John B. Plunkett v. Justin Curtis Nall, Robert W. Nall and Olga L. Nall

Reversed and Remanded and Majority and Dissenting Opinions filed June 26, 2012.

In The

Fourteenth Court of Appeals

NO. 14-11-00356-CV

JOHN B. PLUNKETT, Appellant

V.

JUSTIN CURTIS NALL, ROBERT W. NALL, AND OLGA L. NALL, Appellees

On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Cause No. 09-DCV-177458-A

MAJORITY OPINION

Appellant, John B. Plunkett, appeals a summary judgment in favor of appellees,
Justin Curtis Nall, Robert W. Nall, and Olga L. Nall (collectively “the Nalls”), in
Plunkett’s negligence suit. In his sole issue, Plunkett contends the trial court erred by
granting summary judgment because the Nalls moved for summary judgment on a
negligence theory that was different from the claim pleaded by Plunkett. We reverse and
remand.
 I. BACKGROUND

In his petition, Plunkett presents the following factual allegations.1 On New
Years’ Eve of 2007, Plunkett attended a party at the home of Robert and Olga Nall and
their college-aged son, Justin. To ensure no party guest drove while intoxicated, the
Nalls required that any guests remaining at midnight spend the entire night at the home.
However, the Nalls failed to enforce this rule because they did not retain car keys or
perform any other actions to prevent guests from leaving, and Robert and Olga retired to
bed between midnight and 2:00 a.m. without ensuring all guests remained at the home.
Shortly after 2:00 a.m., Justin Kowrach, who was “inebriated,” and a female friend
attempted to leave. Kowrach entered the driver’s seat of the female’s Ford Explorer.
Plunkett attempted to dissuade Kowrach and his friend from leaving by first speaking to
them through the passenger’s window and then walking to the driver’s window. While
Plunkett stood on the running board of the vehicle and tried to remove the keys from the
ignition, Kowrach accelerated and then “hit the brakes.” Plunkett was propelled head
first into the ground, and his head became lodged under a parked car. Plunkett suffered
severe injuries, including brain damage, resulting in hospitalization for several weeks and
the need for medical care during the remainder of his life.

Plunkett sued the Nalls and Kowrach. With respect to the Nalls, Plunkett alleges
they are liable for common law negligence, failed to exercise due care in their
undertaking to protect guests, and breached a duty to protect Plunkett as an invitee on the
Nalls’ premises. The Nalls filed two separate traditional motions for summary judgment:
one on the ground that they owed no duty to Plunkett under a “social host liability”
theory; and a subsequent motion challenging the premises liability claim. On November
9, 2010, the trial court signed an order granting summary judgment in the Nalls’ favor on
all claims except premises liability, which Plunkett non-suited.2 On April 5, 2011, the

1
The Nalls do not necessarily agree with Plunkett’s alleged facts but have accepted them as true
solely for purposes of the summary-judgment proceeding.
2
According to the parties, the trial court indicated at a hearing that it granted the “social host
liability” motion for summary judgment but it was a partial summary judgment because the premises-
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trial court signed an order severing Plunkett’s claims against the Nalls from Plunkett’s
claim against Kowrach, thereby rendering final the previously granted summary
judgment.

II. STANDARD OF REVIEW

A party moving for traditional summary judgment must establish there is no
genuine issue of material fact and he is entitled to judgment as a matter of law. See Tex.
R. Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215–16
(Tex. 2003). A defendant moving for traditional summary judgment must negate at least
one element of each of the plaintiff’s theories of recovery or plead and conclusively
establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941
S.W.2d 910, 911 (Tex. 1997). If the defendant establishes his right to summary judgment
as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine
issue of material fact. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).
We review a summary judgment de novo. Knott, 128 S.W.3d at 215. We take as true all
evidence favorable to the nonmovant and indulge every reasonable inference and resolve
any doubts in his favor. Id.
III. ANALYSIS
In his sole issue, Plunkett contends the trial court erred by granting summary
judgment because Plunkett pleaded negligent undertaking, not social host liability, but
the Nalls did not move for summary judgment on the negligent undertaking claim. We
agree.

A summary-judgment movant must expressly state the grounds therefor in his
motion. Tex. R. Civ. P. 166a(c). A trial court errs by granting summary judgment on a
claim not addressed in the motion. Jacobs v. Satterwhite, 65 S.W.3d 653, 655 (Tex.
2001); Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990); PAS, Inc. v.

liability claim remained pending. Thus, the Nalls filed the subsequent motion on the premises-liability
claim, but Plunkett non-suited that claim. Accordingly, all references hereafter to the Nalls’ motion for
summary judgment means the first motion, challenging social-host liability.

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Engel, 350 S.W.3d 602, 609 (Tex. App.—Houston [14th Dist.] 2011, no pet.).
The Nalls moved for summary judgment on the sole ground that the Nalls owed no
duty to Plunkett because Texas law does not recognize social host liability. The Nalls
relied on Graff v. Beard, 858 S.W.2d 918, 918–22 (Tex. 1993), in which the supreme
court declined to recognize social host liability, holding that a host has no duty to prevent
a guest who will be driving from becoming intoxicated or prevent an intoxicated guest
from driving.

Plunkett alleged a claim for negligent undertaking—not social host liability. The
supreme court has recognized that 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. at 837–38. Section 323 of the Restatement
(Second) of Torts, cited by the Torrington court, provides:
One who undertakes, gratuitously or for consideration, to render services to
another which he should recognize as necessary for the protection of the
other’s person or things, is subject to liability to the other for physical harm
resulting from his failure to exercise reasonable care to perform his
undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the
undertaking.
Restatement (Second) of Torts § 323 (1965); see Torrington, 46 S.W.3d at 838. To
establish negligent undertaking, a plaintiff must show: (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 (3) the plaintiff relied upon the defendant’s performance, or the
defendant’s performance increased the plaintiff’s risk of harm. Torrington, 46 S.W.3d at
838–39. According to Plunkett, the Nalls “undertook to perform services” to protect
Plunkett and other guests by imposing a rule that guests remaining at midnight must

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spend the night.
On appeal, the Nalls implicitly recognize they did not expressly move for
summary judgment on a negligent undertaking claim because they advance several
reasons why we nonetheless should uphold the summary judgment. In particular, the
Nalls suggest that their ground challenging social host liability sufficiently negated the
negligent undertaking claim because Plunkett actually alleges social host liability, despite
his characterization of the underlying theory. We disagree because social host liability
and negligent undertaking are different theories. The crux of Plunkett’s negligence
allegation is not that the Nalls owed a duty as social hosts to prevent intoxicated guests
from driving. Plunkett recognizes there was no such duty. Rather Plunkett alleges that,
once the Nalls voluntarily undertook to prevent intoxicated guests from driving (for
which they otherwise owed no duty), they had a duty to act with ordinary care.

The Nalls also assert, “the alleged facts that form the basis of Plunkett’s claim
clearly arose in the social host context.” The fact that Plunkett alleges the Nalls were
acting as social hosts when they purportedly assumed a duty does not mean Plunkett
alleges social host liability; it is the voluntary undertaking allegedly exercised by the
Nalls—not the mere fact they were social hosts—on which Plunkett relies when seeking
to impose a duty to prevent intoxicated guests from driving.

Additionally, the Nalls argue that Plunkett failed to plead a negligent undertaking
claim or allege any facts in support of such a claim. We disagree. In his petition,
Plunkett alleges the following facts:

However, after instituting the undertaking of requiring that persons
remaining at after [sic] midnight would in fact remain until the morning at
the Premises until sober and able to safely drive, [the Nalls] wholly failed
to enforce such undertaking. They failed to collect and/or keep car keys of
those who were present at midnight and to take any other actions to keep
those in attendance at the time from leaving. Upon information and belief,
[the Nalls] themselves imbibed alcohol and failed to enforce the
undertaking and policy. Upon information and belief, [Robert and Olga
Nall] themselves went to bed sometime after midnight and before 2:00a.m.

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 without having secured that those in attendance would remain until the
morning and safe to drive.
Plunkett then pleads the following cause of action against the Nalls:

[The Nalls] failed to exercise due care in their undertaking. Once [the
Nalls] undertook the responsibility to protect those persons at their party
from harm, they had the responsibility to do so as a reasonable ordinary
person would do under the same or substantially the same circumstances.
[The Nalls] failed to do so, and as an actual and proximate cause of that
failure, your Plaintiff was damaged.
In fact, other than premises liability, negligent undertaking is the only theory of liability
against the Nalls that we construe from Plunkett’s petition.

The Nalls further contend they owed no duty to Plunkett even if he had pleaded a
negligent undertaking theory. In their appellate brief, the Nalls cite the elements of
negligent undertaking and advance arguments purportedly negating a duty under such
theory. For example, they contend a mere request that guests remaining at midnight
spend the night is not an undertaking of services. However, in their motion for summary
judgment, the Nalls did not mention, much less cite the elements of, a negligent
undertaking claim or advance any arguments negating the elements in the present case,
including their contention that there was no “undertaking.” To establish there is no
genuine issue of material fact concerning one or more of the essential elements of a
plaintiff’s cause of action, the defendant must identify or address the cause of action and
its elements in the motion for summary judgment. See Black, 797 S.W.2d at 27. The
Nalls also assert that the case law “regarding social hosts still applies” to any negligent
undertaking claim. Even if some of the same reasoning for rejecting social-host liability
might also negate the negligent undertaking theory, the Nalls failed to address that theory
in their motion.
We acknowledge that, in the motion, the Nalls twice referenced Plunkett’s
allegation regarding the Nalls’ rule that guests remaining at midnight must spend the
night. However, the Nalls did not mention this alleged rule in the context of attempting
to negate a negligent undertaking claim. Instead, the Nalls first cited this rule when

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incorrectly suggesting, as discussed above, that Plunkett’s reliance on the rule merely
amounted to an allegation of social host liability.3 Then, although not exactly clear, the
Nalls cited this rule when apparently asserting there was no special relationship between
the Nalls and Plunkett, such as employer and employee, creating an exception to the
principle that social hosts owe no duty to ensure guests do not drive while intoxicated.
However, Plunkett does not contend that the Nalls owed him a duty based on a special
relationship; rather, Plunkett relies solely on the Nalls’ alleged undertaking to ensure no
guest drove while intoxicated—again, the theory which the Nalls did not address in the
motion for summary judgment. Indeed, the Nalls stated at the inception of their
argument, “This is a social host case.” We may not “read between the lines” and glean
the Nalls moved for summary judgment on the negligent undertaking claim simply
because they mentioned the alleged rule regarding guests spending the night in contexts
other than Plunkett’s negligent undertaking claim. See McConnell v. Southside Indep.
Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993).

Finally the Nalls posit that Plunkett failed to offer summary-judgment evidence
supporting a negligent undertaking theory. However, the Nalls filed a traditional motion
for summary judgment—not a no-evidence motion; because the Nalls did not negate any
element of the negligent undertaking claim, the burden never shifted to Plunkett to
present evidence supporting the claim. See Siegler, 899 S.W.2d at 197.

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Specifically, the Nalls asserted that the Graff court addressed a situation in which a host sets
forth such a rule when the court explained the inherent problems in attempting to impose a duty on social
hosts to prevent intoxicated guests from driving; i.e., various questions would arise relative to what
actions a host must perform to fulfill such a duty: “Would a simple request not to drive suffice? Or is
more required? Is the host required to physically restrain the guests, take their car keys, or disable their
vehicles?” See Graff, 858 S.W.2d at 921. However, the Graff court cited these concerns when addressing
whether a duty to prevent intoxicated guests from driving arises directly from the defendant’s role as a
social host. See id. The Graff court did not address viability of a claim based on a situation in which a
host voluntarily undertook such a duty, which did not otherwise exist. See id. Contrary to the Nalls’
suggestion, the Graff court did not mention the above-cited concerns relative to such a situation. See id.
Consequently, the Nalls’ citation of Graff in the motion was merely a reiteration of their social host-
liability ground and did not transform this ground into a challenge to the negligent undertaking claim.

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 Accordingly, we sustain Plunkett’s sole issue, reverse the trial court’s judgment,
and remand for further proceedings consistent with this opinion.

/s/ Charles W. Seymore
Justice

Panel consists of Justices Seymore, Boyce, and Mirabal.4 (Mirabal, J., Dissenting).

4
Senior Justice Margaret Garner Mirabal sitting by assignment.

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