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Kleppel v. Hunter's Manufacturing Co., Inc.

United States District Court, S.D. Texas, Houston Division

April 1, 2019

KATHY KLEPPEL, Plaintiff,
v.
HUNTER'S MANUFACTURING COMPANY, INC. d/b/a TENPOINT CROSSBOW TECHNOLOGIES, Defendant.

          ORDER

          ANDREW S. HANEN, UNITED STATES DISTRICT JUDGE

         Plaintiff has filed a Motion for Reconsideration (Doc. No. 58) of this Court's order granting in part and denying in part Defendant's Motion for Summary Judgment. Defendant has filed a Response thereto (Doc. No. 59), and the Court now considers both.

         I. Kleppel's Contention Regarding Undertaking Claims

         Plaintiff Kathy Kleppel claims that this Court inappropriately granted the motion on her alleged "negligent undertaking" claim. Kleppel purports to set out her proof as to each element of her negligent undertaking claim in her motion:

Thus, Kleppel's summary judgment evidence proves: (1) TenPoint gratuitously undertook to provide its customers with the GripGuard retrofit that it knew or should have known was necessary for their protection, in fact, it was giving the GripGuard retrofit away for free at the time Kleppel contacted TenPoint and advised it that she had a Titan TL-4 crossbow which the Defendant, as the crossbow manufacturer, knew lacked a guard, (2) TenPoint failed to exercise reasonable care in providing its customers with the GripGuard retrofit by not providing Kleppel with a GripGuard when she contacted the Defendant a few weeks before her injury, and (3) TenPoint's failure to provide Kleppel with the GripGuard retrofit increased her risk of injury, indeed, she ultimately was injured in the precise manner that the GripGuard retrofit was designed to prevent. The Court even recited these facts in its summary judgment. See, Order, Dkt. 56 at 25.

(Doc. No. 58, p. 10).

         To support her motion, Kleppel cites as her primary authority the Supreme Court of Texas's decision in Torrington Co. v. Stutzman, 46 S.W.3d 829 (Tex. 2000). Kleppel's analysis and her evidence, however, do not warrant a reversal of this Court's prior decision.

         First of all, it is important to note that the Supreme Court in Torrington found the broad-form submission of negligence that was used in that case to be in error. That submission was as follows:

The negligence question asked: "Did the negligence, if any, of the parties named below proximately cause the occurrence in question?"
"Negligence" means failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.
"Ordinary care" means that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances.
"Proximate cause" means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.

Id. at 837 n.6.

         The Supreme Court of Texas specifically addressed the reason that submission was incorrect in terms of the duty question:

Here, the broad-form negligence question allowed the jury to hold Torrington liable regardless of whether Torrington knew or should have known that its services were necessary to protect others. Cf. Spencer v. Eagle Star Ins. Co. of Am.,876 S.W.2d 154, 157 (Tex. 1994). The question also allowed an affirmative answer regardless of whether anyone relied upon Torrington's undertaking, or whether Torrington's performance of its undertaking increased the plaintiffs' risk of harm. Because the question allowed the jury to find Torrington liable even if the plaintiffs did not establish the necessary factual predicates for a negligent undertaking duty, it was erroneous. See Id. These essential elements of an undertaking claim should be included in the instructions accompanying a broad-form negligence question. Cf. Keetch v. Kroger Co.,845 S.W.2d 262, 267 (Tex. 1992). Thus, the jury should have been instructed that Torrington was negligent only if (1) Torrington undertook to perform services that it knew or should have known were necessary for the plaintiffs' protection, (2) Torrington failed to exercise reasonable care in performing those ...

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