                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

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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

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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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