*1 PLUNKETT, Appellant B. John Nall, NALL, W. Robert
Justin Curtis Nall, Appellees. L.
No. 14-11-00356-CV. Texas, Appeals
Court Dist.). (14th
Houston
June *2 Background
I. petition, presents following allegations.1 factual On New Years’ Eve of Plunkett attended a party at the home of Olga Robert and Nall son, and their college-aged Justin. To en- party guest sure no drove while intoxicat- ed, the that any guests remaining at midnight spend the entire at the home. failed to enfоrce this rule because they did not keys retain car perform any actions to guests from leaving, and Robert Olga retired to bed between midnight and 2:00 a.m. ensuring without remained at the Shortly home. a.m., Kowrach, after 2:00 Justin who was “inebriated,” and a female friend attempt- ed to leave. Kowrach entered the driver’s Peckham, Henry Houston, Charles for seat of the female’s Ford Explorer. appellant. Plunkett attempted to dissuade Kowrach and his friend from leaving by speak- first Greer, Houston, Lawrence B. Jason L. through them the passenger’s win- Wren, Dallas, Hill Bradley, David Hous- dow and then walking to the driver’s win- ton, appellees. for
dow. While Plunkett running stood on the board of the vehicle and tried to SEYMORE, remove Panel consists of Justices keys ignition, from the BOYCE, Kowrach accel- and MIRABAN* erated and then “hit the brakes.” Plunk- propelled ett was head first into the MAJORITY OPINION ground, lodged and his head became under SEYMORE, CHARLES W. Justice. parked сar. Plunkett suffered severe injuries, including damage, brain resulting Appellant, B. John appeals in hospitalization for several weeks appellees, favor of need for during medical care the remain- Nall, Nall, Justin Curtis Robert W. der of his life. Nalls”), L. (collectively Nall “the suit. In his sole is- Plunkett sued the Nalls and Kowrаch. sue, Plunkett Nalls, contends the trial court respect With Plunkett alleges by granting summary erred negligence, liable for common law cause the Nalls moved for failed to exercise due care in their under- ment on a negligence theory that taking protect guests, was dif- and breached a ferent from the claim pleaded by Plunkett. Plunkett as an invitee on We reverse and remand. the Nalls’ premises. The Nalls filed two [*] Senior Justice ting by assignment. Margaret Gamer Mirabal sit- mary-judgment proceeding. them as true solely purposes of the sum- necessarily agree 1. The with accepted Plunkett's facts but hаve Analysis motions III.
separate one judgment: issue, In his sole Plunkett contends under a “social duty to Plunkett owed no *3 summary by granting trial court erred subsequent theory; and a liability” host pleaded negli- because Plunkett judgment liability challenging premises motion liability, undertaking, not social host gent 2010, 9, the trial On November summary thе Nalls did not move for but granting an order signed court judgment negligent undertaking favor on all claims the Nalls’ judgment agree. claim. We which Plunkett premises liability, except 2011, 5, the trial April non-suited.2 movant must summary-judgment A signed severing an order court therefor in his expressly grounds state the Nalls from Plunkett’s against claims 166a(c). A trial motion. Tex.R. Civ. P. Kowrach, thereby rendering summary judgment by granting court errs previously granted summary final on a claim not addressed in the motion. 653, Satterwhite, 65 655 Jacobs v. S.W.3d (Tex.2001); Lloyds Black v. Victoria Ins. II. of Review Standard PAS, Co., 20, (Tex.1990); 27 797 S.W.2d moving for traditional A (Tex. 602, Engel, Inc. v. 350 609 S.W.3d genu- there is no judgment must establish 2011, pet.). App.-Houston [14th Dist.] material fact and he is entitled ine issue of summary judgment The Nalls moved for judgment as a matter of law. See 166a(c); on the sole that the Nalls owed no Tex.R. P. Provident & Civ. Life Knott, 211, duty to Plunkett because Texas law does Accident Ins. v. 128 S.W.3d Co. (Tex.2003). moving recognize liability. social host 215-16 A defendant Beard, summary judgment v. 858 S.W.2d Nalls relied Graff 918, (Tex.1993), eaсh of the negate at least one element of 918-22 su- recovery plead plaintiffs theories of preme recognize court declined to social conclusively each element of an establish liability, holding host that a host has no Inc. v. Spectrum, affirmative defense. Sci. guest a prеvent who will be (Tex.1997). Martinez, 910, 941 911 S.W.2d becoming intoxicated or an prevent If right the defendant establishes his driving. intoxicated law, summary judgment as a matter of neg a claim for plaintiff present
burden shifts to the ligent undertaking social host liabili a of materi- raising genuine evidence issue —not ty. supreme recognized court has Centeq Realty, Siegler, al fact. Inc. v. 899 (Tex.1995). generally imposes that Texas law 195, 197 We review Knott, prevent to take action to harm to others summary judgment de novo. special relationships absent certain or cir S.W.3d at 215. take as true all evi- We Stutzman, Torrington cumstances. dence favоrable to the nonmovant and in- Co. (Tex.2000). dulge every inference and re- 46 S.W.3d may solve doubts in his favor. Id. to use reasonable care arise claim, According parties, premises-liability indi- but the trial court motion on hearing granted cated at that it the "social Plunkett non-suited that claim. liability” motion for аll references hereafter to the Nalls’ motion partial summary but it was means the first mo- premises-liability cause the claim remained tion, challenging liability. social-host Thus, pending. subsequent the Nalls filed the person provide underlying theory. when undertakes ser- disagree because another, either оr for gratuitously vices social host liability under- compensation. Id. 837-38. Section 323 taking are different theories. The crux of (Second) Torts, the Restatement cited allegation not that court, Torrington provides: the Nalls owed a duty as hosts to undertakes, driving. One who or for gratuitously recognizes consideration, no such to render to an- services duty. Rather Plunkett once nec- recognize which he should voluntarily to pre- undertook essary protection for the of the other’s *4 (for vent intoxicated person subject liability or to to things, they duty), they the physical resulting other for harm ordinary had a to act with care. his failure exercise reasonable care to perform undertaking, if assert, The Nalls also “the facts (a) his failure to exercise such in- care that form the basis of Plunkett’s claim harm, creases the risk of such or clearly arose in the social host context.” (b) that alleges thе harm fact Plunkett the is suffered because of the acting were as social upon they other’s hosts when undertaking. pur- reliance the portedly assumed a duty does mean (Second) § Restatement of Torts alleges Plunkett liability; social host it is (1965); Torrington, see 838. S.W.3d at voluntary allegedly the undertaking exer- undеrtaking, To establish negligent cised the Nalls—not the mere fact they (1) the plaintiff must show: un- defendant were social hosts—on which Plunkett re- perform dertook services that it knew seeking lies when impose should have were necessary or known from driving. (2) plaintiffs protection, the the defendant per failed exercise reasonable care in Additionally, argue the Nalls that services, (3) forming those and either the Plunkett to plead negligent failed under plaintiff upon per relied the defendant’s taking claim or in allege any support facts formance, or performance the defendant’s оf disagree. such a In his plaintiffs increased the risk of harm. Tor petition, Plunkett the alleges following rington, 46 at 838-39. According facts: per the Nalls “undertook to instituting after the undertak- protect form services” to oth and requiring persons of that remaining guests by imposing er a rule that at after in midnight [sic] would fact re- midnight at must the main until the morning at Premises night. drive, until safely sober and able to [the appeal, the Nalls rec implicitly wholly failed such Nalls] to enforce un- they ognize expressly dertaking. They move failed to collect and/or summary on a negligent keys under car were keep present those who taking сlaim midnight any because advance several at and to take other ac- why reasons we nonetheless uphold keep should tions to those in attendance judgment. particular, time from leaving. Upon information belief, suggest their chal that and [the themselves im- Nalls] lenging liability sufficiently social host ne bibed alcohol and failed to enforce the gated negligent be undertaking undertaking Upon claim policy. informa- actually belief, cause Plunkett tion and [Robert Nall] liability, despite his characterization of themselves went to after bed sometime of, undertaking negligent 2:00 a.m. without elements and before any in arguments negating that those attendance or advance secured
having case, morning and present including until the safe remain elements would contention that there was “under- their to drive. genuine To there is no taking.” establish following pleads then concerning of material fаct one or issue the Nalls: action of the elements of plain- more essential care in exercise due Nalls] [The action, the defendant tiffs cause un- undertaking. [the Nalls] Once their identify or the cause action address responsibility dertook elements the motion for its harm, persons those Black, 797 S.W.2d responsibility to do so as a had the also The Nalls assert case law ordinary would do un- person “regarding applies” social hosts still substantially the same der the same undertaking claim. Even if failed to [The Nalls] circumstances. *5 rejecting the reasoning some of same so, proximate actual and cause and as an negate liability might social-host also the failure, your Plaintiff was dam- of that theory, the negligent undertaking Nalls aged. theory in failed to address that their mo- fact, premises liability, negli- than tion. only theory is gent undertaking the the Nalls that we construe liability against motion, acknоwledge in the the petition. from Plunkett’s twice Plunkett’s allega- Nalls referenced that they regarding guests Nalls further contend tion the Nalls’ rule remaining even if he the duty had However, theory. pleaded negligent undertaking night. a the Nalls did not men- brief, alleged the Nalls cite tion this rule in the context of appellаte In their the negligent undertaking attempting negate negligent and ad a undertak- elements of Instead, negating ing claim. the Nalls first cited arguments purportedly vance a incorrectly rule when theory. example, suggesting, such For duty under above, guests a mere that that Plunkett’s request contend discussed reliance to an midnight spend night merely allega- the on the rule amounted Then, However, liability.3 social undertaking of services. tion of host al- not an clear, summary judgment, though exactly not the cited in their motion the Nalls mention, asserting cite when apparently not much less the this rule Nalls did directly 3. the from the Specifically, Nalls asserted the arises defen- addressed a in which a court situation role as a See id. dant’s social host. Graff host sets Graff forth such a rule when the court viability did not claim court address a problems attempt- explained the inherent a a based on situation in which host volun- pre- imрose a social hosts to on duty, tarily undertook such did not i.e., driving; vent intoxicated var- Contrary exist. id. the See questions would arise relative to ious what suggestion, the court Nalls’ Graff perform a host must to fulfill such actions the mention above-cited concerns relative to simple request duty: "Would a not tо drive Consequently, a situation. id. the such See required? the Or is more Is host suffice? citation in the Nalls' motion was Graff guests, physically restrain take merely a reiteration of their social host-liabili- keys, or their vehicles?” their car disable ground ty not transform this did Graff, S.W.2d at Graff challenge negligent undertaking into a addressing court cited these concerns when whether special relationship between addressed causes of action asserted employer such as Nalls Plunkett. we should overrule employee, creating exception an sole issue Plunkett’s and affirm. duty to that social hosts owe no
рrinciple
claims
not drive while
ensure
intoxicat-
stated in
Original
are
the Plaintiffs
However, Plunkett does not contend
ed.
Petition as follows:
him
that the Nalls owed
based on
Nall
5.02 The
Defendants
each lia-
rather,
re-
special relationship;
ble for common
negligence.
law
solely
alleged
lies
Nalls’
undertak-
ing to
ensure no
drove while intoxi-
5.03 Defendants failed to exercise due
again,
theory which
cated—
care in their undertaking. Once the Nall
did
address in the motion for
Defendants
responsibility
undertook the
Indeed, the
Nalls stated at
persons
those
inception
argument,
of their
is a
“This
harm, they
responsibility
had the
may
case.” We
not “read
as a
ordinary person
do so
glean
tween the lines” and
under
would do
the same or substantial-
neg-
moved for
ly the same circumstances. The Nall
ligent undertaking
simply because
so,
Defendants
to do
and as an
regarding
mentioned the
rule
proximate
аctual and
that fail-
guests spending
in contexts oth-
ure, your
damaged.1
Plaintiff was
than
negligent undertaking
er
*6
Majority Opinion accurately
states:
Indep.
claim. See
v.
McConnell
Southside
Dist.,
337,
(Tex.1993).
negligence allega-
The crux
Plunkett’s
Sch.
tion
not that
duty
is
the Nalls owed a
as
Finally
posit
the Nalls
that Plunkett
to prevent
sоcial hosts
intoxicated
summary-judgment
offer
evidence
driving.
recognizes
Plunkett
supporting
undertaking theory.
a negligent
such duty.
was no
Rather Plunkett al-
However, the
filed a
mo-
Nalls
leges
once
voluntarily
tion for
no-
a—not
undertook to
motion;
evidence
because the Nalls
did
(for
negate
element
under-
duty), they
duty
owed no
had
act
claim,
taking
never
burden
shifted
ordinary
with
care.
to present
supporting
evidence
Siegler,
Senior Plaintiff that the Nall Defen- I knew that their respectfully my dants would be opinion, dissent. and, therefore, imbibing the Nalls’ motion for judgment alcohol “re- plеadings party "negligent undertaking,” 1. Nowhere in the are a claim either ments of “negligent undertaking petition, in words claim” and the Nalls in their summary judgment. used. ele- each side addressed motion for judgment duty that no Plunkett was attendees that all quired voluntary created the Nalls’ undertak- by Janu- and after ing. sole issue 2008, 1, still attеndance would ary overruled, and the judgment should be the entire be should be .... affirmed. Premises” J., SEYMORE, Majority. Plain- facts as Under Petition, the Nall Defen- Original tiffs Plaintiff,
dants have entitled law....
matter of Argument and Au- arranged
The Nalls of their Motion for Sum-
thorities section parts: into two
mary Judgment statutory or common law No NAZARETH HALL NURSING host. a social CENTER, Appellant, riyht leyal restrain Absent a yuest yuest, owes no to a a host
to do so. CASTRO, Appelleе. Guadalupe Maria part, the cite au- Under the second No. 08-11-00205-CV. “to the response arguments thorities in case at bar that the Nall Plaintiff in the Texas, Appeals of Court of telling a duty by assumed Defendants El Paso. stay morning had to if guests they till midnight.” there at they were still June *7 case law discuss the in connection placing great “a amount of with Plunkett alleged of the Nall
emphasis on the ‘rule’ who was still
hosts night,” home at recog- the courts
asserting that refuse assumption argument
nize
such cases. appeal, Plunkett’s sole issue is that in granting summary court erred trial for
judgment because Nalls’ motion address Plunk- “negligent
ett’s cause of action based on a
undertaking” theory.2 In my opinion, for
Nalls’ motion
clearly of ac- addressed
tion, asserting pleading do not have before have a us the issue issue—whether causes action in the motion whether the Nalls’ motion were addressed for sum- mary only ment was meritorious on law. We