Opinion issued November 29, 2012.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-00590-CV
———————————
ELIZABETH HELBING, Appellant
V.
OLIVER ALAN HUNT AND JOHN WILLIAM DEAVER, Appellees
On Appeal from the 281st District Court
Harris County, Texas
Trial Court Case No. 2009-31060-A
OPINION
Appellant, Elizabeth Helbing, challenges the trial court’s rendition of
summary judgment in favor of appellees, Oliver Alan Hunt and John William
Deaver, in her suit against them for negligence.1 In two issues, Helbing contends
that the trial court erred in granting Hunt and Deaver summary judgment on the
ground that they did not owe her a duty of reasonable care.
We reverse and remand.
Background
In her fourth amended petition, Helbing alleges that in the summer of 2007,
she 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.”
1
Helbing also brought a claim against Hunt and Deaver for hazing, upon which the
trial court granted summary judgment. Helbing does not challenge the summary
judgment on her hazing claim.
2
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 alleges 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.” Specifically, she
alleges that Hunt and Deaver were negligent in:
a. leading [Helbing] into an unreasonably dangerous activity;
b. failing to properly investigate and assess the risks of the
activity;
c. failing to properly disclose to [Helbing] the risks and hazards
associated with the activity so that she could make an informed
choice about either declining participation in the activity or
employing measures such as proper footwear and the use of a
flashlight to reduce the risks of the activity; and/or
3
d. failing to provide proper lighting and instruction to reduce the
risk of the activity.
Helbing further alleges that Hunt and Deaver’s conduct “constituted a negligent
undertaking” giving rise to a duty because,
1) Defendants Hunt and Deaver undertook to perform services that
they knew or should have known were necessary for [Helbing’s]
protection, 2) Defendants Hunt and Deaver failed to exercise
reasonable care in performing those services, and either 3) [Helbing]
relied upon the Defendants Hunt and Deaver’s performance, or 4)
Defendants Hunt and Deaver’s performance increased [Helbing’s]
risk of harm.
Helbing seeks 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.
Hunt and Deaver filed their answer, generally denying Helbing’s allegations
and specifically denying that “they were acting in any capacity associated with
Fish Camp,” “they owed [Helbing] a legal duty to look out for her safety,” or “they
undertook to perform any services that they knew or should have known were
necessary for [Helbing’s] protection.” In their partial summary-judgment motions
on Helbing’s negligence claims, Hunt and Deaver argued that “[n]o relationship
existed” between them and Helbing that created a legal duty. They asserted that
Helbing was a “voluntary participant in the activity in which she was injured.”
And they further argued that they could not be held liable under a theory of
4
negligent undertaking because they “did not undertake to provide any services” to
Helbing, who was “merely a co-participant” in the trip to the bridge.
In her response to Hunt and Deaver’s summary-judgment motions, Helbing
argued that Hunt and Deaver owed her a reasonable duty of care “based on their
counselor relationship of trust and leadership.” Helbing also argued that Hunt and
Deaver engaged in a “voluntary affirmative undertaking” by providing
“instructions, warning, and leadership” to the freshmen during the trip. She
asserted that they provided inadequate lighting and “physical assistance and
guidance” to the freshmen while they were climbing on the railroad bridge. The
trial court granted Hunt and Deaver’s summary-judgment motions.
Standard of Review
To prevail on a summary-judgment motion, a movant has the burden of
proving that he is entitled to judgment as a matter of law and there are no genuine
issues of material fact. TEX. R. CIV. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339,
341 (Tex. 1995). When a defendant moves for summary judgment, he must either
(1) disprove at least one element of the plaintiff’s cause of action or (2) plead and
conclusively establish each essential element of his affirmative defense, thereby
defeating the plaintiff’s cause of action. Cathey, 900 S.W.2d at 341. In deciding
whether there is a disputed material fact issue precluding summary judgment,
proof favorable to the non-movant must be taken as true, and the court must
5
indulge every reasonable inference and resolve any doubts in favor of the non-
movant. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995);
Lawson v. B Four Corp., 888 S.W.2d 31, 33–34 (Tex. App.—Houston [1st Dist.]
1994, writ denied).
Summary Judgment
In her first and second issues, Helbing argues that the trial court erred in
granting Hunt and Deaver summary judgment because Hunt and Deaver
“affirmatively created” an unreasonable risk of harm to Helbing and they failed to
exercise reasonable care when they undertook to take the freshmen to the railroad
bridge and guide them to witness a train pass overhead.
The common law doctrine of negligence consists of three elements: (1) a
legal duty owed by one person to another; (2) a breach of that duty; and (3)
damages proximately resulting from the breach. El Chico Corp. v. Poole, 732
S.W.2d 306, 311 (Tex. 1987); Rosas v. Buddies Food Store, 518 S.W.2d 534, 536
(Tex. 1975). The threshold inquiry in a negligence case is duty. El Chico, 732
S.W.2d at 311. A duty is “a legally enforceable obligation to conform to a
particular standard of conduct.” Hand v. Dean Witter Reynolds Inc., 889 S.W.2d
483, 491 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (citing Way v. Boy
Scouts of Am., 856 S.W.2d 230, 233 (Tex. App.—Dallas 1993, writ denied)).
6
Whether to impose a duty under certain circumstances is a question of law.
See Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). However, this legal
question is decided based on the particular facts of the case. See Sanders v.
Herold, 217 S.W.3d 11, 15 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing
Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985)). If the facts are
disputed, and one version of the facts would support the imposition of a duty,
summary judgment is improper. See Mitchell v. Missouri–Kansas, Texas R.R. Co.,
786 S.W.2d 659, 662 (Tex. 1990). “The existence of duty is a question of law
when all of the essential facts are undisputed, but when the evidence does not
conclusively establish the pertinent facts or the reasonable inferences to be drawn
therefrom, the question becomes one of fact for the jury.” Id. (quoting Bennett v.
Span Indus., Inc., 628 S.W.2d 470, 474 (Tex. App.—Texarkana 1981, writ ref’d
n.r.e.)). Thus, in a summary-judgment proceeding, if the nonmovant’s version of
the facts would support the imposition of a legal duty, summary judgment for the
defendant based on a claim of no duty is inappropriate. Sanders, 217 S.W.3d at
15.
Courts determine whether a duty exists by examining factors such as the
risk, foreseeability, and likelihood of injury, the social utility of the actor’s
conduct, the magnitude of the burden of guarding against the injury, the
relationship between the parties, whether one party had superior knowledge of the
7
risk, whether that party had the right and ability to control the actor whose conduct
precipitated the harm, and any other relevant competing individual and societal
interests implicated by the facts of the case. Golden Spread Council, Inc. No. 562
of Boy Scouts of Am. v. Akins, 926 S.W.2d 287, 289–90 (Tex. 1996); Taylor v.
Louis, 349 S.W.3d 720, 734 (Tex. App.—Houston [14th Dist.] 2011, no pet.).
Texas courts have long recognized that a duty to use reasonable care may
arise when a person undertakes to provide services to another, either gratuitously
or for compensation. Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d
392, 396 (Tex. 1991); Colonial Sav. Ass’n v. Taylor, 544 S.W.2d 116, 120 (Tex.
1976); RESTATEMENT (SECOND) OF TORTS §§ 323, 324A (1965). In recognizing
that one may gratuitously undertake a legal duty, the Texas Supreme Court in
Colonial Savings relied upon section 323 of the second Restatement of Torts,
which 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.
8
Colonial Sav. Ass’n, 544 S.W.2d at 120 (quoting RESTATEMENT (SECOND) OF
TORTS § 323 (1965)).
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. See Torrington Co. v. Stutzman, 46 S.W.3d
829, 838 (Tex. 2000). A negligent undertaking requires an affirmative act upon
which reliance can be based. See Entergy Gulf States, Inc. v. Akrotex, Inc., 40
S.W.3d 201, 206 (Tex. App.—Beaumont 2001, no pet.).
Hunt and Deaver narrowly frame the duty in question as “the duty not to
invite or encourage voluntary participation in an activity.” They argue that there
is no cognizable duty owed by “one college student” to “another college student
. . . based upon mutual participation in a college program, or based upon one
student being a class above the other.” They assert that Helbing “voluntarily
participated in the activity” and they and Helbing were “peers.”
However, by so framing the issue, Hunt and Deaver actually disregard
summary-judgment evidence that we are required by law to take as true, i.e.,
evidence that demonstrates that the actions of Hunt and Deaver went well beyond
9
simply extending an invitation to Helbing. The well-established summary-
judgment standard of review requires this Court to take all the proof favorable to
Helbing as true and indulge every reasonable inference and resolve any doubts in
her favor. See Randall’s Food Mkts., Inc., 891 S.W.2d at 644.
In her affidavit, Helbing testified that she had no relationship with Hunt or
Deaver outside of the Texas A&M University freshmen orientation known as “Fish
Camp.” At Fish Camp, Helbing was assigned to “Camp Schwede,” to which Hunt
and Deaver were assigned as counselors. Helbing testified that when Hunt called
upon her to attend a Fish Camp “hang out” to “lay under some railroad tracks and
watch a train go overhead,” he “referenced Fish Camp in his call” and asked her
“to go out with a group from Fish Camp.” When she told Hunt that she needed to
study for a math quiz the next day, he made her “fe[el] guilty for not having
accepted prior ‘hang out’ invitations” by telling her that “in five years you will not
remember studying but you will remember something cool like this.” Because she
had been previously told at Fish Camp “to expect counselors to call [her] during
the fall semester to put together ‘hang outs’ with other campers,” she was led to
believe that she was being asked to participate in an official Fish Camp “hang out.”
In their deposition testimony, both Hunt and Deaver confirmed that Fish
Camp counselors were expected to invite freshmen to “hang out” activities over
the course of the fall semester. Hunt specifically testified that he had previously
10
sent Helbing an invitation to attend an activity with “some other Fish Camp
people.” And, after she declined, he felt that the railroad activity “might be a good
way to kind of bring her back into Camp Schwede.”
Deaver testified that he had been to the bridge on approximately ten or
twenty occasions, and he had been told “that it was dangerous to go out there.” He
stated that the Fish Camp directors would not have approved of the trip to the
bridge because it “would seem to be of equal or greater capacity for injury”
compared to other activities they had banned, such as riding jet skis. Hunt testified
that he knew Fish Camp would not have approved a trip to the bridge because they
would be “concerned with the well-being of the freshman.” Meanwhile, Helbing
testified that she did not know they would be climbing onto a bridge and, if she
had, she would have brought a flashlight and would not have worn “flip flops.”
Helbing further testified that because she believed the trip to be a sanctioned
Fish Camp “hang out,” she “trusted” Hunt and Deaver to “not lead [her] into
danger” and share “information that they had that was necessary” to “stay out of
danger.” Although Deaver, as he admitted in his deposition testimony, had been
told prior to Helbing’s injury that it was “unsafe” and “dangerous” to go out to and
climb on the railroad bridge, neither he nor Hunt, according to Helbing, told her
“about the dangers or that it was not approved by Fish Camp . . . .” Helbing
explained that she was told only that the group was going to “lay out under some
11
railroad tracks,” not that they would be climbing down a railroad bridge.
Specifically, Hunt “did not tell [her] that [they] would be going on a bridge, [or]
that there was any risk or danger . . . .” She stated that had Hunt and Deaver told
her about the dangers or that the activity was not actually approved by Fish Camp,
she would not have gone with them on the “hang out.”
Helbing further explained that when Hunt and Deaver drove the group to the
bridge, she did “not get a good look at it” because “it was dark and [she] was in the
back seat of a small car with 2 other people.”2 She wore “flip flops” and did not
bring a flashlight because no one had told her that “a slip could result in a fall from
a serious height or that [she] would need light to see and avoid stepping into gaps
that could lead to a serious fall.”
Although Deaver admitted in his testimony that he gave the group a “safety
briefing” before going onto and descending the bridge, Helbing testified that she
was not informed about the gaps in the bridge. She also noted that their path was
illuminated only by the lighting from cellular telephones. Helbing emphasized that
Hunt and Deaver “led us freshman out onto the bridge, and we followed.”
2
Helbing attached to her response to Hunt and Deaver’s summary-judgment
motions the affidavit of Dr. Ellie Francis, an optometrist, who testified that
because of the low visibility and the use of only cellular phones for illumination,
“a normal, attentive person” would have had difficulty in “fully appreciat[ing] the
height of the bridge and the terrain surrounding it” or in noticing “the gaps in the
area” along the bridge.
12
Helbing explained that she followed Hunt and Deaver because she “relied on
their leadership because they were my counselors” and “understood this was
something they had done before.” She noted that she “could not see the gap” that
she fell into and “would not have been standing right next to it or stepped into it
had [she] known it was there.” In sum, she “would not have fallen through the
gap” if Hunt and Deaver “had pointed it out or provided enough light that [she]
could see it for [her]self.”
Viewing the summary-judgment evidence favorable to Helbing as true, as
we 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. See Akins, 926 S.W.2d at
289–90. 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. See Sbrusch, 818
13
S.W.2d at 396. 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. See Stutzman, 46 S.W.3d at 838. 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, 69 S.W.3d 315 (Tex. App.—Austin
2002, no pet.). However, Rocha involved a fraternity brother who encouraged his
fellow fraternity brother to jump off of a cliff into a lake after a party. Id. at 318.
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
14
from the cliff.” Id. at 322. 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.
Accordingly, we hold that the trial court erred in granting Hunt and Deaver’s
summary-judgment motion because the summary-judgment evidence, if believed
by a fact finder, would support the imposition of a duty upon them. See Mitchell,
786 S.W.2d at 662.
We sustain Helbing’s first and second issues.
15
Conclusion
We reverse the judgment of the trial court and remand the case for
proceedings consistent with this opinion.
Terry Jennings
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Keyes.
Chief Justice Radack, dissenting.
16
Elizabeth Helbing v. Oliver Alan Hunt and Jon William Deaver
Combined Opinion