PJC General Negligence 2022

PJC 10.14

A GENCY AND S PECIAL R ELATIONSHIPS

tal , 858 S.W.2d 397, 404 (Tex. 1993). Therefore, in a case involving a claim for wrongful death, the word “death” may be substituted for the word “injury” in the neg ligence question. Caveat to element 3. There are two types of negligent undertaking, which will dictate whether to use the name of the plaintiff or of someone else in element 3. The first type is the rendition of services to the plaintiff, in which event an element of the tort is reliance by (or alternatively increased risk to) the plaintiff to whom services are rendered, as set forth in Restatement (Second) of Torts §323. See Colonial Savings Ass’n v. Taylor , 544 S.W.2d 116, 120 (Tex. 1976) (lienholder not liable in its undertak ing unless plaintiff learned of and relied on the undertaking); Entex v. Gonzalez , 94 S.W.3d 1, 9–10 (Tex. App.—Houston [14th Dist.] 2002, pet. denied) (requiring proof of actual reliance in §323 case). The second type is the rendition of services to another, which the defendant should recognize as necessary for the protection of a third person, as in Restatement (Second) of Torts § 324A. See Johnson v. Abbe Engi neering Co. , 749 F.2d 1131, 1133 (5th Cir. 1984) (applying Texas law and holding that both subsidiary to whom undertaking duty owed and its employees who would benefit by the safety checks relied on the undertaking). This is the situation in Torrington , 46 S.W.3d 829. Torrington agreed to render the services to Bell. The third party to be pro tected included the U.S. Navy as a whole and any passengers in the helicopters, such as the plaintiffs: Thus, the jury should have been instructed that Torrington was negligent only if (1) Torrington undertook to perform services that it knew or should have known were necessary for the plaintiffs’ protection, (2) Torrington failed to exercise reasonable care in performing those services, and either (3) the Navy relied upon Torrington’s performance, or (4) Torrington’s per formance increased the plaintiffs’ risk of harm. Torrington , 46 S.W.3d at 838. As made clear by § 324A, an element of that tort is reli ance by either the party to whom services were rendered or the third party to be pro tected. Depending on the undertaking, element 3 of the above instruction should refer either to the plaintiff, Paul Payne (§323 undertaking), or to the third party (§324A undertaking).

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