Galvan, et al., v. The Salvation Army, 2011 U.S. Dist. LEXIS 47257
Bruce Galvan, et al., Plaintiffs, v. The Salvation Army, Defendant.
CIVIL ACTION NO. H-10-3365
United States District Court For The Southern District Of Texas, Houston Division
2011 U.S. Dist. LEXIS 47257
May 3, 2011, Decided
May 3, 2011, Filed
CORE TERMS: Charitable Immunity Act, summary judgment, Charitable, amount of damages, conspicuousness, premature, matter of law, own negligence, settlement, affirmative defense, font, charitable organization, liability insurance coverage, per person, per occurrence, notice requirements, bodily injury, jury verdict, conscious indifference, reckless disregard, self-insurance, conspicuous, discovery, retention, qualify, cap, insurance coverage, enforceable, undisputed, attended
COUNSEL: [*1] For Bruce Galvan, Individually and as Next Friend, Cynthia Perez, Individually And as Next Friend, Plaintiffs: John Paul Venzke, LEAD ATTORNEY, The Venzke Law Firm LLP, Houston, TX; Michael Andrew Fisher, Dyment & Fisher, Houston, TX.
For Salvation Army, Defendant: Teresa Jones Del Valle, LEAD ATTORNEY, Del Valle Law Firm, P.C., Houston, TX.
JUDGES: Nancy F. Atlas, United States District Judge.
OPINION BY: Nancy F. Atlas
MEMORANDUM AND ORDER
This personal injury case is before the Court on the Motion for Partial Summary Judgment Regarding Defendant’s Affirmative Defense of Release (“Release Motion”) [Doc. # 23] filed by Plaintiffs Bruce Galvan and Cynthia Perez. Defendant filed an Opposition [Doc. # 27], and Plaintiffs filed a Reply [Doc. # 28]. Also pending is Plaintiffs’ Motion for Partial Summary Judgment Regarding Defendant’s Defense of The Charitable Immunity and Liability Act of 1987 (“Charitable Immunity Motion”), to which Defendant filed an Opposition [Doc. # 29], and Plaintiffs filed a Reply [Doc. # 34]. Having reviewed the full record and having considered relevant legal authorities, the Court grants the Release Motion and denies without prejudice the Charitable Immunity Motion.
Plaintiffs [*2] Bruce Galvan and Cynthia Perez are parents of Plaintiff Christopher Galvan. Christopher was eleven years old when he attended Camp Hoblitzelle, a facility owned and operated by Defendant The Salvation Army. In June 2010, while at Camp Hoblitzelle, Christopher Galvan fell 40-50 feet from a zip-line and was seriously injured. Before Christopher attended Camp Hoblitzelle, Cynthia Perez signed a “Permission/Waiver Form for Residential Camps.” See Exh. A to Release Motion.
Plaintiffs filed this lawsuit seeking to recover from The Salvation Army for the injury to Christopher Galvan. Defendant has asserted the existence of the Release as an affirmative defense. Defendant has asserted also that The Charitable Immunity and Liability Act of 1987 (“Charitable Immunity Act”) limits its liability in this case to $500,000.00 per person and $1,000,000.00 per occurrence. Plaintiffs have moved for summary judgment on each of these arguments. The motions have been fully briefed.
II.STANDARD FOR SUMMARY JUDGMENT
Rule 56 of the Federal Rules of Civil Procedure provides for the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing [*3] of the existence of an element essential to the party’s case for which that party will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); see also Baton Rouge Oil and Chem. Workers Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir. 2002). In deciding a motion for summary judgment, the Court must determine whether the “pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp., 477 U.S. at 322-23; Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008). Summary judgment is an appropriate mechanism for resolving issues of law arising from a materially complete factual record. See Trevino v. Yamaha Motor Corp., 882 F.2d 182, 184 (5th Cir. 1989).
Defendant has asserted the existence of the Release signed by Cynthia Perez as an affirmative defense. Plaintiffs argue that they are entitled to summary judgment on the release defense because the Release in this case fails to satisfy the [*4] requirements for it to be enforceable.
Under Texas law, there are two fair notice requirements for release agreements: (1) the express negligence doctrine and (2) the conspicuousness requirement. See Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190, 192 (Tex. 2004); Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 509 (Tex. 1993). The express negligence doctrine requires that a party’s intent to be released from the consequences of that party’s own negligence must be expressed in specific terms within the four corners of the release document. See Fisk Elec. Co. v. Constructors & Assocs., Inc., 888 S.W.2d 813, 814 (Tex. 1994); Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d 705, 708 (Tex. 1987). The conspicuousness requirement provides that the releasing language must be conspicuously written, such that a reasonable person would have noticed it. See Dresser, 853 S.W.2d at 511. Examples of conspicuous language include language that appears in contrasting type or color, in all capital letters, or otherwise calls attention to itself. See Reyes, 134 S.W.3d at 192 (citing Littlefield v. Schaefer, 955 S.W.2d 272, 274-75 (Tex. 1997)); Dresser, 853 S.W.2d at 511.
Compliance with [*5] the fair notice requirements is a question of law for the Court. Dresser, 853 S.W.2d at 509. A release that fails to satisfy both of the two requirements is unenforceable as a matter of law. Storage & Processors, 134 S.W.3d at 192. In this case, the Court concludes that the Release asserted by Defendant does not satisfy either requirement.
The Release provides that the signer “hereby voluntarily releases The Salvation Army from any and all liability resulting from or arising in any manner whatsoever out of any participation in any Activity.” See Release, Exh. 1 to Release Motion. As an initial matter, the Release purports to release Defendant from liability for injury suffered while participating in any “Activity.” The “Activity” is to be identified by filling in a blank line on the Release form. On the Release at issue in this case, the “Activity” line contains no identified activity but, instead, has “Cynthia Perez” written in as the “Activity.”
More importantly, the Release language does not specifically state that Defendant is being released from liability for its own future negligence. Indeed, there is no express mention of negligence at all. Although there is no requirement that [*6] the release contain the specific word “negligence,” the intent to release a party from liability for its own negligence must be clearly expressed. See Atlantic Richfield Co. v. Petroleum Personnel, Inc., 768 S.W.2d 724, 726 (Tex. 1989); Silsbee Hosp., Inc. v. George, 163 S.W.3d 284, 290 (Tex. App. — Beaumont 2005, review denied). In the Release at issue in this case, there is no clear expression of an intent to release Defendant from its own negligence in connection with Christopher Galvan’s participation in zip-lining.
The Release fails also to satisfy the conspicuousness requirement. The release language is in the same font and font size as the remainder of the document. There is no bolding, underlining, or other mechanism to make the release language conspicuous. Instead, the release language is buried in a full page of single-spaced, small font size text.
The Court concludes that the Release in this case does not satisfy the express negligence or conspicuousness requirements and, as a result, the Release is not enforceable as a matter of law.
IV.CHARITABLE IMMUNITY MOTION
The Charitable Immunity Act limits liability of a qualified charitable organization to $500,000.00 per person and [*7] $1,000,000.00 per occurrence. See Tex. Civ. Prac. & Rem. Code § 84.006. To qualify for the limitation, the charitable organization must have liability insurance coverage “in the amount of at least $500,000 for each person and $1,000,000 for each single occurrence for death or bodily injury . . ..” See Tex. Civ. Prac. & Rem. Code § 84.007(g). The Charitable Immunity Act provides that the liability insurance coverage “may be provided under a contract of insurance or other plan of insurance authorized by statute and may be satisfied by the purchase of a $1,000,000 bodily injury and property damage combined single limit policy.” See id.
Defendant asserts that it is entitled to the damages limitation of the Charitable Immunity Act. It is undisputed that Defendant has over $35,000,000.00 of insurance coverage. It is also undisputed, however, that the first $500,000.00 is in the form of a self-insurance retention and the next $4,500,000.00 is in the form of The Salvation Army’s Risk Trust. Plaintiffs argue that Defendant is not entitled to the damages limitation because Defendant is self-insured and self insurance does not meet the statutory requirement of the Charitable Immunity Act. 1
1 Plaintiffs [*8] also argue that Defendant is judicially estopped to assert the Charitable Immunity Act’s limitation because a different Salvation Army entity in Maine asserted in a lawsuit in 1997 that the Salvation Army entity in Maine did not have insurance coverage. The Court concludes on this limited record that Plaintiffs have not established an adequate factual basis for judicial estoppel to apply.
Plaintiffs in this case have not alleged an amount of damages. They allege that the amount in controversy is in excess of $75,000.00. See Amended Complaint [Doc. # 16], ¶ 1. Plaintiffs allege also that Christopher Galvan’s medical bills exceed $200,000.00. See id., ¶ 5. Thus, on this record, the specific amounts alleged by Plaintiffs do not exceed the Charitable Immunity Act’s limitation. Moreover, the amount of damages has not been established by either settlement or a jury award to be in excess of the Charitable Immunity Act’s limitation. As a result, the Court concludes that a decision on whether the limitation applies to a fully-funded self insurance retention is premature at this stage of the proceedings. See, e.g., Morgan v. Fellini’s Pizza, Inc., 64 F. Supp. 2d 1304, 1316, n.6 (N.D. Ga. 1999) [*9] (noting that a request for summary judgment as to whether a damages cap applies was premature); Rafferty v. Howard, 2010 U.S. Dist. LEXIS 98423, 2010 WL 3768142, *1 (S.D. Miss. Sept. 20, 2010) (holding that preliminary ruling on whether statutory cap applies was premature). If there is a settlement or jury verdict for more than $1,000,000.00 in this case, the Court will at that time decide whether Defendant qualifies for the Charitable Immunity Act’s limitation.
Additionally, the Charitable Immunity Act provides that its limitations do not apply “to an act or omission that is intentional, wilfully negligent, or done with conscious indifference or reckless disregard for the safety of others.” See Tex. Civ. Prac. & Rem. Code § 84.007(a). Plaintiffs specifically allege that Defendant’s actions in this case were “intentional, willfully negligent, or done with conscious indifference or reckless disregard for the safety of Christopher Galvan and others.” See Amended Complaint [Doc. # 16], ¶ 12. Should the jury find that Defendant’s actions were as alleged by Plaintiffs in paragraph 12 of the Amended Complaint, the issue regarding whether self-insurance satisfies the insurance requirement of the Charitable Immunity Act [*10] would become moot.
V.CONCLUSION AND ORDER
The release relied upon by Defendant satisfies neither the express negligence doctrine nor the conspicuousness requirement. As a result, there has been no effective release of Defendant for its alleged negligence in this case. Plaintiffs have not alleged an amount of damages and no amount of damages has been determined either through settlement or by jury verdict. As a result, it is premature to decide whether the Act limits the amount of damages recoverable in this case. It is, therefore,
ORDERED that Plaintiffs’ Release Motion [Doc. # 23] is GRANTED and Plaintiffs’ Charitable Immunity Motion [Doc. # 26] is DENIED WITHOUT PREJUDICE as premature.
SIGNED at Houston, Texas this 3rd day of May, 2011.
/s/ Nancy F. Atlas
Nancy F. Atlas
United States District Judge
A question posed on an Ask the Expert page has a very simple answer a very simple question.
The question asked was; must we allow adults into closed youth meetings? The simple answer is yes. There are no other answers available, no other answers to be considered, there is no other answer.
There may be other issues from various perspectives. However, we are talking about parental rights and minors.
You cannot keep a parent out of a meeting where their child is.
You can try to explain the issues; you can have the children discuss the issues with the parents. You can try anything but there is nothing else you can do other than talk and educate.
Look at this position from that of a parent. An adult is trying to tell me that I cannot go in that room where my child is. In my mind, the only real issue is will the parent slow down when they knock over the adult standing in their way.
The parent will have a lot of questions. What is going on behind that door? What is the adult trying to hide? What type of organization is my child in?
The question occurs when adults are attempting to give youth the freedom to make their own decisions and/or plan their own future. Adults intimidate and have a very difficult time staying out of the way. However, keeping adults from the room only creates additional barriers between the youth and adults. They believe that the only way they can accomplish anything is to bar adults.
The issue is not how to train the youth. The issue is how to educate and/or train the adults.
Parents need to be told both their child and by the adult volunteers what the purpose of the meeting or other function is and why they are requesting limited adult interaction. The meeting has to be done in a way that parents feel secure for their children. Finally, the meeting must be done so to protect the youth themselves and that youth protection guidelines are violated.
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ROUGH NOTES ON TWENTY YEARS OF REPRESENTING NON-PROFIT CORPORATIONS AND THEIR BOARDS OF DIRECTORS
Board meetings of non-profits can be fun, or they can be excruciating. This opinion depends what which side of the argument you are standing: whether you are on the winning or losing side of the current debate. After twenty years of representing boards of directors, attending board meetings and watching some boards flourish and others fail, I have the following suggestions.
1. Most time at board meeting is lost because no one remembers what happened at the last five meetings.
The law requires that the Articles of Incorporation and Bylaws be kept for a Non-Profit Association. That means that someone somewhere has to keep track of all the amendments, resolutions, minutes, etc. However, one person is not enough. Each board meeting some issue that has been determined or discussed will resurface. To eliminate those hours of time spent arguing on what happened in the past the Association should provide each Board Member with a Notebook. The Notebook should contain the following dividers and information.
- Purpose, Goals and Mission Statement
- Articles of Incorporation: Latest amended copy
- Bylaws: latest amended copy and copies going back 3 years.
- Meeting Minutes: Starting 3 years before the oldest member joined the board
- Meeting Notices: Starting 3 years before the oldest member joined the board
- Agenda: For past 1-3 years
- Financial and Budgets: for past 1-3 years
- Goals & Strategic Planning
- Committees Dividers: One for Each committee for their reports
- Robert’s Rules of Order
- Contracts: memorandums of understanding, employment contracts, etc.
Each board member should be required to place all new material in their notebooks and keep the notebooks up to date and with them at all board meetings. Having everyone flip to page XX can quickly kill any arguments. This also requires the board member to spend a few minutes when they receive agenda’s and reports to review items while placing them in the notebook.
Some Associations fine members for not having their notebooks or not having them up to date. The dollar into the coffee kitty is minor compared to the embarrassment of not keeping things current.
Staying current and keeping good records is part of the responsible and duties of a member of the board.
2. The front piece of the Notebook should have a quick-one page outline of what is expected of a member of the Board. A suggestion would be.
XXX ASSOCIATION BOARD MEMBER DUTIES AND OBLIGATIONS
- Attend all Board Meetings
- Attend all Committee Meetings where you have agreed to serve on the committee
- Read and Understand the Articles and Bylaws
- Read and Understand the Purpose and Goals
- Have all Agenda Items to Secretary XX days in Advance
- Have all Committee Reports to Secretary XX days in Advance
- Before each Board meeting Read and Review the Agenda, all committee reports, proposed resolutions, etc.
- Assist the Board in Recruiting your Replacement when your term is over
3. The President or Chairman of the Board, (person running that meeting), should also familiarize themselves with Robert’s Rules of Order. It will help move meetings along. The purpose of a Board meeting is not to agonize over every issue. If you can’t understand or be able to live with losing on a vote, do not run for the board. A majority rules and a person who is always in the majority is worthless to the board. Opinions and ideas are great, needed; they just do not have to be tolerated before every vote. Very often the minority on an issue will want to drag on hoping if nothing else the constant droning will switch a vote. If won’t. If the votes are there for a win, call a vote, vote and move on. No need wasting everyone’s time hearing things he or she all ready know.
The president also needs to be able to determine when to call for a vote, which is when it will pass. Not when a consensus is reached. It never matters who or how many people voted for something, only whether it passed or not.
4. On that issue. If you want to serve, you must learn to be prepared (to steal from the Boy Scouts) before a board meeting. Know the issues, the votes, get ready and vote. Do you lobbing before the meeting, not at the meeting. Your chances will increase dramatically of moving your vote forward.
5. Have all reports into he secretary XX (45 days) in advance. The Secretary copies and forwards to all board members XX (30 days) in advance. You cannot receive, review and vote on an issue at a board meeting. Get your committee or individual reports done and in so everyone can read and understand rather than waste everyone’s time at meetings.
Effective board meetings can be very short and sweet if everyone understands in advance that board meetings are for voting, not for arguing.