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NOT OUR BROTHER’S KEEPER: THE DUTY (OR LACK THEREOF) TO ACT IN TEXAS

THE DUTY (OR LACK THEREOF) TO ACT IN TEXASAs a general proposition, there is no duty on the part of any citizen of this, and most other states, to render aid to third parties at risk of harm. “[I]t may be said generally, as a matter of law, that a mere bystander who did not create the dangerous situation is not required to become the good Samaritan and prevent injury to others. ” Buchanan v. Rose, 159 S.W.2d 109, 110 (Tex. 1942). As the quoted language suggests, however, this principal does not apply where the person in question created the condition which has put the third-party at risk of harm: “if a party negligently creates a dangerous situation it then becomes his duty to do something about it.” Id. Other exceptions exist as to the application of the so-called “no duty to act” rule.

For example, one who voluntarily and willingly sets about to aid another in peril must exercise reasonable care in doing so:

  • One who undertakes gratuitously…to render services to another which he should recognize are 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.

Colonial Sav. Ass’n v. Taylor, 544 S.W.2d 116, 119–120 (Tex. 1976) (quoting Restatement (Second) of Torts § 323). This exception, however, requires an actual, “affirmative act.” Helbing v. Hunt, 402 S.W.3d 699, 703 (Tex.App.—Houston [1st Dist.] 2012, pet. denied). There is no liability, therefore, for an unfulfilled “promise” to provide aid, unless the party in peril relies upon this promise to his detriment. See Helbing, 402 S.W.3d at704–706.

Finally, another recognized exception may arise where a “special relationship” exists between the parties: “Special relations may exist between the actor and the other…which impose upon the actor the duty to take affirmative precautions for the aid or protection of the other. “ Restatement (Second) of Torts § 314. Such a “special relationship” may exist where “[t]he actor [has] control of a third person, or of land or chattels, and be under a duty to exercise such control.” Id.

Though stepping outside the confines of a legal analysis in this regard, it is important to note that these rules relate solely to “legal” and not “moral” obligations. By way of example, the Restatement itself provides the following hypothetical to illustrate this rule:

  • A sees B, a blind man, about to step into the street in front of an approaching automobile. A could prevent B from so doing by a word or touch without delaying his own progress. A does not do so, and B is run over and hurt. A is under no duty to prevent B from stepping into the street, and is not liable to B.

Restatement (Second) of Torts § 314.Thus, based upon the principles noted previously herein, we can see that when we come across the blind man clearly stepping into a dangerous situation; because we did not create that situation, and have not already set about to help him, though we could; and having no “special relationship” to him, we are under no legal duty to undertake even the simplest act to prevent his injury or death. But few would suggest there to be no moral obligation to do so. Such moral obligations, however, are best left addressed in other settings.

I would be remiss if I did not take the opportunity before ending this humble blog to congratulate Phillip Galyen of Bailey & Galyen on 35 years of providing legal services to the citizens of this state. Rights, legal or otherwise, are rarely self-enforcing. And Phillip Galyen has spent much of his life protecting the rights of Texans everywhere.

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