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Texas Negligent Undertaking

©2014 Mark Courtois and Diane Davis

Texas recognizes a cause of action for negligent undertaking. A negligent-undertaking claim requires proof that the defendant owed the plaintiff a legal duty and violated it. See Torrington Co. v. Stutzman, 46 S.W.3d 829, 837 (Tex. 2000). The critical inquiry concerning the duty element of a negligent-undertaking theory is whether a defendant acted in a way that requires the imposition of a duty where one otherwise would not exist. Id. 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.").

Jury Submission

A jury submission for a negligence claim predicated 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).