Cassie Landrum, Individually, and as Personal Representative of the Estate of Jeffrey Landrum v. Three Aces Towing, Inc. D/B/A Three Aces Storage ( 2021 )

Affirmed in Part, and Reversed and Remanded in Part, and Majority and
Dissenting Opinions filed June 24, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00409-CV
CASSIE LANDRUM, INDIVIDUALLY, AND AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF JEFFREY LANDRUM,
Appellant
V.
THREE ACES TOWING, INC. D/B/A THREE ACES STORAGE, Appellee
On Appeal from the 344th District Court
Chambers County, Texas
Trial Court Cause No. 18DCV0253
DISSENTING OPINION
While I agree with the majority with respect to the motion to reconsider and
the motion for new trial, I respectfully dissent with respect to the majority’s opinion
on negligent undertaking. This court should affirm the trial court’s order granting
summary judgment.
Texas law generally imposes no duty to take action to prevent harm to others
absent certain special relationships or circumstances. Torrington Co. v. Stutzman,
46 S.W.3d 829, 837 (Tex. 2000). However, a duty to use reasonable care may arise
“when a person undertakes to provide services to another, either gratuitously or for
compensation.” Id.; see Fort Bend Cty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392,
395–96 (Tex. 1991). Section 324A of the Restatement (Second) of Torts states the
rule for liability to third persons based on negligent undertaking:
One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for the
protection of a third person or his things, is subject to liability to the
third person for physical harm resulting from his failure to exercise
reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such
harm, or
(b) he has undertaken to perform a duty owed by the other to the third
person, or
(c) the harm is suffered because of reliance of the other or the third
person upon the undertaking.
Restatement (Second) of Torts § 324A (1965); see Sbrusch, 818 S.W.2d at 396.
The majority correctly observes that the existence of a legal duty is a question
of law for the court. The critical inquiry concerning the duty element of a negligent-
undertaking theory is whether a defendant acted in a way that requires the imposition
of a duty where one otherwise would not exist. Nall v. Plunkett, 404 S.W.3d 552,
555 (Tex. 2013) (per curiam).
Although Section 324A expands the class of persons to whom the duty of care
is owed, it does not expand the scope of the undertaking. Lowe’s Home Ctrs., Inc.
v. GSW Marketing, Inc., 293 S.W.3d 283, 291 (Tex. App.—Houston [14th Dist.]
2009, pet. denied). “Section 324A imposes a duty to perform without negligence
only the task that the actor has undertaken to accomplish.” Kuentz v. Cole Systems,
Inc., 541 S.W.3d 208, 214 (Tex. App.—Houston [14th] 2017, no pet.); Torrington,
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46 S.W.3d at 839 (“In Sbrusch, we observed that ‘[a] person’s duty to exercise
reasonable care in performing a voluntarily assumed undertaking is limited to that
undertaking.’”).
In this case, the evidence is undisputed that Dawn Hancock’s actions were
limited to helping appellant push the building approximately one foot to the end of
the trailer. Dawn1 testified:
• The driver, Jeffrey Landrum, asked her for some tools so he could
remove the “wide load” signs.
• Jeffrey2 also asked Dawn “to help him push the building to the end of
the trailer.”
• When Jeffrey asked Dawn for help pushing the building to the end of
the trailer, the building was “maybe a foot” from the end of the trailer.
• Dawn did not think that Jeffrey was asking her to help him unload the
building.
• When the building got to the end of the trailer, Jeffrey asked Dawn to
step away.
• When Dawn and Landrum got to the end of the trailer, he said, “Dawn,
stand clear.”
Once the building got to the end of the trailer, Dawn’s participation in the
unloading process ended. As a result, her duty to exercise reasonable care had ceased
when Jeffrey started to unload the building from the end of the trailer by himself.
This Court has previously held that liability under a negligent-undertaking
theory is limited to the tasks that the actor agreed to perform. In Kuentz, a sales
manager at a car dealership was shot and killed by a salesman at the dealership. See
Kuentz, 541 S.W.3d at 210. The manager’s wife brought suit against, among others,
1
In this opinion, I refer to Dawn Hancock by her first name because her husband, Robert
Hancock, was also a defendant.
2
In this opinion, I refer to Jeffrey Landrum by his first name because his daughter, Cassie
Landrum, individually and as personal representative of the estate of Jeffrey Landrum, is the
appellant/plaintiff in this case.
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the pre-employment background screening company hired by the dealership,
alleging negligence by the screening company for its failure to discover adverse facts
about the applicant. See id. at 215–16. Based in part on the work from the screening
company, the applicant was hired by the dealership and subsequently shot the
plaintiff’s husband. See id. at 211–12. The evidence established that the screening
company’s services were limited to four discrete inquiries for an $85 fee: (1) a
background interview of the potential employee to solicit self-disclosed
employment-related historical information; (2) a criminal-records check in the
counties where the applicant lived and worked; (3) a drug test; and (4) a social-
security verification. See id. at 216. The plaintiff argued that if the screening
company had done a more thorough job and searched additional databases and
employment histories, it would have discovered red flags about the applicant which
would have prevented him from being hired by the dealership. See id. at 216–18.
This Court held that there was no summary-judgment evidence raising a genuine
issue of material fact that the screening company “undertook a duty owed to [the
sales manager] by [the car dealership] beyond that agreed to between the parties.”
Id. at 219.
Our sister court ruled similarly in Knife River Corporation-South v. Hinojosa.
See 438 S.W.3d 625 (Tex. App.—Houston [1st Dist.] 2014, pet. denied). There, the
Texas Department of Transportation (“TxDOT”) contracted with the defendant to
resurface a section of Highway 105 in Washington County. See id. at 628. The
contract required the contractor to give written notice if the contractor encountered
differing or latent conditions not addressed by the project plans. See id. at 628–29.
During construction, the contractor noticed safety issues in a section of the
road involving a box culvert and a steep shoulder drop-off. The contractor notified
TxDOT, but the drop-off remained. See id. at 629. Five years later, a tractor-trailer
driver was killed when he swerved to avoid a head-on collision and fell into the drop-
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off. See id. The driver’s spouse sued the construction company asserting a negligent-
undertaking theory. See id. The First Court rejected that theory, holding that the law
imposes a duty to perform without negligence only those tasks that the actor has
undertaken to accomplish. See id. at 634. The contractor owed no duty as a matter
of law to rectify the drop off. See id. at 637; see also Bauer v. Gulshan Enterprises,
Inc., 617 S.W.3d 1, 22–28 (Tex. App.—Houston [1st Dist.] 2020, pet. filed) (holding
that defendant was only required to exercise reasonable care in performing services
that it affirmatively undertook to perform).
The majority opinion implies that Dawn, once she assisted in pushing the
building to the end of the trailer, should have continued to assist notwithstanding
Landrum’s instructions to stop. However, a duty under a negligent-undertaking
theory cannot be created by a failure to act. See Sbrush, 818 S.W.2d at 396–97.
There is no evidence that Dawn failed to exercise reasonable care with respect
to the limited activity that she undertook, i.e., assist in pushing the building
approximately one foot to the end of the trailer. The majority opinion conflicts with
prior opinions of the Supreme Court of Texas, this court, and other courts of appeals.
See Nall, 404 S.W.3d at 555; Sbrush, 818 S.W.2d at 395–97; Kuentz, 541 S.W.3d at
216–19; Bauer, 617 S.W.3d at 22–28; Knife River Corp., 438 S.W.3d at 634–37.
Under these precedents, this court should affirm the trial court’s judgment.
/s/ Randy Wilson
Justice
Panel consists of Justices Zimmerer, Poissant, and Wilson (Poissant, J., majority).
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