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Elements.  Texas law recognizes a duty may arise when a party undertakes to provide services either gratuitously or for compensation.  A negligent-undertaking claim requires proof that the defendant owed the plaintiff a legal duty and violated it. Torrington Co. v. Stutzman, 46 S.W.3d 829, 837 (Tex. 2000); Midwest Emp'rs Cas. Co. ex rel. English v. Harpole, 293 S.W.3d 770, 779 (Tex. App.—San Antonio 2009, no pet.). The critical inquiry concerning the duty element of a negligent-undertaking theory is whether the defendant acted in a way that requires the imposition of a duty where one otherwise would not exist. Torrington, at 838-39; see also Osuna v. S. Pac. R.R., 641 S.W.2d 229, 230 (Tex. 1982) ("having undertaken to place a flashing light at the crossing for the purpose of warning travelers, the railroad was under a duty to keep the signal in good repair, even though the signal was not legally required.").  A jury submission on a negligent-undertaking theory requires a broad-form negligence question accompanied by instructions detailing the essential elements of an undertaking claim. Torrington, 46 S.W.3d at 838-839. Accordingly, the broad-form submission for a typical negligence claim and a negligent-undertaking claim is the same, except that an undertaking claim requires the trial court to also instruct the jury that a defendant is negligent only if: (1) the defendant undertook to perform services that it knew or should have known were necessary for the plaintiff's protection; (2) the defendant failed to exercise reasonable care in performing those services; and either (a) the plaintiff relied upon the defendant's performance, or (b) the defendant's performance increased the plaintiff's risk of harm. Id.; see also Restatement (Second) of Torts § 324A (providing the rule for liability to a third person for negligent performance of an undertaking).  There is no cause of action for negligent undertaking unless the defendant acted or agreed to act expressly for the plaintiff’s protection. Knife River Corp.-S. v. Hinojosa, 438 S.W.3d 625, 632 (Tex. App.—Houston [1st Dist.] 2014, pet. denied); see also Guillory v. Seaton, LLC, 470 S.W.3d 237, 242 (Tex. App.—Houston [1st Dist.] 2015, pet. denied) (a non-party to a contract has no cause of action against contracting party that did not agree to provide services for the benefit or protection of non-party plaintiff).

Statute of Limitations.  The statute of limitations for a negligent undertaking claim is two years. Tex. Civ. Prac. & Rem. Code § 16.003.

Negligent Undertaking

© 2020 Mark Courtois and Diane Davis

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