Today’s opinion, Digan v. Luxco, Inc., 2026 U.S. Dist. LEXIS 209391 (D. Mass. Sept. 16, 2026), arises from the bad combination of an open flame, a fraternity party, and Everclear alcohol. For those who’ve never encountered Everclear, it’s a 95% ethanol, 190-proof alcoholic beverage. Stiff and obviously flammable stuff. A frat-member poured a bottle of Everclear on a backyard fire during a party, creating a fireball that badly burned the plaintiff. Plaintiff sued the manufacturer of Everclear alleging a variety of claims, most of which would not make the opinion blog-worthy for us. But one aspect of the opinion caught our eye—the court’s rejection of “negligent undertaking” liability.
We’ve blogged about some troubling aspects of negligent undertaking liability before, and we don’t want to see it creep into our practice area. Here the court held that marketing a product does not create a special duty to ensure the protection of its consumers, and that’s worth a post.
Massachusetts follows Section 323 of the Restatements (Second), which provides:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform the undertaking, if (a) his failure to exercise such care increases the risk of harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking.
Id. at *23 (quoting Restatement (Second) of Torts § 323 (1965)). Plaintiff alleged that the defendant marketed Everclear for an expanded range of uses beyond consumption—such as household and culinary uses. Since the defendant included a flammability warning, plaintiff alleged that such voluntary inclusion of that warning plus its expanded marketing were sufficient to create a duty to ensure that the product was safe for such applications. On their face those allegations seem like a big stretch, and they didn’t satisfy the Restatement’s elements.
For “negligent undertaking” liability under the Restatement, the undertaking must relate to the rendering of services. Marketing is not rendering services, and there was no allegation that the defendant rendered any services to the plaintiff. Nor was there any “reliance upon the undertaking” by the plaintiff. The amended complaint did not allege that, and it could not plausibly do so. The court relied on a Third Circuit opinion to underscore the debacle that would result if a company’s marketing constituted a voluntary undertaking for purpose of “negligent undertaking” liability:
Converting a company’s marketing into a special undertaking to inform the public about the known risks of its products would subject every manufacturer that advertises its products to liability for a ‘special duty’ created by such marketing, and that duty would be violated by every material omission in such advertising.
Id. at *24 (quoting Steamfitters Local Union No. 420 Welfare Fund v. Philip Morris, Inc., 171 F.3d 912, 936 (3d Cir. 1999)).
Aside from dismissing the negligent undertaking claim, the court also dismissed plaintiff’s claim for injunctive relief (she did not have standing to allege any risk of actual or imminent future harm to her) and violation of Massachusetts’ consumer protection statute (there was no commercial link between the plaintiff and the defendant). The court left open a question about application of the Federal Hazardous Substances Act so the lawsuit will continue, but that’s outside our wheelhouse. Digan may not be a drug and device decision, but its rejection of plaintiff’s negligent undertaking claim is a good, straightforward application of the Restatement’s elements that may be useful authority for our readers.