negligent undertaking claim in Texas

2024See id. (citing Wilson, 8 S.W.3d at 635 n.4; Kenyon, 644 S.W.3d at 151).3 3 As for duty imposed by statute or regulation, Oncor’s representative testified as to Oncor’s practices and guidelines on its vegetation management plans and that there was no regulation or other specific requirement “as far as how you trim your trees, when you trim your trees, and to what extent you trim your trees.” Oncor’s expert similarly testified there was no Texas law requirement that utilities trim a certain distance from their power lines. –11– However, in contrast with the typical negligence claim the jury was

2020In - 33 - 04-18-00131-CV Torrington, the negligent undertaking claim was based on a manufacturer’s negligent inspection of a helicopter, but the damages arose from the deaths of two Marines. 46 S.W.3d at 836–37.

2024See id. (citing Wilson, 8 S.W.3d at 635 n.4; Kenyon, 644 S.W.3d at 151).3 3 As for duty imposed by statute or regulation, Oncor’s representative testified as to Oncor’s practices and guidelines on its vegetation management plans and that there was no regulation or other specific requirement “as far as how you trim your trees, when you trim your trees, and to what extent you trim your trees.” Oncor’s expert similarly testified there was no Texas law requirement that utilities trim a certain distance from their power lines. –11– However, in contrast with the typical negligence claim the jury was

2022A negligent-undertaking claim requires the plaintiff to show that “(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.

2024See id. (citing Wilson, 8 S.W.3d at 635 n.4; Kenyon, 644 S.W.3d at 151).3 3 As for duty imposed by statute or regulation, Oncor’s representative testified as to Oncor’s practices and guidelines on its vegetation management plans and that there was no regulation or other specific requirement “as far as how you trim your trees, when you trim your trees, and to what extent you trim your trees.” Oncor’s expert similarly testified there was no Texas law requirement that utilities trim a certain distance from their power lines. –11– However, in contrast with the typical negligence claim the jury was

2024See 8 S.W.3d at 635 n.4 (quoting RESTATEMENT (SECOND) OF TORTS § 323 (Am.

2012See Wilson, 8 S.W.3d at 635 n. 4; Dukes, 252 S.W.3d at 598 .

2012See Dukes, 252 S.W.3d at 603 (holding that the plaintiffs attempt to impose a duty through a voluntary undertaking theory “necessarily” failed because the plaintiff did not present evidence creating a genuine issue of material fact on reliance or increased harm); see also Stutznum, 46 S.W.3d at 838 (referring to reliance or increased risk of harm as “essential elements” of an undertaking claim); Guadalupe-Bianco River Auth. v. Pitonyak, 84 S.W.3d 326, 342 (Tex.App.-Corpus Christi 2002, no pet.) (explaining that an entity’s negligent implementation of a policy does not itself waive immunity and

2012See Dukes , 252 S.W.3d at 603 (holding that the plaintiff’s attempt to impose a duty through a voluntary undertaking theory “necessarily” failed because the plaintiff did not present evidence creating a genuine issue of material fact on reliance or increased harm); see also Stutzman , 46 S.W.3d at 838 (referring to reliance or increased risk of harm as “essential elements” of an undertaking claim); Guadalupe-Blanco River Auth. v. Pitonyak , 84 S.W.3d 326, 342 (Tex. App.—Corpus Christi 2002, no pet.) (explaining that an entity’s negligent implementation of a policy does not itself waive immunit

2012See Dukes, 252 S.W.3d at 603 (holding that the plaintiffs attempt to impose a duty through a voluntary undertaking theory “necessarily” failed because the plaintiff did not present evidence creating a genuine issue of material fact on reliance or increased harm); see also Stutznum, 46 S.W.3d at 838 (referring to reliance or increased risk of harm as “essential elements” of an undertaking claim); Guadalupe-Bianco River Auth. v. Pitonyak, 84 S.W.3d 326, 342 (Tex.App.-Corpus Christi 2002, no pet.) (explaining that an entity’s negligent implementation of a policy does not itself waive immunity and

2022Ass’n, 544 S.W.2d at 119 (stating an undertaking requires “an affirmative course of action”); see Knife River Corp.–S. v. Hinojosa, 438 S.W.3d 625, 631-32 (Tex. App.—Houston [1st Dist.] 2014, pet. denied); Thornton v. Henkels & McCoy, Inc., No. 13-12-00585-CV, 2013 WL 5676026 , at *3 (Tex. App.—Corpus Christi–Edinburg Oct. 17, 2013, no pet.) (mem. op.) (holding that the defendant, who failed to repair a sagging cable line, was not liable for negligent 26 undertook necessary protective action, and Kenyon did not detrimentally rely on anything Elephant’s employee said (or did not say) with regar

2015Ass’n v. Taylor, 544 S.W.2d 116, 120 (Tex.1976) (adopting Restatement).

2019See Thornton v. Henkels & McCoy, Inc., No. 13-12-00585-CV, 2013 WL 5676026 , at *3 (Tex. App.—Corpus Christi Oct. 17, 2013, no pet.) (mem. op.) (holding defendant that failed to repair sagging cable line was not liable for negligent undertaking because claim requires an “affirmative course of action” and cannot be predicated upon an alleged negligent omission or failure to act) (citing Coastal Corp. v. Torres, 133 S.W.3d 776 , 780–81 (Tex. App.—Corpus Christi 2004, pet. denied)). - 13 - 04-18-00131-CV pet.), overruled in part on other grounds by Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d

2013Willowbrook Foods, Inc. v. Grinnell Corp., 147 S.W.3d 492, 499 (Tex. App.—San Antonio 2004, pet. denied) (citing Torrington Co. v. Stutzman, 46 S.W.3d 829, 837 (Tex. 2000)); Coastal Corp. v. Torres, 133 S.W.3d 776, 780 (Tex. App.—Corpus Christi 2004, pet. denied); see Peterson v. RES Am.

2015Thota, 366 S.W.3d at 687 , citing In re V.L.K., 24 S.W.3d 338, 341 (Tex.2000).

2015Thota, 366 S.W.3d at 687 , citing In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000).

2021The supreme court disagreed, holding that the Nalls had addressed the negligent undertaking claim by arguing that the court’s holding in Graff v. Beard, 858 S.W.2d 918 (Tex. 1993), foreclosed the assumption of any duty by a social host under the facts of the case.

2015We hold that the Nalls' summary judgment motion Background: Guest at New Year's Eve party brought specifically addressed the negligent-undertaking claim by negligence action against hosts and driver relating to personal arguing that our decision in Graff v. Beard, 858 S.W.2d 918 , injuries he sustained when he attempted to prevent the 921 (Tex.1993), forecloses the assumption of any duty by a driver from driving intoxicated after leaving the party.

2022Ass’n, 544 S.W.2d at 119 (stating an undertaking requires “an affirmative course of action”); see Knife River Corp.–S. v. Hinojosa, 438 S.W.3d 625, 631-32 (Tex. App.—Houston [1st Dist.] 2014, pet. denied); Thornton v. Henkels & McCoy, Inc., No. 13-12-00585-CV, 2013 WL 5676026 , at *3 (Tex. App.—Corpus Christi–Edinburg Oct. 17, 2013, no pet.) (mem. op.) (holding that the defendant, who failed to repair a sagging cable line, was not liable for negligent 26 undertook necessary protective action, and Kenyon did not detrimentally rely on anything Elephant’s employee said (or did not say) with regar

2022Grp., Inc., 541 S.W.3d 208 (Tex. App.— Houston [14th Dist.] 2017, no pet.) (affirming summary judgment for an employment-screening company on a negligent-undertaking claim after the company failed to discover red flags in a workplace shooter’s background because the evidence conclusively established that the company’s engagement was limited to discrete, unrelated inquiries); Knife River Corp.–S. v. Hinojosa, 438 S.W.3d 625 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (rendering judgment for a TxDOT contractor on a negligent-undertaking claim arising from a driver’s death because the evide

2025See id.

2024See id. (citing Wilson, 8 S.W.3d at 635 n.4; Kenyon, 644 S.W.3d at 151).3 3 As for duty imposed by statute or regulation, Oncor’s representative testified as to Oncor’s practices and guidelines on its vegetation management plans and that there was no regulation or other specific requirement “as far as how you trim your trees, when you trim your trees, and to what extent you trim your trees.” Oncor’s expert similarly testified there was no Texas law requirement that utilities trim a certain distance from their power lines. –11– However, in contrast with the typical negligence claim the jury was

2024See id. (citing Wilson, 8 S.W.3d at 635 n.4; Kenyon, 644 S.W.3d at 151).3 3 As for duty imposed by statute or regulation, Oncor’s representative testified as to Oncor’s practices and guidelines on its vegetation management plans and that there was no regulation or other specific requirement “as far as how you trim your trees, when you trim your trees, and to what extent you trim your trees.” Oncor’s expert similarly testified there was no Texas law requirement that utilities trim a certain distance from their power lines. –11– However, in contrast with the typical negligence claim the jury was

2020A. The Benefit or Protection Requirement As to the benefit or protection requirement, Elephant’s traditional summary judgment motion argued it “did not undertake an affirmative course of action for the Kenyons’ benefit or protection.” In its no-evidence ground, Elephant argued, “Kenyon can produce no evidence that Elephant undertook to perform any services that it knew or reasonably should have known were 11 A negligent undertaking claim also requires the plaintiff to show the defendant “failed to exercise reasonable care in performing those services” and such breach proximately caused the pla

2020In American K-9 Detection Services LLC v. Freeman, the supreme court stated that undertaking to build and repair a dog kennel “would support a negligent- undertaking claim” in which the injury was a dog bite. 556 S.W.3d 246, 258 (Tex. 2018).

2020See Thomas v. Select Portfolio Servicing, Inc., 293 S.W.3d 316, 322 (Tex. App.—Beaumont 2009, no pet.); W.

2020The court directly addressed a negligent undertaking duty (i.e. whether removal of the tarp was a negligent “performance of services”), and held that, even though the negligent undertaking claim was, in effect, a cause of action for negligent claims handling not recognized in Texas law, the insurance company “read[] Thomas’s pleadings too narrowly.” Id.

2019See Thornton v. Henkels & McCoy, Inc., No. 13-12-00585-CV, 2013 WL 5676026 , at *3 (Tex. App.—Corpus Christi Oct. 17, 2013, no pet.) (mem. op.) (holding defendant that failed to repair sagging cable line was not liable for negligent undertaking because claim requires an “affirmative course of action” and cannot be predicated upon an alleged negligent omission or failure to act) (citing Coastal Corp. v. Torres, 133 S.W.3d 776 , 780–81 (Tex. App.—Corpus Christi 2004, pet. denied)). - 13 - 04-18-00131-CV pet.), overruled in part on other grounds by Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d

2015See Dailey, 445 S.W.3d at 788 . 1.

2015See Dailey, 445 S.W.3d at 788 . 1.

2013Willowbrook Foods, Inc. v. Grinnell Corp., 147 S.W.3d 492, 499 (Tex. App.—San Antonio 2004, pet. denied) (citing Torrington Co. v. Stutzman, 46 S.W.3d 829, 837 (Tex. 2000)); Coastal Corp. v. Torres, 133 S.W.3d 776, 780 (Tex. App.—Corpus Christi 2004, pet. denied); see Peterson v. RES Am.

2013Id. at 837; see Entergy Gulf States, Inc. v. Akrotex, Inc., 40 S.W.3d 201, 206 (Tex.App.-Beaumont 2001, no pet.).