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 Barron and Maria Barron appeal the 

district court’s grant of the government’s motion for summary judgment. 

Because Appellants’ general negligence and premises liability claims are 

barred under Texas law, we AFFIRM the district court’s judgment as to 

_____________________ 



 United States District Judge for the Eastern District of Louisiana, sitting by 

designation. 

United States Court of Appeals 

Fifth Circuit 

FILED 

August 6, 2024 

Lyle W. Cayce 

Clerk 

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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 Supreme Court of Texas. 

I. 

This suit arises out of the drowning death of Anthony Barron, a 

civilian contractor employed on a United States military facility called Camp 

Bullis, which is located outside of San Antonio, Texas. About ninety miles 

of roads run through the Camp, including 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 Range/Control Area/Impact 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 officers 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, which 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 unfortunately drowned. 

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3 

II. 

Barron’s parents filed a suit against the United States, alleging general 

negligence, premises liability, and negligent 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 Summary Judgment. The district court 

dismissed all claims on the basis of sovereign immunity, holding that each of 

the government’s alleged failures fell within the discretionary function 

exception to the FTCA’s waiver 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 fall under the discretionary function 

exception.” Id. We reversed, finding that Camp 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 Bullis 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 accumulation 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 filed a timely notice of appeal. 

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4 

III. 

We review a district court’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 and 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 district court held that 

Appellants did not adequately plead negligent undertaking. We disagree. 

Second, whether Appellants can recover under a theory of negligent 

undertaking is unclear as a matter of Texas law. Accordingly, we certify that 

question to the Supreme 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 person 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). Whether a person injured on another’s 

property has a general negligence claim 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 negligence theory of recovery is available 

when an injury results from “a malfeasance theory based on affirmative, 

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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 “a nonfeasance 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 one for premises defect, a plaintiff cannot 

circumvent the true nature of the claim by pleading 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 water crossing on Wilkerson Road or to 

monitor the crossing at that point. Because “[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 government’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 recover under a premises liability theory. 

We agree with the district court’s holding that they cannot. 

To prevail on a premises liability claim under Texas law, a plaintiff 

must establish: 

(1) that [the defendant] had actual 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 [the defendant’s] failure to use 

such care proximately caused [the plaintiff’s] personal injuries. 

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United Scaffolding, 537 S.W.3d at 471 (internal citation omitted) (alterations 

in original). Texas courts have consistently held as a matter of law that 

naturally occurring or accumulating 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 Appellants’ claims are grounded in the 

allegation that heavy rain accumulated at the low water crossing and resulted 

in Barron’s car being swept away by flood waters. Barron, 31 F.4th at 349. 

Thus, the natural accumulation doctrine applies, and Appellants’ premises 

liability claim fails as a matter of law because Appellants cannot establish an 

unreasonable risk of harm. 

C. 

We now turn to Appellants’ negligent undertaking claim. As a 

preliminary matter, we hold that Appellants adequately pleaded a negligent 

undertaking claim in their Third Amended Complaint. To state a claim for 

negligent undertaking, a plaintiff must allege that: (1) the defendant 

undertook to perform services that it knew or should have known were 

necessary for the protection of others; (2) the defendant failed to exercise 

reasonable care in performing those services; and (3) the plaintiff either relied 

upon the defendant’s performance or the 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 court agreed, that because they “did 

not expressly allege a claim for negligent 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 raised only in response to 

a motion for summary judgment is not properly before the court.”). We 

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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 defendant 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 trying to bring. Indeed, “[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 complaint, 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.” Appellants further alleged that after 

inspecting the gate at the low water 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 that 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 wrongfully unlocked prior 

to the events that led to Barron’s death, 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 should have known were necessary for the 

protection of others,” Colonial Sav. Ass’n, 544 S.W.2d at 120, Appellants’ 

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statements were sufficient to adequately plead the first element of negligent 

undertaking.1

Turning to the second element of negligent undertaking, we hold that 

Appellants adequately pleaded that the defendant failed to exercise 

reasonable care in “opening and unlocking the gate . . . and thereby creating 

a dangerous condition” and also in “failing 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 suitable 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’ reliance on a negligent undertaking theory 

does not constitute the sort of “surprise 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 adequately 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 demand “any magic 

_____________________ 

1

 The dissenting opinion states that although the complaint includes “allegations 

that the duty to keep the gate locked was unreasonably 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 adequately pleaded that in failing to lock or guard 

the gate in question, the United States “created an unreasonably dangerous condition” to 

Barron. 

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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 standards 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 Amended Complaint, we now turn to 

whether Appellants can recover under a theory of negligent undertaking as a 

matter of law. Because that question appears 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 has not directly spoken on whether a 

theory of negligent undertaking can serve as an alternate theory of recovery 

when the natural accumulation doctrine bars premises liability. 

Nevertheless, in its briefing, the government argues that Texas law 

also extends the prohibition on recovery under alternative theories of liability 

to negligent undertaking claims. In other words, just as a general negligence 

claim cannot serve as an alternative theory for liability when a premises 

liability claim is available, the government argues that negligent undertaking 

_____________________ 

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). 

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claims are inherently inconsistent with premises liability claims. Specifically, 

the government asserts that a negligent undertaking claim would be improper 

in this circumstance because negligent 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 exist is a prerequisite to negligent 

undertaking liability). And here, the government alleges that it owed Barron 

the duty of care that it owes any invitee on its property. 

To the contrary, Appellants argue—and the district court agreed—

that Texas law does not bar 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 premises 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 make the premises safe for others.”). 

Accordingly, Appellants argue that a negligent undertaking theory is 

available where a landowner has no duty to an invitee regarding a natural 

condition of the land because of the natural accumulation doctrine. 

While the Supreme Court of Texas has never said that negligent 

undertaking is a suitable alternative remedy when a landowner has taken 

affirmative acts related to natural conditions 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 undertaken 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 dangerous condition of 

real property owes a duty of due care.”). The Houston Court of Appeals for 

the First District has similarly recognized that liability can attach when a 

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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 question to the Supreme Court of Texas: 

(1) the closeness of the question and the existence of sufficient 

sources of state law; (2) the degree to which considerations of 

comity are relevant in light of the 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. First, as articulated above, the Supreme 

Court of Texas has not directly weighed in on whether a negligent 

undertaking theory of recovery is available to a plaintiff whose premises 

liability claim is barred by the natural accumulation 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 accumulation may pursue recovery under 

a negligent undertaking theory in federal court depends on the answer to this 

question. And finally, we are unaware of any practical limitations to 

certification. 

V. 

We AFFIRM the district court’s decision to grant the government’s 

motion for summary judgment on Appellants’ general negligence and 

premises liability claims. 

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Regarding Appellants’ negligent undertaking 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 undertaking 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 the question certified. We retain this 

appeal pending the Court’s response. 

QUESTION CERTIFIED. 

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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 surrounding Anthony Barron’s tragic death 

are the duties and obligations of the United 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 by a “locked and closed gate leading to the road[.]” 

According to applicable regulations, this gate “will 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. The low water crossings are inspected by 

security personnel, who decide whether 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 Road 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 

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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 attempted 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 pleading—expressly asserted claims for 

“general negligence” and “premises liability”; it did not expressly assert a 

claim for negligent undertaking. As they 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 claims based on sovereign immunity, 

concluding that all conduct that Appellants complained of fell within the 

discretionary function exception to the FTCA’s general waiver of sovereign 

immunity. Appellants appealed, arguing only 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 that motion, Appellants for the first time 

expressly asserted a negligent undertaking claim. At oral argument on the 

motion, Appellants agreed with the district court that the only remaining 

issue was whether “the gate that would have blocked access 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 United States’s motion for summary 

judgment as to Appellants’ negligence and premises liability claims. It noted 

that the two claims were mutually exclusive and concluded, based on Texas 

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caselaw, that “[Appellants’] claim in this case sounds in premises liability 

rather than negligence.” Because that claim was precluded by the natural 

accumulation doctrine—which “bars premises liability claims caused by 

naturally occurring conditions”—the district court dismissed it. And 

because the natural accumulation 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 until they responded to the Government’s 

summary judgment motion. It considered whether Appellants should be 

granted leave to amend their complaint. Ultimately, it concluded that any 

amendment would be futile because Appellants 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 their argument that the district court 

erred in concluding that they first raised 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 & Gamble 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 include “appellant’s contentions and the reasons for 

them, with citations to the authorities and parts of the record on which 

appellant relies”). 

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Here, Appellants’ brief did not address the district court’s procedural 

conclusion that they had failed to assert a 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 by the district court, or advance any 

argument regarding the district court’s conclusion that the factual allegations 

contained in the complaint were deficient. This constitutes forfeiture of 

Appellants’ argument that the district court should have reached the merits 

of their negligent undertaking claim, and this is sufficient 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 appeal 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 action have been asserted and what 

issues are thus raised either by the 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 Supervisors 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 asserted in the plaintiff’s response that 

was not pleaded as required by the 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 

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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) Appellants did not expressly assert the claim; 

(2) their complaint did not explain why the negligent undertaking doctrine 

should be extended in a context not yet recognized by state courts; and (3) 

they did not plead all elements of a negligent undertaking claim. 

A 

In the third amended complaint, Appellants specifically asserted a 

claim of general negligence and, “in the alternative, and out of an abundance 

of caution,” a premises liability theory of recovery. Appellants did not 

expressly assert a negligent undertaking claim, however. Because Appellants 

expressly advanced a premises liability theory as an alternative to their 

general negligence claim, the absence 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 should apply in this case. All parties 

apparently agree that Appellants’ negligent undertaking theory is novel as 

applied to these facts. Yet the third amended complaint is devoid of any 

argument or authority supporting Appellants’ contention that the doctrine 

should be extended to cases like this one. 

Where a plaintiff asserts a previously unrecognized theory of 

recovery, neglecting to present any argument in support of recognizing it for 

the first time is a failure to adequately plead it. See, e.g., 7547 Corp. v. Parker 

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& Parsley Dev. Partners, L.P., 38 F.3d 211, 218 (5th Cir. 1994) (affirming 

dismissal of plaintiffs’ claim because they “cannot cite to any authority to 

support [their] novel theory”); Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 24 

(1987) (Marshall, J., concurring) (rejecting plaintiff’s subject-matter 

jurisdiction argument in part because 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 and 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 specific 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 question 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

_____________________ 

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 liberally 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: 08/06/2024
No. 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 when 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. 2000). The elements of a negligent 

undertaking claim are: 

(1) the defendant undertook to perform 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; and either (a) the plaintiff relied 

upon the defendant’s performance, or (b) the defendant’s 

performance increased the plaintiff’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 the 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 negligent undertaking claim was “[a]t the 

center” of their complaint because they alleged “that the failure to lock the 

gate was tantamount to the negligent performance of duties set out in a 

mandatory regulation, which can serve as a basis of an undertaking claim.” 

As the district court recognized,2

 however, Appellants did not “provide 

_____________________ 

2

 The district court acknowledged Appellants’ failure to plead a relevant duty as 

part of its analysis of whether Appellants should be granted leave to amend their complaint 

Case: 23-50515 Document: 51-1 Page: 19 Date Filed: 08/06/2024
No. 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 States undertook a duty to perform 

services necessary to protect Anthony, Appellants rely on the regulation 

mandating that the gate restricting access 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 safeguard 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-locking 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 Government 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. But the complaint contains no allegations that this 

particular duty was performed negligently because security reasonably 

presumed that Wilkerson Road was inaccessible and therefore prioritized 

other low water crossings. The complaint 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.

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No. 23-50515 

21 

parties like Anthony. In other words, that the United States has undertaken 

a duty to lock or guard a gate does not mean that it has undertaken that duty 

because it knows it is necessary to 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 assert or plead their negligent 

undertaking claim in any of their four complaints and instead waited to do so 

until they responded to the United States’s motion for summary judgment. 

That is procedurally improper, so there is no determinative question of state 

law to be answered by the Supreme Court of Texas. 3 Accordingly, I dissent 

from certification and would affirm the district court’s judgment in full. 

_____________________ 

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 certifies 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