LITIGATION ALERT: Good Samaritan or Negligent Undertaking? Be Wary.
Attorneys should be on the lookout for negligent undertaking causes of action disguised or pled as negligent training or other similar negligence-related claims. Although related, the cause of action for negligent undertaking has additional, independent elements required to succeed on the merits. Texas courts have recognized the cause of action for negligent undertaking, in limited circumstances, and have imposed a duty where an actor undertakes to provide services to another—whether gratuitously or for compensation. It is often used in an effort to create a duty where one normally would not exist.1 Although rooted in negligence, negligent undertaking requires the additional evidentiary showing that:
- The defendant undertook to perform services that it knew or should have known were necessary for the plaintiff’s protection;
- 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.2
For example, in a pleading containing a cause of action for negligent training, a plaintiff may artfully claim that a defendant negligently “undertook the duty to train” an individual in an attempt to disguise this cause of action, when in reality, there may be two separate causes of action pled. Moreover, identifying a cause of action for negligent undertaking and distinguishing it from an ordinary negligence allegation is important when preparing for trial or a dispositive motion—such as a no-evidence motion for summary judgment. The failure to identify the elements specific to a negligent undertaking claim—compared to an ordinary negligence claim—would be detrimental to a no-evidence motion for summary judgment because the movant must identify one or more of the essential elements of the subject claim for which there is no evidence in moving for summary judgment.3
Additionally, given the fact that Texas courts have held that an employer’s internal policies or procedures will not create a negligence-based duty where none otherwise exists,4 plaintiff’s counsel may argue that negligent undertaking is a viable claim to create an alternative avenue of liability depending on the facts and circumstances of the case.
Notably, although not necessarily successful, negligent undertaking claims have emerged in different areas of law. Some examples include social host liability, contractual duties, and job-related training. See e.g., Nall v. Plunkett, 404 S.W.3d 552 (Tex. 2013); see also e.g., Knife River Corp.-S. v. Hinojosa, 438 S.W.3d 625 (Tex. App.—Houston [1st Dist.] 2014, pet. denied); see also e.g., Poynor v. BMW of N. Am., LLC, 441 S.W.3d 315 (Tex. App.—Dallas 2013, no pet.). Thus, when reviewing a complaint containing negligence-related causes of action, counsel should be on the lookout for language that pertains to the “undertaking” to perform services or other negligent undertaking specific elements as a cause of action for negligent undertaking may be skillfully embedded in another related negligence-based cause of action. Awareness of this cause of action will allow counsel to readily identify this claim and zealously protect their clients’ interests.
 See Nall v. Plunkett, 404 S.W.3d 552, 554 (Tex. 2013).
 Id. at 555–56.
 See TEX. R. CIV. P. 166a(i).
 See Entex, A Div. of Noram Energy Corp. v. Gonzalez, 94 S.W.3d 1, 10 (Tex. App.—Houston [14th Dist.] 2002, pet. denied); see also Jacobs–Cathey Co. v. Cockrum, 947 S.W.2d 288, 291–92 (Tex. App.—Waco 1997, writ denied) (holding that company's internal policy of removing debris left at its work sites by other parties did not impose upon the company a legal duty to parties injured by unremoved debris); Estate of Catlin v. Gen. Motors Corp., 936 S.W.2d 447, 451 (Tex. App.—Houston [14th Dist.] 1996, no writ) (holding that company's safety policies restricting consumption of alcohol on its premises did not create legal duty that would subject the company to liability for failing to comply with those policies); cf. Owens v. Comerica Bank, 229 S.W.3d 544, 547 (Tex. App.—Dallas 2007, no pet.) (“The Texas Supreme Court has refused to create a standard of care or duty based upon internal policies, and the failure to follow such policies does not give rise to a cause of action in favor of customers or others.”) (citing FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 92 (Tex. 2004)); see Cleveland Reg'l Med. Ctr., L.P. v. Celtic Properties, L.C., 323 S.W.3d 322, 351–52 (Tex. App.—Beaumont 2010, pet. denied).