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To establish a claim for a "negligent undertaking," a plaintiff must show (1) the defendant undertook to perform services that he 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 (3) the plaintiff relied upon the defendant's performance, or (4) the defendant's performance increased the plaintiff's risk of harm. A negligent undertaking requires an affirmative act upon which reliance can be based.
In the summer of 2007, Helbing participated in a "student orientation" for incoming freshmen at Texas A&M University known as "Fish Camp," where Hunt and Deaver served as her counselors. During the subsequent school year, Fish Camp counselors would commonly organize "hang outs" and "formal get-togethers" involving the freshman students. On the night of September 6, 2007, Hunt and Deaver "decided to take a group of students to a railroad bridge," "climb down from the [b]ridge," "lay on a concrete platform under the railroad tracks," and then "witness a train pass overhead." Hunt telephoned Helbing to invite her on the trip, telling her that "as she looked back on her time at college, she would be more likely to remember the planned trip to the railroad tracks . . . than she would remember studying for a quiz." Helbing interpreted Hunt's call as an invitation to an official Fish Camp "hang out." Hunt and Deaver then drove Helbing and three other freshmen to the bridge. Upon their arrival, Hunt and Deaver "led the students on a path down the railroad tracks . . . using only cell phones for lighting." Although Deaver gave the students a "safety" briefing, neither he nor Hunt informed them of "the risk of falling between unnoticeable gaps" in the bridge. Hunt, Deaver, and the students walked across the bridge to "step down onto a concrete platform" that was "at least 30 feet off the ground." After the train passed overhead, the students climbed back up onto the railroad tracks, where Helbing "misstepped into a gap between the end of the railroad ties" and fell to the ground below. She suffered "multiple spinal injuries that rendered her partially paralyzed." Helbing alleged that Hunt and Deaver had "assumed a position of leadership and trust . . . which she relied upon, and they had a duty to exercise reasonable care in their leadership of the group on the night of the accident." Helbing further alleged that Hunt and Deaver's conduct "constituted a negligent undertaking" giving rise to a duty. Helbing filed a suit for damages for past and future medical expenses, past and future economic losses, past and future pain and mental anguish, past and future physical impairment, and past and future disfigurement. The trial court rendered summary judgment in favor of Hunt and Deaver.
Did the trial court err in rendering summary judgment in favor of Hunt and Deaver for lack of duty of reasonable care?
Viewing the summary-judgment evidence favorable to Helbing as true, as the appellate court must, a fact finder could reasonably conclude that Hunt and Deaver did not simply invite her to go to the railroad bridge, but presented the activity to her as a sanctioned Fish Camp "hang out," which Helbing believed would not place her in any danger. Several of the factors that courts generally look to in determining whether a duty exists may be found in the instant case. Hunt and Deaver occupied a position of "leadership" and "trust" over the freshmen, presented the event to Helbing as a Fish Camp "hang out," and knew the trip would be too dangerous for the approval of Fish Camp directors. From the evidence presented, a fact finder could reasonably infer that Hunt and Deaver engaged in an undertaking to perform services necessary for Helbing's protection; they, thus, owed her a duty to exercise reasonable care to perform the undertaking, and they failed to exercise such reasonable care. Specifically, a fact finder could reasonably conclude that Hunt and Deaver failed to (1) inform Helbing that Deaver had been previously told that the activity was "unsafe" and "dangerous," (2) warn her of the specific risks involved before taking her to the bridge, (3) provide an adequate "safety briefing" upon their arrival at the bridge, (4) explain to her the dangers of going out onto the bridge and climbing down it, (5) warn her about the gap in the bridge that she fell into, or, (6) upon their arrival at the bridge, provide adequate lighting so that she could (a) see how dangerous the activity was, or (b) adequately see the path upon which she was led and the gap that she fell through. At the very least, a fact finder could reasonably conclude that Hunt and Deaver failed to exercise reasonable care by taking the freshman Helbing on the "hang out" with nothing more than their cellular telephones to light the path upon which Hunt and Deaver led her.
In support of their argument that they owed Helbing no duty of reasonable care, Hunt and Deaver rely on Rocha v. Faltys. However, Rocha involved a fraternity brother who encouraged his fellow fraternity brother to jump off of a cliff into a lake after a party. In holding that the defendant owed no duty to the plaintiff, the court noted that there was "implicit encouragement at most" and "no evidence that Faltys ever actively encouraged, urged, pressured, forced, or coerced [Rocha] into jumping from the cliff." And there was no indication that the defendant occupied a position of "leadership" and "trust," as both Hunt and Deaver admitted in this case, and there was no indication that the defendant presented the excursion as a school-sanctioned activity. Furthermore, the summary-judgment evidence reveals that the actions of Hunt and Deaver rose above the "implicit encouragement" of the defendant in Rocha. Helbing testified that she initially declined Hunt's request that she attend the "hang out" to study for a math quiz, and she believed the event was a sanctioned Fish Camp "hang out." She only agreed to attend after Hunt made her feel guilty for missing other "hang outs" by insisting that "in five years you will not remember studying but you will remember something cool like this." And, as noted above, Hunt and Deaver transported the freshmen to the railroad "hang out" and, once there, Deaver purported to give a "safety briefing" to the students, though the only lighting provided by Hunt and Deaver came from their cellular telephones.