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The post below was published on Tuesday, December 21st, 2010 at 9:00 AM.

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Fourth District: Undertaker’s Doctrine

The “undertaker’s doctrine” recognizes that, by performing certain actions, a person can accept a duty of care that would otherwise not apply to that person. One such action occurs where a person undertakes to perform a duty that a second person owes to a third person.

Assume another person owes a third person a negative duty — a duty not to do something. Can you undertake to perform that duty? In this decision, the Fourth District considered whether a person who took his intoxicated brother’s car keys undertook what the court characterized as a duty the brother owed to third persons not to drive while intoxicated. Holding that the person did not, the court stated that one cannot undertake to perform “another’s duty of inaction.”

The case contains interesting discussions regarding duties, including a discussion on whether the person could be liable for negligently entrusting the brother with the brother’s own car.

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