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Case watch: TX Supreme Court to review certified question regarding premise liability and negligent undertaking
10/21/24
On October 31, the Texas Supreme Court will review a certified question from the U.S. Fifth Circuit Court of Appeals regarding the bounds of negligent undertaking. The Texas Supreme Court will determine whether it is a landowner’s responsibility to protect invitees from naturally accumulating rainfall on the property under the theory of a negligent undertaking.
The case, Rogelio Barron, et al v. United States of America (Cause No. 24-0627; granted August 9, 2024), stems from the death of Plaintiff’s son, a civilian contractor at San Antonio-area military facility Camp Bullis. Plaintiff filed a lawsuit against the United States under the Federal Tort Claims Act (“FTCA”). The district court initially dismissed Plaintiff’s claims, finding that the alleged breaches to the duty of care were discretionary in nature and exempted from the FTCA’s waiver of sovereign immunity. The Fifth Circuit Court of Appeals, however, reversed and remanded, holding that the safety regulations at issue did not confer discretion. Rather, the appellate court found the safety regulations established a duty of affirmative action.
Once back in district court, Defendant moved for—and was granted—summary judgment on liability. The court rejected all claims made by Plaintiff, holding that general negligence was barred, premises liability was precluded by the natural accumulation doctrine, and negligent undertaking was inadequately pleaded, thus leaving the Plaintiff unable to amend the claim with leave from the court.
Upon the Plaintiff’s appeal, the Fifth Circuit Court affirmed summary judgment unanimously as to Plaintiff’s negligence and premises liability claims. The Fifth Circuit did so based on general negligence and premises liability being mutually exclusive under Texas law and that Plaintiff’s claims sounded in premises liability rather than negligence theories. Despite uniformity on the negligence and premises liability claims, the Fifth Circuit Court was split on the Plaintiff’s negligent undertaking theories.
From this split came the certified question that the Texas Supreme Court will hear at the end of the month: can a landowner’s affirmative act create a duty to protect an invitee from dangers caused by naturally occurring conditions under a theory of negligent undertaking where the natural accumulation doctrine bars recovery under a theory of premises liability?
It remains to be seen how the Texas Supreme Court will rule. Will it rule in line with its decisions that delineate injured parties having either a negligence claim or a premise liability claim but not both or will it find negligent undertaking viable even in the absence of premise liability? We will find out during and after the scheduled oral arguments this Halloween. The ripple effect of such a case and a landmark decision could prove scary to the potential exposure to all landowners and parties in Texas.
Please do not hesitate to contact Alexander S. Gebert at alex.gebert@fmglaw.com or your local FMG relationship partner to learn more.
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