What is The Voluntary Undertaking Doctrine Concerning Rendering Aid After an Auto Accident?
A recent appeal arose from a tragic fatal vehicular collision involving a motorist and a bicyclist. At issue was the “Voluntary Undertaking Doctrine.”
The plaintiff, as next of kin and as administrator of his son’s estate, appealed from the trial court’s order granting the defendant’s motion to dismiss. The plaintiff argued that the trial court erred in granting the motion by: (1) holding that the statutory duty to render aid and support under O.C.G.A. § 40-6-270 only applied to drivers and couldn’t be voluntarily undertaken by another; (2) failing to recognize that the defendant voluntarily assumed the driver’s statutory duty to render aid; and (3) determining that a voluntary undertaking requires a personal or financial interest.
Cyclist and Motorist Involved in Accident
On September 11, 2019, a motorist attended a county fair and then drove to Cedartown, Georgia. He drove along North Main Street, and at the same time, a bicyclist was on the street going the same direction as the motorist. The vehicle struck the bicyclist from behind, causing him to be thrown onto the hood and windshield of the vehicle. The motorist’s vehicle sustained extensive damage from the impact, including a shattered windshield and a caved-in hood. But the motorist didn’t stop, call 911, or look for the bicyclist. Instead, he called the defendant—an attorney and member of the Georgia House of Representatives—and asked him to meet him at a nearby gas station. The motorist took him to the scene of the accident, and the attorney saw a bicycle on the side of the road. The attorney also didn’t call 911 but instead called a senior partner at his law firm.
The attorney also called the Chief of the Cedartown Police Department. The attorney told him that the motorist hit “something” and that he saw a bike in the ditch. According to the plaintiff, the police department’s procedures require officers to notify dispatch when alerted about a seriously injured person. But the chief didn’t notify dispatch and instead called one of his officers and told him that he thought a person had been hit. He also instructed the officer to meet the attorney at the scene.
The officer went to the scene and met with the attorney and the motorist, and the motorist told him that he hit “a deer” or “possibly a person.” The officer noted the damage to the motorist’s vehicle and then searched the roadway. He found a red mountain bicycle, and approximately 20 feet from the bicycle, he saw the bicyclist in an embankment in a ditch lying on his back with severe injuries. The officer called for first responders, but the victim ultimately succumbed to his injuries later that evening, and his death was ruled a vehicular homicide. The motorist was later convicted of leaving the scene of an accident resulting in death (O.C.G.A. § 40-6-270(b)) and was sentenced to five years’ imprisonment.
On September 13, 2021, the plaintiff filed a lawsuit against the motorist, the attorney, the police chief, the Cedartown Police Department, and the City of Cedartown. The plaintiff asserted claims for wrongful death and punitive damages.
The attorney and the Chief filed separate motions to dismiss. The attorney argued that the complaint should be dismissed because he didn’t owe a duty to rescue or render aid to the bicyclist. In response, the plaintiff argued that dismissal of his complaint was improper because the attorney did owe a duty to render aid under the voluntary undertaking doctrine. The trial court granted the attorney’s motion to dismiss, concluding that the attorney had no duty to render aid to the victim and that O.C.G.A. § 40-6-270 only required the driver of the vehicle to render aid. The plaintiff appealed.
Does Georgia’s Wrongful Death Act Apply to a Non-Driver?
Judge Jeff Davis of the Georgia Court of Appeals wrote in his opinion that Georgia’s Wrongful Death Act governs wrongful death actions, and O.C.G.A. § 51-4-4 generally allows a parent to recover for the homicide of a child. The term “homicide” “includes all cases in which the death of a human being results from a crime, from criminal or other negligence, or from property which has been defectively manufactured, whether or not as the result of negligence.”
Here, the plaintiff argued that the attorney was liable on his wrongful death claim because he voluntarily assumed the motorist’s obligations to render aid under § 40-6-270 and failed to do so.
O.C.G.A. § 40-6-270 states in part that
The driver of any vehicle involved in an accident resulting in injury to or the death of any person or in damage to a vehicle which is driven or attended by any person shall immediately stop such vehicle at the scene of the accident or shall stop as close thereto as possible and forthwith return to the scene of the accident and shall: … [r]ender to any person injured in such accident reasonable assistance, including the transporting, or the making of arrangements for the transporting, of such person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that such treatment is necessary or if such transporting is requested by the injured person; and where a person injured in such accident is unconscious, appears deceased, or is otherwise unable to communicate, make every reasonable effort to ensure that emergency medical services and local law enforcement are contacted for the purpose of reporting the accident and making a request for assistance.
The term “driver” as used in the statute “means every person who drives or is in actual physical control of a vehicle.” And in construing O.C.G.A. § 40-6-270, the Court has held that the obligations contained in the statute apply solely to the “driver” of the vehicle at the time of an accident.
Here, the parties agreed that the attorney didn’t drive or have actual physical control of the vehicle at the time of the accident. As a result, the attorney didn’t fall within the purview of the statute because the requirements of the statute apply only to the driver. And critically, there’s no language in the statute stating that parties other than the driver are required to comply with the terms of the statute. Thus, to the extent that the plaintiff argued that dismissal was improper because O.C.G.A. § 40-6-270 applies to the attorney, the argument failed.
Can an Individual Voluntarily Assume the Motorist’s Obligations to Render Aid?
The plaintiff argued that dismissal of his wrongful death claim was still improper because the attorney voluntarily undertook the responsibilities of O.C.G.A. § 40-6-270(a) and was therefore liable for the bicyclist’s death based on the voluntary undertaking doctrine.
Judge Davis wrote that Section 324A of the Restatement (Second) of Torts explains the voluntary undertaking doctrine. That doctrine provides that—
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.
Under this principle, an individual who undertakes to do an act or perform a service for another has the duty to exercise care, and is liable for injury resulting from his failure to do so, even though his undertaking is purely voluntary or even though it was completely gratuitous; and he wasn’t under any obligation to do such act. When a person undertakes an act that he has no duty to perform and another person reasonably relies upon that undertaking, the act must generally be performed with ordinary or reasonable care. As such, he or she could still be held liable for the negligent performance of voluntarily undertaken duties.
Judge Davis reiterated that only the driver of a vehicle involved in an accident is required to perform the duties contained in O.C.G.A. § 40-6-270(a). However, a party may be liable for a failure to exercise reasonable care with respect to a voluntary undertaking if one of the requirements stated in Section 324A is present.
Here, in the wrongful death claim against the attorney, the plaintiff alleged that the attorney “assumed control over the incident,” “undertook to handle the aftermath of the incident,” and negligently handled the accident by delaying reporting and reporting the accident through informal means which caused physical harm to the bicyclist accident victim. Thus, under the voluntary undertaking doctrine, the plaintiff could introduce facts within the framework of his complaint to show that the attorney undertook the motorist’s statutory duties to report the accident and render aid, he was negligent in performing those duties, and that the attorney’s actions caused the victim’s death.
As a result, the Court of Appeals concluded that the trial court erred by granting the attorney’s motion to dismiss. Keais v. Kelley, 2026 Ga. App. LEXIS 391 *; 2026 LX 329664 (Ga. App. July 15, 2026).
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