Who Owes You A Negligence Duty?

In considering whether you were owed a personal injury negligence duty, courts might consider whether the defendant:

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Benser v. Johnson, 763 S.W.2d 793 (Dallas, Texas Court of Appeals 1988) (holding tenant could bring personal injury/premises liability/negligence action against apartment complex for using faulty locks that allowed intruder to enter and rape tenant; evidence also showed that apartment was in high crime area and there had been previous instances of criminal activity).

Colonial Savings Association v. Taylor, 544 S.W.2d 116 (Texas Supreme Court 1976) (holding homeowner could bring property damage lawsuit arising from home fire against lienholder/mortgage company because company had voluntarily agreed to insure the home), citing Restatement (Second) of Torts § 323 (“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the production of the other’s person or things, is subject to liability to the other for physical harm resulting from this failure to exercise reasonable care in his undertaking if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm suffered is because of the other’s reliance on the undertaking”).

Texas Home Management, Inc. v. Peavy, 89 S.W.3d 30 (Texas Supreme Court 2002) (holding survivors of victim killed by gunshot wound during visit could bring negligence personal injury lawsuit against nursing home-type care facility; existence of negligence duty was premised in part on contractual duties of care facility.)

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