1875); Shaw v. Chicago, M. & St. P. R. Co., 103 Minn. 8, 114 N.W. 85 (1907); Fitzgerald
v. Chesapeake & O.R. Co., 116 W. Va. 239, 180 S.E. 766 (1935); Lindgren v. Shepard S.S. Co.,
108 F.2d 806 (2 Cir.1940); Backus v. Ames, 79 Minn. 145, 81 N.W. 766 (1900); Pennsylvania R.
Co. v. Yingling, 148 Md. 169, 129 A. 36, 41 A.L.R. 398 (1925); Kirshenbaum v. General Outdoor
Advertising Co., 258 N.Y. 489, 180 N.E. 245, 84 A.L.R. 645 (1932), reargument denied 259 N.Y.
525, 182 N.E. 165, 84 A.L.R. 653.

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C.A.2
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C.A.4

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