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. Thomason, 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. 

11/21/2017
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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. 
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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)2or 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.
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Third Person for Negligent Performance of Undertaking)3provided 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.
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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 
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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,4a 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.”). 
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(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 nondisclosure.” 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 
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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).
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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. 
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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.
- 11 -

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-COAR3-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. 
- 12 -

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. 
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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 
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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 
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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 
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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