Phillips factors in Texas

2026Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990)).

2025Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990)); “This inquiry requires us to ‘weigh[] the risk, foreseeability, and likelihood of injury 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.’ In making this assessment, we also consider ‘whether one party would generally have superior knowledge of the risk or a right to control the actor who caused the harm.’”). 17 (1) Ostensible agency Riders argue “[a]n ostensible agency claim is not defeated by a showing that the tortfeaso

2023But no party here has asked us to revisit the Phillips factors, and we apply them in accordance with our precedent. 17 106 S.W.3d 705 . 18 903 S.W.2d 347 (Tex. 1995). 19 Id. at 348 . 6 laboratory improperly performed the test or reported an incorrect result but instead complained that it “should have informed her and her prospective employer that eating poppy seeds could cause a positive test result.”20 After concluding that no court had previously recognized such a duty,21 we considered the Phillips factors and concluded they did not support recognizing the duty the claimant proposed.22 Altho

2023But no party here has asked us to revisit the Phillips factors, and we apply them in accordance with our precedent. 17 106 S.W.3d 705 . 18 903 S.W.2d 347 (Tex. 1995). 19 Id. at 348 . 6 laboratory improperly performed the test or reported an incorrect result but instead complained that it “should have informed her and her prospective employer that eating poppy seeds could cause a positive test result.”20 After concluding that no court had previously recognized such a duty,21 we considered the Phillips factors and concluded they did not support recognizing the duty the claimant proposed.22 Altho

2015See id. at 610-16 (discussing “absolute” right to be free from ex post facto laws, and holding that Phillips’s ex post facto claim was “valid”).

2015See id. at 610-16 (discussing “absolute” right to be free from ex post facto laws, and holding that Phillips’s ex post facto claim was “valid”).

2023We do this by considering several factors— commonly referred to as the Phillips factors 3—balancing “the risk, foreseeability, and likelihood of injury” against the “social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, the consequences of placing the burden on the defendant,” and considering “whether one party would generally have superior knowledge of the risk or a right to control the actor who caused the harm.” Id. (quoting Humble Sand & Gravel, 146 S.W.3d at 182 ). 4 In this case, these factors weigh heavily in favor of recognizing the duty Men

2023We do this by considering several factors— commonly referred to as the Phillips factors 3—balancing “the risk, foreseeability, and likelihood of injury” against the “social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, the consequences of placing the burden on the defendant,” and considering “whether one party would generally have superior knowledge of the risk or a right to control the actor who caused the harm.” Id. (quoting Humble Sand & Gravel, 146 S.W.3d at 182 ). 4 In this case, these factors weigh heavily in favor of recognizing the duty Men

2025See id.; Hagberg, 224 S.W.3d at 481 (stating appellate courts generally affirm judgments on grounds supporting judgment that are not challenged on appeal).

2023Specifically, we concluded that the proposed duty could not be “readily defined” and was “unworkable”; that it would require the laboratory to fulfill responsibilities that, under its contractual agreement, belonged to the claimant’s employer; and that it would “impinge[] on the liability of other professionals for services rendered.”23 Importantly, we concluded our duty analysis in SmithKline by “emphasiz[ing] that we have not considered whether a drug testing laboratory . . . has a duty to use reasonable care in performing tests and reporting the results.”24 20 Id. 21 Id. at 351 . 22Id. at 3

2023Specifically, we concluded that the proposed duty could not be “readily defined” and was “unworkable”; that it would require the laboratory to fulfill responsibilities that, under its contractual agreement, belonged to the claimant’s employer; and that it would “impinge[] on the liability of other professionals for services rendered.”23 Importantly, we concluded our duty analysis in SmithKline by “emphasiz[ing] that we have not considered whether a drug testing laboratory . . . has a duty to use reasonable care in performing tests and reporting the results.”24 20 Id. 21 Id. at 351 . 22Id. at 3

2022See Strickland, 466 U.S. at 692 , 104 S. Ct. at 2067 . 24 In the second affidavit, Harrison stated that an officer had said that Phillips asked him to lie about being the driver, “which is not true because [Phillips] was unconscious in the passenger seat.” This affidavit was consistent with Harrison’s trial testimony and thus supported Phillips’s defense, which is possibly why, after the trial court admitted the affidavits, Phillips’s attorney had Harrison read them both to the jury and then questioned Harrison about their contents.

2022See Strickland, 466 U.S. at 692 , 104 S. Ct. at 2067 . 24 In the second affidavit, Harrison stated that an officer had said that Phillips asked him to lie about being the driver, “which is not true because [Phillips] was unconscious in the passenger seat.” This affidavit was consistent with Harrison’s trial testimony and thus supported Phillips’s defense, which is possibly why, after the trial court admitted the affidavits, Phillips’s attorney had Harrison read them both to the jury and then questioned Harrison about their contents.

2022Phillips Factors To determine whether a duty exists and what its parameters are, we apply what are commonly called the “Phillips factors.” 62 This inquiry requires us to “weigh[] the risk, foreseeability, and likelihood of injury 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.” 63 In making this assessment, we also consider “whether one party would generally have superior knowledge of the risk or a right to control the actor who caused the harm.” 64 Here, 61 Union Bankers

2022See, e.g., Rivas v. State, 275 S.W.3d 880 , 886–87 (Tex. Crim.

2020See Owings, 541 S.W.3d at 150–51; Dixon v. State, 201 S.W.3d 731, 734 (Tex. Crim.

2020See Owings, 541 S.W.3d at 150–51; Dixon v. State, 201 S.W.3d 731, 734 (Tex. Crim.

2020Courts must “consider not only the foreseeability of the general danger but also whether the injury to the particular plaintiff or one similarly situated could be anticipated.” Id. “‘Foreseeability requires more than someone, viewing the facts in retrospect, theorizing an extraordinary sequence of events -5- Dissenting Opinion 04-18-00131-CV whereby the defendant’s conduct brings about the injury.’” Id. (quoting Doe v. Boys Club of Greater Dall., Inc., 907 S.W.2d 472, 478 (Tex. 1995)).

2020Courts must “consider not only the foreseeability of the general danger but also whether the injury to the particular plaintiff or one similarly situated could be anticipated.” Id. “‘Foreseeability requires more than someone, viewing the facts in retrospect, theorizing an extraordinary sequence of events -5- Dissenting Opinion 04-18-00131-CV whereby the defendant’s conduct brings about the injury.’” Id. (quoting Doe v. Boys Club of Greater Dall., Inc., 907 S.W.2d 472, 478 (Tex. 1995)).

2020For the reasons stated below, I would hold the Phillips factors weigh against recognizing the duty Kenyon proposes. i. Risk, foreseeability, and likelihood of injury “Harm is foreseeable if a person of ordinary intelligence should have anticipated the danger created by an act or omission.” Bos v. Smith, 556 S.W.3d 293, 303 (Tex. 2018).

2020For the reasons stated below, I would hold the Phillips factors weigh against recognizing the duty Kenyon proposes. i. Risk, foreseeability, and likelihood of injury “Harm is foreseeable if a person of ordinary intelligence should have anticipated the danger created by an act or omission.” Bos v. Smith, 556 S.W.3d 293, 303 (Tex. 2018).

2019See Methodist Hosp. v. Addison, 574 S.W.3d 490, 502 (Tex. App.— Houston [14th Dist.] 2018, no pet.); see also Potts, 392 S.W.3d at 630-32 .

2019See Methodist Hosp. v. Addison, 574 S.W.3d 490, 502 (Tex. App.— Houston [14th Dist.] 2018, no pet.); see also Potts, 392 S.W.3d at 630-32 .

2016Plea bargains often “contain a wide variety of stipulations and conditions that allow the state to tailor conditions in order to reach agreement with the defendant.” Id. at 167.

2016Plea bargains often “contain a wide variety of stipulations and conditions that allow the state to tailor conditions in order to reach agreement with the defendant.” Id. at 167.

2015IMT contends the Phillips analysis should in fact cover the products at issue, then IMT will govern the present issues, and that under Phillips, be barred from continuing with this proceeding. its rights as a patent holder do not arise out of However, should the terms of the agreement not cover the settlement agreement, and therefore the forum the product-at-issue, then IMT may have the right selection clause should not bar it from bringing the to continue infringement litigation against Roland present action in the Eastern District of Texas. on the ,997 patent, but only so long as the action

2015IMT contends the Phillips analysis should in fact cover the products at issue, then IMT will govern the present issues, and that under Phillips, be barred from continuing with this proceeding. its rights as a patent holder do not arise out of However, should the terms of the agreement not cover the settlement agreement, and therefore the forum the product-at-issue, then IMT may have the right selection clause should not bar it from bringing the to continue infringement litigation against Roland present action in the Eastern District of Texas. on the ,997 patent, but only so long as the action

2015See for example Park v. Escalera Ranch Owners’ Ass’n, Inc., 2015 WL 737424, at 17 , - S.W.3d – (Tex. App. – Austin Feb. 13, 2015, no pet. h.); and Komet v. Graves, 40 S.W.3d 596, 602 (Tex.App. -- San Antonio 2001, no pet.).

2015See for example Park v. Escalera Ranch Owners’ Ass’n, Inc., 2015 WL 737424, at 17 , - S.W.3d – (Tex. App. – Austin Feb. 13, 2015, no pet. h.); and Komet v. Graves, 40 S.W.3d 596, 602 (Tex.App. -- San Antonio 2001, no pet.).

2015See for example Park v. Escalera Ranch Owners’ Ass’n, Inc., 2015 WL 737424, at 17 , - S.W.3d – (Tex. App. – Austin Feb. 13, 2015, no pet. h.); and Komet v. Graves, 40 S.W.3d 596, 602 (Tex.App. -- San Antonio 2001, no pet.).

2015See for example Park v. Escalera Ranch Owners’ Ass’n, Inc., 2015 WL 737424, at 17 , - S.W.3d – (Tex. App. – Austin Feb. 13, 2015, no pet. h.); and Komet v. Graves, 40 S.W.3d 596, 602 (Tex.App. -- San Antonio 2001, no pet.).

2015The Phillips exception was also relied upon by this Court in Rosales v. Williams, 2010 WL 457536 , at 6 (Tex.App.-Houston [1st Dist.] 2001, no pet.) and the 14th Court of Appeals in RR Maloan Investments, Inc. v. New HGE, Inc., 428 S.W.3d 355, 362 (Tex.App.—Houston [14th Dist.] 2014), reh'g overruled (May 1, 2014).

2015The Phillips exception was also relied upon by this Court in Rosales v. Williams, 2010 WL 457536 , at 6 (Tex.App.-Houston [1st Dist.] 2001, no pet.) and the 14th Court of Appeals in RR Maloan Investments, Inc. v. New HGE, Inc., 428 S.W.3d 355, 362 (Tex.App.—Houston [14th Dist.] 2014), reh'g overruled (May 1, 2014).

2015The Phillips exception was followed by the Supreme Court in Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 937 (Tex.1992).

2015The Phillips exception was followed by the Supreme Court in Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 937 (Tex.1992).

2015IMT contends the Phillips analysis should in fact cover the products at issue, then IMT will govern the present issues, and that under Phillips, be barred from continuing with this proceeding. its rights as a patent holder do not arise out of However, should the terms of the agreement not cover the settlement agreement, and therefore the forum the product-at-issue, then IMT may have the right selection clause should not bar it from bringing the to continue infringement litigation against Roland present action in the Eastern District of Texas. on the ,997 patent, but only so long as the action

2015IMT contends the Phillips analysis should in fact cover the products at issue, then IMT will govern the present issues, and that under Phillips, be barred from continuing with this proceeding. its rights as a patent holder do not arise out of However, should the terms of the agreement not cover the settlement agreement, and therefore the forum the product-at-issue, then IMT may have the right selection clause should not bar it from bringing the to continue infringement litigation against Roland present action in the Eastern District of Texas. on the ,997 patent, but only so long as the action