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Dow Chemical Company v. Mahlum12/31/1998
nough to create joint liability when they plant the seeds of action and are spoken by a person in an apparent position of authority) . The Mahlums failed to prove the existence of direct communication from Dow Chemical to Dow Corning, or close conduct, that could have promoted a fraud. Accordingly, we reverse that portion of the judgment imposing liability on Dow Chemical for aiding and abetting fraudulent misrepresentations. In light of our reversal of the intentional tort claims, we also vacate the district court's award of punitive damages.
E. Negligent Performance of an Undertaking
In contrast to the fraud claims, substantial evidence in the record supports the verdict against Dow Chemical with respect to the claim of negligent performance of an undertaking. We therefore conclude that the judgment with respect to this claim must be affirmed. The trial court's jury instruction was consistent with Restatement (Second) of Torts section 324A, which provides as follows:
"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 perform 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 section 324A (1979) [hereinafter section 324A] This section reflects the "Good Samaritan" doctrine.
The Mahlums contend that Dow Chemical effectively undertook to test completely and adequately the safety of the liquid silicone used in Dow Corning's breast implants and negligently performed that undertaking. Dow Chemical asserts that it did not undertake to test the safety of Dow Corning's silicone gel breast implants or the liquid silicone used therein. Dow Chemical maintains that the tests it performed for Dow Corning over a thirty-year period were unrelated to breast implants and that the other evidence relied on by the Mahlums to establish liability, such as the services rendered by Dr. Rowe, equally failed to demonstrate an undertaking. We disagree.
As an initial matter, Dow Chemical contends that the Mahlums must demonstrate that Dow Chemical undertook a duty with respect to the specific product (Silastic II breast implants) that caused Charlotte Mahlum's harm. Section 324A, however, includes no such requirement. As the federal district court concluded in In re Silicone Gel Products Liability Litigation, 887 F. Supp. 1455, 1460 (N.D. Ala. 1995),
"Dow Chemical's reading of [section] 324A is too restrictive. That section provides that one who undertakes services on behalf of another assumes a duty to use due care. The proper focus of the inquiry is whether Dow Chemical undertook to perform services to Dow Corning that Dow Chemical should have recognized were necessary for the protection of third persons. The undertaking creates a duty that would not otherwise exist. Dow Chemical's argument that liability for negligent undertaking can arise only as to • specific final product takes too narrow • view of negligent undertaking analysis. Liability can arise when it is reasonably foreseeable that another will be harmed by the failure to exercise reasonable care in performing such an undertaking."
In addition, Dow Chemical argues that the issue of whether it owed a duty to the Mahlums was improperl
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