## Facts

- David and Suzanne Nemon left their two-year-old son, Howard, at a daycare operated by Montessori Educational Corp. of Texas (Houston Children’s Center).
- During outdoor free play, a daycare employee later found Howard unresponsive on playground equipment.
- The employee summoned Sanford Applebaum, who briefly assessed Howard, called for an ambulance, provided mouth-to-mouth resuscitation for several minutes, called again when help was delayed, and continued resuscitation until emergency responders arrived.
- Howard was transported to a hospital, later transferred to Texas Children’s Hospital, and died several days later; medical evidence indicated he was brain-dead upon first receiving hospital treatment.
- The parents sued the daycare and associated individuals for wrongful death and survival claims, alleging negligence including failure to provide adequate life-saving aid and failure to train employees in emergency procedures such as CPR.
- A jury found negligence and proximate cause based on (1) failure to provide adequate life-saving aid and (2) failure to instruct employees in proper emergency measures, and awarded damages; it did not find that Howard was injured on the playground.

## Issues

1. Whether a daycare and its employees owe a common-law duty to provide “adequate life-saving aid” that includes CPR or other specialized medical measures absent a statute or regulation requiring it.
2. Whether a daycare owes a common-law duty to instruct or train employees in CPR or specific emergency procedures absent a statute, regulation, or voluntary undertaking.
3. Whether negligence findings premised on an unrecognized duty can support a judgment.

## Decision

- The court reversed the portion of the judgment based on theories that the daycare had a duty to provide CPR or specialized life-saving aid beyond the actions taken.
- The court held Texas common law did not impose a duty on daycare operators to provide CPR or specialized emergency medical care, or to train employees in such procedures, where no statute or regulation required it.
- Because duty is a question of law, the trial court erred by submitting liability theories to the jury that depended on a duty the law did not recognize.

## Legal Principles

- Negligence liability requires breach of a legally recognized duty; without duty, there is no actionable negligence.
- Absent a statutory or regulatory mandate (or a voluntary assumption of the obligation), custodial childcare providers are not subject at common law to a duty to provide specialized medical or paramedical procedures such as CPR.
- A daycare’s common-law obligation is ordinary reasonable care under the circumstances, which may include summoning medical assistance and providing basic assistance, but does not automatically extend to professional-level emergency medical services.

## Conclusion

The appellate court concluded that, in the absence of a statute, regulation, or assumed undertaking, a daycare’s common-law duty of reasonable care did not require CPR training or the provision of specialized life-saving measures, so the jury’s negligence findings based on those duties could not support the judgment.


Applebaum v. Nemon, 678 S.W.2d 533 (Tex. App.—Houston [14th Dist.] 1984)