Good Samaritan Or Negligent Undertaking? Be Wary.

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

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 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...