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Kraus v. Hy-Vee11/9/2004
e held liable for a breach of this duty.
39 Am. Jur. 2d Highways, Streets, and Bridges Section 407 (1999).
That is certainly the gravamen of the allegations against Transystems: that it conducted a traffic study for MHTC and the other defendants; that the study was vague and incorrect; that Transystems failed to recommend the immediate installation of an electric traffic light; that the other defendants relied upon Transystems' professional advice in deciding not to install electric traffic lights; and that Ms. Kraus and her family were harmed as a result of this reliance upon Transystems' defective work.
Missouri courts have analyzed a party's duty under section 324A in other cases. See, e.g., Bowman v. McDonald's Corp., 916 S.W.2d 270, 287 (Mo. App. W.D. 1995) ("Missouri courts have recognized that a duty may be assumed or undertaken, and when so assumed, a defendant must exercise reasonable care in carrying out the duty. Such a duty is reflected in the language of section 324A of the Restatement (Second) of Torts.") (citations omitted), overruled on other grounds as stated in Richardson v. Quiktrip Corp., 81 S.W.3d 54, 62-63 n.9 (Mo. App. W.D. 2002); Plank v. Union Elec. Co., 899 S.W.2d 129, 131-32 (Mo. App. E.D. 1995) (holding that a valid cause of action under section 324A(b) requires showing of intent to become primary provider of service for the protection of a third person and recognizing that duty can arise under section 324A(a) where there is a showing of increased risk or section 324A(c), where there is a showing of reliance); Brown v. Mich. Millers Mut. Ins. Co., 665 S.W.2d 630, 632-36 (Mo. App. W.D. 1983) (recognizing potential for liability under both Restatement and common law principles).
Although Missouri courts evidently have not considered section 324A in the context presented here, the Kansas Supreme Court has applied section 324A in a somewhat similar case. See Schmeck v. City of Shawnee, 651 P.2d 585 (Kan. 1982). In Schmeck, a motorcycle passenger suffered severe injuries after the motorcycle collided with a car that was making a left turn at an intersection. Id. at 588-89. The intersection did not have a left-turn signal. Id. at 589. Among other things, the evidence showed that the local power company had agreed to provide to the city traffic engineering services, including the design and installation of a traffic control system for the intersection and that the traffic control system had not yet been installed when the collision occurred. Id. at 590-91. The passenger alleged that the scope of the duty assumed by the power company included protecting her. See id. at 596.
The Kansas Supreme Court agreed. The court rejected the power company's first argument that " ts only obligation was contractual and having contracted with the City, no duty was created for the benefit of the plaintiff." Id. Noting that this argument was one based on a third-party beneficiary concept, the court found it lacking because the passenger's action was a tort action, not a contract action, and therefore the arguments regarding third-party beneficiaries and privity were irrelevant. Id. at 596-97.
The court also rejected the power company's second argument that "a contractor owes no duty to the general public for legal nonfeasance or failure to act." Id. at 596. Because the traffic control system had not been installed at the time of the collision, the power company maintained that the action against it was based upon its failure to act, which was nonfeasance and which did not create a duty. Id. at 597. The court said:
Clearly [the passenger's] cause of action against KCPL is based on the active negligence of KCPL in undertaking t
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