Unreported / Non-Citable
Background
Hundreds of homeowners and related parties sued the developer of the Timarron subdivision, its parent company, and two engineering defendants after their homes flooded during Hurricane Harvey. They alleged that the defendants knew the area’s flooding history but set or communicated minimum slab elevations below the level necessary to protect the homes from a recurrence of the October 1994 flood.
The homeowners asserted negligence, gross negligence, and negligent-undertaking claims. The trial court granted summary judgment for The Woodlands Land Development Company, The Howard Hughes Corporation, LJA Engineering, and engineer James R. Bowles. The homeowners appealed, challenging rulings concerning duty, breach, causation, and the exclusion of certain summary-judgment evidence.
The Court’s Holding
The court affirmed. It held that Texas law had not previously recognized the negligence duty the homeowners sought to impose on a developer for downstream purchasers under these circumstances, and it declined to create that new common-law duty. Even if flooding was foreseeable, foreseeability alone was insufficient to establish a duty.
The negligent-undertaking claims also failed because the evidence did not raise a fact issue on breach. The Woodlands hired a reputable engineering firm, Pate, to determine the 1994 flood-of-record elevations and then directed that minimum slab elevations be set six inches above Pate’s figures. LJA and Bowles carried out the assigned task of setting elevations from Pate’s data; their undertaking did not include independently verifying that data. The court further held that LJA and Bowles owed no ordinary negligence duty absent contractual privity or another relationship with the homeowners. As to Howard Hughes, the homeowners failed to challenge on appeal the independent no-evidence grounds supporting summary judgment, requiring affirmance. Any assumed error in excluding the challenged exhibits was harmless because the evidence was cumulative or did not address the dispositive absence of evidence of breach.
Key Takeaways
- An intermediate Texas appellate court declined to recognize a new negligence duty running from a subdivision developer to downstream home purchasers under these circumstances.
- Foreseeability is necessary to recognizing a negligence duty, but it does not establish a duty by itself.
- A negligent-undertaking duty is limited to the services actually undertaken; the defendants’ work based on Pate’s flood estimates did not include independently validating those estimates.
- An appellant must challenge every independent ground supporting summary judgment, including no-evidence grounds, or the judgment may be affirmed on the unchallenged ground.
Why It Matters
The decision limits negligence liability for developers and engineering professionals sued by later home purchasers when no contractual or other recognized relationship exists. It also illustrates that voluntarily adopting flood-related design criteria does not make a defendant responsible for tasks beyond the undertaking’s demonstrated scope.
For appellate practitioners, the opinion underscores the need to address every basis on which a combined traditional and no-evidence summary judgment was granted. A challenge to direct participation or parent-company status cannot secure reversal when separate no-evidence grounds remain unchallenged.