Good Samaritan Or Negligent Undertaking? Be Wary.

• Jurisdiction: Texas,United States
• Published date: 10 March 2023
• Subject Matter: Litigation, Mediation & Arbitration, Professional Negligence
• Law Firm: Kane Russell Coleman Logan
• Author: Hannah Addison
• topic: Civil Procedure

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:

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
   1. the plaintiff relied upon the defendant's performance or
   2. the defendant's performance increased the plaintiff's risk of harm.²

For example, in a pleading containing a cause of action for negligent...