# United States Court of Appeals **for the Fifth Circuit**

____________ No. 23-50515

____________ Rogelio Barron, Individually and on Behalf of Anthony Barron, Deceased ; Maria Barron, Individually and on Behalf of Anthony Barron, Deceased , Plaintiffs—Appellants ,

versus United States of America, Defendant—Appellee

.

______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 5:18-CV-1184

______________________________ Before Elrod, Ramirez, Circuit Judges , and Ashe, District Judge

.  Jennifer Walker Elrod, Circuit Judge : Plaintiffs-Appellants Rogelio Barro n and Maria Barron appeal the district court’s grant of the government’s motion for summary judgment. Because Appellants’ general negligen ce and premises liability claims are barred under Texas law, we AFFIRM the district court’s judgment as to

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 United States District Judge for the Ea stern District of Louisiana, sitting by designation. United States Court of Appeals Fifth Circuit 

### FILED August 6, 2024 Lyle W. Cayce Clerk Case: 23-50515 Document: 51-1 Page: 1 Date Filed: 08/06/2024No. 23-50515

2 those claims. Because it is unclear whether Appellants can recover under a theory of negligent undertaking as a matter of Texas law, we CERTIFY that question to the Supr eme Court of Texas.
I.
This suit arises out of the drow ning death of Anthony Barron, a civilian contractor employed on a United States m ilitary facility called Camp Bullis, which is located outside of San Antonio, Texas. About ninety miles of roads run through the Camp, includi ng Wilkerson Road and Camp Bullis Road. Barron v. United States , 31 F.4th 347, 349 (5th Cir. 2022). Both roads contain low water crossings that are on a flood plain and are equipped with gates that can block the crossings. As the regulatory framework that governs Camp Bullis recognizes, the Camp, “including its main roads, is susceptible to flash flooding.” Camp Bullis Reg. 350-1, § 12-4(c). Accordingly, the Camp’s regulations include numerous “safety precautions.” One such precaution provides that “[a]ll Rang e/Control Area/Impac t Area gates will either be locked or guarded by the unit using the area.” Id. at § 2-3(d); see also Barron , 31 F.4th at 350. Beginning in the early morning in October 2015, Camp Bullis experienced a heavy rainstorm. Two offi cers were responsible for inspecting the low water crossings. Barron , 31 F.4th at 349. The officers began by inspecting the crossing on Camp Bullis Road, whic h they closed. Id. The officers had not yet inspected the low water crossing on Wilkerson. Thus, they did not know that the gate was open. Meanwhile, Anthony Barron drove down Wilkerson Road while on his way to work. With no gate to keep him out, Barron tried to cross the low water crossing in his vehicle. The vehicle was swept away, and Barron un fortunately drowned. Case: 23-50515 Document: 51-1 Page: 2 Date Filed: 08/06/2024No. 23-50515

3 II. Barron’s parents filed a suit against the United States, alleging general negligence, premises liability, and neg ligent undertaking claims, and seeking to recover under the Federal Tort Claims Act. At the close of discovery, the United States filed a Motion to Dismiss or, in the alternative, a Moton for Su mmary Judgment. The district court dismissed all claims on the basis of sov ereign immunity, holding that each of the government’s alleged failures fell within the discretionary function exception to the FTCA’s waiv er of sovereign immunity. Barron , 31 F.4th at 349. On appeal, Appellants argued that “the decision to close and lock the gate [on Wilkerson Road] did not fa ll under the discretionary function exception.” Id. We reversed, finding that Ca mp Bullis regulation 350-1, § 2- 3(d) did not confer discretion, but instead required that the gate be locked at all times unless guarded by a unit using the nearby area. Barron , 31 F.4th at 350. On remand, the parties submitted additional briefing and argument regarding summary judgment as to whether the government was liable for the alleged failure by Camp Bu llis personnel to lock or guard the gate. The court granted the government’s motion for summary judgment. In doing so, the court held that: (1) Texas law bars Appellants from bringing a general negligence claim in this circumstance; (2) the natural accu mulation doctrine precludes Appellants from prevailing on a premises liability claim; (3) Appellants did not adequately plead negligent undertaking; and (4) leave for Appellants to amend their complaint is not warranted because it would be futile given that Appellants could not prevail on a negligent undertaking claim as a matter of law. Appellants f iled a timely notice of appeal. Case: 23-50515 Document: 51-1 Page: 3 Date Filed: 08/06/2024No. 23-50515

4 III.
We review a district cour t’s grant of summary judgment de novo

. Feist v. La., Dep’t of Just., Off. of Att’y Gen. , 730 F.3d 450, 452 (5th Cir. 2013). To affirm the district court’s grant of summary judgment, we would need to hold that Appellants’ general negligence , premises liability, and negligent undertaking claims all fail. While we agree with the district court’s holdings that Appellants’ general negligence an d premises liability claims fail as a matter of law, we reject that court’s holding with respect to Appellants’ negligent undertaking claim for two reasons. First, the distri ct court held that Appellants did not adequately plead neg ligent undertaking. We disagree. Second, whether Appellants can reco ver under a theory of negligent undertaking is unclear as a matter of Texa s law. Accordingly, we certify that question to the Supr eme Court of Texas.
A. Beginning with Appellants’ general negligence claim, we affirm the district court’s holding that they cannot recover under a theory of general negligence. Under Texas law, “a per son injured on another’s property may have either a negligence claim or a premises-liability claim against the property owner,” but not both. Occidental Chem. Corp. v. Jenkins , 478 S.W.3d 640, 644 (Tex. 2016). Whet her a person injured on another’s property has a general negligence clai m or a premises liability claim depends on the factual circumstances of the case. Id. “When the injury is the result of a contemporaneous, negligent activity on the property, ordinary negligence principles apply. When the injury is the result of the property’s condition rather than an activity, premises-liability principles apply.” Id. (citing Keetch v. Kroger Co. , 845 S.W.2d 262, 264 (Tex. 1992)). In other words, the general negligen ce theory of recove ry is available when an injury results from “a malf easance theory based on affirmative, Case: 23-50515 Document: 51-1 Page: 4 Date Filed: 08/06/2024No. 23-50515

5 contemporaneous conduct.” United Scaffolding, Inc. v. Levine , 537 S.W.3d 463, 471 (Tex. 2017) (quoting Del Lago Partners, Inc. v. Smith , 307 S.W.3d 762, 776 (Tex. 2010)). To the contrary , premises liability claims are available when the alleged injury concerns “anonfeasance theory based on the owner’s failure to take measures to make the property safe.” Id. And the law is clear: “Creative pleading does not change the nature of a claim; if a claim is properly determined to be on e for premises defect, a plaintiff cannot circumvent the true nature of the claim bypleading it as general negligence.” Id. at 480 (internal citation, quotations, and alterations omitted). In this case, Appellants’ alleged injury arose from the government’s failure to close the gate at the low wa ter crossing on Wilkerson Road or to monitor the crossing at that point. Be cause “[t]here was no ongoing activity when [plaintiff] was injured,” Keetch , 845 S.W.2d at 264, Appellants’ claim in this case sounds in premises liability and not negligence. Thus, the district court was correct to grant the gove rnment’s motion for summary judgment on Appellants’ general negligence claim.
B. Having established that Appellants’ claim would properly be characterized as one of premises liability, and not general negligence, we next consider whether Appellants can recove r under a premises liability theory. We agree with the district cour t’s holding that they cannot. To prevail on a premises liability cl aim under Texas law, a plaintiff must establish: (1) that [the defendant] had ac tual or constructive knowledge of some condition on the premises; (2) that the condition posed an unreasonable risk of harm to [the plaintiff]; (3) that [the defendant] did not exercise reasonable care to reduce or to eliminate the risk; and (4) that [t he defendant’s] failure to use such care proximately caused [the plaintiff’s] personal injuries. Case: 23-50515 Document: 51-1 Page: 5 Date Filed: 08/06/2024No. 23-50515

6 United Scaffolding , 537 S.W.3d at 471 (internal ci tation omitted) (alterations in original). Texas courts have cons istently held as a matter of law that naturally occurring or accu mulating conditions such as rain and mud do not create conditions posing an unreasonable risk of harm. See, e.g. , M.O. Dental Lab v. Rape , 139 S.W.3d 671, 675–76 (Tex. 2004). Here, it is undisputed that Appella nts’ claims are grounded in the allegation that heavy rain accumulated at the low water crossing and resulted in Barron’s car being swep t away by flood waters. Barron , 31 F.4th at 349. Thus, the natural ac cumulation doctrine applie s, and Appellants’ premises liability claim fails as a matter of law be cause Appellants cannot establish an unreasonable risk of harm.

C. We now turn to Appellants’ neg ligent undertaking claim. As a preliminary matter, we hold that Appe llants adequately pleaded a negligent undertaking claim in their Third Amende d Complaint. To state a claim for negligent undertaking, a plaintiff mu st allege that: (1) the defendant undertook to perform services that itknew or should have known were necessary for the protection of others ; (2) the defendant failed to exercise reasonable care in performing those serv ices; and (3) the plaintiff either relied upon the defendant’s performance or th e defendant’s performance increased the plaintiff’s risk of harm. Colonial Sav. Ass’n v. Taylor, 544 S.W.2d 116, 119–20 (Tex. 1976). Appellees argue, and the district co urt agreed, that because they “did not expressly allege a claim for neg ligent undertaking” in their Third Amended Complaint, the claim is not properly before the court. See Cutrera v. Bd. of Sup’rs of La. State Univ. , 429 F.3d 108, 113 (5th Cir. 2005) (“A claim which is not raised in the complaint but, rather, is ra ised only in response to a motion for summary judgment is not properly before the court.”). We Case: 23-50515 Document: 51-1 Page: 6 Date Filed: 08/06/2024No. 23-50515

7 disagree. “Federal Rule of Civil Procedure 8( a)(2) requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendan t fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson , 355 U.S. 41, 47 (1957)). Thus, a party need not include the proper label for a claim in their complaint so long as they plead each element of the claim that they are tryi ng to bring. Ind eed, “[a] rose is a rose is a rose,” even if you do not call it by that name. Gertrude Stein , Sacred Emily , in Geography and Plays 278, 287 (1922). While it is true that Appellants did not “expressly” characterize their claim as one of negligent undertaking in their compla int, Appellants adequately pleaded each element of the claim. Beginning with the first element of negligent undertaking, Appellants pleaded the following: “Prior to and on October 30, 2015, [the government] had the duty . . . and responsibility to close, block, and otherwise restrict access to low water crossings.” Ap pellants further alleged that after inspecting the gate at the low wate r crossing on Camp Bullis Road, the government “next inspected low water crossings upstream from the Camp Bullis Low Water Crossing” because the water crossing that is the subject of this suit was a lower priority, given th at it was “required to be blocked, closed, and otherwise restricted by the aforementioned closed and locked gate.” In addition, they pleaded that the gate was wrongfu lly unlocked prior to the events that led to Barron’s de ath, that unlocking the gate without inspecting it was “an affirmative act of negligence,” and that it “created an unreasonably dangerous condition. ” Thus, while the Third Amended Complaint does not directly state that the government “undertook to perform services that it knew or shou ld have known were necessary for the protection of others,” Colonial Sav. Ass’n , 544 S.W.2d at 120, Appellants’ Case: 23-50515 Document: 51-1 Page: 7 Date Filed: 08/06/2024No. 23-50515

8 statements were sufficient to adequately plead the first element of negligent undertaking. 1 Turning to the second element of neg ligent undertaking, we hold that Appellants adequately pleaded that the defendant failed to exercise reasonable care in “openi ng and unlocking the gate . . . and thereby creating a dangerous condition” and also in “f ailing to inspect the Subject Low Water Crossing prior to Anthony Barron’s approach.” Finally, Appellants adequately pleaded that they relied upon the government’s performance of its duty when they alleged that “Barron reasonably believed the Subject Low Water Crossing was safe and/or suitab le to be crossed for civilian workers like him, because it was unlocked . . . .” Indeed, even though Appellants’ pleadings may not be the most clearly organized, Appellants’ relianc e on a negligent undertaking theory does not constitute the sort of “surpr ise switcheroo that our precedents forbid,” and that the district court’s reasoning suggests took place here. Jackson v. Gautreaux , 3 F.4th 182, 189 (5th Cir. 2021) (holding that plaintiffs’ claim that a sheriff “failed to adequate ly train his officers to deal with mentally unstable individuals” was not properly before the court where the complaint alleged the sheriff “failed to adequately train his officers to avoid excessive force”). Federal pleading standards do not d emand “any magic

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1 The dissenting opinion states that alth ough the complaint includes “allegations that the duty to keep the gate locked was unre asonably disregarded . . . that was not the duty that the United States arguably undertook to protect third parties like [Barron].” Post , at 20–21. We disagree. As we have held in a prior appeal concerning this event, Camp Bullis regulation 350-1, § 2-3(d) constitutes a non-discretionary undertaking by the United States to ensure that “[a]ll Range/Control Area/Impact Area gates will either be locked or guarded by the unit using the area.” Barron , 31 F.4th at 350 (alteration in original) (quotations omitted). And Appellants adequate ly pleaded that in failing to lock or guard the gate in question, the United States “creat ed an unreasonably dangerous condition” to Barron. Case: 23-50515 Document: 51-1 Page: 8 Date Filed: 08/06/2024No. 23-50515

9 words,” but instead only require plaintiffs to give fair notice of all claims brought against the defendant. Boudreaux v. La. State Bar Ass’n , 3 F.4th 748, 756 (5th Cir. 2021) (“[P]leading stan dards don’t demand such precision in terminology or any magic words.”).
D. Having established that Appellants’ negligent undertaking claim was adequately alleged in their Third A mended Complaint, we now turn to whether Appellants can recover under a theory of negligent undertaking as a matter of law. Because that question ap pears to be an open question of some importance to Texas law, for which we are unable to make a reliable Erie guess, we certify it to the Supreme Court of Texas. As explained in sections III(A) and III(B) of this opinion, Texas law clearly limits injured persons to bringing either a general negligence claim or a premises liability claim. Occidental Chem. Corp. , 478 S.W.3d at 644. 2 However, the Supreme Court of Texas ha s not directly spoken on whether a theory of negligent undertaking can serv e as an alternate theory of recovery when the natural accumu lation doctrine bars premises liability. Nevertheless, in its briefing, the government argues that Texas law also extends the prohibition on recoveryunder alternative theories of liability to negligent undertaking claims. In othe r words, just as a general negligence claim cannot serve as an alternativ e theory for liability when a premises liability claim is available, the govern ment argues that negligent undertaking

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2 The Supreme Court of Texas has primarily addressed the issue of alternative theories of liability in slip-and-fall cases, making clear that plaintiffs in such cases can only pursue a claim under a general negligence or negligent activity theory when their injuries are caused by the landowner engaging in a contemporaneous negligent activity. See Keetch , 845 S.W.2d at 264; see also Alexander v. Wal-Mart, Inc. , No. SA-19-CV-0721-OLG, 2021 WL 1226565, at *4 (W.D. Tex. Mar. 31, 2021). Case: 23-50515 Document: 51-1 Page: 9 Date Filed: 08/06/2024No. 23-50515

10 claims are inherently inconsistent with premises liability clai ms. Specifically, the government asserts that a negligent undertaking claim would be improper in this circumstance because neg ligent undertaking claims are only appropriate when there is no underlying duty of care. See In re First Rsrv. Mgmt., LP, 671 S.W.3d 653, 660 (Tex. 2023) (holding that the imposition of a duty where one otherwise would not ex ist is a prerequisite to negligent undertaking liability). And here, the go vernment alleges that it owed Barron the duty of care that it owes an y invitee on its property. To the contrary, Appellants argue—and the district court agreed— that Texas law does not ba r a negligent undertaking theory as an alternative theory for liability when recovery on a claim for premises liability is unavailable. See Wilson v. Tex. Parks & Wildlife Dep’t, 8 S.W.3d 634, 635 (Tex. 1999) (“[T]o prevail on a premise s liability claim a plaintiff must prove that the defendant possessed . . . the premises where injury occurred. But a party who does not own, occupy, or control a premises may nevertheless owe a duty of care if it undertakes to ma ke the premises safe for others.”). Accordingly, Appellants argue that a negligent undertaking theory is available where a landowne r has no duty to an invi tee regarding a natural condition of the land because of th e natural accumulation doctrine. While the Supreme Court of Texas has never said that negligent undertaking is a suitable alternativ e remedy when a landowner has taken affirmative acts related to natural co nditions of his land, that Court has suggested in dicta that it is possible in some circumstances. City of Waco v. Kirwan , 298 S.W.3d 618, 627 (Tex. 2009) (“[I]t is possible a duty may be imposed on a landowner who has undert aken affirmative acts related to natural conditions.”); see also Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 54 (Tex. 1997) (“One who agrees to make safe a known dang erous condition of real property owes a duty of due care .”). The Houston Court of Appeals for the First District has similarly recogn ized that liability can attach when a Case: 23-50515 Document: 51-1 Page: 10 Date Filed: 08/06/2024No. 23-50515

11 defendant agrees to keep a plaintiff’ s property protected from floods. Tex. Woman’s Univ. v. The Methodist Hosp. , 221 S.W.3d 267, 284–85 (Tex. App.— Houston [1st District] 2006). As required by our precedent, we consider three factors when deciding whether to certify this questi on to the Supreme Court of Texas: (1) the closeness of the question and the existence of sufficient sources of state law; (2) the degr ee to which considerations of comity are relevant in light of th e particular issue and case to be decided; and (3) practical limitations of the certification process: significant delay and possible inability to frame the issue so as to produce a helpful response on the part of the state court. Silguero v. CSL Plasma, Inc. , 907 F.3d 323, 332 (5th Cir. 2018) (quoting Swindol v. Aurora Flight Scis. Corp. , 805 F.3d 516, 522 (5th Cir. 2015)). All three factors favor certification here. Fi rst, as articulated above, the Supreme Court of Texas has not directly weighed in on whether a negligent undertaking theory of recovery is av ailable to a plaintiff whose premises liability claim is barred by the natural ac cumulation doctrine. Thus, the first factor favors certification. Comity interests also favor certification. Whether future plaintiffs who are barred from pursuing a premises liability claim because of the doctrine of natural ac cumulation may pursue recovery under a negligent undertaking theory in federa l court depends on the answer to this question. And finally, we are unawa re of any practical limitations to certification.
V.
We AFFIRM the district court’s decision to grant the government’s motion for summary judgment on Ap pellants’ general negligence and premises liability claims. Case: 23-50515 Document: 51-1 Page: 11 Date Filed: 08/06/2024No. 23-50515

12 Regarding Appellants’ negligent un dertaking claim, we certify the following question of state law to the Supreme Court of Texas: Can a landowner’s affirmative act create a duty to protect an invitee from dangers caused by naturally occurring conditions under a theory of negligent un dertaking where the natural accumulation doctrine bars recovery under a theory of premises liability? We disclaim any intention or desire that the Supreme Court of Texas confine its reply to the precise form or scope of th e question certified. We retain this appeal pending the Court’s response. QUESTION CERTIFIED. Case: 23-50515 Document: 51-1 Page: 12 Date Filed: 08/06/2024No. 23-50515

13 Irma Carrillo Ramirez, Circuit Judge , concurring in part and dissenting in part: Because Appellants have not asserted or pleaded a claim for negligent undertaking, I respectfully dissent from certification. I concur in the holding affirming the dismissal of Appellants’ general negligence and premises liability claims.
I
Also relevant to the facts surroundi ng Anthony Barron’s tragic death are the duties and obligations of the Unit ed States to restrict access to the roads on Camp Bullis. Wilkerson Road and Camp Bullis Road are two northsouth roadways running through Camp Bullis. Camp Bullis Road is most commonly used to travel around the base. Wilkerson Road, on the other hand, is generally blocked bya “locked and closed gate leading to the road[.]” According to applicable re gulations, this gate “w ill either be locked or guarded by the unit using the area[,]” such that civilians generally cannot access the road. See Camp Bullis Reg. 350-1, § 2-3(d); see also Barron v. United States , 31 F.4th 347, 349 (5th Cir. 2022). Both roads have low water crossings that can become too dangerous to navigate when flooding occurs. Th e low water crossings are inspected by security personnel, who decide whethe r the crossings should be closed due to flooding. On the day of Anthony’s death, personnel determined that the low water crossing on Camp Bullis Ro ad should be blocked off. Because access to Wilkerson Road was supposed to be restricted, security personnel made the decision to check other low water crossings before checking the one on Wilkerson Road. Unbeknownst to them, however, the gate blocking Wilkerson Road had been left open. Typically, Anthony would drive to work using Camp Bullis Road, the main thoroughfare through Camp Bullis. On the day of his death, the barrier Case: 23-50515 Document: 51-1 Page: 13 Date Filed: 08/06/2024No. 23-50515

14 blocking the low water crossing on Camp Bullis Road had been closed. Anthony proceeded to Wilkerson Road, and because the gate was unlocked, he was able to access the road. He a ttempted to cross the low water crossing, and his car was swept away. Appellants amended their claims under the FTCA three times. Their third amended complaint—the live plea ding—expressly asserted claims for “general negligence” and “premises liab ility”; it did not expressly assert a claim for negligent undertaking. As th ey concede, no negligent undertaking claim was expressly asserted in any of their prior complaints. After the United States moved to dismiss or, in the alternative, for summary judgment, the district court dismissed all cl aims based on sovereign immunity, concluding that all conduct that A ppellants complained of fell within the discretionary function exception to the FTCA’s general waiver of sovereign immunity. Appellants appealed, arguing on ly that “the decision to close and lock the gate [on Wilkerson Road] did not fall under the discretionary function exception.” Barron , 31 F.4th at 349. This court reversed. Id. at 350. On remand, the United States renewed its motion for summary judgment on the merits of Appellants’ general negligence and premises liability claims. In their response to th at motion, Appellants for the first time expressly asserted a negligent undertak ing claim. At oral argument on the motion, Appellants agreed with the dist rict court that the only remaining issue was whether “the gate that wo uld have blocked ac cess to Wilkerson Road should have been closed.” They maintained that this question implicitly incorporated their negligent undertaking claim, which they argued had been adequately pleaded in their third amended complaint. The district court granted the Unit ed States’s motion for summary judgment as to Appellants’ negligence and premises liability claims. It noted that the two claims were mutually exclusive and co ncluded, based on Texas Case: 23-50515 Document: 51-1 Page: 14 Date Filed: 08/06/2024No. 23-50515

15 caselaw, that “[Ap pellants’] claim in this case sounds in premises liability rather than negligence.” Because thatclaim was precluded by the natural accumulation doctrine—whi ch “bars premises liability claims caused by naturally occurring conditions”—the district court dismissed it. And because the natural accumu lation doctrine “negated the Government’s duty to use reasonable care to eliminate the risk” posed by flooding, Appellants were not precluded from asserting a negligent undertaking claim. The district court found, however, that Appellants had not asserted their negligent undertaking claim unt il they responded to the Government’s summary judgment motion. It consider ed whether Appellants should be granted leave to amend their complaint. Ultimately, it concluded that any amendment would be futile because A ppellants could not “provide evidence of either the duty that the Government assumed or the proper standard of care” applicable to their negligent undertaking claim. It dismissed the complaint in full. Appellants filed this appeal.
II As a preliminary matter, the United States argues that because Appellants did not adequately brief th eir argument that the district court erred in concluding that they first rais ed their negligent undertaking claim in their summary judgment response, they have forfeited that argument. “A party forfeits an argument . . . by failing to adequately brief the argument on appeal.” Rollins v. Home Depot USA , 8 F.4th 393, 397 (5th Cir. 2021); see also Procter & Gamb le Co. v. Amway Corp. , 376 F.3d 496, 499 n.1 (5th Cir. 2004) (collecting cases); Fed. R. App. P. 28(a)(8)(A) (requiring appellant’s brief to incl ude “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which appellant relies”). Case: 23-50515 Document: 51-1 Page: 15 Date Filed: 08/06/2024No. 23-50515

16 Here, Appellants’ brief did not addre ss the district court’s procedural conclusion that they had failed to asserta negligent undertaking claim in their third amended complaint. Their only reference is a footnote conceding that they did not expressly refer to a negligent undertaking claim in their complaint. That footnote does not set out the applicable standard of review, point to any specific error committed bythe district court, or advance any argument regarding the district court’s co nclusion that the factual allegations contained in the complaint were defi cient. This constitutes forfeiture of Appellants’ argument that the district court should have reached the merits of their negligent undertaking claim, and this is sufficien t to affirm the district court’s judgment dismissing the case in full.
III “We review a district court’s grant of summary judgment de novo, applying the same standard on a ppeal as that applied below.” Rogers v. Bromac Title Servs., L.L.C. , 755 F.3d 347, 350 (5th Cir. 2014). “[B]efore summary judgment is proper ,” however, “it first must be determined precisely what causes of ac tion have been asserted and what issues are thus raised either by th e complaint or by any defenses[.]” Barker v. Norman , 651 F.2d 1107, 1123 (5th Cir. Unit A July 1981). “It is well settled in our circuit that ‘[a] claim which is not raised in the complaint but, rather, is raised only in response to a motion for summary judgment is not properly before the court.’” Jackson v. Gautreaux , 3 F.4th 182, 188 (5th Cir. 2021) (alteration in original) (quoting Cutrera v. Bd. of Superv isors of La. State Univ. , 429 F.3d 108, 113 (5th Cir. 2005)). Accordingly, “a district court does not err by disregarding a theory of liability asse rted in the plaintiff’s response that was not pleaded as required by th e applicable pleading standard.” Fulford v. Lowe’s Home Ctrs., LLC, 811 F. App’x 240, 243 (5th Cir. 2020) (per curiam) (quoting Hoffman v. L&M Arts , 838 F.3d 568, 576 (5th Cir. 2016)). “We’ve Case: 23-50515 Document: 51-1 Page: 16 Date Filed: 08/06/2024No. 23-50515

17 repeatedly emphasized this rule” because it avoids any “surprise switcheroo” by plaintiffs. Jackson , 3 F.4th at 188–89 (collecting cases). Here, the district court did not err by concluding that Appellants’ negligent undertaking claim was not asserted in their third amended complaint for three reasons: (1) Appella nts did not expressly assert the claim; (2) their complaint did not explain wh y the negligent undertaking doctrine should be extended in a context not ye t recognized by state courts; and (3) they did not plead all elements of a negligent undertaking claim.
A In the third amended complaint, Ap pellants specifically asserted a claim of general negligence and, “in th e alternative, and out of an abundance of caution,” a premises liability theory of recovery. Appellants did not expressly assert a negligent undertakin g claim, however. Because Appellants expressly advanced a premises liability theory as an alternative to their general negligence claim, the absenc e of an express reference to their negligent undertaking claim shows that Appellants did not assert a negligent undertaking claim.
B Appellants’ third amended complaint also did not demonstrate why the doctrine of negligent undertaking sh ould apply in this case. All parties apparently agree that Appellants’ neg ligent undertaking theory is novel as applied to these facts. Yet the thir d amended complaint is devoid of any argument or authority supporting Appella nts’ contention that the doctrine should be extended to cases like this one. Where a plaintiff asserts a prev iously unrecognized theory of recovery, neglecting to present any ar gument in support of recognizing it for the first time is a failure to adequately plead it. See, e.g. , 7547 Corp. v. Parker Case: 23-50515 Document: 51-1 Page: 17 Date Filed: 08/06/2024No. 23-50515

18 & Parsley Dev. Partners, L.P. , 38 F.3d 211, 218 (5th Cir. 1994) (affirming dismissal of plaintiffs’ claim because th ey “cannot cite to any authority to support [their] novel theory”); Pennzoil Co. v. Texaco, Inc. , 481 U.S. 1, 24 (1987) (Marshall, J., concurring) (r ejecting plaintiff’s subject-matter jurisdiction argument in part becaus e plaintiff “offered no authority in support of its novel proposition”). Rule 8’s requirement that a plaintiff set out his claim for relief in “a short an d plain statement of the claim showing that the pleader is entitled to relief” cannot be satisfied where, as here, the plaintiff has neglected to aver that a sp ecific theory of recovery applies to the facts of his case. Fed. R. Civ. P. 8(a)(2). Appellants’ complaint did not allege their novel negligent undertaking theory adequately enough to apprise the United States—and the district court—that Appellants intended to bring that claim.
C Finally, Appellants’ third amended complaint failed to state a claim for negligent undertaking because it did not plead all the elements of the claim. Although “a party need not include the proper label for a claim in their complaint so long as they plead each element of the claim that they are trying to bring,” Op. at 7, the controlling ques tion is what claims the plaintiff—as the master of his complaint, see e.g. , Bernhard v. Whitney Nat’l Bank , 523 F.3d 546, 551 (5th Cir. 2008)—has actually pleaded. 1

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1 And, unlike in cases involving pro se litigants, courts are not compelled to liberally construe the pleadings of parties represented by counsel. See, e.g. , Woodfox v. Cain , 609 F.3d 774, 792 (5th Cir. 2010) (“Although we lib erally construe pro se pleadings, we do not afford such latitude to pleadings prepared by counsel.”). Case: 23-50515 Document: 51-1 Page: 18 Date Filed: 08/06/2024No. 23-50515

19 As noted above, although “Texas law generally imposes no duty to take action to prevent harm to others [,]” Texas has “recognized that a duty to use reasonable care may arise wh en a person undertakes to provide services to another, either gratuitously or for compensation.” Torrington Co. v. Stutzman , 46 S.W.3d 829, 837–38 (Tex. 20 00). The elements of a negligent undertaking claim are: (1) the defendant undertook to per form 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; an d either (a) the plaintiff relied upon the defendant’s performance, or (b) the defendant’s performance increased the pl aintiff’s risk of harm. Nall v. Plunkett , 404 S.W.3d 552, 555–56 (Tex. 2013) (first citing id. at 338– 39; and then citing Restatement (Second) of Torts § 324A). “[T]he existence of a duty is a question of law for the court to decide from the facts surrounding th e occurrence in question.” Greater Hous. Transp. Co. v. Phillips , 801 S.W.2d 523, 525 (Tex. 1990). In the context of a negligent undertaking claim, the first element—that the defendant “undertook to perform services that it knew or should have known were necessary for the plaintiff’s protection”—refers to the applicable duty of

care. Appellants contend that a negligen t undertaking claim was “[a]t the center” of their complaint because they alleged “that the fa ilure to lock the gate was tantamount to the negligen t performance of duties set out in a mandatory regulation, whic h can serve as a basis of an undertaking claim.” As the district court recognized, 2 however, Appellants did not “provide

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2 The district court acknowledged Appellants’ failure to plead a relevant duty as part of its analysis of whether Appellants shou ld be granted leave to amend their complaint Case: 23-50515 Document: 51-1 Page: 19 Date Filed: 08/06/2024No. 23-50515

20 evidence of either the duty that the [United States] assumed or the proper standard of care.” In other words, Appellants failed to adequately plead the duty element of their negligent undertaking cause of action.
As evidence that the United Stat es undertook a duty to perform services necessary to protect Anthony, Appellants rely on the regulation mandating that the gate restricting acce ss to Wilkerson Road be locked or guarded at all times. But this regulation says nothing of the United States’s undertaking to protect third parties from flooding. It does not suggest that the United States undertook to safeguar d third parties from severe weather, or what it is obligated to do in order to discharge such an undertaking. As the district court noted, “the gate-l ocking requirement may have been implemented for any number of reasons aside from flood protection—e.g., preventing members of the public from entering Camp Bullis and injuring themselves, stealing or destroying Gove rnment property, or assaulting base personnel.” Further, the complaint reflects a mismatch between the alleged duty and the alleged breach of that duty: to the extent it contains any allegations that Camp Bullis personnel undertook to perform a service necessary for Anthony’s safety, that service was to inspect and assess the navigability of the low water crossings. Bu t the complaint contains no allegations that this particular duty was performed neglig ently because security reasonably presumed that Wilkerson Road was in accessible and therefore prioritized other low water crossings. The complain t does include allegations that the duty to keep the gate locked was unreasonably disregarded, but that was not the relevant duty that the United States arguably undertook to protect third

_____________________ to assert a claim for negligent undertaking. It concluded that amendment would be futile and therefore leave was not warranted. Case: 23-50515 Document: 51-1 Page: 20 Date Filed: 08/06/2024No. 23-50515

21 parties like Anthony. In other words, that the United Stat es has undertaken a duty to lock or guard a ga te does not mean that it has undertaken that duty because it knows it is necessaryto protect third parties. Appellants’ third amended complaint failed to identify a relevant duty undertaken by the United States and therefore failed to adequately plead every element of a cause of action for negligent undertaking.
* * * Appellants did not adequately a ssert or plead their negligent undertaking claim in any of their four complaints and instead waited to do so until they responded to the United St ates’s motion for summary judgment. That is procedurally improper, so there is no determinative question of state law to be answered by th e Supreme Court of Texas. 3 Accordingly, I dissent from certification and would affirm th e district court’s judgment in full.

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3 Certification is appropriate only when it is necessary to answer “determinative questions of Texas law having no controlling Supreme Court precedent.” Tex. R. App. P. 58.1. But the question that the majority ce rtifies to the Supreme Court of Texas is not determinative in this case because Appellants failed to plead a negligent undertaking claim at all. Case: 23-50515 Document: 51-1 Page: 21 Date Filed: 08/06/2024