A safety consultant hired by an employer owes employees a duty of care under the common law theory of negligent undertaking as stated in Restatement Second of Torts section 324A so long as the employee satisfies the five elements of a negligent undertaking cause of action in Artiglio v. Corning Inc. (1998) 18 Cal.4th 604. A safety consultant’s services are of the type that the consultant should realize are for the protection of the employees (Artiglio‘s second element). The safety consultant may be liable even if it does not fully assume the employer’s safety obligations to its employees. Civil Code section 2343 does not preclude liability on this theory. It states that an agent is liable to third parties for acts “wrongful in their nature”—which simply means tortious, not that the agent is liable only for affirmative malfeasance as opposed to negligent omissions.
California Court of Appeal, Fifth District (Franson, J.); July 30, 2018; 2018 Cal. App. LEXIS 664