CHARLES W. SEYMORE, Justice.
Appellant, John B. Plunkett, appeals a summary judgment in favor of appellees, Justin Curtis Nall, Robert W. Nall, and Olga L. Nall (collectively "the Nalls"), in Plunkett's negligence suit. In his sole issue, Plunkett contends the trial court erred by granting summary judgment because the Nalls moved for summary judgment on a negligence theory that was different from the claim pleaded by Plunkett. We reverse and remand.
In his petition, Plunkett presents the following factual allegations.
Plunkett sued the Nalls and Kowrach. With respect to the Nalls, Plunkett alleges they are liable for common law negligence, failed to exercise due care in their undertaking to protect guests, and breached a duty to protect Plunkett as an invitee on the Nalls' premises. The Nalls filed two
A party moving for traditional summary judgment must establish there is no genuine issue of material fact and he is entitled to judgment as a matter of law. See Tex.R. Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex.2003). A defendant moving for traditional summary judgment must negate at least one element of each of the plaintiff's theories of recovery or plead and conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). If the defendant establishes his right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995). We review a summary judgment de novo. Knott, 128 S.W.3d at 215. We take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in his favor. Id.
In his sole issue, Plunkett contends the trial court erred by granting summary judgment because Plunkett pleaded negligent undertaking, not social host liability, but the Nalls did not move for summary judgment on the negligent undertaking claim. We agree.
A summary-judgment movant must expressly state the grounds therefor in his motion. Tex.R. Civ. P. 166a(c). A trial court errs by granting summary judgment on a claim not addressed in the motion. Jacobs v. Satterwhite, 65 S.W.3d 653, 655 (Tex.2001); Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex.1990); PAS, Inc. v. Engel, 350 S.W.3d 602, 609 (Tex. App.-Houston [14th Dist.] 2011, no pet.).
The Nalls moved for summary judgment on the sole ground that the Nalls owed no duty to Plunkett because Texas law does not recognize social host liability. The Nalls relied on Graff v. Beard, 858 S.W.2d 918, 918-22 (Tex.1993), in which the supreme court declined to recognize social host liability, holding that a host has no duty to prevent a guest who will be driving from becoming intoxicated or prevent an intoxicated guest from driving.
Plunkett alleged a claim for negligent undertaking — not social host liability. The supreme court has recognized that Texas law generally imposes 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). However, a duty to use reasonable care may arise
Restatement (Second) of Torts § 323 (1965); see Torrington, 46 S.W.3d at 838. To establish negligent undertaking, a plaintiff must show: (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 (3) the plaintiff relied upon the defendant's performance, or the defendant's performance increased the plaintiff's risk of harm. Torrington, 46 S.W.3d at 838-39. According to Plunkett, the Nalls "undertook to perform services" to protect Plunkett and other guests by imposing a rule that guests remaining at midnight must spend the night.
On appeal, the Nalls implicitly recognize they did not expressly move for summary judgment on a negligent undertaking claim because they advance several reasons why we nonetheless should uphold the summary judgment. In particular, the Nalls suggest that their ground challenging social host liability sufficiently negated the negligent undertaking claim because Plunkett actually alleges social host liability, despite his characterization of the underlying theory. We disagree because social host liability and negligent undertaking are different theories. The crux of Plunkett's negligence allegation is not that the Nalls owed a duty as social hosts to prevent intoxicated guests from driving. Plunkett recognizes there was no such duty. Rather Plunkett alleges that, once the Nalls voluntarily undertook to prevent intoxicated guests from driving (for which they otherwise owed no duty), they had a duty to act with ordinary care.
The Nalls also assert, "the alleged facts that form the basis of Plunkett's claim clearly arose in the social host context." The fact that Plunkett alleges the Nalls were acting as social hosts when they purportedly assumed a duty does not mean Plunkett alleges social host liability; it is the voluntary undertaking allegedly exercised by the Nalls — not the mere fact they were social hosts — on which Plunkett relies when seeking to impose a duty to prevent intoxicated guests from driving.
Additionally, the Nalls argue that Plunkett failed to plead a negligent undertaking claim or allege any facts in support of such a claim. We disagree. In his petition, Plunkett alleges the following facts:
Plunkett then pleads the following cause of action against the Nalls:
In fact, other than premises liability, negligent undertaking is the only theory of liability against the Nalls that we construe from Plunkett's petition.
The Nalls further contend they owed no duty to Plunkett even if he had pleaded a negligent undertaking theory. In their appellate brief, the Nalls cite the elements of negligent undertaking and advance arguments purportedly negating a duty under such theory. For example, they contend a mere request that guests remaining at midnight spend the night is not an undertaking of services. However, in their motion for summary judgment, the Nalls did not mention, much less cite the elements of, a negligent undertaking claim or advance any arguments negating the elements in the present case, including their contention that there was no "undertaking." To establish there is no genuine issue of material fact concerning one or more of the essential elements of a plaintiff's cause of action, the defendant must identify or address the cause of action and its elements in the motion for summary judgment. See Black, 797 S.W.2d at 27. The Nalls also assert that the case law "regarding social hosts still applies" to any negligent undertaking claim. Even if some of the same reasoning for rejecting social-host liability might also negate the negligent undertaking theory, the Nalls failed to address that theory in their motion.
We acknowledge that, in the motion, the Nalls twice referenced Plunkett's allegation regarding the Nalls' rule that guests remaining at midnight must spend the night. However, the Nalls did not mention this alleged rule in the context of attempting to negate a negligent undertaking claim. Instead, the Nalls first cited this rule when incorrectly suggesting, as discussed above, that Plunkett's reliance on the rule merely amounted to an allegation of social host liability.
Finally the Nalls posit that Plunkett failed to offer summary-judgment evidence supporting a negligent undertaking theory. However, the Nalls filed a traditional motion for summary judgment — not a no-evidence motion; because the Nalls did not negate any element of the negligent undertaking claim, the burden never shifted to Plunkett to present evidence supporting the claim. See Siegler, 899 S.W.2d at 197.
Accordingly, we sustain Plunkett's sole issue, reverse the trial court's judgment, and remand for further proceedings consistent with this opinion.
MIRABAL, J., Dissenting.
MARGARET GARNER MIRABAL, Senior Justice, dissenting.
I respectfully dissent. In my opinion, the Nalls' motion for summary judgment addressed all causes of action asserted by Plunkett. Accordingly, we should overrule Plunkett's sole issue and affirm.
Plunkett's negligence claims against the Nalls are stated in the Plaintiff's Original Petition as follows:
The Majority Opinion accurately states:
The Nalls' motion for summary judgment specifically addressed Plunkett's claim that the Nalls' voluntary undertaking created a duty to Plunkett; the Nalls specifically moved for summary judgment on the ground that no duty was thereby created. The Motion for Summary Judgment states:
The Nalls arranged the Argument and Authorities section of their Motion for Summary Judgment into two parts:
Under the second part, the Nalls cite authorities in response "to the arguments of Plaintiff in the case at bar that the Nall Defendants assumed a duty by telling their guests they had to stay till morning if they were still there at midnight." The Nalls discuss the case law in connection with Plunkett placing "a great amount of emphasis on the alleged `rule' of the Nall hosts that required a guest who was still at the home at midnight to spend the night," asserting that the courts refuse to recognize the assumption of duty argument in such cases.
On appeal, Plunkett's sole issue is that the trial court erred in granting summary judgment because the Nalls' motion for summary judgment did not address Plunkett's cause of action based on a "negligent undertaking" theory.
SEYMORE, J., Majority.