Opinion
1:22-CV-644-DII
06-05-2023
KATHY GALLAZO-OMAR, Individually and as Next Friend to J.X.O., Plaintiff, v. THE HYATT CORPORATION d/b/a HYATT REGENCY LOST PINES RESORTS AND SPA, Defendant.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
MARK LANE UNITED STATES MAGISTRATE JUDGE
Before the court is Defendant Hyatt Corporation d/b/a Hyatt Regency Lost Pines's Motion to Dismiss Amended Complaint Under Rule 12(b)(6) (Dkt. #13) and all related briefing. After reviewing the pleadings and the relevant case law, and determining that a hearing is not necessary, the undersigned submits the following Report and Recommendation to the District Court.
The motion was referred by then-presiding United States District Judge Lee Yeakel to the undersigned for a Report and Recommendation as to the merits pursuant to 28 U.S.C. § 636(b)(1)(B), Rule 72 of the Federal Rules of Civil Procedure, and Rule 1(d) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas. Dkt. #16.
I. Background
Plaintiff Kathy Gallazo-Omar, individually and as next friend to J.X.O., is suing the Hyatt Corporation d/b/a Hyatt Regency Lost Pines Resort and Spa (“Hyatt”) in a dispute that arose out of an incident alleged to have occurred at Hyatt on July 6, 2020 in which J.X.O suffered significant injuries. Plaintiff's Amended Complaint asserts a negligence and a premises liability claim. Dkt. #11 at 4-5 (Amended Complaint). In her Response to Hyatt's Motion, Plaintiff asserts that the Amended Complaint also alleges a negligent undertaking claim. Dkt. #14 at 9.
The Amended Complaint alleges Plaintiff and her family, including J.X.O. were vacationing at Hyatt in July 2020. Dkt. #11 at 2. During their stay, Plaintiff and her family, including J.X.O., rode bicycles that were provided complimentarily to guests. Id. Plaintiff alleges the group was not offered helmets or other safety equipment by the two Hyatt employees who were working where the bicycles were stored and provided the bicycles to the group. Id. Plaintiff also alleges that one of the employees, upon inquiry, assured Plaintiff's husband that the brakes on the bicycles functioned properly. Id. at 3. Plaintiff further alleges that the employees offered no instruction on bicycle operation and only limited information about how to safely navigate portions of Hyatt's property, specifically “to only navigate at the slowest speeds to avoid risk of injury.” Id. Plaintiff also alleges that Hyatt knew of prior incidents involving Hyatt-provided bicycles, including one that involved faulty brakes. Id.
Plaintiff states that she and her family rode the bicycles on a bike trail on Hyatt's property. Id. Plaintiff also states, “As J.X.O. rode the bicycle provided to him by [] Hyatt on [] Hyatt's property, he navigated a gravel road on a downhill stretch.” Id. Plaintiff alleges that J.X.O.'s bicycle's brakes failed as he tried to slow the bicycle, resulting in J.X.O. crashing into a tree. Id. at 3-4. J.X.O.'s head struck the tree, and he became unconscious. Id. J.X.O.'s injuries required hospitalization and ongoing medical treatment. Id. at 4. Plaintiff observed all the foregoing events. Id.
Hyatt now moves to dismiss this lawsuit under Federal Rule of Civil Procedure 12(b)(6) because Plaintiff's claims fail to meet the minimum standards for pleading plausible causes of action. Dkt. #13 at 10.
II. Legal Standard: Rule 12(b)(6) Motion to Dismiss
Although Federal Rule of Civil Procedure 8 mandates only that a pleading contain a “short and plain statement of the claim showing that the pleader is entitled to relief,” this standard demands more than unadorned accusations, “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s]” devoid of “further factual enhancement.” Bell Atl. v. Twombly, 550 U.S. 544, 555-57 (2007). Rather, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id. at 570. The Supreme Court has made clear this plausibility standard is not simply a “probability requirement,” but imposes a standard higher than “a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The standard is properly guided by “[t]wo working principles.” Id. at 678. First, although “a court must ‘accept as true all of the allegations contained in a complaint,' that tenet is inapplicable to legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678. Second, “[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Thus, in considering a motion to dismiss, the court must first identify pleadings that are no more than legal conclusions not entitled to the assumption of truth, then assume the veracity of well-pleaded factual allegations and determine whether those allegations plausibly give rise to an entitlement to relief. If not, “the complaint has alleged-but it has not shown-that the pleader is entitled to relief.” Id. at 679. In sum, a “plaintiff must plead enough facts to nudge the claims across the line from conceivable to plausible.” Hinojosa v. Livingston, 807 F.3d 657, 684 (5th Cir. 2015) (quoting Iqbal, 556 U.S. at 680) (cleaned up).
III. Analysis
Hyatt moves to dismiss Plaintiff's Amended Complaint because (1) Plaintiff's negligence claim does not allege a contemporaneous negligent act; (2) Plaintiff's premises liability claim (a) cannot be supported through a movable object and (b) the negligent conditions giving rise to the claim were open and obvious. Hyatt also urges dismissal of Plaintiff's negligent undertaking claim asserted in her Response because Hyatt owed a duty to Plaintiff and thus could not undertake an additional duty.
See infra at 6.
Plaintiff's Amended Complaint implicates the court's diversity jurisdiction under 28 U.S.C. § 1332(a)(1). Dkt. #11 at 2. Plaintiff's injuries arose in Texas and her claims are based in state law. See id. Thus, Texas law applies. See, Conn Credit I, L.P. v. TF LoanCo III, L.L.C., 903 F.3d 493, 502 (5th Cir. 2018).
The court notes, “The lines between negligent activity and premises liability are sometimes unclear ....” Del Lago Ptnrs. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010) “A negligent activity claim requires that the claimant's injury result from a contemporaneous activity itself rather than from a condition created on the premises by the activity; whereas a premises defect claim is based on the property itself being unsafe.” State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006) (citing Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992)). “[W]hen a claim does not result from contemporaneous activity, the invitee has no negligent-activity claim, and his claim sounds exclusively in premises-liability.” Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 215 (Tex. 2015) (citing Shumake, 199 S.W.3d at 284; Keetch, 845 S.W.2d at 265).
A plaintiff may pursue both a negligent activity claim and a premises liability claim. But while a plaintiff may pursue both claims in the alternative, W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005), and even proceed to trial on both claims, Del Lago, 307 S.W.3d at 776, a plaintiff may recover under only one theory for the same injury. Austin, 746 F.3d at 197.
A. Negligence
1. Negligent Activity
Hyatt argues that Plaintiff does not allege a contemporaneous activity by Hyatt, and thus Plaintiff's claim sounds exclusively in premises liability rather than negligence. Id. Plaintiff responds that “Hyatt was [] engaged in several contemporaneous activities.” Dkt. #14 at 6.
“A negligent activity claim requires that the claimant's injury result from a contemporaneous activity itself ....” Shumake, 199 S.W.3d at 284 (citing Keetch, 845 S.W.2d at 264)).
Hyatt argues that “at most,” Plaintiff ambiguously alleges omissions by Hyatt. Dkt. #13 at 6-7. Hyatt continues that in the “landowner-invitee context, conditions arising from a defendant's ‘nonfeasance, and not contemporaneous negligent activity' do not give rise to a negligent-activity claim.” Dkt. #13 at 7 (quoting Austin, 465 S.W.3d at 216). Hyatt goes on, arguing “courts have found that a plaintiff cannot assert a negligence claim absent ongoing activity by the defendant or its employees.” Id. (citing Keetch, 845 S.W.2d at 264). Thus, Hyatt urges that Plaintiff's claim sounds in premises liability. Id.
Plaintiff responds by arguing that the Amended Complaint alleges Hyatt “was actively maintaining, inspecting, and checking-out bicycles for hotel guests, including . . . J.X.O.” which were “contemporaneous activities.” Dkt. #14 at 6.
Because the Amended Complaint alleges Hyatt was, among other things, maintaining, inspecting, and selecting J.X.O.'s bicycle, Dkt. #11 at ¶¶14-15, Plaintiff alleged a contemporaneous activity by Hyatt. Accordingly, the court will decline to recommend dismissal on this ground.
2. Instrumentality
Plaintiff also argues in her Response that an instrumentality on Hyatt's premises caused J.X.O.'s injuries. Dkt. #14 at 7. Plaintiff notes that an owner “of land may be liable for negligence” arising from an “instrumentality.” Id. (quoting Stirrup v. Anschutz Tex., LP, No. 05-17-613-CV, 2018 Tex.App. LEXIS 5853, at *17 (Tex. App.-Dallas July 30, 2018, no pet.) (mem. op.) (collecting cases). Plaintiff then notes that “[c]laims relating to movable property (i.e., instrumentalities) generally sound in negligence.” Dkt. #14 at 8 (citing AAA Cooper Transp. v. Davis, No. 05-18-541-CV, 2019 Tex.App. LEXIS 7357, at *10, 13-14 (Tex. App -Dallas Aug. 20, 2019, no pet.) (mem. op.).
In its Reply, Hyatt contends that its Motion fully briefed the issue of whether Plaintiff stated a claim for negligence, reiterating that Plaintiff did not allege a contemporaneous negligent activity by Hyatt. Dkt. #15 at 3. This is incorrect. Plaintiff alleges several contemporaneous activities, alleging that Hyatt was actively maintaining, inspecting, and checking-out bicycles. Dkt. #11 at ¶¶14-15.
Hyatt also suggests, without elaboration, that Plaintiff's Response “attempts to modify the relevant standard.” Dkt. #15 at 3. The court notes Hyatt's lack of argument on this point, see id., notes Plaintiff's allegations of contemporaneous activities, supra at 5-6, and accordingly, disagrees.
Because Plaintiff's Amended Complaint alleges an adequate factual basis to support the elements of a negligent activity claim, including a contemporaneous activity by Hyatt, and facts relating to an instrumentality (the bicycle) on Hyatt's property, the undersigned will recommend denying Hyatt's motion to dismiss the negligence claim.
B. Negligent Undertaking
In her Response, Plaintiff asserts a negligent undertaking claim. Dkt. #14 at 9. In its Reply, Hyatt contends the claim, which was “unraised” in the Amended Complaint, is “inapplicable.” Dkt. #15 at 3.
“Generally, a new claim or legal theory raised in response to a dispositive motion should be construed as a request for leave to amend the complaint, and the district court should determine whether leave should be granted.” Pierce v. Hearne Indep. Sch. Dist., 600 Fed.Appx. 194, 200 (5th Cir. 2015) (citing Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 989 n.2 (5th Cir. 2008) (collecting cases)). But “new factual allegations . . . need not be so construed unless the plaintiff explicitly requests leave to amend and expresses the grounds upon which the amendment is sought with particularity.” Id. at 200 n.6 (citing U.S. ex rel. Willard v. Humana Health Plan of Tex., 336 F.3d 375, 387 (5th Cir. 2003)). Plaintiff's Response does not allege new facts, but it does assert a new claim. Accordingly, the court construes the Response as a request for leave to amend.
The elements of a claim for negligent undertaking are that: “(1) the defendant undertook to perform services that it 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 (a) the plaintiff relied upon the defendant's performance, or (b) the defendant's performance increased the plaintiff's risk of harm.” Nall v. Plunkett, 404 S.W.3d 552, 555-56 (Tex. 2013). “The critical inquiry concerning the duty element of a negligent-undertaking theory is whether a defendant acted in a way that requires the imposition of a duty where one otherwise would not exist.” Id. at 555 (citing Torrington Co. v. Stutzman, 46 S.W.3d 829, 838-39 (Tex. 2000), and Osuna v. S. Pac. R.R., 641 S.W.2d 229, 230 (Tex. 1982)). When a defendant owes a preexisting duty to a plaintiff, a negligent undertaking theory is unavailable. M.A. Mortenson Co. v. Shelton, No. 02-19-00435-CV, 2021 Tex. App. LEXIS 4355, at *12 (Tex. App.-Fort Worth June 3, 2021, pet. denied) (citing Nall, 404 S.W.3d at 555); see also, De Sanchez v. Sporran EE, No. 13-08-00541-CV, 2010 Tex.App. LEXIS 7175, 2010 WL 3420572, at *5 (Tex. App.-Corpus Christi-Edinburg Aug. 31, 2010, no pet.) (mem. op.) (“a negligent undertaking theory is not appropriate when a particular duty or contractual obligation already exists and liability can be governed within that standard”).
Both Plaintiff and Hyatt maintain Plaintiff and her family, including J.X.O., were invitees. Dkt. 11 at ¶19; Dkt. 15 at 4. “When the injured person qualifies as an invitee, . . . then as a general rule the landowner owes a duty to make safe or warn ....” Hillis v. McCall, 602 S.W.3d 436, 440 (Tex. 2020) (internal quotations omitted) (citing cases) (emphasis added). Thus, Hyatt owed a preexisting duty to Plaintiff.
Because Hyatt owed a preexisting duty to Plaintiff and J.X.O. a negligent undertaking theory is unavailable, and the undersigned will recommend denying leave to amend to assert this claim.
C. Premises Liability
Plaintiff also asserts a premises liability claim. Dkt. #11 at 5-8. Hyatt asserts two arguments in support of its motion to dismiss this claim: (1) the use of movable property bars a premises liability claim and (2) the conditions on the premises-the terrain, the bicycle brakes, and the tree-were open and obvious and thus could not pose an unreasonable risk. Dkt. #13 at 89.
Landowners owe varying duties of care to visitors on their land, depending on the legal status of the visitor. Motel 6 G.P. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996) (citing cases). The parties do not dispute that as a guest of the hotel, Plaintiff and J.X.O. qualify as invitees for purposes of a premises liability claim. See supra at 7. Landowners owe invitees a duty to exercise ordinary care to protect them from not only those risks of which the owner is actually aware, but also those risks of which the owner should be aware after reasonable inspection. Motel 6, 929 S.W.2d at 3.
The elements of a premises liability claim are: (1) actual or constructive knowledge of some condition on the premises by the owner; (2) that the condition posed an unreasonable risk of harm; (3) that the owner did not exercise reasonable care to reduce or eliminate the risk; and (4) that the owner's failure to use such care proximately caused the plaintiff's injuries. Keetch, 845 S.W.2d at 264 (citing cases).
1. Movable Property
First, Hyatt asserts that because “[b]ycicles, inherently, are movable property,” a claim for premises liability is barred. Dkt. #13 at 8. Plaintiff responds that “Hyatt is incorrect that movable objects can never support a premises liability claim.” Dkt. #14 at 10. In reply, Hyatt notes the circumstances in which a movable property give rise to a premise liability claim are rare. Dkt. #15 at 2.
When “determining if premises liability attaches to claims involving movable property, courts mainly focus on whether the property was affixed or connected to the real property.” AAA Cooper Transp. v. Davis, No. 05-18-00541-CV, 2019 Tex.App. LEXIS 7357, 2019 WL 3928754, at *4 (Tex. App. - Dallas Aug. 20, 2019, no pet. hist.). “When property is attached to realty and cannot be removed without materially damaging the property, it loses its character as personal property and becomes part of the realty.” Eun Bok Lee v. Ho Chang Lee, 411 S.W.3d 95, 110 (Tex. App.-Houston [14th Dist.] 2006, no pet.). That said, as Hyatt acknowledges, movable property may support a claim for premises liability when the movable property creates a condition on the property. See Dkt. #15 at 2.
“The distinction between a use or condition of tangible personal property claim as opposed to a premises defect claim, however, is whether it was the contemporaneous, affirmative action or service (use) or the state of being (condition) of the tangible property itself that allegedly caused the injury, or whether it was a condition created on the real property by the tangible personal property (a premises defect).” Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 390 (Tex. 2016) (citing Shumake, 199 S.W.3d at 284) (emphases added). The defective state of an item of personal property is a condition of the personal property itself. Id. (citing Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 49 (Tex. 2015), and Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 32 (Tex. 1983)).
Hyatt, citing Harmon, argues that “personal, movable property-such as a bicycle-can only provide the basis for a premises liability claim where it is temporarily affixed to the defendant's actual property. Dkt. #15 at 2. Here, there is no allegation that the bicycle was attached to Hyatt's property. See generally, Dkt. #11. Thus, the question is whether movable property created a condition on the property that would give rise to liability.
Addressing the rare times tangible, movable property may give rise to a premises liability claim, Hyatt argues that Plaintiff cannot rely on Sampson because the Texas Supreme Court there found that an object in use creates a claim that sounds in negligence, not premises liability. This is correct. In Sampson, a person tripped over an electrical cord that was stretched across a walkway and was not being contemporaneously manipulated by an employee. Sampson, 500 S.W.3d at 390. The circumstances gave rise to a premises liability claim because the wire created a condition on the property. Id. That said, had the wire been frayed-i.e., had it been defective-and caused electrocution, then the claim would have been based on the use or condition of the wire and sounded in negligence. Id. at 390-91.
Plaintiff argues that the bicycle supplied by Hyatt to J.X.O. was defective-“the brakes on the resort-provided bicycle were not operational and did not function properly ....” Dkt. #11 at 6. The Texas Supreme Court's example of a frayed wire-a defective wire-is relevant here to the bicycle with allegedly malfunctioning brakes-a defective bicycle. As suggested by the Texas Supreme Court in Sampson, where the condition of the defective wire would give rise to a negligence claim but not a premises liability claim, here the condition of the defective bicycle gives rise to a negligence claim but not a premises liability claim.
2. Openness & Obviousness of Conditions
Hyatt also argues that Plaintiff fails to allege facts that a condition on the premises posed an unreasonable risk of harm, an element required for a premises liability claim. Dkt. #13 at 9 (citing Brinson Ford v. Alger, 228 S.W.3d 161, 162 (Tex. 2007)). Hyatt contends that because “the alleged ‘defects' in question were open and obvious,” they do not support a premises liability claim.” Id. Plaintiff responds that the Amended Complaint pleads that “dangerous conditions included ‘steeply sloped and curved trails without sufficient warning of the danger . . .,'” Dkt. #14 at 11 (quoting Amended Complaint ¶20), and that the inoperability of the bicycle's brakes was not open and obvious because it was not visible. Id. at 12.
“When invitees are aware of dangerous premises conditions-whether because the danger is obvious or because the landowner provided an adequate warning-the condition will, in most cases, no longer pose an unreasonable risk ....” Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 203 (Tex. 2015). “Whether a danger is open and obvious is a question of law determined under an objective test.” Los Compadres Pescadores, L.L.C. v. Valdez, 622 S.W.3d 771, 788 (Tex. 2021) (citing Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 383 (Tex. 1995)). “The question is whether the danger is ‘so open and obvious that as a matter of law [the plaintiff] will be charged with knowledge and appreciation thereof.'” Id. (quoting Parker, 565 S.W.2d at 516). “Under the objective standard, the question is not what the plaintiff subjectively or actually knew but what a reasonably prudent person would have known under similar circumstances.” Id. (citing Tex. Dep't of Hum. Servs. v. Okoli, 440 S.W.3d 611, 614 (Tex. 2014)). This requires an examination of the “totality of the particular circumstances the plaintiff faced.” Id. (internal quotations omitted) (citing State v. One (1) 2004 Lincoln Navigator, 494 S.W.3d 690, 706 (Tex. 2016)).
i. Steeply sloped and curved trail
Hyatt asserts that Plaintiff's allegation about steeply sloped and curved trails is too vague to support a premises liability claim. Dkt. #15 at 3 (citing Twombly, 550 U.S. at 555). Hyatt also argues that Plaintiff's assertion about sloped and curved trails is irrelevant to Plaintiff's claim because “Plaintiff does not assert that her son was injured while riding down a steep slope ....” Id. Hyatt is incorrect. To the contrary, Plaintiff alleges: “As J.X.O. rode the bicycle provided to him by [] Hyatt on [] Hyatt's property, he navigated a gravel road on a downhill stretch.” Dkt. #11 at 3 (emphasis added). The “bicycle [] gain[ed] speed and [struck] a tree.” Id.
The Amended Complaint contains enough facts to nudge Plaintiff's claim across the line from conceivable to plausible. See Hinojosa, 807 F.3d at 684. Additionally, a steeply sloped downhill portion of the trial could have been obscured by a curve, making the condition not open and obvious. Because Plaintiff's claim is not too vague to assert a claim under Twombly and because, considering the totality of the circumstances, a steeply sloped portion of the trail may not have been open and obvious to a reasonably prudent person, the undersigned will not recommend dismissing Plaintiff's claim for premises liability as it relates to steep, sloped, and curved trails.
ii. Bicycle operation
Hyatt asserts that “a bicycle and its subsequent operation, particularly without a helmet, is open and obvious.” Dkt. #13 at 9. Plaintiff responds that the “improperly functioning or inoperable brakes,” Dkt. #11 at ¶20, were not open and obvious. Dkt. #14 at 12.
For the reasons stated above regarding movable property, supra at 9-11, the inoperability of brakes-whether visible to the naked eye or not-is a defect of the bicycle. And, as stated above, a defect of movable property-here the bicycle-does not give rise to a premises liability claim.
iii. Arboreal conspicuousness
In a two-sentence paragraph, Hyatt also argues that Plaintiff alleges that J.X.O. was injured when he struck a tree and that a tree is an open and obvious condition. Dkt. #13 at 10. Hyatt contends that a tree is a “distinctive, conspicuous feature . . . relative to its surroundings.” Id.
A prior section of Hyatt's Motion cites seven cases in which Texas and federal courts found conditions to be open and obvious. Dkt. #13 at 5-6. However, the cases Hyatt cites are each distinguishable. Two involved plaintiffs who had navigated a premises defect two or more times; three involved obstacles that contrasted with their backgrounds (in one of these cases, a plaintiff acknowledged she would have seen the obstacle had she been paying attention); one involved a piece of “masonry jutting out of a water fountain in plain view,” id. at 6 (citing Culotta v. DoubleTree Hotels LLC, No. 01-18-00267-CV, 2019 WL 2588103, at *4 (Tex. App.-Houston [1st Dist.] June 25, 2019, pet. denied); and the last involved a plaintiff who saw the obstacle prior to being injured. Id.
Plaintiff did not specifically address Hyatt's argument. But “a landowner can be liable for . . . creating a condition that a recreational user would not reasonably expect to encounter on the property in the course of the permitted use.” Shumake, 199 S.W.3d at 288 (citing cases and concluding pleadings stated a premises liability claim). The combination of a downhill sloping portion of Hyatt's curving bike path and the proximity of a tree to the bike path together with Plaintiff's family's permitted use of the bike path-Hyatt's property-allegedly resulted in J.X.O.'s crashing into a tree.
Plaintiff alleges Hyatt knew of at least two similar incidents since July 2018 involving patrons and resort-provided bicycles. Dkt. #11 at 3. Thus, the court concludes that Plaintiff alleges that Hyatt knew or should have known that conditions on its property may not have been open and obvious.
Accordingly, the court concludes that the open and obvious doctrine does not obviate Plaintiff's premises liability claim as it relates to the tree and bike path.
IV. Conclusion
Plaintiff sufficiently alleges a factual basis for the elements of a negligence claim, including the contemporaneous negligent activity element. Plaintiff also stated a premises liability claim related to conditions on Hyatt's property, specifically the steeply, sloped, and curved bike path and the tree near the bike path.
Plaintiff's contention that the allegedly defective bicycle was a condition on Hyatt's property that gave rise to a premises liability claim conflicts with Texas law. Plaintiff alleges use of the defective bicycle or its defective condition caused J.X.O.'s injuries. But Plaintiff does not allege the bicycle created a condition on Hyatt's property. Accordingly, Hyatt's motion to dismiss Plaintiff's premises liability claim as it relates to the bicycle should be granted.
The negligent undertaking claim Plaintiff asserts in her Response fails because Hyatt owed a duty to Plaintiff and J.X.O. and could not undertake an additional duty that would give rise to a negligent undertaking claim.
V. Recommendations
For the reasons given above, the undersigned RECOMMENDS that Hyatt's Motion to Dismiss (Dkt. #13) be DENIED in part and GRANTED in part consistent with the foregoing. VI. Objections
The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battles v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Services Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc).