Texas makes it easier to write a release because the law is clear.Posted: December 19, 2011
Too bad no one read the law to the Salvation Army in this case.
This case was filed in the Federal District Court of the Southern District of Texas. The decision was based on a Motion for Summary Judgment filed by the plaintiff to throw out the defendant’s defense of release. Normally, these types of motions are filed by the defendants to end the litigation not by the plaintiff. There was also an issue of whether the charitable immunity statute applied to limit the damages in the case.
The facts which gave rise to the case are the defendants were parents of an eleven year-old boy who attended Camp Hoblitzelle which was owned and operated by the Salvation Army of Texas. While attending the camp the minor was riding a zip line when he fell 40-50’ suffering unnamed injuries.
There was a blank in the release where the activity the parties were releasing was to be filled in. The blank line in this case was filled in with the plaintiff’s name Cynthia Perez written in as the activity. The court took delight in pointing this out.
Summary of the case
The plaintiff filed their motion for summary judgment to eliminate the defense of release. The minor’s mother signed the Permission/Waiver Form for Residential Camps prior to the minor attending camp.
Under Texas law, there are two tests to determine if a release is valid; (1) the express negligence doctrine and (2) the conspicuousness requirement test.
“A release that fails to satisfy both of the two requirements is unenforceable as a matter of law.”
The Express Negligence Doctrine is:
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.
The release in this case used the language “…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.” This language was not strict enough to place the signor on notice that they were giving up their legal rights according to the court.
The release was not clear. It did not state that the defendant was being released for its future negligence. Although there is no requirement that the word negligence be in the release and referenced, it is clear the release would be difficult to write without the word negligence. The court held the release at issue had no clear expression or language showing intent to release the defendant from its own negligence.
Consequently, the release failed the Express Negligence Doctrine.
The Conspicuousness requirement test requires.
… the releasing language must be conspicuously written, such that a reasonable person would have noticed it. Examples of conspicuous language include language that appears in contrasting type or color, in all capital letters, or otherwise calls attention to itself.
With regard to the conspicuousness, requirement test the court stated.
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.
Here is a great example that your release cannot hide the important legal language from anyone signing it.
The court also looked into the Charitable Immunity Act and held the issue was not ripe because whether or not the defendant was subject to the limitation of damages would not be an issue unless the plaintiff was able to recover an amount greater than the limitation of $500,000 per person and $1,000,000 per occurrence.
The court also stated the Charitable Immunity Act did not apply to defendants whose “act or omission that is intentional, wilfully negligent, or done with conscious indifference or reckless disregard for the safety of others.” The plaintiff had plead actions of the defendant in almost identical language which was another issue making the issue not ripe for decision.
So Now What?
This decision is a road map on what not to do with a release in Texas.
1. Make sure your release states that it is a release and the person signing it is giving up their legal rights.
2. Make sure the language in the release is clear. The plaintiff is releasing you from liability for your negligence in advance of any injury. You are going to have to use the word negligence in your release.
3. The release language cannot be hidden. It must be set out in such a way that it is identifiable as something important that the signor needs to know about.
4. All blanks in the document need to be located in one place so it only takes a quick scan to make sure everything is completed properly.
5. Anything that can be completed by the defendant or filled in must be completed by the defendant.
6. Have an attorney that knows and understands your operation and the law affecting your business write your release.
Writing a release is not like cooking. When you cook you have to really screw up to make something that is not edible. (I’ve been single my entire life so my definition of edible may be different from yours……) Writing a release is a much more precise endeavor.
What do you think? Leave a comment.
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