Does rear-ending another vehicle amount to evidence of negligence per se?

TEXAS READ-ENDER LAW (Automobile collision & Negligence) 

The mere occurrence of a rear-end collision is some evidence of negligence of the rear-ending driver but is not negligence as a matter of law. See Briones v. Sharkey, No. 04-11-00584-CV, 2012 WL 3776488, at *6 (Tex. App.-San Antonio Aug. 31, 2012, no pet.) (mem. op.); Hernandez v. Kaplan, No. 13-02-00091-CV, 2004 WL 170457, at *2 (Tex. App.-Corpus Christi Jan. 29, 2004, no pet.) (mem. op.); Stone, 994 S.W.2d at 351; Neese v. Dietz, 845 S.W.2d 311, 314 (Tex. App.-Houston [1st Dist.] 1992, writ denied); Renshaw v. Countess, 289 S.W.2d 621, 624 (Tex. Civ. App.-Fort Worth 1956, no writ). The plaintiff must prove specific acts of negligence on the part of the following driver as well as proximate cause. Neese, 845 S.W.2d at 314.

The issue of whether a rear-end collision raises an issue of negligence or establishes it as a matter of law depends on all the facts and circumstances of the particular case. Pearson v. DeBoer, Inc., 99 S.W.3d 273, 276 (Tex. App.-Corpus Christi 2003, no pet.). Whether the plaintiff succeeds in proving negligence by a preponderance of the evidence is within the jury's province to determine. Id.

SOURCE: FORT WORTH COURT OF APPEALS - No. 02-14-00248-CV - 3/5/2015

NEGLIGENCE IN THE CONTEXT OF DRIVING A MOTOR VEHICLE  

To prove negligence, a plaintiff must establish duty, breach of that duty, and damages proximately caused by the breach. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006) (per curiam). Negligence is not established as a matter of law merely because the defendant's vehicle rear-ended the vehicle driven by the plaintiff. See Gaskey v. One Source Sec. and Found, No. 14-07-00850, 2009 WL 7047692, at *1 (Tex. App.-Houston [14th Dist.] Jun. 18, 2009, no pet.) (mem. op.) (citing Smith v. Cent. Freight Lines, Inc., 774 S.W.2d 411, 412 (Tex. App.-Houston [14th Dist.] 1989, writ denied)). Rather, the plaintiff must prove that the defendant's specific acts were negligent, and that they proximately caused the plaintiff's damages. See Cent. Freight, 774 S.W.2d at 412. Whether a rear-end collision resulted from negligence depends on all the facts and circumstances of the particular case. See Pearson v. DeBoer, 99 S.W.3d 273, 276 (Tex. App.-Corpus Christi 2003, no pet.)

SOURCE; FOURTEENTH COURT OF APPEALS - 14-13-00638-CV - 2/10/2015

DRIVER FOUND NOT LIABLE FOR REAR-ENDER 

In his legal-sufficiency challenge, Laday contends that Pedraza admitted he caused the collision and some injury to Laday, contesting only the extent of the injuries, and that all elements of negligence were established without contradiction. Laday also suggests that various statements by Pedraza qualified as judicial admissions, which compelled a jury finding that Pedraza was negligent as a matter of law.

A judicial admission is a formal waiver of proof that usually arises in the pleadings or a stipulation of the parties. See Gaskey, 2009 WL 7047692, at *2 (citing Mendoza v. Fid. & Guar. Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980)). An admission relieves the opposing party's burden to prove an admitted fact. Id. Further, to the extent Pedraza's testimony was contrary to his position, they were quasi-admissions. Id. While they may have constituted some evidence, they were not conclusive on Pedraza. Id. Only the jury determines the weight of the alleged admissions. Id.

Laday asserts Pedraza's testimony, including his admissions, established Pedraza was at fault and his actions caused the collision. Pedraza admitted on cross-examination that the collision occurred when he failed to control the speed of his vehicle under the conditions. However, Pedraza also testified that there was heavy traffic in the area, and cars were stopping and starting as they approached the light. Additionally, Pedraza testified the roads were wet, he was approximately 20 feet behind Laday's vehicle when he started braking, and he was traveling only 10-15 miles per hour (below the posted speed limit of 35) when he slid into Laday's bumper. Pedraza also testified Laday did not appear to be injured at the scene.

Laday testified the accident caused his vehicle to hit the car front of him, and the driver of that car exited his vehicle, but did not follow Laday and Pedraza to the gas station where Laday and Pedraza discussed the collision. Further, Laday testified he had been injured in a prior accident and had obtained disability license plates, which require the note of a physician to document the disability. Laday also told the jury that Pedraza said "I'm sorry" after the accident; however, in his deposition, Laday did not mention Pedraza's alleged statement.

Laday had the burden of proving Pedraza was negligent and that his negligence was a proximate cause of the occurrence. See Kroger, 197 S.W.3d at 794. When we view the totality of the testimony, we conclude that Laday has not demonstrated the evidence conclusively established all vital facts in support of the negligence finding. See Dow Chemical, 46 S.W.3d at 241; see also Briones v. Sharkey, No. 04-11-00584-CV, 2012 WL 3776488, at *6 (Tex. App.-San Antonio, Aug. 31. 2012, no pet.) (mem. op.) (holding jury could determine the evidence did not prove negligence where there was an attack on plaintiff's veracity); Benavente v. Granger, 312 S.W.3d 745, 748-49 (Tex. App.-Houston [1st Dist.] 2009, no pet.) (concluding negligence not established even though driver testified he was at fault when he rear-ended vehicle because driver further testified he was driving more slowly than surrounding traffic); Jordan v. Sava, Inc., 222 S.W.3d 840 (Tex. App.-Houston [1st. Dist.] 2007, no pet.) (concluding jury's "no" answer to negligence question upheld where there was no evidence driver was speeding and driver testified he was traveling at the same speed as general traffic). We overrule appellant's first issue.

In his second issue, Laday contends the evidence is factually insufficient to support the final judgment. When considering a factual-sufficiency challenge to a jury's verdict, we must review and weigh all the evidence, not just the evidence supporting the verdict. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998). When the appellant bears the burden of proof at trial, we set aside a fact finding only if it is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust. See Mar. Overseas Corp., 971 S.W.2d at 407. As with a legal-sufficiency challenge, we may not substitute our judgment for that of the jury. Id. The jury is the sole arbiter of the credibility of the witnesses and the weight to be given their testimony. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757 (Tex. 2003).

Laday asserts he established that Pedraza was operating the truck, Pedraza's truck was following him, and Pedraza rear-ended Laday's vehicle. Pedraza testified the vehicles were about halfway between intersections, and the vehicles "kept going stopping and going and stopping" and "on one of those times we went, he [Laday] stopped and I failed to stop on time . . . it was an accident." Laday testified he did not see Pedraza's truck before Laday was hit, and Laday did not hear brakes or tires squealing prior to the collision.

It is "uniquely within the jury's province to determine whether plaintiff succeeded in proving negligence by a preponderance of the evidence." See Gaskey, 2009 WL 7047692, at *3 (citing Klein v. Brown-Griffin Texas Distribs., Inc., 562 S.W.2d 910, 911 (Tex. Civ. App.-Amarillo 1978, writ ref'd n.r.e.)); see also Whinery v. Mission Petroleum Carriers, Inc., No. 07-02-0073, 2003 WL 255398, at *3-5 (Tex. App.-Amarillo Apr. 30, 2003, pet. denied) (mem. op.) (concluding finding was not against the great weight and preponderance where driver was operating vehicle below posted speed limit on wet roads and in heavy traffic).

Having considered the record, we cannot conclude that the jury's verdict was so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Mar. Overseas Corp., 971 S.W.2d at 407. We overrule appellant's second issue.

We affirm the trial court's judgment.

SOURCE; FOURTEENTH COURT OF APPEALS, HOUSTON - 14-13-00638-CV - 2/10/2015

Product liability claim vs negligence claim involving medical device

PRODUCT LIABILITY VS NEGLIGENCE (medical device) 

Normally, strict products liability and negligence are separate causes of action with different elements. Shaun T. Mian Corp. v. Hewlett-Packard, 237 S.W.3d 851, 857 (Tex. App.-Dallas 2007, pet. denied). However, here [PLAINTIFF] alleged no negligence other than conduct relating to whether the ventilator was unreasonably dangerous when sold. See id. As a result, [Plaintiff's] negligence theories are encompassed and subsumed in his defective product theories, and [Plaintiff's] burden at trial would be to prove injury resulting from a product defect. Id. Therefore, any error in disposing of [Plaintiff's] negligence claims cannot have caused the rendition of an improper judgment or prevented [PLAINTIFF] from properly presenting his case to this Court. See TEX. R. APP. P. 44.1(a); Hewlett-Packard, 237 S.W.3d at 857. [Plaintiff's] right to recover against Respironics stands or falls on the outcome of his products liability claims. Hewlett-Packard, 237 S.W.3d at 857. We thus affirm the trial court's judgment as to [Plaintiff's] negligence causes of action. Id.

STRICT LIABILITY 

Products liability imposes strict liability on the manufacturer of an unreasonably dangerous product that is a producing cause of a plaintiff's injuries. Id. The plaintiff must prove the product was defective when it left the hands of the manufacturer and that the defect was a producing cause of the plaintiff's injuries. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); Hewlett-Packard, 237 S.W.3d at 858. A manufacturing defect exists when a product deviates, in its construction or quality, from the specifications or planned output in a manner that renders it unreasonably dangerous. Ridgway, 135 S.W.3d at 600; Hewlett-Packard, 237 S.W.3d at 858.

EXPERT TESTIMONY REQUIRED 

Generally, the requirements to prove a design defect in a products liability action necessitate competent expert testimony and objective proof that a defect caused the injury. See Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 137 (Tex. 2004); Champion v. Great Dane Ltd. Partnership, 286 S.W.3d 533, 538 (Tex. App.-Houston [14th Dist.] 2009, no pet.).

Here, [Plaintiff] failed to present expert testimony that the ventilator was defective when it left the hands of Respironics. See Ridgway, 135 S.W.3d at 600; Hewlett-Packard, 237 S.W.3d at 858.

Products liability theories 

Products liability theories: defective design, defective manufacturing, and defective marketing.

Products liability imposes strict liability on the manufacturer of an unreasonably dangerous product that is a producing cause of a plaintiff's injuries.  The plaintiff must prove the product was defective when it left the hands of the manufacturer and that the defect was a producing cause of the plaintiff's injuries. Ridgway, 135 S.W.3d at 600; Hewlett-Packard, 237 S.W.3d at 858. A manufacturing defect exists when a product deviates, in its construction or quality, from the specifications or planned output in a manner that renders it unreasonably dangerous. Ridgway, 135 S.W.3d at 600; Hewlett-Packard, 237 S.W.3d at 858. Generally, the requirements to prove a design defect in a products liability action necessitate competent expert testimony and objective proof that a defect caused the injury. See Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 137 (Tex. 2004); Champion v. Great Dane Ltd. Partnership, 286 S.W.3d 533, 538 (Tex. App.-Houston [14th Dist.] 2009, no pet.).

SOURCE: DALLAS COURT OF APPEALS - No. 05-11-01057-CV - 7/23/2014

See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).

Cites for elements of negligent misrepresentation cause of action and list thereof

Negligent Misrepresentation

The elements of a negligent misrepresentation cause of action are:

 1. the defendant made a representation to the plaintiff in the course of defendant's business or in a transaction in which the defendant had an interest;

 2. the defendant supplied false information for the guidance of others;

 3. the defendant did not exercise reasonable care or competence in obtaining or communicating the information;

 4. the plaintiff justifiably relied on the representation; and

 5. the defendant's negligent misrepresentation proximately caused the plaintiff's injury.

McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 791 (Tex. 1999); Miller v. LandAmerica Lawyers Title of El Paso, 362 S.W.3d 842, 845 (Tex.App.-El Paso 2012, no pet.). The type of false information contemplated in a negligent misrepresentation case is a misstatement of existing fact, not a promise of future conduct. Allied Vista, Inc. v. Holt, 987 S.W.2d 138, 141 (Tex.App.-Houston [14th Dist.] 1999, pet. denied); Airborne Freight Corp., Inc. v. C.R. Lee Enterprises, Inc., 847 S.W.2d 289, 294 (Tex.App.-El Paso 1992, writ denied).

SOURCE: EL PASO COURT OF APPEALS - 08-11-00069-CV – 3/20/2013

SoL for HCLC: What is the limitations period for a med-mal claim?

Limitations Period for Health-Care-Liability Claims

A health-care-liability claim has a two-year limitations period. Tex. Civ. Prac. & Rem. Code Ann. § 74.251(a) (West 2005). The statute tolls the limitations period for 75 days if the claimant notifies the physician of the claim against the physician in the manner that Chapter 74 requires. Id. § 74.051(c) (West 2005); Rubalcaba v. Kaestner, 981 S.W.2d 369, 373 (Tex. App.—Houston [1st Dist.] 1998, pet. denied); see Rowntree v. Hunsucker, 833 S.W.2d 103, 108 (Tex. 1992).[3]

We measure the limitations period from (1) the date that the breach or tort occurred, (2) the last date of a course of treatment for a particular condition, or (3) the last date of a hospitalization for which a claim is made. Tex. Civ. Prac. & Rem. Code Ann. § 74.251(a); Rowntree, 833 S.W.2d at 104. If we can ascertain the date the alleged beach or tort occurred, then the limitations period must be measured from that date; inquiry into the second and third potential dates is unnecessary and immaterial. Id.

SOURCE: Houston Court of Appeals - 01-10-00569-CV - 8/11/11

Pre-injury release as bar to subsequent lawsuit

 
RELEASE AS AN AFFIRMATIVE DEFENSE AGAINST NEGLIGENCE CLAIM

Release is an affirmative defense. Tex. R. Civ. P. 94. The effect of a release like the one at issue in this case “is to relieve a party in advance of responsibility for its own negligence.” Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 507 (Tex. 1993). “It operates to extinguish the claim or cause of action as effectively as would a prior judgment between the parties and is an absolute bar to any right of action on the released matter.” Id. at 508.

Because a pre-injury release of a party's “own negligence is an extraordinary shifting of risk, [the Texas Supreme Court] has developed fair notice requirements which apply to these types of agreements.” Id. To constitute fair notice, a release must satisfy the requirements of conspicuousness and the express negligence rule. Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190, 192 (Tex. 2004); Dresser, 853 S.W.2d at 508. Whether a provision provides fair notice is a question of law for the courts. Dresser, 853 S.W.2d at 509.
The business and commerce code's standard for conspicuousness applies to our determination of whether a release is conspicuous. Mickens v. Longhorn DFW Moving, Inc., 264 S.W.3d 875, 879 (Tex. App.-Dallas 2008, pet. denied) (citing Dresser, 853 S.W.2d at 510-11). It states:

(10) “Conspicuous,” with reference to a term, means so written, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it. Whether a term is “conspicuous” or not is a decision for the court. Conspicuous terms include the following:
(A) a heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size; and
(B) language in the body of a record or display in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.

Tex. Bus. & Com. Code Ann. § 1.201(10) (West 2009). The test for the court is “whether attention can reasonably be expected to be called to [the provision].” Mickens, 264 S.W.3d at 879 (quoting Littlefield v. Schaefer, 955 S.W.2d 272, 275 (Tex. 1997)); Sydlik v. REEIII, Inc., 195 S.W.3d 329, 332-33 (Tex. App.-Houston [14th Dist.] 2006, no pet.). 
  
The express negligence rule states that if a party intends to be released from its own future negligence it must express that intent in clear, unambiguous terms within the four corners of the contract. Reyes, 134 S.W.3d at 192; Sydlik, 195 S.W.3d at 333. The purpose of “the express negligence rule is to require scriveners to make it clear when the intent of the parties is to exculpate” a party for that party's own negligence. Atlantic Richfield Co. v. Petroleum Pers., Inc., 768 S.W.2d 724, 726 (Tex. 1989). Language that specifically refers to “any negligent act of [the released party]” may be sufficient to define the parties' intent. Id.
  
SOURCE: Dallas Court of Appeals - 05-10-00146-CV - 8/11/11

Negligence 101: Was the Defendant under a legal duty?

DUTY AS AN ESSENTIAL ELEMENT OF A NEGLIGENCE CLAIM

What does it take to establish liability for negligence?

To prevail on a negligence cause of action, a plaintiff must prove (1) the existence of a legal duty, (2) breach of the duty, and (3) injury proximately caused by the defendant’s breach. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1991). Whether a duty exists is a question of law for the court to decide based on the facts surrounding the occurrence in question. Id.

Duty concerns not subjecting others to an unreasonable, foreseeable risk of harm. Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 39 (Tex. 2002); Otis Eng’g Corp. v. Clark, 668 S.W.2d 307, 311 (Tex. 1984) (discussing unreasonable risk of harm as component of duty analysis); see also Keck, Mahin & Cate v. Nat. Union Fire Ins. Co., 20 S.W.3d 692, 702 (Tex. 2000) (noting contributory negligence is that which creates an unreasonable risk of harm to oneself). “As Dean Prosser has observed . . . [‘n]o better general statement can be made, than the courts will find a duty where, in general, reasonable men would recognize it and agree that it exists.’” Otis Eng’g Corp., 668 S.W.2d at 310. (quoting W. Prosser, The Law of Torts § 56 (4th ed. 1971)). A reviewing court balances several related factors to determine whether a defendant owed a plaintiff a duty, including the risk, foreseeability, and likelihood of injury weighed against the social utility of the defendant’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant. Phillips,

SOURCE: Corpus Christi Court of Appeals - 13-10-00355-CV - 7/28/11

A rear-ender accident: Whose fault? What kind'a lawsuit?

Got hit from behind - Got a lawsuit against the other driver, right? - Not so fast ...

Sounding a cautionary note, Houston Court of Appeals explains:

The mere occurrence of a rear-end collision is not of itself evidence of negligence as a matter of law. See, e.g., Benavente v. Granger, 312 S.W.3d 745, 749 (Tex. App.—Houston [1st Dist.] 2009, no pet.); Neese v. Dietz, 845 S.W.2d 311, 314 (Tex. App.—Houston [1st Dist.] 1992, writ denied).

The plaintiff must prove specific acts of negligence on the part of the defendant driver and must prove proximate cause. Neese, 845 S.W.2d at 314. With regard to rear-end collisions, “standards of ordinary care cannot be fixed with any degree of certainty but must be left in large measure to the trier of the facts.” Id. Conflicts in the witnesses’ testimony present credibility questions for the jury to resolve. Id. at 314–15.

SOURCE: Houston Court of Appeals - 01-10-00473-CV - 7/28/11 

[ Plaintiff-Driver-in-front ] contends that the "undisputed evidence was that at the time of the accident [he] was lawfully stopped with his left turn signal blinking and brake lights on waiting for traffic to clear." Relying, in part, on section 545.062 of the Transportation Code, he argues that the evidence of Nguyen’s negligence was conclusive because she rear-ended his vehicle and admitted to being 100% at fault. Section 545.062(a) provides:


TEX. TRANSP. CODE ANN. § 545.062(a) (West 2011).

But [ Defendant-Driver-behind ] did not admit fault, and there was disputed evidence suggesting [ Plaintiff-Driver-in-front ]’s negligence. [ Plaintiff-Driver-in-front ] testified that he had been completely stopped for approximately 60 seconds before Nguyen’s vehicle collided with his, but[ Defendant-Driver-behind ]testified otherwise, stating that [ Plaintiff-Driver-in-front ] stopped suddenly and without warning. She stated that she saw [ Plaintiff-Driver-in-front ]’s brake lights come on when he made a sudden stop, and that she applied her brakes, but she was unable to avoid colliding with [ Plaintiff-Driver-in-front ]’s vehicle.

[ Plaintiff-Driver-in-front ] also testified that he was making a left turn into an apartment complex. He testified that he was leaning to the right, talking to a pedestrian through the passenger-side window, and trying to find a pen in his center console. [ Defendant-Driver-behind ]recalled seeing the pedestrian to her right and stated that [ Plaintiff-Driver-in-front ]’s vehicle had passed the entry for the apartment complex and was at the intersection. She testified that [ Plaintiff-Driver-in-front ]’s vehicle was "pulled to the right" and that he was not positioned to make a left turn. She also testified that the left-rear side of [ Plaintiff-Driver-in-front ]’s bumper was damaged, as opposed to the center or right-rear side, in the collision.

The jury could have concluded based upon [ Plaintiff-Driver-in-front ]’s and Nguyen’s testimony that [ Plaintiff-Driver-in-front ] stopped suddenly or that he was distracted by a conversation with a pedestrian. The jury is the sole judge of the credibility of the witnesses and the weight accorded to their testimony. City of Keller, 168 S.W.3d at 819. When viewed in the light most favorable to the jury’s finding, the evidence raises an issue as to whether [ Plaintiff-Driver-in-front ] acted negligently. See McDonald v. Dankworth, 212 S.W.3d 336, 340–45 (Tex. App.—Austin 2006, no pet.). Therefore, we hold that the evidence was legally sufficient to support the jury’s finding that [ Plaintiff-Driver-in-front ] was negligent and that his negligence was a proximate cause of the collision.

With respect to apportionment of fault, the jury is given wide latitude in determining the negligent parties’ proportionate responsibility. Hagins v. E-Z Mart Stores, Inc., 128 S.W.3d 383, 392 (Tex. App.—Texarkana 2004, no pet); Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 659–60 (Tex. App.—Dallas 2002, pet. denied.). As with our review of the sufficiency of the evidence to support the negligence finding, we consider the evidence in the light most favorable to the finding under review and indulge every reasonable inference that would support it. City of Keller, 168 S.W.3d at 822. If the evidence is sufficient to support the jury’s negligence finding, the Court may not substitute its judgment for that of the jury, even if the evidence could support a different percentage allocation. Rosell, 89 S.W.3d at 659–60; Samco Props., Inc. v. Cheatham, 977 S.W.2d 469, 478 (Tex. App.—Houston [14th Dist.] 1998, pet. denied). Having found sufficient evidence that both [ Plaintiff-Driver-in-front ] and[ Defendant-Driver-behind ]were at fault, we find no basis for interfering with the jury’s assignment of 40% responsibility to [ Plaintiff-Driver-in-front ].

SOURCE: Houston Court of Appeals - 01-10-00473-CV - 7/28/11

An operator shall, if following another vehicle, maintain an assured clear distance between the two vehicles so that, considering the speed of the vehicles, traffic, and the conditions of the highway, the operator can safely stop without colliding with the preceding vehicle or veering into another vehicle, object, or person on or near the highway.

Proving common-law negligence cause of action in Texas

ELEMENTS OF COMMON-LAW NEGLIGENCE CLAIM

The essential elements of a common law negligence cause of action are duty, breach of that duty, and damages proximately caused by the breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002). Whether or not a breach has occurred is determined by comparison to the applicable standard of care. See Doe v. Boys Club of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995).

The “ordinary care” standard is generally defined as that which an ordinarily prudent person, exercising ordinary care would have done under the same circumstances. See Lincoln Prop. Co. v. DeShazo, 4 S.W.3d 55, 61 (Tex.App.--Fort Worth 1999, pet. denied).

SOURCE: El Paso Court of Appeals - 08-09-00192-CV - 7/20/11

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

Negligent Activity and Premises Defect Claim: Is there a difference?

CAUSE OF ACTION FOR NEGLIGENT ACTIVITY ON PREMISES The Texas Supreme Court has consistently recognized that negligent-activity claims and premises-defect claims involve two independent “theories” of recovery that fall within the scope of negligence. See Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 214–15 (Tex. 2008) (distinguishing between “negligent-activity claim” or “theory” and “premises-condition claim” or “theory”); Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997) (stating that there are “two types of negligence in failing to keep the premises safe: that arising from an activity on the premises, and that arising from a premises defect”); see also Mayer v. Willowbrook Plaza Ltd. Partnership, 278 S.W.3d 901, 909 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (stating that “[n]egligent activity and premises defect are independent theories of recovery”). Negligent activity claims and premises liabiltiy claims distinguished: Commission vs. omission Although “[t]he lines between negligent activity and premises liability are sometimes unclear,” the court has continued to recognize the distinction between these two claims, explaining that “negligent activity encompasses a malfeasance theory based on affirmative, contemporaneous conduct by the owner that caused the injury, while premises liability encompasses a nonfeasance theory based on the owner’s failure to take measures to make the property safe.” Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010). Activity as opposed to condition as cause of injury Recovery on a negligent-activity claim requires that the plaintiff have been injured by or as a contemporaneous result of the “activity itself” rather than by a “condition” created by the activity. Olivo, 952 S.W.2d at 527; Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). Although an owner or occupier generally does not owe a duty to ensure that an independent contractor performs its work in a safe manner, an owner or occupier “who retains a right to control the contractor’s work may be held liable for negligence in exercising that right” under the negligent-activity theory. Moritz, 257 S.W.3d at 214 (emphasis added). SOURCE: Houston Court of Appeals - 01-09-01089-CV - 6/23/11

Elements of Negligence cause of action

What are the elements of a cause of action for negligence under Texas law? A negligence cause of action has three elements: (1) a legal duty owed by one person to another, (2) a breach of that duty, and (3) damages proximately caused by the breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002). No duty of care - No viable lawsuit based on negligence The threshold inquiry in a negligence case is duty. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Mathis v. RKL Design/Build, 189 S.W.3d 839, 844 (Tex. App.—Houston [1st Dist.] 2006, no pet.). When does duty exist - when not? The existence of duty is a question of law for the court to decide from the facts surrounding the occurrence at issue. Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998); Siegler, 899 S.W.2d at 197; Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). “The nonexistence of a duty ends the inquiry into whether negligence liability may be imposed.” Van Horn, 970 S.W.2d at 544. Generally, no duty exists 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). SOURCE: Houston Court of Appeals - 01-10-00078-CV - 6/9/11 RELATED LEGAL TERMS: negligent conduct, omission, failure to act, exercise care, tort claims, claims sounding in tort, no fiduciary relationship, duty of care

What constitutes gross negligence under Texas law?

LEGAL DEFINITION OF GROSS NEGLIGENCE

When does negligent conduct amount to gross negligence?
 
Gross negligence is “an act or omission involving subjective awareness of an extreme degree of risk, indicating conscious indifference to the rights, safety, or welfare of others.” State v. Shumake, 199 S.W.3d 279, 287 (Tex. 2006) (citing Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 21 (Tex. 1994)). Gross negligence, as applied under the recreational-use statute, involves two components: (1) viewed objectively from the actor's standpoint, the act or omission must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (2) the actor must have actual, subjective awareness of risk involved, but nevertheless proceeds in conscious indifference to the rights, safety, or welfare of others. See Miranda, 133 S.W.3d at 225.
 
Extreme Degree of Risk 
 
Gross negligence involves not only actual knowledge of a risk, but knowledge of an extreme degree of risk, considering the probability and magnitude of potential harm to others. Miranda, 133 S.W.3d at 225; see also Moriel, 879 S.W.2d at 22 (“extreme degree of risk” for gross negligence not satisfied by remote possibility of injury or high probability of minor harm, but rather “likelihood of serious injury”).

SOURCE: Dallas Court of Appeals - 05-10-00511-CV - 6/14/11 (Plaintiff failed to create a fact issue as to his allegations of gross negligence in suit against governmental entity). 

MORE RECENT GROSS NEGLIGENCE CASE LAW 

Negligence and Gross Negligence 

Suing for Negligence: Elements that must be proven

ESSENTIAL ELEMENTS OF NEGLIGENCE CLAIM A negligence cause of action has three elements: (1) a legal duty owed by one person to another, (2) a breach of that duty, and (3) damages proximately caused by the breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002). The threshold inquiry in a negligence case is duty. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Mathis v. RKL Design/Build, 189 S.W.3d 839, 844 (Tex. App.—Houston [1st Dist.] 2006, no pet.). The existence of duty is a question of law for the court to decide from the facts surrounding the occurrence at issue. Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998); Siegler, 899 S.W.2d at 197; Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). “The nonexistence of a duty ends the inquiry into whether negligence liability may be imposed.” Van Horn, 970 S.W.2d at 544. Generally, no duty exists 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). SOURCE: Houston Court of Appeals - 01-10-00078-CV - 6/9/11

NEGLIGENCE: Negligent Creation of Dangerous Situation

Is there a legal duty to control the actions of others to prevent harm? - It depends. NEGLIGENCE WITH RESPECT TO ACTS OF THIRD-PARTIES

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). Texas law generally imposes no duty to control the acts of another person to prevent harm to third parties absent certain special relationships or circumstances. Providence Health Ctr. v. Dowell, 262 S.W.3d 324, 331 (Tex. 2008); Torrington Co. v. Stutzman, 46 S.W.3d 829, 837 (Tex. 2000); see also Restatement (Second) of Torts § 315 (1965).

Examples of relationships that have been recognized as giving rise to a duty to control include employer/employee, parent/child, and independent contractor/contractee. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). A party who agrees to attempt to help someone else has a duty to provide that help without negligently harming the person in need. Torrington, 46 S.W.3d at 837-38; see also Restatement (Second) of Torts § 323. ⁽²⁾

A party who negligently creates a dangerous situation has a duty to attempt to prevent injury to others if it reasonably appears or should appear to him that others in the exercise of their lawful rights may be injured thereby. SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 353 (Tex. 1995) (citing Buchanan v. Rose, 159 S.W.2d 109, 110 (Tex. 1942)). However, a mere bystander who did not create a dangerous situation generally is not required to intervene and prevent injury to others. See id.; see also Restatement (Second) of Torts § 314 ("The fact that [an] actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action.").

Whether a legal duty exists is a question of law for the court. Trammell Crow Cent. Tex., Ltd. v. Gutierrez, 267 S.W.3d 9, 12 (Tex. 2008). In determining whether the defendant was under a duty, the court will consider several interrelated factors, including the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant. Phillips, 801 S.W.2d at 525.

Courts have also considered whether one party has superior knowledge of the risk, and whether a right to control the actor whose conduct precipitated the harm exists. Graff v. Beard, 858 S.W.2d 918, 920 (Tex. 1993). Appellants do not cite any authority establishing a legal duty by individuals to control the actions of a companion who is under the influence of drugs or similar behavior-altering substances. ⁽³⁾ Therefore, to hold that there is a duty in this case, we must interpret an existing duty to include the behavior described in the plaintiffs' pleadings or recognize a new duty under Texas law.

SOURCE: 03-07-00251-CV (Austin Court of Appeals)(11/4/09)

Elements of Negligence Claim in Texas

WHAT DOES IT TAKE TO PROVE NEGLIGENCE? To prevail on its negligence claim, [Plaintiff] had to prove the existence of a legal duty, a breach of that duty, and damages proximately caused by the breach. See D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002). Thus, among the other elements of its negligence cause of action, [Plaintiff] had to show it was injured by [Defendant's] actions. See generally A.B.F. Freight Sys., Inc. v. Austrian Import Serv., Inc., 798 S.W.2d 606, 615 (Tex. App.-Dallas 1990, writ denied) (recognizing that establishing the fact of damage is a prerequisite to establishing the amount of damages to be awarded). SOURCE: 09-08-00083-CV (Beaumont Court of Appeals)(10/29/09)