Good Samaritan Or Negligent Undertaking? Be Wary. - Professional Negligence - United States

[Gunnar Larson]

https://www.mondaq.com/unitedstates/professional-negligence/1291848/good-samaritan-or-negligent-undertaking-be-wary


Attorneys should be on the lookout for negligent undertaking causes of
action disguised or pled as negligent training or other similar
negligence-related claims. Although related, the cause of action for
negligent undertaking has additional, independent elements required to
succeed on the merits. Texas courts have recognized the cause of action for
negligent undertaking, in limited circumstances, and have imposed a duty
where an actor undertakes to provide services to another—whether
gratuitously or for compensation. It is often used in an effort to create a
duty where one normally would not exist.1 Although rooted in negligence,
negligent undertaking requires the additional evidentiary showing that:

The defendant undertook to perform services that it knew or should have
known were necessary for the plaintiff's protection;
The defendant failed to exercise reasonable care in performing those
services, and either:
the plaintiff relied upon the defendant's performance or
the defendant's performance increased the plaintiff's risk of harm.2
For example, in a pleading containing a cause of action for negligent
training, a plaintiff may artfully claim that a defendant negligently
"undertook the duty to train" an individual in an attempt to disguise this
cause of action, when in reality, there may be two separate causes of
action pled. Moreover, identifying a cause of action for negligent
undertaking and distinguishing it from an ordinary negligence allegation is
important when preparing for trial or a dispositive motion—such as a
no-evidence motion for summary judgment. The failure to identify the
elements specific to a negligent undertaking claim—compared to an ordinary
negligence claim—would be detrimental to a no-evidence motion for summary
judgment because the movant must identify one or more of the essential
elements of the subject claim for which there is no evidence in moving for
summary judgment.3

Additionally, given the fact that Texas courts have held that an employer's
internal policies or procedures will not create a negligence-based duty
where none otherwise exists,4 plaintiff's counsel may argue that negligent
undertaking is a viable claim to create an alternative avenue of liability
depending on the facts and circumstances of the case.

Notably, although not necessarily successful, negligent undertaking claims
have emerged in different areas of law. Some examples include social host
liability, contractual duties, and job-related training. See e.g., Nall v.
Plunkett, 404 S.W.3d 552 (Tex. 2013); see also e.g., Knife River Corp.-S.
v. Hinojosa, 438 S.W.3d 625 (Tex. App.—Houston [1st Dist.] 2014, pet.
denied); see also e.g., Poynor v. BMW of N. Am., LLC, 441 S.W.3d 315 (Tex.
App.—Dallas 2013, no pet.). Thus, when reviewing a complaint containing
negligence-related causes of action, counsel should be on the lookout for
language that pertains to the "undertaking" to perform services or other
negligent undertaking specific elements as a cause of action for negligent
undertaking may be skillfully embedded in another related negligence-based
cause of action. Awareness of this cause of action will allow counsel to
readily identify this claim and zealously protect their clients' interests.

Footnotes

1. See Nall v. Plunkett, 404 S.W.3d 552, 554 (Tex. 2013).

2. Id. at 555–56.

3. See TEX. R. CIV. P. 166a(i).

4. See Entex, A Div. of Noram Energy Corp. v. Gonzalez, 94 S.W.3d 1, 10
(Tex. App.—Houston [14th Dist.] 2002, pet. denied); see also Jacobs–Cathey
Co. v. Cockrum, 947 S.W.2d 288, 291–92 (Tex. App.—Waco 1997, writ denied)
(holding that company's internal policy of removing debris left at its work
sites by other parties did not impose upon the company a legal duty to
parties injured by unremoved debris); Estate of Catlin v. Gen. Motors
Corp., 936 S.W.2d 447, 451 (Tex. App.—Houston [14th Dist.] 1996, no writ)
(holding that company's safety policies restricting consumption of alcohol
on its premises did not create legal duty that would subject the company to
liability for failing to comply with those policies); cf. Owens v. Comerica
Bank, 229 S.W.3d 544, 547 (Tex. App.—Dallas 2007, no pet.) ("The Texas
Supreme Court has refused to create a standard of care or duty based upon
internal policies, and the failure to follow such policies does not give
rise to a cause of action in favor of customers or others.") (citing FFE
Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 92 (Tex. 2004)); see
Cleveland Reg'l Med. Ctr., L.P. v. Celtic Properties, L.C., 323 S.W.3d 322,
351–52 (Tex. App.—Beaumont 2010, pet. denied).

The content of this article is intended to provide a general guide to the
subject matter. Specialist advice should be sought about your specific
circumstances.
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