Negligence claim under a voluntary undertaking theory

Negligence – Duty of care arising from voluntary undertaking 

A cause of action for negligence arises when an actor breaches a legal duty and the breach proximately causes damages. Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 246 (Tex. 2008).

Whether a legal duty exists is a question of law. Trammell Crow Cent. Tex., Ltd. v. Gutierrez, 267 S.W.3d 9, 12 (Tex. 2008). "Texas law generally imposes no duty to take action to prevent harm to others absent certain special relationships or circumstances." Torrington Co. v. Stutzman, 46 S.W.3d 829, 837 (Tex. 2000).

The supreme court has recognized, however, that "a duty to use reasonable care may arise when a person undertakes to provide services to another, either gratuitously or for compensation." Id.; see also Carter v. Abbyad, 299 S.W.3d 892, 895 (Tex. App.--Austin 2009, no pet.) ("A party who agrees to attempt to help someone else has a duty to provide that help without negligently harming the person in need."); Keightley v. Republic Ins. Co., 946 S.W.2d 124, 129 (Tex. App.--Austin 1997, no writ) ("[T]he law places a duty of ordinary care upon any person who voluntarily enters upon an affirmative course of action affecting another's interest."). "A person's duty to exercise reasonable care in performing a voluntarily assumed undertaking is limited to that undertaking." Torrington Co., 46 S.W.3d at 837 (quoting Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 397 (Tex. 1991)).

The supreme court has cited the voluntary-undertaking test articulated in section 323 of the Restatement (Second) of Torts:

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 his undertaking, if

(a) his failure to exercise such care increases the risk of such harm, or

(b) the harm is suffered because of the other's reliance upon the undertaking.

Id. at 838 (quoting Restatement (Second) of Torts § 323 (1965)).

Although it has been debated whether the supreme court has actually adopted this section of the Restatement, see Texas Farm Bureau Ins. Co. v. Sears, 54 S.W.3d 361, 368 (Tex. App.--Waco 2001), rev'd on other grounds, 84 S.W.3d 604 (Tex. 2002), the elements of the test the court has applied are substantially similar.

To hold a defendant liable for negligence under a voluntary-undertaking theory, the plaintiff must establish that (1) the defendant voluntarily 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 (3) the plaintiff relied upon the defendant's performance or (4) the defendant's performance increased the plaintiff's risk of harm. Torrington Co., 46 S.W.3d at 838-39.

SOURCE: Third Court of Appeals (Austin) - 03-09-00566-CV - 7/12/11