                                                                                        11/21/2017
                 IN THE SUPREME COURT OF TENNESSEE
                            AT NASHVILLE
                               October 6, 2016 Session

               CHARLES GROGAN v. DANIEL UGGLA, ET AL.

                  Appeal by Permission from the Court of Appeals
                       Circuit Court for Williamson County
                  No. 2011-443       James G. Martin, III, Judge
                     ___________________________________

                            No. M2014-01961-SC-R11-CV
                       ___________________________________

In this case, the plaintiff Charles Grogan was injured when he fell from a second story
deck that had not been properly constructed but had recently been inspected by the
defendant Jerry Black, a home inspector hired by homeowner Daniel Uggla. Defendant
Black was a franchisee of defendant Pillar to Post, Inc. The trial court granted summary
judgment in favor of the defendants, and the Court of Appeals affirmed the trial court.
We granted this appeal to consider as a matter of first impression in this state whether a
home inspector is subject to liability for the physical harm suffered by a social guest of
the home inspector’s client. We conclude that the defendants successfully negated
essential elements of the claims of negligent misrepresentation and negligent inspection
such that summary judgment was appropriate in this case. Accordingly, the Court of
Appeals and the trial court judgments are affirmed.

   Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals
                                    Affirmed

ROGER A. PAGE, J., delivered the opinion of the court, in which JEFFREY S. BIVINS, C.J.,
and CORNELIA A. CLARK, JJ. joined. HOLLY KIRBY, J., filed a separate opinion
concurring in part, dissenting in part. SHARON G. LEE, J., filed a dissenting opinion.

Matthew E. Wright, Franklin, Tennessee; and Edmund J. Schmidt III, Nashville,
Tennessee, for the appellant, Charles Grogan.

Daniel W. Olivas, Nashville, Tennessee, and Brian S. Faughnan, Memphis, Tennessee,
for the appellees, Jerry Black and Pillar To Post, Inc.

Leslie Curry Bay, Nashville, Tennessee; and Harry S. Rosenthal, Ambler, Pennsylvania,
for the Amicus Curiae, American Society of Home Inspectors.
                                              OPINION

                                I. Facts and Procedural History

        The basic facts of this case are simply explained. Before Daniel Uggla purchased
a home in Franklin, Tennessee, he, through his brother, hired a home inspector to inspect
the house. The home inspector noted problems with the deck flooring of the second story
deck but not with the railing. As a condition of the sale, the former homeowners replaced
the deck flooring. The contractor who replaced the flooring did not work on the deck
railing. During a social gathering hosted by Mr. Uggla after moving into the home, the
plaintiff fell from the second story deck when the deck railing collapsed, and he sustained
severe injuries. A forensic examination of the railing showed that it had been improperly
constructed using interior finishing nails rather than galvanized nails. The plaintiff
subsequently filed a complaint against the homeowner, the previous owner, the contractor
who had replaced the deck boards, the home builder, and the home inspector. The home
inspector and the home inspection franchise are the defendants now before us.1

        In the plaintiff’s second amended complaint, he alleged that the defendants

        knew or in the exercise of reasonable care as a professional inspector
        should have known that the second floor rear exterior deck railing was
        constructed with interior finishing nails in violation of local, state[,] and
        national building codes, and constituted an unreasonable risk of harm since
        it could not withstand reasonable force to prevent someone from falling
        from the second floor exterior deck.

The plaintiff further alleged that the defendants “did not perform a pressure test in order
to determine the amount of force that the second floor rear exterior deck railing could
have withstood in compliance with applicable building codes.” Finally, the plaintiff
alleged that the defendants “failed to report that the second floor exterior deck railing was
negligently constructed in violation of local, state[,] and national building codes and
constituted an unreasonable risk of harm” and that their negligence caused the plaintiff’s
injuries.

       In the course of the litigation, Daniel Uggla testified by deposition that he wanted
the property inspected “to make sure that everything is okay, up-to-date. If something

        1
           The record shows that the home builder, the previous homeowner, and the present homeowner
settled the claims against them, and the plaintiff voluntarily dismissed his claim against the contractor
who replaced the deck boards.

                                                 -2-
was not right, I wanted it fixed. . . . [and to] [m]ake sure it was a good buy as well.” He
testified that after the inspection, his brother told him that the inspector “recommend[ed]
to change the . . . deck. Said that he didn’t have to. But [the inspector] said it looked old
. . . . [but] [d]idn’t ever say it was dangerous.” His brother Mike Uggla testified that he
wanted to have an inspection to protect against “scenarios of termites . . . carbon
monoxide . . . structural damage . . . to make sure you’re buying . . . a good quality
house.” He agreed that he relied on the inspector to tell him “what needed to be done.”

       The defendant home inspector testified in his deposition that his “job is to provide
information to [his] client so that they can make an informed decision about the house
that they want to buy.” He stated that he did not see any visual damage to the deck
railings and that the deck railings felt “firm and well anchored.” He also stated that if
there had been movement, he would have reported it as “a safety risk.” The defendant
home inspector agreed in response to a question on cross-examination that one purpose of
a home inspection is to assure the safety of the occupants of the home. In his report, he
noted warping on the deck, and as a result the Ugglas requested that the owners of the
home have the deck flooring replaced. The defendant home inspector confirmed that he
was not a building codes inspector.

        After filing an answer denying all liability, the defendants moved for summary
judgment. In the motion for summary judgment, the defendants characterized the
plaintiff’s claim as negligent misrepresentation and argued that reliance on the home
inspection report was a required component of such a claim, a requirement not met by the
plaintiff. The defendants added that “as a matter of law, home inspectors do not owe any
duty to third parties like Mr. Grogan.” The trial court granted summary judgment to the
defendants.

      The plaintiff appealed to the Court of Appeals and argued that either Restatement
(Second) of Torts section 311 (1965) (Negligent Misrepresentation Involving Risk of
Physical Harm)2 or Restatement (Second) of Torts section 324A (1965) (Liability to

       2
           Restatement (Second) of Torts section 311 states:

               (1) One who negligently gives false information to another is subject to liability
       for physical harm caused by action taken by the other in reasonable reliance upon such
       information, where such harm results

                 (a) to the other, or

                 (b) to such third persons as the actor should expect to be put in peril by the action
       taken.

                                                    -3-
Third Person for Negligent Performance of Undertaking)3 provided him a cause of action
and that material facts were in dispute such that summary judgment was inappropriate.
See Grogan v. Uggla, No. M2014-01961-COA-R3-CV, 2015 WL 5601995, at *4 (Tenn.
Ct. App. Sept. 22, 2015), perm. app. granted (Tenn. Feb. 18, 2016). The Court of
Appeals rejected the plaintiff’s arguments, reasoning that section 324A was not
applicable due to the limitations on the scope of a home inspector’s duty as defined by
the Tennessee Home Inspector License Act, 2005 Tenn. Pub. Acts, c. 65, and the contract
between the defendants and their client, Mr. Uggla. Id. at *4-5. The Court of Appeals
declined to apply section 311 because it has not previously been adopted in this state. Id.
at *6. The Court of Appeals then undertook an analysis of the common law factors for
determining whether a duty of care had arisen and concluded that it had not. Id. at *6-7.
Finally, the Court of Appeals determined that the facts alleged by the plaintiff to be
disputed and material did not affect the conclusion that the defendants did not owe the
plaintiff a duty of care. Id. at *8. We accepted plaintiff’s application for permission to
appeal.

                                       II. Standard of Review

      This is an appeal from the trial court’s grant of the defendants’ motion for
summary judgment. As such, we review the trial court’s ruling de novo, with no
presumption of correctness. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). Under
Tennessee Rule of Civil Procedure 56.04, summary judgment is appropriate “if the


                (2) Such negligence may consist of failure to exercise reasonable care

                (a) in ascertaining the accuracy of the information, or

                (b) in the manner in which it is communicated.
      3
          Restatement (Second) of Torts section 324A states:

               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.

                                                   -4-
pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.” We must determine
whether the moving party satisfied its burden of production “either (1) by affirmatively
negating an essential element of the nonmoving party’s claim or (2) by demonstrating
that the nonmoving party’s evidence at the summary judgment stage is insufficient to
establish the nonmoving party’s claim or defense.” Rye v. Women’s Care Ctr. of
Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015) (emphasis omitted).

                                      III. Analysis

        In this case, there is a fundamental disagreement between the plaintiff and the
defendants over the cause of the action raised in the complaint. The trial court identified
the cause of action as negligent misrepresentation. The trial court granted summary
judgment because the defendants affirmatively negated essential elements of the
plaintiff’s complaint, namely by showing that the plaintiff was not a person for whose
benefit the defendants provided information and that the plaintiff did not rely on the
defendants’ information in any form. The Court of Appeals, however, framed the cause
of action in question as one of ordinary negligence, a broader and more general cause of
action than negligent misrepresentation, and it relied on the common law factors in its
analysis for determining when a duty is owed.

        In his second amended complaint, the plaintiff alleged that the defendant home
inspector knew or should have known that the deck railing did not meet applicable
building codes and “constituted an unreasonable risk of harm since it could not withstand
reasonable force to prevent someone from falling”; that the defendant home inspector
“did not perform a pressure test”; that the defendant home inspector “failed to report that
the second floor exterior deck railing was negligently constructed in violation of local,
state[,] and national building codes and constituted an unreasonable risk of harm”; and
that these actions were the proximate cause of the plaintiff’s injuries.

       In U.S. v Neustadt, the United States Supreme Court reasoned that negligence in
an inspection underlying a report was part of a claim of negligent misrepresentation.
Neustadt, 366 U.S. 696, 706-07 (1961). Several years later, however, the Court
acknowledged that a plaintiff might allege a separate cause of action when the negligent
conduct is separate from the communication of misinformation. See Block v. Neal, 460
U.S. 289, 296-97 (1983). The United States Court of Appeals for the Eighth Circuit has
interpreted Block v. Neal to mean that a plaintiff might allege both a negligent inspection
and negligent misrepresentation. See Appley Bros. v. U.S., 7 F.3d 720, 728 (8th Cir.
1993). However, as the Tenth Circuit points out, the issue in Block v. Neal was that the
governmental authority was also supervising the construction of the home, so the plaintiff
                                           -5-
alleged both negligent supervision and negligent misrepresentation, with the negligent
inspection being part of each claim. See Ecco Plains, LLC v. U.S., 728 F.3d. 1190, 1196
(10th Cir. 2013). In this case, the plaintiff has presented allegations separate from
communication of misinformation. Therefore, we conclude that the plaintiff’s complaint
fairly raises both negligent misrepresentation (by way of his allegation that the defendant
home inspector failed to report negligent construction) and ordinary negligence (by way
of his other allegations that amount to a claim that the defendant home inspector
negligently performed the inspection).

                                 A. Negligent Misrepresentation

      The plaintiff in this case alleges negligent misrepresentation involving the risk of
physical harm,4 a tort that we have neither specifically rejected nor adopted in this state.
The Restatement (Second) of Torts section 311 gives the following definition:

               (1) One who negligently gives false information to another is subject
        to liability for physical harm caused by action taken by the other in
        reasonable reliance upon such information, where such harm results

                (a) to the other, or

               (b) to such third persons as the actor should expect to be put in peril
        by the action taken.

                (2) Such negligence may consist of failure to exercise reasonable
        care

        4
             The concurring opinion contends that the plaintiff has not asserted a claim of negligent
misrepresentation but rather a failure-to-warn claim. Home inspectors are professionals in the business of
“sell[ing] their expert analysis and opinion.” Russell v. Bray, 116 S.W.3d 1, 6 (Tenn. Ct. App. 2003). In
other words, they are in the business of obtaining and communicating information, and negligent
misrepresentation may be defined as the negligent failure to “use due care in obtaining and
communicating information upon which [the recipient] may reasonably be expected to rely,” Neustadt,
366 U.S. at 706, either in the course of his economic affairs as encompassed by the Restatement (Second)
of Torts section 552 (1977) or in any other situation that results in physical harm under Restatement
(Second) of Torts section 311. Thus, negligent misrepresentation is the gravamen of the plaintiff’s
contention that the home inspector failed to report the defect. In addition, even if a failure-to-warn claim
were presented by the complaint, such a claim would be subsumed in the negligent inspection claim
because the same duty analysis would apply. See Bradshaw v. Daniel, 854 S.W.2d 865, 872-73 (Tenn.
1993) (imposing “upon a physician an affirmative duty to warn identifiable third persons in the patient’s
immediate family against foreseeable risks emanating from a patient’s illness” based upon “the existence
of the physician-patient relationship.”).

                                                   -6-
               (a) in ascertaining the accuracy of the information, or

               (b) in the manner in which it is communicated.

        While we do not foreclose the possibility of recognizing the tort of negligent
misrepresentation involving physical harm, we decline to do so in this case because the
plaintiff has failed to allege that the defendant negligently gave false information.
Section 311 “by its own terms requires an affirmative misstatement, not just a non-
disclosure.” McLachlan v. New York Life Ins. Co., 488 F.3d 624, 630 (5th Cir. 2007); see
also Randi W. v. Muroc Joint Unified Sch. Dist., 929 P.2d 582 (Cal. 1997) (holding that
defendants’ letters of recommendation “constituted affirmative representations” that
“were false and misleading”); Bd. of Educ. Of City of Chicago v. A, C and S, Inc., 546
N.E.2d 580, 593 (Ill. 1989) (instructing that on remand the plaintiff had to show that “the
defendants knew or should have known of the dangerous propensity” of their product and
that “statements made were to induce the plaintiffs to purchase the products”); Bloskas v.
Murray, 646 P.2d 907 (Colo. 1982) (holding that the evidence was sufficient to submit
the claim of negligent misrepresentation to the jury when a doctor lied about having
participated in ankle replacement surgery in the past and by assuring the patient that his
concern about amputation was unfounded despite there being a risk of amputation); Hall
v. Ford Enterprises, Ltd., 445 A.2d 610 (D.C. 1982) (holding that the statement
“protected by Scott Detective Agency, Ltd.” on a decal on the front of an apartment
building was not a guarantee of safety and that the plaintiff “failed to establish the
communication of false information”). Although the comments to section 311 include an
illustration about a boiler inspection, that illustration involves the inspector issuing a
certificate of safety, in other words, an affirmative false statement that the boiler was
safe, when in fact it was not. Restatement (Second) of Torts § 311, cmt. d. The
undisputed material facts in this case are that the home inspector failed to discover any
defect in the deck railing and that as a result he did not report any defect. The home
inspector did not affirmatively state that the deck railing was safe. Thus, even if we were
to adopt section 311, the facts here foreclose the possibility of the plaintiff proving that
the defendant home inspector gave false information to his client. See Restatement
(Second) of Torts § 311(1); see Smith v. Brutger Companies, 569 N.W.2d 408, 413-15
(Minn. 1997) (affirming summary judgment on the plaintiff’s misrepresentation claim
without affirmatively rejecting or adopting section 311).5

       5
         We have recognized the tort of negligent misrepresentation in cases involving pecuniary harm.
John Martin Co., Inc. v. Morse/Diesel, Inc., 819 S.W.2d 428, 431 (Tenn. 1991) (citing Restatement
(Second) of Torts section 552 ). “Tennessee has adopted the Restatement (Second) of Torts § 552 as the
guiding principle in negligent misrepresentation actions against other professionals and business

                                                -7-
                                       B. Negligent Inspection

       The plaintiff has also alleged ordinary negligence in the form of a negligent
inspection. The elements of negligence are well-established:

        In order to establish a prima facie claim of negligence, basically defined as
        the failure to exercise reasonable care, a plaintiff must establish the
        following essential elements: “(1) a duty of care owed by defendant to
        plaintiff; (2) conduct below the applicable standard of care that amounts to
        a breach of that duty; (3) an injury or loss; (4) cause in fact; and (5)
        proximate, or legal, cause.”

Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 364 (Tenn. 2009) (quoting McCall v.
Wilder, 913 S.W.2d 150, 153 (Tenn. 1995)).

        “Duty is a legal obligation to conform to a reasonable person standard of care in
order to protect others against unreasonable risks of harm.” Satterfield v. Breeding
Insulation Co., 266 S.W.3d 347, 355 (Tenn. 2008). The dissent contends that the
defendants’ conduct in this case should be analyzed based on the factors considered in
Satterfield6; however, the Satterfield Court quoted with approval the principles applicable
to liability for physical harm contained in the Restatement (Third) of Torts:



persons.” Bethlehem Steel Corp. v. Ernst & Whinney, 822 S.W.2d 592, 595 (Tenn. 1991). However, the
plaintiff has not alleged pecuniary harm in this case. In addition, relief under section 552 requires
justifiable reliance on the part of the plaintiff, and contrary to the plaintiff’s assertion that the reliance
element is met when a home inspector’s client relies on the home inspector’s information, Bethlehem
Steel indicates that it is the injured plaintiff who is the party that must show reliance on the information.
Id. at 596; see also John Martin Co., Inc., 819 S.W.2d at 431-32.
         6
           The Satterfield court listed the following non-exclusive factors for determining the existence of
a duty of care:

        (1) the foreseeable probability of the harm or injury occurring; (2) the possible magnitude
        of the potential harm or injury; (3) the importance or social value of the activity engaged
        in by the defendant; (4) the usefulness of the conduct to the defendant; (5) the feasibility
        of alternative conduct that is safer; (6) the relative costs and burdens associated with that
        safer conduct; (7) the relative usefulness of the safer conduct; and (8) the relative safety
        of alternative conduct.

Satterfield, 266 S.W.3d at 365 (citations omitted).


                                                      -8-
        Even when the actor and victim are complete strangers and have no
        relationship, the basis for the ordinary duty of reasonable care . . . is
        conduct that creates a risk to another. Thus, a relationship ordinarily is not
        what defines the line between duty and no-duty; conduct creating risk to
        another is.

Id. at 362–63 (quoting the Restatement (Third) of Torts: Liab. for Physical and Emotional
Harm § 37, Reporter’s Note, cmt. c (October 2017 Update) (hereinafter “Restatement
(Third) of Torts”)) (emphasis added). Section 37 of the Restatement (Third) of Torts
states that “[a]n actor whose conduct has not created a risk of physical or emotional harm
to another has no duty of care to the other unless a court determines that one of the
affirmative duties provided in [other sections of the Restatement] is applicable.”

        In the comments to section 37, the authors of the Restatement give an illustration
that mirrors this case: an inspector fails to identify a source of harm during an inspection,
and a person is injured by that source of harm. Restatement (Third) of Torts § 37, cmt. c.
In the Restatement’s illustration, the inspector’s “conduct did not create a risk of harm”
to the injured person, so whether the inspector had a duty of care would be governed by
the Affirmative Duties chapter of the Restatement (Third) of Torts, which includes an
update to Restatement (Second) of Torts section 324A, Liability to a Third Person for
Negligent Performance of an Undertaking.7 Id., illus. 1. Here, the inspector failed to
identify a source of harm, and an injury resulted; thus, based on the reasoning of the
Restatement, the defendant home inspector did not create a risk of harm and therefore
whether he has a duty of care would be analyzed under theories of affirmative duties
rather than the more generalized duty of care evaluated by the Satterfield duty factors.

       This Court has not previously considered a case involving an allegedly negligent
home inspection. In reviewing cases from other jurisdictions, if we narrow our focus to
cases involving home inspections, we find few involving potential liability to a third
party for a negligently-performed home inspection. See, e.g., Oliveira v. Jensen, No.
HHDCV136045373S, 2015 WL 9809752, at *11 (Conn. Super. Ct. Dec. 7, 2015)
(defendant home inspection company failed to establish that it was entitled to summary
judgment).




        7
           The parties have not suggested that this Court should adopt Restatement (Third) of Torts
section 43, the update to Section 324A. For the purposes of this case, adoption of section 43 would not
change the outcome, and therefore, it is unnecessary at this time to decide whether it should be adopted,
especially when the caselaw relied upon herein is based on section 324A.

                                                 -9-
       However, if we broaden our focus slightly to include other types of contracted
inspections of property, we find numerous comparable cases. In these cases, courts have
considered whether one who assumes a contractual duty to inspect the property of
another may be held liable for physical injuries suffered by a third party. See generally
Frank J. Wozniak, Annotation, Breach of Assumed Duty to Inspect Property as Ground
for Liability to Third Party, 13 A.L.R. 5th 289 (originally published in 1993) (most recent
case from 2014) (collecting cases). These cases involve a wide range of inspections, such
as cases in which an insurance company, a liability and maintenance company, a
franchisor, or the like, has inspected elevators, escalators, boilers, hotels, trailer parks,
apartment buildings, stores, gaslines, appliances, trees, docks and piers. Id. at § 2[a]
Summary and comment—Generally.

        While the facts and results vary widely, the majority of these negligent-inspection
cases utilize Section 324A of the Restatement (Second) of Torts as a framework for
determining whether a particular defendant may be held liable to a third party for
physical harm resulting from an allegedly negligent contractual inspection.8 Id.; see also
id. at § 2[b] Summary and comment—Practice pointers (offering practice advice gleaned
from the collected cases pursuant to Section 324A). Indeed, the illustrations to Section
324A include two negligent-inspection cases.9

        8
           Numerous state courts have cited Section 324A in their analysis of negligent inspection claims.
See, e.g., Commercial Union Ins. Co. v. DeShazo, 845 So. 2d 766, 769 (Ala. 2002); Van Biene v. ERA
Helicopters, Inc., 779 P.2d 315, 322 (Alaska 1989); Patton v. Simone, 626 A.2d 844, 849 (Del. Super. Ct.
1992); Huggins v. Aetna Cas. & Sur. Co., 264 S.E.2d 191, 192 (Ga. 1980) (describing Section 324A as
the “majority rule” in negligent inspection cases); Thompson v. Bohlken, 312 N.W.2d 501, 507 (Iowa
1981) (adopting Section 324A in negligent inspection cases); Gooch v. Bethel A.M.E. Church, 792 P.2d
993, 998 (Kan. 1990); Smith v. Allendale Mut. Ins. Co., 303 N.W.2d 702, 706 (Mich. 1981); In re
Norwest Bank Fire Cases, 410 N.W.2d 875, 878 (Minn. Ct. App. 1987); Brown v. Michigan Millers Mut.
Ins. Co., 665 S.W.2d 630, 632 (Mo. Ct. App. 1983); Dieter v. Hand, 333 N.W.2d 772, 775 (Neb. 1983);
Corson v. Liberty Mut. Ins. Co., 265 A.2d 315, 318-19 (N.H. 1970); Beury v. Hicks, 323 A.2d 788, 789-
90 (Pa. Super. Ct. 1974); Schoenwald v. Farmers Co-op. Ass’n of Marion, 474 N.W.2d 519, 520-21 (S.D.
1991); Seay v. Travelers Indem. Co., 730 S.W.2d 774, 775-76 (Tex. App. 1987); Murphy v. Sentry Ins.,
95 A.3d 985, 991-97 (Vt. 2014). The home inspection case cited above similarly analyzes the potential
liability of the defendant home inspector under the Section 324A framework. See Oliveira, 2015 WL
9809752, at *6 (relying on Gazo v. Stamford, 765 A.2d 505, 510 (Conn. 2001) (citing § 324A of the
Restatement (Second) of Torts)).
        9
            The illustrations in the comments to Section 324A include the following:

        2. The A Telephone Company employs B to inspect its telephone poles. B negligently
        inspects and approves a pole adjoining the public highway. Because of its defective
        condition the pole falls upon and injures a traveler upon the highway. B is subject to
        liability to the traveler.

                                                   - 10 -
        This Court has likewise applied Section 324A of the Restatement (Second) of
Torts. See Biscan v. Brown, 160 S.W.3d 462, 483 (Tenn. 2005) (holding that a parent
voluntarily assumed duty of reasonable care as to minors who attended his daughter’s
party at the parent’s home); see also Wallis v. Brainerd Baptist Church, 509 S.W.3d 886,
898 n.12 (Tenn. 2016) (observing that this Court has cited section 324A of the
Restatement (Second) of Torts “approvingly” but noting that the defendant in that case
did not undertake any duty as to the plaintiff). The underpinning of Section 324A is a
“well-worn” principle that Tennessee courts have applied “in a variety of factual
contexts,” namely, “[o]ne who assumes to act, even though gratuitously, may thereby
become subject to the duty of acting carefully.” Bennett v. Trevecca Nazarene Univ., 216
S.W.3d 293, 300 (Tenn. 2007) (holding that premises owner had assumed duty to provide
information to independent contractor regarding voltage of malfunctioning switchgear in
electrical equipment, so premises owner had duty of reasonable care to ensure that the
information provided was accurate); see also Stewart v. State, 33 S.W.3d 785, 793 (Tenn.
2000) (citing same principle); Marr v. Montgomery Elevator Co., 922 S.W.2d 526, 529
(Tenn. Ct. App.1995) (same); Ellington v. Jackson Bowling & Family Fun Ctr., L.L.C.,
No. W2012-00272-COA-R3-CV, 2013 WL 614502, at *11 (Tenn. Ct. App. Feb. 19,
2013) (citing Biscan, 160 S.W.3d at 483); Burks v. Kroger Co., No. M2008-02664-COA-
R3-CV, 2009 WL 4059145, at *9 (Tenn. Ct. App. Nov. 23, 2009) (applying Section
324A and stating that “the provision has been extensively cited and relied upon in cases
addressing the liability of a person for a breach of the assumed duty of reasonable care.”);
Collins v. Arnold, No. M2004-02513-COA-R3-CV, 2007 WL 4146025, at *14 (Tenn. Ct.
App. Nov. 20, 2007) (holding Section 324A applicable “regarding liability under a duty
that is voluntarily assumed” and that the trial court erred in refusing to give jury
instruction based on Section 324A); Downs ex rel. Downs v. Bush, 263 S.W.3d 812, 823
(Tenn. 2008) (applying Section 324A, holding there was a fact issue as to whether the
defendants undertook the duty to take charge of a “helpless” person).


       ***

       4. A Company employs B Company to inspect the elevator in its office building. B
       Company sends a workman, who makes a negligent inspection and reports that the
       elevator is in good condition. Due to defects in the elevator, which a proper inspection
       would have disclosed, the elevator falls and injuries C, a workman employed by A
       Company. B Company is subject to liability to C.

Restatement (Second) of Torts § 324A, illus. 2 and 4. We note that the defendants contend that Section
324A has no application to cases involving commercial transactions. Illustrations such as the one quoted
above in the comments to Section 324A, as well as the wide variety of negligent-inspection cases that
utilize the Section 324A structure for analysis, demonstrate that this contention has no merit.


                                                - 11 -
       Section 324A of the Restatement (Second) of Torts may be applied where a party
has undertaken to provide services to another.10 It provides structure for determining
potential liability to a third party who has suffered physical harm from the negligent
performance of the undertaking:

        §324A Liability to Third Person for Negligent Performance of Undertaking

               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.

Restatement (Second) of Torts § 324A. “[T]he question of whether one has assumed a
duty to act is . . . a question of law.” Stewart, 33 S.W.3d at 793.

        The defendants insist that there was no undertaking in this case that would
implicate Section 324A. They argue that a home inspection is not a safety inspection;
rather, the purpose of home inspections is merely to provide information to facilitate a
real estate transaction. They note that the Tennessee statutes and regulations regarding
home inspections specify that the inspection is visual and not a building code inspection.
In response, the plaintiff points to the same statutes and regulations, contending that they
show that home inspections include safety considerations. He emphasizes that Tennessee
regulations specifically require the home inspector to inspect “[d]ecks, balconies,. . . and
applicable railings.” Tenn. Comp. R. & Regs. 0780-05-12-.10(13)(a)(4.).


        10
           The comments to Section 324A explain that the rule stated in Section 324A “parallels the one
stated in § 323, as to the liability of the actor to the one to whom he has undertaken to render services.”
Restatement (Second) of Torts § 324A, cmt a.

                                                  - 12 -
       In this case, we need not make a broad determination regarding whether
Tennessee statutes and regulations mandate that a home inspection include safety
considerations. As outlined in the recitation of the facts, the home inspector in this case
gave deposition testimony in which he conceded that one of the goals of a home
inspection is to make sure that the home is safe for the persons who will occupy it and
that he specifically undertook to inspect the deck railings in the home purchased by Mr.
Uggla, by visual observation and physical movement, to determine if they would be safe.
But the boundaries of the defendants’ undertaking are circumscribed by the parameters of
the evidence, in particular the inspection agreement and the deposition testimony, in
addition to the pertinent statutes. Although the plaintiff’s claim against the defendants is
properly analyzed under Section 324A, the plaintiff is not entitled to relief.

       Section 324A describes the services rendered as services which the actor should
recognize would be necessary for the protection of a third party. Under Restatement
section 324A, a duty can only be imposed “to the extent actually assumed by the
defendant.” See Homer v. Pabst Brewing Co., 806 F.2d 119, 121 (7th Cir. 1986)
(applying Illinois law under the voluntary undertaking doctrine); see also Evans v. Arise
Inc., 2008 WL 5429835 (W.D. Tenn. 2008) (applying Tennessee law); Eaves Brooks
Costume Co. v. Y.B.H. Realty Corp., 556 N.E.2d 1093, 1096 (N.Y. 1990). In other
words, “[t]he foundation of the . . . rule is that the defendant specifically has undertaken
to perform the task that he or she is charged with having performed negligently.”
Patentas v. U.S., 687 F.2d 707 (3rd Cir. 1982). In this case, the evidence of the
defendant’s undertaking includes the agreement between himself and the Ugglas, the
deposition testimony, and the relevant statutes and regulations. See Eaves Brooks
Costume Co., 556 N.E.2d at 1096 (“While [the] plaintiff is not bound by the provisions of
a contract to which it is not a party, the limited scope of defendants’ undertaking is
nonetheless relevant in determining whether a tort duty to others should arise from their
performance of the contractual obligations.”).

        The complaint in this case alleges that the defendant home inspector knew or
should have known that the deck railing did not meet applicable building codes. In other
words, the undertaking according to the plaintiff’s allegations was that the home
inspector inspected for building code violations. Indeed, in his response to the
defendant’s motion for summary judgment, the plaintiff specified that the defendant’s
failure to identify defective nails that violated the local building code and his failure to
determine that the railing could not withstand the 200 pounds of lateral pressure required
by the local building code amounted to a negligent home inspection. Thus, under Section
324A, the plaintiff is arguing that the defendant voluntarily assumed a duty to protect the
plaintiff by performing a building codes inspection on the deck railing and should be
subject to liability for the plaintiff’s physical harm resulting from the defendant’s failure
to exercise reasonable care in performing the building codes inspection. However, based
                                           - 13 -
on the statutes, regulations, deposition testimony, and agreement between the parties, the
defendant home inspector did not undertake a building codes inspection. The agreement
between the defendant home inspector and his client states that the inspection is visual
only and not a building code inspection. The defendant home inspector testified that he is
not a building codes inspector. In addition, the statutes state that a home inspection is not
“a compliance inspection for building codes.” Tenn. Code Ann. § 62-6-302(3)(B)
(2009). A building codes inspection was outside the scope of the services rendered by
the defendant home inspector, and he cannot be held liable for failure to perform a
building codes inspection with reasonable care.

       The agreement includes other language that limits the scope of the undertaking:

    The Inspector does not offer an opinion as to the advisability or
     inadvisability of the purchase of the property, its value or its potential use.

    [I]t is a reasonable effort to disclose the condition of the house based on a
     visual inspection.

    Conditions beyond the scope of the inspection will not be identified. No
     engineering services are offered.

    This Inspection Report is based on the condition of the Property existing
     and apparent as of the time and date of the inspection. Not all conditions
     may be apparent on the inspection date due to weather conditions,
     inoperable systems, inaccessibility of areas of the Property, etc. A defect
     that was apparent on any date prior to the inspection date may not be
     apparent on the inspection date. Without dismantling the house or its
     systems, there are limitations to the inspection. Throughout any inspection,
     inferences are drawn which cannot be confirmed by direct observation.
     Clues and symptoms often do not reveal the extent or severity of problems.
     Therefore, the inspection and subsequent Inspection Report may help
     reduce the risk of purchasing the property; however, an inspection does not
     eliminate such risk nor does the Inspector assume such risk. While some of
     the less important deficiencies are addressed, an all inclusive list of Minor
     building flaws is not provided. Inspector is neither responsible nor liable for
     the non-discovery of any patent or latent defects in materials, workmanship,
     or other conditions of the Property, or any other problems which may occur
     or may become evident after the inspection time and date. Inspector is
     neither an insurer nor guarantor against defects in the building and
     improvements, systems or components inspected. Inspector makes no
     warranty, express or implied, as to the fitness for use or condition of the
                                           - 14 -
       systems or components inspected. Inspector assumes no responsibility for
       the cost of repairing or replacing any unreported defects or conditions, nor
       is Inspector responsible or liable for any future failures or repairs.

        In addition, the defendant home inspector testified that the agreement was to
inspect the property for the client. The inspection agreement evidences an expectation by
the home inspector that the inspection was for the benefit of the client only. The
agreement is between the defendant home inspector and his client and is addressed to the
client while also noting that the inspection report would be provided to the client’s
representative and his real estate agent. The agreement states that “[t]he inspection report
is provided solely for the benefit of the Client and may not be relied upon by any other
person.” The statutes, rules, and regulations governing home inspections also indicate
that inspections are for the client’s benefit. For example, the standards of practice state
that a home inspection “performed according to this rule shall provide the client with an
understanding of the property conditions at the time of the home inspection.” Tenn.
Comp. R. & Regs. 0780-05-12-.10(3)(a) (emphasis added). Tennessee Code Annotated
section 62-6-308 (2009 & 2017 Supp.) provides that a home inspector can be disciplined
for failing to disclose to his client any financial interest or relationship that would affect
the client’s interest and for disclosing the results of a home inspection to anyone without
the client’s approval. Thus, the defendant home inspector’s duty as circumscribed by the
agreement and the relevant statutes is owed to the client. While the defendant home
inspector agreed during his deposition that the inspection was partly to identify safety
risks for the eventual occupiers of the house, nothing in the defendant home inspector’s
deposition testimony or any other evidence presented indicated that he undertook an
additional duty to protect third parties.

        The defendant home inspector did not undertake a building codes inspection, and
there is no evidence that he voluntarily assumed a duty beyond what he owed to his
client. Therefore, we conclude that the defendants did not render services that they knew
or should have known was for the protection of third parties because their services were
for the benefit of their client alone and that they therefore did not assume a duty to the
plaintiff. Accordingly, the defendants have negated the essential element of duty, and
summary judgment was appropriate.

                                      CONCLUSION

        We conclude that summary judgment on the negligent misrepresentation claim
was appropriate because the plaintiff has not alleged facts that would constitute an
actionable claim of negligent misrepresentation involving the risk of physical harm. We
also conclude that the defendants did not owe or assume a duty of care toward the
plaintiff and thus that summary judgment was appropriate with regard to the negligent
                                           - 15 -
inspection claim. Therefore, we affirm the decision of the trial court and the Court of
Appeals. Costs are assessed to the plaintiff, Charles Grogan.


                                        _______________________________
                                        ROGER A. PAGE, JUSTICE




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