Section 323 of the Restatement Second of Torts
Interpretation of section 323 of the restatement second of torts:
In Colonial Savings Association v. Taylor. 544 S.W.2d 116, 119-120 (Tex. 1976) at 119-20, the Court relied upon section 323 of the Restatement (Second) 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.
RESTATEMENT (SECOND) OF TORTS 323 (1965).
Colonial Savings was decided under Texas former special issues practice, and thus did not address whether a broad-form negligence question would support recovery on a negligent undertaking theory. See 544 S.W.2d at 118.
And since Colonial Savings was decided, only one appellate decision has discussed the submission of an undertaking case.
In that case, the parents of a boy injured while driving a four-wheeler sued the vehicle's owners alleging, among other things, that they were negligent in allowing the boy to ride without providing him a helmet or adequate safety instruction. See Park v. Larison, 28 S.W.3d 106, 113 (Tex. App.--Texarkana 2000, no pet.). the court of appeals held that the trial court did not abuse its discretion in refusing to instruct the jury on the factual predicates necessary to an undertaking claim. Id.
The court reasoned:
The instruction requested by the Parks is a correct statement of Texas law, in accordance with the Texas Supreme Court's holding in Colonial Savings Association v. Taylor . . . . the instruction requested by the Parks discusses the extent of one's legal duty to render services to protect another's person or property. Duty is an issue of law for the court; not the jury. As such, the requested instruction was not necessary to enable the jury to render a verdict. Id.