Business & Insurance Litigation Newsletter for Indiana

Assumption of Duty

In order to recover on a negligence claim, a plaintiff must establish a duty of care on the part of the defendant and a breach of that duty. SeeBldg. Materials Mfg Corp. v. T&B Structural Sys., Inc., 804 N.E.2d 277, 282 (Ind. Ct. App., 2004). Under the "assumption of duty" doctrine, a duty may be created by gratuitous or voluntary assumption. In T&B, the seller provided materials for the construction of a retaining wall along with advice, by telephone, when the buyer encountered difficulties during construction of the wall. The wall subsequently collapsed. The court determined that the seller did not assume a duty when it gave advice by telephone assisting the buyer. Id. at 283-84. Absent contractual duty, no negligence existed on the part of the seller.