United States District Court, S.D. Texas, Houston Division
S. HANEN, UNITED STATES DISTRICT JUDGE
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
Kleppel's Contention Regarding Undertaking
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).
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.
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
"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.
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 ...