Helbing v. Hunt

Full title: Elizabeth HELBING, Appellant v. Oliver Alan HUNT and John William Deaver…

Court: Court of Appeals of Texas, Houston (1st Dist.).

Date published: Mar 19, 2013

402 S.W.3d 699 (Tex. App. 2013)

Opinion

No. 01–11–00590–CV.

2013-03-19

Elizabeth HELBING, Appellant v. Oliver Alan HUNT and John William Deaver, Appellees.

Alan Brandt Daughtry, Attorney at Law, Houston, TX, for Appellant. Sheryl Gray Rasmus, Jean Ann Kelly, The Rasmus Law Firm, Austin, TX, Mainess Gibson, Sheryl Sipes Norman, Connelly Baker Wotring LLP, Houston, TX, for Appellees.

TERRY JENNINGS

Alan Brandt Daughtry, Attorney at Law, Houston, TX, for Appellant. Sheryl Gray Rasmus, Jean Ann Kelly, The Rasmus Law Firm, Austin, TX, Mainess Gibson, Sheryl Sipes Norman, Connelly Baker Wotring LLP, Houston, TX, for Appellees.
Panel consists of Chief Justice RADACK and Justices JENNINGS and KEYES.

OPINION

TERRY JENNINGS, Justice.

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.

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.

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.”

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

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 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 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)).

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 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 729, 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.
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 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 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 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.”

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.

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.”

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 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 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.

Conclusion

We reverse the judgment of the trial court and remand the case for proceedings consistent with this opinion. Chief Justice RADACK, dissenting.

SHERRY RADACK, Chief Justice, dissenting.

Because I would hold that upperclassmen student counselors at a college orientation have no duty to incoming freshmen who participate in orientation to refrain from encouraging the freshmen to participate in a dangerous activity several weeks after the orientation has concluded, I respectfully dissent.

Duty for Risk Defendants Affirmatively Created?

Helbing contends that “[a]cting in the role of Fish Camp counselors, Hunt and Deaver pressured her to go on this outing and affirmatively undertook her care.” Specifically, Helbing argues that Hunt and Deaver had a duty to her because of their “affirmative undertaking to make the excursion safe.” Thus, the first issue I address is whether Hunt and Deaver, by inviting Helbing on a dangerous excursion, undertook a duty to guarantee her safety.

A cause of action for negligence has three elements: (1) a legal duty; (2) a breach of that duty; and (3) damages proximately resulting from the breach. Praesel v. Johnson, 967 S.W.2d 391, 394 (Tex.1998). The threshold question, of course, is the existence of a duty. Id. The existence of duty is a question of law. Joseph E. Seagram & Sons, Inc. v. McGuire, 814 S.W.2d 385, 387 (Tex.1991). If no duty exists, our inquiry into whether negligence liability may be imposed ends. Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex.1998).

Generally, there is “no duty to take action to prevent harm to others absent certain special relationships or circumstances.” Torrington Co. v. Stutzman, 46 S.W.3d 829, 837 (Tex.2000); see alsoRestatement (Second) of Torts § 314 (1965) (“The fact that [an] actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action.”). If the defendant has no duty, then he cannot be held liable for negligence. J.P. Morgan Chase Bank, N.A. v. Tex. Contract Carpet, Inc., 302 S.W.3d 515, 529 (Tex.2009).

Even if there is no general duty, “one who voluntarily undertakes an affirmative course of action for the benefit of another has a duty to exercise reasonable care that the other's person or property will not be injured thereby.” Colonial Sav. Ass'n v. Taylor, 544 S.W.2d 116, 119 (Tex.1976).

Helbing cites two cases that she claims stands for proposition that “where a party has recommended a course of action that unreasonably increases the risk of harm to a victim,” that party has made such a recommendation owes the victim a duty to prevent the harm. We find both cases distinguishable.

In Golden Spread Council, Inc. No. 562 of Boy Scouts of America v. Akins, a local church decided to start a scout troop and asked the Golden Spread Council to recommend a scoutmaster. 926 S.W.2d 287, 292–93 (Tex.1996). The Council recommended Estes, despite being aware of rumors that he had “messed around with” boys. Id. at 290. When sued by the mother of a boy molested by Estes, the Council argued that it owed no duty. Id. at 289. The supreme court disagreed, holding that “if [the Council] knew or should have known that Estes was peculiarly likely to molest boys, it had a duty not to recommend him as scoutmaster.” Id. at 292. This case does not stand for the overly broad position argued by Helbing, i.e., that merely recommending a dangerous course of action gives rise to a legal duty to prevent injury arising from that danger. In fact, the supreme court emphasized the narrowness of its holding by stating that “[the Council's] only duty was to exercise reasonable care, based on the information it received, in recommending scoutmasters.” Id.

Helbing also relies on D. Houston, Inc. v. Love, a case in which an exotic dancer sued her employer for injuries she sustained in a car crash on her way home from work. 92 S.W.3d 450, 451 (Tex.2002). Love alleged that her employer was responsible for her injuries because her employerencouraged her to accept drinks from patrons of the club. Id. at 454–55. The supreme court agreed, holding that “[w]hen an employer exercises some control over its independent contractor's decision to consume alcoholic beverages to the point of intoxication, such that alcohol consumption is required, the employer must make reasonable steps to prevent foreseeable injury to the independent contractor caused by drunk driving.” Id. at 457.Love, however, does not stand for the broad proposition that encouraging one person to do something dangerous (here, drinking to excess) results in a duty by the “encourager” to prevent any injury arising from the dangerous activity. The duty in Love was imposed based on an employer's right, and corresponding duty, to control its independent contractor's behavior. In the present case, Hunt and Deaver had no right or responsibility to control Helbing's behavior.

Finally, appellant argues that “Texas cases have historically recognized a negligence claim where one ‘guides another on a trip’ ” and cites several cases as support. See Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 575 (Tex.2007); Lamar v. Poncon, 305 S.W.3d 130 (Tex.App.-Houston [1st Dist.] 2009, pet. denied);Hudson v. Cont'l Bus Sys., Inc. 317 S.W.2d 584 (Tex.Civ.App.-Texarkana 1958, writ ref'd n.r.e.); Bunyard v. Garza, No. 13–98–00663–CV, 2000 WL 35729372 (Tex.App.-Corpus Christi July 20, 2000, no pet.). All of these cases involved “hired” tour guides; thus the duties, if any, arose from the contractual relationship between the parties. Such is not the case here. Hunt and Deaver were not hired as Helbing's tour guides; they merely invited her to accompany them to the railroad tracks. Helbing's “tour guide” cases are inapplicable.

Instead, I find the case of Rocha v. Faltys, which discusses whether one college student created a dangerous situation by inviting another college student to participate in a dangerous activity, to be applicable. 69 S.W.3d 315 (Tex.App.-Austin 2002, no pet.). In that case, the plaintiff, 21–year–old Rocha, and his fraternity brother, Faltys, attended a fraternity party where Rocha drank beer. Id. at 318. After the party, Rocha and Faltys drove to a local swimhole at 2:45 in the morning, accompanied by several women. Id. Rocha and Faltys climbed to the top of a cliff overlooking the river and Faltys dove in. Id. Faltys then encouraged Rocha to do the same. Id. Rocha jumped from the cliff, but, unable to swim, drowned. Id.

Rocha's family sued Faltys, alleging that “by taking [Rocha] to the top of the cliff and encouraging him to jump off the cliff while he was intoxicated,” Faltys undertook a legal duty to prevent Rocha's death. Id. at 321. Specifically, the Rochas argued, as Helbing does here, that when a “party negligently creates a situation, then it becomes his duty to do something about it to prevent injury to others if it reasonably appears or should appear to him that others in the exercise of their lawful rights may be injured thereby.” Id. (quoting El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987); Buchanan v. Rose, 138 Tex. 390, 159 S.W.2d 109, 110 (1942)). The court disagreed, holding that

Faltys's act of taking [Rocha] to the top of the cliffs, in and of itself, does not give rise to a legal duty. Simply taking [Rocha], an adult man, to the location where [Rocha] could choose to engage in an allegedly dangerous activity does not constitute negligent creation of a dangerous situation. The fact that [Rocha] was intoxicated does not affect this analysis. It has been long-recognized at common law that an individual who chooses to consume alcohol maintainsthe ultimate power over his situation and thus the obligation to control his own behavior. To impose a legal duty on Faltys because [Rocha] had consumed alcohol would be contrary to this principle.
Id. (internal citation omitted).

I believe the same is true in this case. Simply inviting Helbing, an adult, to a location where she could choose to participate in a dangerous activity or not does not constitute the negligent creation of a dangerous situation. And, unlike the plaintiff in Rocha, there is no evidence in the record that Helbing's decision to participate in the dangerous activity was the result of any intoxication or loss of her mental faculties. If Faltys owed no duty to an intoxicated Rocha, Hunt and Deaver owed no duty to Helbing, who remained perfectly capable of making her own decisions.

Creation of New Duty?

Nevertheless, Helbing argues that this Court should recognize a new duty under the specific facts of this case. Although Helbing does not specify the parameters of such a duty, I believe that she is arguing that peer advisor counselors at a college orientation have a duty not to invite freshmen who attend orientation to participate in any dangerous activity. Helbing does not specify when such a duty would arise or how long the counselors would be bound by such a duty.

Deciding whether to impose a new common-law duty involves complex considerations of public policy. Graff v. Beard, 858 S.W.2d 918, 920 (Tex.1993). In determining whether a defendant was under a duty, the court will consider several interrelated factors, including the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1991). Courts have also considered whether one party has superior knowledge of the risk, and whether a right to control the actor whose conduct precipitated the harm exists. Graff, 858 S.W.2d at 920.

Here, the risk, foreseeability, and likelihood of injury were certainly apparent to Hunt and Deaver. However, and quite importantly, those risks were equally apparent to Helbing. All three were aware, as any reasonable adult would be, that walking on a railroad bridge at night would be an inherently dangerous activity. In fact, any activity that involves approaching a moving train would be dangerous. It is likely that the dangerousness of the activity is what made it so attractive to these young adults.

Because the risk and foreseeability of injury would be obvious to any reasonable adult, we must consider the consequences of placing the burden to prevent injury on the defendants in this case. Helbing contends that “as camp counselors occupying a position of trust and confidence, the relationship of the parties supports imposing a duty of care.”

However, I do not agree that by serving as Fish Camp counselors in early August 2007, Hunt and Deaver undertook some sort of continuing duty to insure the safety of Fish Camp attendees, even after the four-day Fish Camp had ended and classes had begun for the semester. In reaching this conclusion, I look at whether Hunt and Deaver were in a position to control Helbing's conduct. The evidence shows that they were not. Helbing herself testified that the defendants “didn't force [her] to go; but [she] did feel guilty for not going.” Helbing testified that the defendants did not have “the power to force us what to do; but he did have power, considering we were new and freshmen.” There was also testimony that Fish Camp counselors were not in a position of authority over the incoming freshmen.

While Helbing may have been “relying solely on Hunt and Deaver as camp counselors to safeguard her,” such reliance was not reasonable. Helbing, as an adult, also had a duty to safeguard herself. While Hunt and Deaver may have invited her to participate in an obviously dangerous activity, there is no evidence that they “actively encouraged, urged, pressured, forced, or coerced” her into climbing on the platform. See Rocha, 69 S.W.3d at 322. Helbing participated in the dangerous activity of her own accord, and never asked for any details about the experience to follow or questioning its safety, even though she knew that it involved being near a moving train during the night.

I believe that focusing on Helbing's duty to control her own behavior is appropriate in light of relevant Texas Supreme Court authority. In Graff the supreme court considered whether to recognize a new duty for social hosts to control the behavior of guests to whom they served alcohol. In refusing to do so, the court stated that “ given the ultimate power of guests to control their own alcohol consumption and the absence of any legal right of the host to control the guest, we find the arguments for shifting the legal responsibility from the guest to the host, who merely makes alcohol available at social gatherings, unconvincing.” Graff, 858 S.W.2d at 921 (emphasis added).

Similarly, here, Helbing was in control of her own behavior, and Hunt and Deaver, despite their role as Fish Camp counselors, had no legal right to control her behavior, nor did they coerce or compel her behavior. Therefore, I would hold that Hunt and Deaver had no duty to prevent Helbing's injury under these circumstances. Absent facts not present here, one adult does not become legally responsible for another's injuries simply by inviting the injured person to participate in the dangerous activity that led to the injury. See Rocha, 69 S.W.3d at 322 (declining to create duty not to encourage another to jump from a cliff).

Duty arising from Negligent Undertaking?

Finally, Helbing argues that Hunt and Deaver are liable under the theory of “negligent undertaking.” Specifically, she argues that “Hunt and Deaver not only created the risk of injury by recommending the excursion to the bridge, they assumed a duty to make the freshmen safe, guiding them down the path, over the bridge, trying to light the trail with cellphones.”

To state a claim for a negligent undertaking, the 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. Pugh v. Gen'l Terrazzo Supplies, Inc., 243 S.W.3d 84, 94 (Tex.App.-Houston [1st Dist.] 2007, pet. denied). If one undertakes to make something safe for others, he owes a duty to use due care in making the situation safe. Wilson v. Tex. Parks and Wildlife Dep't, 8 S.W.3d 634, 635 (Tex.1999).

To establish a negligent undertaking claim, the plaintiff must nonetheless establish that the defendant violated a legal duty owed to them. Torrington Co., 46 S.W.3d at 837. I believe that Hunt and Deaver did not have a legal duty to Helbing not to invite her to participate in a dangerous activity. Similarly, there is nothing in the record to support Helbing's contention that, by organizing the outing to the bridge, Hunt and Deaver voluntarily undertook a duty to make the bridge safe. Thus, I believe the defendants have negated the first element of a negligent undertaking claim, i.e., they did not undertake to perform any services for Helbing by inviting her to the bridge.

Summary

Because Hunt's and Deaver's motions for summary judgment conclusively negated the duty element of each of Helbing's negligence causes of action, I would affirm the judgment of the trial court.