SHAVAUGHN WESLEY INDIVIDUALLY AND AS NEXT FRIEND OF v. WESLEY KEYES AND ELIZABETH KEYES (2026)

OPINION

Shavaughn Wesley (Shavaughn), individually and as next friend of G.R., sued Wesley (Wes) Keyes and Elizabeth (Beth) Keyes (collectively the Keyes) for negligence and negligent undertaking after her son, G.R., was injured in their pool. The Keyes filed a traditional motion for summary judgment, arguing that they did not owe a duty to G.R. or Shavaughn, and the trial court granted the motion. On appeal, Shavaughn argues: (1) the record contains evidence supporting the existence of a duty on her negligence claims against the Keyes; (2) the trial court erred to the extent that it concluded her presence at a pool party immunized the Keyes from the imposition of a duty; (3) the trial court erred to the extent it concluded that Texas law does not impose a duty on social hosts under the facts of this case; (4) the record contains evidence supporting the existence of a duty on Shavaughn's negligent undertaking claim against Beth; (5) the trial court erred to the extent it concluded that her allegations on the duty element of her negligent undertaking claim against Beth were based on omissions; and (6) her individual bystander claim is not barred. We affirm the trial court's June 24, 2025 Final Judgment.

FACTUAL BACKGROUND

On June 6, 2021, the Keyes hosted a party at their home for a children's baseball team that Wes coached and that was attended by the children and their parents. Every child at the party attended with a parent present. The Keyes provided their guests with food, beverages (alcoholic and non-alcoholic), and an outdoor television showing a Dallas Mavericks game.

Shavaughn went to the party with her sons, G.R. (who was a team member) and H.W. (who was two-years old), as well as her husband, Kamal Wesley (Kamal), G.R.'s stepfather. Upon arriving, G.R. began swimming with other children while Shavaughn and Kamal were present at the pool. Shavaughn testified that G.R. was a “[v]ery strong swimmer.” She described the atmosphere around the pool: “One of the children were [sic] jumping off the hot tub into the pool. Another lady was sitting at the steps to the pool. I think two parents were in the hot tub at the time.” Shavaughn did not see anything that concerned her during the first twenty minutes of the party. She sat by the steps “on the edge of the pool with my feet in the water,” and Kamal was nearby.

Approximately seventeen to twenty minutes after arriving at the party, Shavaughn turned away from the pool for a “split second” to “get my [younger] son from my husband.” Before looking away, she had seen G.R. playing in the pool with another minor child whose parent was present. While retrieving H.W., she heard a parent say, “Hey, your son.” Shavaughn then saw that “they were bringing his lifeless body out of the water.” In that regard, she testified:

Q. All right. Before that point in time when Ester said, “Hey, your son,” how long had it been since you had seen [G.R.]?

A. I had just seen him.

Q. What was he doing the last time you saw him before that?

A. They were playing.

․

A. Just him and [another child] was [sic] playing in the water. He had just jumped off the ledge and was getting ready to get back out.

G.R. survived the incident.

In her deposition, Shavaughn was asked whether it was her responsibility to supervise her sons at the party, and she said “yes.” She testified:

Q. Is there some reason that you believe that Wes Keyes had the responsibility for disciplining or supervising your child merely because your child was over at his house?

A. Discipline, no, sir. No, sir.

Q. Supervise?

A. No, sir. I was supervising my children.

․

Q. And I believe, from your earlier testimony, this - - you were actually watching and supervising [G.R.] at the time while you were sitting there with your feet in the pool.

A. Correct.

Q. And the - - you turned your head just for what you described as a split second - -

A. Yes.

Q. - - and then you realized there was a problem?

A. Yes. My son started crying. I was trying to tend to [H.W.].

When asked why she blamed Wes for the incident given her belief that she was responsible for supervising G.R. and that the other parents were responsible for supervising their children, she replied: “I feel that he's liable due to [sic] he had the party at his home and there should be someone there to supervise everyone to make sure that everyone can enjoy theirself [sic] safely.”¹

The Keyes did not hire a lifeguard for the party, and the record does not show that they agreed to do so. Wes understood the potential risks of drowning because he worked as a lifeguard and taught swimming lessons while in college. He agreed that there is always a drowning risk when kids are swimming in a pool. Additionally, constant observation of the kids in the pool is necessary to reduce the risk of drowning, and distractions increase drowning risks. However, he testified that “there were people there who were supervising children in the same capacity as a lifeguard in my opinion.”

Wes and Beth expected that the parents would watch their children and participate in the party. He testified:

Q. And I want to be crystal clear about this. You weren't expecting the parents to come and sit there like potted plants and not enjoy themselves?

A. No. We were expecting the parents to watch their kids.

Q. But you expected the parents to also engage in the party, to swim if they wanted to, to eat and drink if they wanted to?

A. Yes.

․

Q. [Y]our position is that [it] was the responsibility of the parents to watch the kids?

A. Correct.

However, Wes also believed that Beth was the “pool watcher”:

Q. Do you know if one person at your party was tasked with watching the pool and that was their task?

A. My wife. She was the pool watcher I would say. That's what she always does when we have pool parties. She does that.

Q. Was she talking to other parents at the same time?

A. Uh-huh.

Q. Do you know if she was drinking?

A. She was not.

Q. Even water or anything?

A. I think she had a diet [sic] Dr. Pepper. That's what she drinks.

Q. So did she have any way to communicate to the other parents that she in fact was the designated water watcher?

A. I think she just did it on her own accord.

Q. Okay. That would not have been conveyed to the other parents, hey, I'm the designated water watcher. I'm going to watch for the next X amount of minutes?

A. No.

Q. And it's just your belief that your wife took it upon herself to sit down and watch the pool?

A. I watched her do it, yeah.

Beth, a pediatrician, also recognized potential drowning risks, and she agreed that drowning is a “major concern” for children. She testified that she is “constantly watching the water when there's [sic] children in the pool.” Additionally, she stated:

Q. Was it your expectation that the other parents would be watching their children, and be responsible for their kids?

A. Yes.

․

Q. What did you believe your responsibility, or your husband's responsibility, was in terms of monitoring the kids that were swimming in your pool?

Ms. Forgey: Objection. Form.

A. I believe our responsibility was to provide a safe environment for them to be entertained.

Q. And what does safe environment mean to you? Since you're providing it. What do you mean when you're providing a safe environment?

A. A functional pool with a fence. To me, I didn't want any rafts. Because I always worry about children getting trapped under a raft.

Beth agreed that kids who are “horse playing in a pool” and “holding each other down” could cause a drowning. Likewise, a near drowning can occur quickly.

The Keyes filed a traditional motion for summary judgment arguing that Texas law does not recognize a duty on the part of a third party to supervise, instruct, or ensure the safety of a child in the care of a parent who is present. Additionally, they contended that they did not undertake a duty that would require the imposition of a duty where one would not otherwise exist. The trial court granted the motion, and this appeal followed.

LAW & ANALYSIS

A. Summary Judgment

We review a traditional motion for summary judgment de novo. Estate of Turner-Hargrave, No. 05-24-00491-CV, 2025 WL 1798641, at *3 (Tex. App.— Dallas June 30, 2025, no pet.). A traditional summary judgment motion requires the moving party to show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c);² Estate of Turner-Hargrave, 2025 WL 1798641, at *3. On appellate review, we take evidence favorable to the nonmovant as true, and we indulge every reasonable inference and resolve every doubt in the nonmovant's favor. Estate of Turner-Hargrave, 2025 WL 1798641, at *3.

To defeat a plaintiff's cause of action on a traditional motion for summary judgment, a defendant must either conclusively negate at least one element of the cause of action or conclusively establish each element of an affirmative defense. Keen v. Lancaster Indep. Sch. Dist., No. 05-24-00654-CV, 2025 WL 2484024, at *7 (Tex. App.—Dallas Aug. 28, 2025, pet. denied) (citing Pollard v. Hanschen, 315 S.W.3d 636, 638 (Tex. App.—Dallas 2010, no pet.)). A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. Id. (citing Kastner v. Jenkens & Gilchrist, P.C., 231 S.W.3d 571, 576 (Tex. App.—Dallas 2007, no pet.)). If the movant satisfies its burden, the burden shifts to the nonmovant to raise a genuine issue of material fact precluding summary judgment. Estate of Turner-Hargrave, 2025 WL 1798641, at *3.

B. Expert Witness Testimony

Before discussing Shavaughn's appellate issues, we consider the testimony offered by her expert witness, Kim W. Tyson (Tyson). The Keyes objected to Tyson's testimony but obtained no ruling. While failure to obtain a ruling on a party's objections generally does not preserve those objections for appeal, see TEX. R. APP. P. 33.1(a), the Keyes argue that duty is a question of law and not a matter for expert opinion.

This Court previously stated that “[t]he existence of a legal duty is a matter for the court, rather than an expert witness, to decide. Expert testimony is insufficient to create a duty where none exists at law.” Park v. Exxon Mobil Corp., 429 S.W.3d 142, 150 (Tex. App.—Dallas 2014, pet. denied) (internal citations omitted); see also Wang v. Trea Churchill on the Park, LLC, No. 05-21-00880-CV, 2022 WL 13811953, at *3 (Tex. App.—Dallas Oct. 24, 2022, pet. denied) (mem. op.). “Because the question of duty is a question of law for the court, an expert cannot opine regarding the existence of a duty.” Boren v. Texoma Med. Ctr., Inc., 258 S.W.3d 224, 229 n.3 (Tex. App.—Dallas 2008, no pet.). An expert's stated opinions about the existence or extent of a purported duty “do not create an issue of fact precluding summary judgment.” Id. Because the only issue before us today is whether the Keyes owed a legal duty to G.R. or Shavaughn, we do not consider Tyson's testimony on that issue.

C. Negligence Claim

Shavaughn asserted a negligence claim against Wes and Beth, alleging that they owed G.R. a duty to take reasonable steps to ensure the safe use of their pool.³ In their motion for summary judgment, the Keyes argued that they had no duty to supervise a minor when his parent was present. Shavaughn's first three issues relate to her negligence cause of action. In her first issue, Shavaughn argues that the record includes evidence supporting the existence of a duty. Her second issue posits that the trial court erred in concluding that her presence at the pool party and at the pool supervising G.R. immunized the Keyes from the imposition of a duty. Finally, in her third issue, Shavaughn contends that the trial court erred in concluding that Texas law does not impose a negligence duty on social hosts under the facts of this case.

1. Common Law Negligence

The elements of a common-law negligence claim are (1) a legal duty; (2) a breach of that duty; and (3) damages proximately resulting from the breach. Elephant Ins. Co., LLC v. Kenyon, 644 S.W.3d 137, 144 (Tex. 2022). “The threshold inquiry in a negligence case is duty.” Id. The Texas Supreme Court has explained: “the existence of [a] duty is a question of law for the court to decide from the facts surrounding the occurrence in question.” Id. at 145. When a duty has not been recognized in particular circumstances, “the question is whether one should be.” Id.

To determine whether a duty exists and what its parameters are, we apply what are commonly called the “Phillips factors.” Id. at 149; see also Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). This inquiry requires us to weigh “the risk, foreseeability, and likelihood of injury against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant.” Kenyon, 644 S.W.3d at 149 (quoting Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 182 (Tex. 2004)). When making this assessment, we also consider “whether one party would generally have superior knowledge of the risk or a right to control the actor who caused the harm.” Id. (quoting Praesel v. Johnson, 967 S.W.2d 391, 397–98 (Tex. 1998)). Courts may not hold people to very general duties of exercising ordinary care in all circumstances. Id. at 145. Rather, “Texas law requires the court to be more specific, to balance the relevant factors in determining the existence, scope, and elements of legal duties.” Id.

Though fact issues may be involved in determining whether to impose a duty in a defined class of cases, the issue is not whether the facts show a breach of an applicable standard of care. Id. Rather, the duty inquiry involves evaluating the factual situation presented “in the broader context of similarly situated actors.” Id. Some of the balancing factors—like risk and foreseeability—may involve questions of fact that cannot be determined as a matter of law, but “such cases are unusual.” Id. More often, “the material facts are either undisputed or can be viewed in the light required by the procedural posture of the case.” Id. at 145–46.

However, when a duty or no-duty rule already exists that contemplates a particular case's facts, the balance addressed in Phillips has been struck. HNMC, Inc. v. Chan, 683 S.W.3d 373, 381 (Tex. 2024). The Phillips factors are inapplicable in cases where there is a duty rule that takes the factual circumstances at issue into account. Id. A court does not need to apply the Phillips factors when a duty or no-duty rule already exists, and doing so is improper. Id. “And even when there is a no duty rule, the analysis contemplated in Phillips may only be used to identify a class of cases in which a duty exists, not to craft a duty tailored to the unique facts of an individual case.” Id. The Texas Supreme Court explained, “the factual situation presented must be evaluated in the broader context of similarly situated actors. The question is whether a duty should be imposed in a defined class of cases, not whether the facts of the case at hand show a breach.” Id.

The public policy behind negligence law is that “every person is responsible for injuries which are the reasonably foreseeable consequence of his act or omission.” Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009). However, as a general rule, absent a special relationship between the parties giving rise to a right to control, “one person is under no duty to control the conduct of another, even if he has the practical ability to exercise such control.” See id. One of these special relationships is that of a parent and child. See Phillips, 801 S.W.2d at 525. The Texas Family Code imposes a specific duty on parents “of care, control, protection, and reasonable discipline of the child.” TEX. FAM. CODE ANN. § 151.001(a)(2).

2. McCullough v. Godwin

The parties agree that this Court has not decided whether a duty should be imposed in cases like the one before us today. However, they have identified one analogous case, McCullough v. Godwin, 214 S.W.3d 793 (Tex. App.—Tyler 2007, no pet.).

After her son Kaleb drowned, McCullough sued Godwin, her ex-husband and the child's father, and two of Godwin's friends, Brandon and Shellie Stairs. The defendants filed and obtained a no-evidence summary judgment, and McCullough appealed. See McCullough, 214 S.W.3d at 798.

The summary judgment evidence showed that Godwin took Kaleb to visit the Stairses and spend time at a lake together. The group took boats to a cove where they met another friend and his two minor children; Kaleb rode in the Stairses' boat while Godwin was in a different boat. At the cove, Godwin removed his son from the Stairses' boat, took off the flotation vest that Shellie had put on Kaleb, played with him on an inner tube, and allowed Kaleb to play with other children. While the children were in the water, Godwin talked to others, listened to music, and consumed alcoholic beverages. Kaleb then became ensnared in the Stairses' inner tube and drowned. See id. at 798–99.

McCullough's causes of action against the Stairses included negligence and gross negligence. The Stairses filed a motion for summary judgment arguing that they had no duty to supervise Kaleb because his father “was in possession of Kaleb at all times.” The trial court granted the motion for summary judgment, and McCullough appealed. Id. at 799.

To determine whether the Stairses owed a negligence duty to Kaleb, the court began by analyzing the Phillips factors. Id. at 806–07.

The court considered the risk, foreseeability, and likelihood of injury together. The Stairses' inner tube in which Kaleb became entwined was imprinted with a warning stating, in relevant part, that (1) death or serious injury could occur while using the inner tube, (2) children should be supervised by an adult while using the inner tube, and (3) the inner tube was not a substitute for an approved personal flotation device. Although the inner tube was intended to be towed behind a motorboat, it was floating near the Stairses' boat in shallow water. The Stairses conceded that they knew that children were playing on the inner tube and that certain risks are inherent in boating. Id. at 806.

The court noted that Godwin removed the flotation vest from Kaleb and used the inner tube to play with his son. The summary judgment record contained no evidence that “Godwin sought further assistance from the Stairses in supervising Kaleb after he retrieved Kaleb from their boat. There also was no summary judgment evidence that either Brandon or Shellie Stairs was aware that Godwin was not supervising Kaleb.” Id. at 806–07.

Additionally, the court recognized that the Texas Family Code gives a parent “the duty of care, control, protection, and reasonable discipline of the child.” McCullough, 214 S.W.3d at 807–08; see also TEX. FAM. CODE ANN. § 151.001(a)(2). While not absolute, a parent's rights to care, custody, and management of his child are constitutional in nature and considered a precious fundamental liberty interest. McCullough, 214 S.W.3d at 807 (citing Santosky v. Kramer, 455 U.S. 745, 753–59 (1982); In re K.M.B., 91 S.W.3d 18, 23 (Tex. App.— Fort Worth 2002, no pet.)). Applying the family code, the court concluded that Godwin, as Kaleb's father, had “a statutory duty to care for, control, and protect Kaleb.” McCullough, 214 S.W.3d at 807 (citing TEX. FAM. CODE ANN. § 151.001(a)(2)). Although Kaleb was physically separated from Godwin while traveling to the cove by boat, upon the group's arrival at the cove, Godwin took Kaleb from the Stairses' boat and removed the life jacket. The court stated: “There is no evidence of record indicating that Godwin sought to relinquish his parental rights and duties, or that the Stairses otherwise acted in loco parentis.” Id. (citing TEX. FAM. CODE ANN. § 151.001(d); In re Martin, 147 S.W.3d 453, 456 (Tex. App.—Beaumont 2004, pet. denied)).

The court acknowledged that the Stairses were aware of the risk inherent to boating. Id. at 807. Further, as the owner of the inner tube, they should have been aware of the warnings printed on it. See id. However, the court stated:

[I]t reasonably follows that the Stairses could foresee that injury could occur and children should be supervised while using their inner tube. Nonetheless, the record also indicates that the Stairses were aware that Kaleb's father was present and had taken Kaleb from their boat. There is no evidence that either Brandon or Shellie Stairs was aware that Godwin was not supervising Kaleb. As such, we conclude that the Stairses could have reasonably relied on the fact that Godwin would adhere to his fundamental statutory duty of care, custody, and protection with regard to Kaleb. Thus, in spite of their knowledge of the inherent risks of boating and the warnings imprinted on the inner tube, we hold that a reasonable person under these circumstances would not foresee that a child, whose parent was present and had a duty of care with regard to that child, would drown while playing on an inner tube floating in approximately three feet of water.

Id. at 807–08.

The court moved on to analyze the social utility, magnitude of the burden, and consequences of shifting that burden. Id. at 808. The record contained no evidence that water recreation is a socially useful activity, but the court recognized that recreation generally is socially useful. Id. Further, the burden to supervise a minor child is statutorily imposed on the parent. Id. (citing TEX. FAM. CODE ANN. § 151.001(a)(2)). And that right is constitutional in nature. Id. (citing In re K.M.B., 91 S.W.3d at 23). “Indeed, a parent's duty to supervise his child is significant, and breach of such a duty can undoubtedly have dire consequences. However, the law does not favor shifting this statutorily imposed responsibility from the parent absent unique circumstances not present in the case at hand.” Id. (citing TEX. FAM. CODE ANN. § 151.001(d); In re Martin, 147 S.W.3d at 456).

Finally, looking at other factors, the court noted that two risks were present in the case: (1) the risk of drowning that exists “generally in situations involving minor children” and (2) the risks implicit from the warnings imprinted on the inner tube. Id. The record did not indicate whether Godwin had knowledge about the warnings on the inner tube, but he was aware that there was risk involved with Kaleb's swimming underwater near the inner tube and that Kaleb was not a strong swimmer. Id. The court stated:

As set forth above, Godwin had the statutory right to control Kaleb's conduct. No exceptions to Godwin's rights and duties as Kaleb's father are supported by the summary judgment evidence. Moreover, were we to hold that the Stairses had a duty of care, custody, control, or protection with regard to Kaleb, such a duty would encroach upon the fundamental statutory duties already imposed upon Godwin as Kaleb's father. There is no evidence of record to assist in our inquiry as to whether societal changes require the recognition of new duties or whether there are countervailing concerns, apart from the conflict with already existing statutory duties, that would support or hinder the recognition of a new duty.

Id. at 808–09.

Considering all the factors, the McCullough court concluded that no summary judgment evidence supported the Stairses' owing a legal duty to Kaleb. Accordingly, the trial court did not err by granting the Stairses' no-evidence motion for summary judgment. Id.at 809.

3. Analysis

The McCullough court's analysis is persuasive. McCullough established a no-duty rule under facts similar to those before us today. We are cognizant of the Texas Supreme Court's instruction that when a “no-duty rule already exists that contemplates a particular case's factual situation, the balance addressed in Phillips has been struck,” and then considering the Phillips factors “is improper.” Chan, 683 S.W.3d at 381. However, because McCullough is not binding authority on this Court, we conduct our own analysis. See Roe v. Ladymon, 318 S.W.3d 502, 510 n.5 (Tex. App.—Dallas 2010, no pet.) (only decisions of the United States Supreme Court, the Texas Supreme Court, and prior decisions of this Court are binding precedent).

We begin by considering the risk, foreseeability, and likelihood of injury. See Phillips, 801 S.W.2d at 525. Wes testified that there is always a drowning risk when children are swimming in a pool, and constant observation of the pool and the kids is necessary. Beth also was aware that drowning is a “major concern” when children are swimming, and she “constantly” watches the water.

In both her response to the motion for summary judgment and in her brief on appeal, Shavaughn stated that Texas courts have “long” recognized that child-drowning deaths are “a matter of common knowledge.” She cites Banker v. McLaughlin, 208 S.W.2d 843, 849 (Tex. 1948), a case in which the Texas Supreme Court noted the fact that “many boys every year lose their lives by drowning” is common knowledge. The record shows that the Keyes were aware of the inherent risk associated with children swimming, but that this information was also “common knowledge.” It reasonably follows, then, that the parents attending the party, including Shavaughn, were aware of the risk, could foresee that injury could occur, and knew that children should be supervised while swimming.

Each child had a parent present at the party, and the Keyes expected the parents to watch their children. Shavaughn stated that it was her responsibility to supervise her children and that she was doing so. She considered G.R. to be a very strong swimmer, she observed him playing with another child in the water, and she knew that he had just jumped off a ledge and was going to do so again. She saw nothing concerning occurring in the pool before the incident.

There is no evidence that Wes or Beth was aware that Shavaughn was not supervising her child at any time. Rather, the evidence shows the opposite— Shavaughn was supervising G.R., and she believed that Wes had no responsibility to supervise her child merely because her child was at his house. There is also no evidence in the record that Shavaughn believed anyone else, including the Keyes, was responsible for or had assumed responsibility for supervising G.R. There is no evidence that either of the Keyes knew that Shavaughn had turned away from the pool for a “split second” and was not supervising G.R. as she did so.

We agree with the McCullough court, which stated: “in spite of their knowledge of the inherent risks of boating and the warnings imprinted on the inner tube, we hold that a reasonable person under these circumstances would not foresee that a child, whose parent was present and had a duty of care with regard to that child, would drown while playing on an inner tube floating in approximately three feet of water.” See McCullough, 214 S.W.3d at 808. The same holds true in this case.

The risk, foreseeability, and likelihood of injury must be weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant. See id. Nothing in our record weighs on the matter of social utility. Shavaughn asks that we, like the McCullough court, acknowledge that recreation is socially useful. For purposes of this appeal, we do so.

As to the other factors, the Texas Supreme Court has been clear that, “[a]s a constitutional matter, courts have long acknowledged ‘the fundamental right of parents to make decisions concerning the care, custody, and control of their children.’ ” In re A.M., 630 S.W.3d 25, 25 (Tex. 2019) (quoting Troxel v. Granville, 530 U.S. 57, 66 (2000)). “This natural parental right [is] a basic civil right of man[ ] and far more precious than property rights.” Id. (quoting Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (citation and internal quotation marks omitted)). Consistent with this legal principle, the family code states that a parent has “the duty of care, control, protection, and reasonable discipline of the child.” TEX. FAM. CODE ANN. § 151.001(a)(2). Shavaughn's testimony that it was her duty to supervise and discipline G.R. aligns with her parental rights and responsibility to her children.

Applying these principles, Shavaughn had a statutory duty to care for, control, and protect G.R. As in McCullough, there is no evidence in this record that Shavaughn sought to relinquish her parental rights and duties. See McCullough, 214 S.W.3d at 807. On the contrary, Shavaughn acknowledged she was responsible for supervising and disciplining her children at the pool, and she was doing so.

We have found no legal authority supporting the shift of a parent's responsibilities away from the parent absent circumstances not present in this case. See, e.g., TEX. FAM. CODE ANN. § 151.001(d) (parent's rights and duties are subject to a court order, an affidavit of relinquishment, and an affidavit designating another person or agency to act as managing conservator); Coons-Andersen v. Andersen, 104 S.W.3d 630, 634–36 (Tex. App.—Dallas 2003, no pet.) (discussing when a person acts in loco parentis to a child, voluntarily assuming obligations of a parent). Nor does Shavaughn argue that her rights and obligations should have shifted to the Keyes during the party.

Finally we look at whether (1) one party had a superior knowledge of the risk, (2) a party had a right to control the conduct of another, (3) societal changes require the recognition of new duties, (4) the creation of a new duty would be in conflict with existing statutory law, and (5) there are countervailing concerns that would support or hinder the recognition of a new duty. McCullough, 214 S.W.3d at 808. Some of these considerations overlap with the Phillips factors.

As discussed above, the Keyes had knowledge of the risk that a child swimming in a pool could drown. While the record does not specifically reflect that Shavaughn also had this knowledge, her brief advances Texas Supreme Court authority that this is “common knowledge.” She was also aware that G.R. was playing in the pool with another child, including jumping into the pool, and she knew that G.R. was a very strong swimmer.

Shavaughn, as G.R.'s parent who was present at the event, had the right to control G.R.'s conduct. No exceptions to her rights and duties as a parent are supported by the summary judgment evidence. Were we to conclude that the Keyes owed a negligence duty to G.R. in this case, that duty would encroach upon Shavaughn's statutory and constitutional duties. See id. Nothing in the record weighs in favor of considering societal changes or countervailing concerns beyond those already discussed.

Having considered the relevant factors, we conclude that the Keyes did not owe a legal duty to G.R. Shavaughn's arguments for imposing a duty focus on facts specific to this case, such as the presence of food and beverages (including alcoholic beverages) and the Dallas Mavericks game on an outdoor television. However, the Texas Supreme Court instructs that “the factual situation presented must be evaluated in the broader context of similarly situated actors. The question is whether a duty should be imposed in a defined class of cases, not whether the facts of the case at hand show a breach.” Chan, 683 S.W.3d at 381. We agree with the court in McCullough that a duty should not be imposed in situations such as the one before us today. See McCullough, 214 S.W.3d at 809.

Accordingly, we conclude that the trial court did not err in granting the Keyes' motion for summary judgment on Shavaughn's negligence claims against them. We overrule Shavaughn's first and second issues.

In her third issue, Shavaughn asserts that the trial court erred by granting summary judgment on her negligence claims on the ground that the Keyes did not owe a duty to G.R. because they were social hosts. The Keyes argued in their motion for summary judgment that they were social hosts, and that a social host/social guest relationship does not impose a duty to control the conduct of others. Texas courts have declined to impose a legal duty on social hosts to control their guests and prevent those guests from inflicting injury on other guests. Gatten v. McCarley, 391 S.W.3d 669, 675 (Tex. App.—Dallas 2013, no pet.) (social hosts had no legal duty to control guest who assaulted another guest); see also Graff v. Beard, 858 S.W.2d 918 (Tex. 1993) (social hosts have no duty to prevent intoxicated guests from inflicting injury on others). The parties have not cited, and we have not found, any cases addressing the status of a social host that would be relevant to our analysis of whether the Keyes owed a negligence duty to G.R. Further, sustaining Shavaughn's third issue would not alter our analysis that the Keyes owed no duty to G.R. and the trial court properly granted their motion for summary judgment.

D. Negligent Undertaking Claim

Shavaughn's negligent undertaking claim alleges that Wes and Beth took “it upon themselves to supervise the use of their pool,” thereby “actively and voluntarily undert[aking] a duty of care to render services that they knew or should have known were necessary for G.R.'s protection.” The Keyes moved for summary judgment, arguing that they did not undertake a duty by acting in a way that requires imposition of a duty where one otherwise would not exist.

In her fourth issue, Shavaughn argues that evidence supports the existence of a duty on her negligent undertaking claim against Beth.⁴ Shavaughn's negligent undertaking claim also requires evidence that Beth owed a duty to G.R. See Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013) (“The critical inquiry concerning the duty element of a negligent-undertaking theory is whether a defendant acted in a way that requires the imposition of a duty where one otherwise would not exist.”).

Texas law imposes no general duty to act as a good Samaritan. See Torrington Co. v. Stutzman, 46 S.W.3d 829, 837 (Tex. 2000). A party has no duty to take action to prevent harm to others absent certain special relationships or circumstances. Id. However, a defendant who undertakes “to render services that it knows or should know are necessary for the protection of the other's person or things must generally exercise reasonable care in performing the undertaking.” In re First Reserve Mgmt., L.P., 671 S.W.3d 653, 660 (Tex. 2023) (orig. proceeding) (internal quotation marks omitted). “The critical inquiry concerning the duty element of a negligent-undertaking theory is whether a defendant acted in a way that requires the imposition of a duty where one otherwise would not exist.” Kenyon, 644 S.W.3d at 151; see also In re First Reserve Mgmt., L.P., 671 S.W.3d at 660. The duty

is only implicated when the complained-of undertaking is an affirmative course of action; liability for negligent undertaking cannot be predicated on an omission. Nor can liability for negligent undertaking be predicated on a promise to render a service that is not accompanied by either performance or reliance on the promise by the injured party.

In re First Reserve Mgmt., L.P., 671 S.W.3d at 660 (footnote citations omitted).

In support of her negligent undertaking claim, Shavaughn relies on the deposition testimony of Beth and Wes. Beth stated that she is “constantly watching the water when there's [sic] children in the pool.” Likewise, Wes testified that Beth was the pool watcher, which is a role that she “always” assumes when they have pool parties. However, there is no summary judgment evidence that the parents were told that Beth would be monitoring the pool. Instead, Wes and Beth both maintained that the parents were responsible for their own children. Wes testified that Beth's role as water watcher was not conveyed to other parents, and he maintained that it was the parents' responsibility to watch their children. Beth also stated she expected other parents to be watching their children and to be responsible for them.

Beth considered herself the water watcher in her own mind, but she did not take any action in furtherance of that role, including informing parents that she was doing so. The record does not show that Beth undertook an affirmative course of action or made promises to render services. Nor is there evidence that Shavaughn relied on a promise from Beth. We have been unable to find any case in which a party's mental state, without accompanying action, was sufficient to impose a negligent undertaking duty where one otherwise would not exist.

The default rule in Texas is that a party has no duty to take action to prevent harm to others. See Stutzman, 46 S.W.3d at 837. Nothing in the record supports a finding that Beth “acted in a way that requires the imposition of a duty where one otherwise would not exist.” Kenyon, 644 S.W.3d at 151. Accordingly, the trial court did not err in concluding that Beth negated one element of Shavaughn's negligent undertaking cause of action and granting summary judgment in Beth's favor on this claim. We overrule Shavaughn's fourth issue.

In her fifth issue, Shavaughn contends that the trial court erred by granting the motion for summary judgment “to the extent that ruling was based upon the grounds that Appellant pleaded omissions, rather than some affirmative act, in support of her allegation that [Beth] undertook a duty of reasonable care to personally supervise the children in the swimming pool.” Liability for negligent undertaking cannot be predicated on an omission. In re First Reserve Mgmt., L.P., 671 S.W.3d at 660. If the trial court granted Beth's motion for summary judgment based on an omission, then that would have been in error. In this case, the trial court did not explain its order granting summary judgment. Based on our resolution of Shavaughn's fourth issue, our agreement with the argument in her fifth issue does not change the outcome of this appeal.

E. Bystander Claim

Shavaughn's bystander claim alleges that she was located near the scene of the non-fatal drowning, that she is G.R.'s mother, and that she “suffered shock as a result of a direct emotional impact from a sensory and contemporaneous observance of the occurrence.” The Keyes moved for summary judgment on Shavaughn's bystander claim, arguing that a bystander plaintiff such as Shavaughn cannot recover unless the physically injured person does so. Shavaughn acknowledges that she cannot recover as a bystander if the Keyes did not owe a duty to G.R. However, in her fifth issue, she contends that based on her arguments in her first four issues, her bystander claim does not fail for lack of duty.

“[A]lthough bystander claims are considered independent and not derivative, it is also true that the bystander plaintiff cannot recover unless the injured person can recover.” Quiroz v. Jumpstreet8, Inc., No. 05-17-00948-CV, 2018 WL 3342695, at *4 (Tex. App.—Dallas July 9, 2018, pet. denied) (mem. op.) (citing Estate of Barrera v. Rosamond Vill. Ltd. P'ship, 983 S.W.2d 795, 799–800 (Tex. App.— Houston [14th Dist.] 1998, no pet.)); see also Edinburg Hosp. Auth. v. Trevino, 941 S.W.2d 76, 79 (Tex. 1997) (“Before a bystander may recover, he or she must establish that the defendant has negligently inflicted serious or fatal injuries on the primary victim.”). Because we concluded that the trial court properly granted summary judgment on Shavaughn's negligence and negligent undertaking claims, which she asserted on G.R.'s behalf, the trial court properly granted summary judgment on Shavaughn's bystander claim. We overrule Shavaughn's sixth issue.

CONCLUSION

Having considered each of Shavaughn's six issues, we affirm the trial court's judgment.

FOOTNOTES

1.   Shavaugh was not asked why she believed that Beth was responsible for the incident.

2.   Rule 166a was recently amended with an effective date of March 1, 2026. The amended rule applies only to motions for summary judgment filed after the effective date. References to rule 166a in this opinion are to the rule in effect before March 1, 2026. TEX. R. CIV. P. 166a(c) (eff. Sept. 1, 1997, through Feb. 28, 2026, available on Westlaw).

3.   Shavaughn did not advance a premises liability claim.

4.   Shavaughn sued Beth and Wes for negligent undertaking, they both filed the motion for summary judgment, and the trial court granted the motion. Shavaughn raises no issue on appeal arguing that the trial court erred by granting summary judgment in favor of Wes on her negligent undertaking claim. Accordingly, we do not address the summary judgment in favor of Wes on Shavaughn's negligent undertaking claim against him.

CYNTHIA BARBARE JUSTICE