I respectfully dissent, because the statements made to Davis by Bill Hardy, safety coordinator for Texas Drydock, as set forth in the majority opinion, do not constitute an undertaking of an affirmative course of action. See Fort Bend County Drainage Dist.v. Sbrusch, 818 S.W.2d 392, 396-97 (Tex. 1991). The words of § 323 of the Restatement require that there be such an undertaking. Under the terms of that section, there is liability only for one who undertakes to render services to another. In Colonial SavingsAss'n v. Taylor, 544 S.W.2d 116, 119 (Tex. 1976), the Texas Supreme Court states the rule contained in § 323 as imposing liability upon one who voluntarily undertakes an affirmative course of action for the benefit of another. The Texas Supreme Court in Fort Bend held that words such as those used by Hardy "do not constitute an undertaking of an affirmative course of action."Fort Bend, 818 S.W.2d at 396-97. The subsequent reference to "reliance" in § 323 relates to when someone who has engaged in such an undertaking may be liable, but it does not impose liability when there is reliance but no undertaking. See alsoHouston Milling Co. v. Carlock, 183 S.W.2d 1013, 1014 (Tex.App.-Eastland 1944, no writ), a pre-Restatement case.
It is true, as the majority notes, that the American Law Institute has expressed no opinion, with respect to § 323 of the Restatement, as to whether the making of a gratuitous promise, without in any way entering upon performance, is a sufficient undertaking to result in liability under that section. It is also true that the Texas Supreme Court in Fort Bend indicated that it did not decide whether reliance on such promises alone would give rise to liability. Fort Bend, 818 S.W.2d at 397. However, it is my view that what the court did decide in Fort Bend leads to the logical determination of the case before us because everyone agrees that the undertaking of an affirmative course of action is required, but the Supreme Court has said that mere promises such as those here do not constitute an affirmative course of action.
There is a division of authority in the United States over the issue of whether there may be liability under § 323 for the making of a promise alone, without the taking of any affirmative course of action, where the plaintiff has suffered injury as a result of reliance upon the promise. On the one hand, there is a large body of case law that has built up which holds that a mere gratuitous promise to render service or assistance, with nothing more, imposes no tort obligation upon the promisor, even though the plaintiff may rely upon the promise and suffer damage because of the reliance. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts, § 56, at 379 (5th ed. 1984). The authors acknowledge that there are other decisions possibly representing the beginning of the overthrow of that traditional rule. See id. at 380. It appears to me that the rule in Texas, for more than fifty years, as announced in Houston Milling, has been that there is no liability imposed on one who *Page 442 undertakes to do something that it is not contractually or otherwise obligated to do and then fails to keep that promise. My view is reinforced when the Texas Supreme Court announces in Fort Bend that mere promises such as Hardy made here do not constitute an undertaking of an affirmative course of action, especially where it has previously indicated, inColonial Savings, that liability under this section of the Restatement is imposed on those who have undertaken an affirmative course of action. I therefore conclude that Texas up to now has followed the traditional rule.
It may reasonably be argued that the rule should be reexamined and that Texas should abandon the traditional rule in favor of the modern rule. It may be for that reason that the Supreme Court left the issue open in Fort Bend. However, I would hold that as an intermediate court we should follow the traditional rule, a rule that has been in place in Texas for so many years, and which may still be the majority rule, until the Texas Supreme Court determines that we are to abandon it in favor of another rule.
Inasmuch as Davis has no claim based upon § 323 of the Restatement, because the evidence shows that Texas Drydock did not enter into an affirmative course of action, and inasmuch as he failed to obtain a finding on an essential element of his claim based upon premises liability, his only viable cause of action, I would reverse this cause and render judgment that Davis take nothing.
Dissent Delivered August 26, 1999.