This book should be on every outfitter and guide’s desk. It will answer your questions, help you sleep at night, help you answer your guests’ questions and allow you to run your business with less worry.
Table of Contents
Chapter 1 Outdoor Recreation Risk Management, Law, and Insurance: An Overview
Chapter 2 U.S. Legal System and Legal Research
Chapter 3 Risk 25
Chapter 4 Risk, Accidents, and Litigation: Why People Sue
Chapter 5 Law 57
Chapter 6 Statutes that Affect Outdoor Recreation
Chapter 7 PreInjury Contracts to Prevent Litigation: Releases
Chapter 8 Defenses to Claims
Chapter 9 Minors
Chapter 10 Skiing and Ski Areas
Chapter 11 Other Commercial Recreational Activities
Chapter 12 Water Sports, Paddlesports, and water-based activities
Chapter 13 Rental Programs
Chapter 14 Insurance
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Assumption of the Risk is a defense to negligence and gross negligence claims in this case against a college offering for credit tour abroad study.Posted: April 1, 2019
Student died swimming in the Pacific Ocean and his parents sued the college for his death. College was dismissed because student was an adult and assumed the risk that killed him.
State: Georgia, Court of Appeals of Georgia
Plaintiff: Elvis Downes and Myrna Lintner (parents of the deceased)
Defendant: Oglethorpe University, Inc.
Plaintiff Claims: Negligence and Gross Negligence
Defendant Defenses: Assumption of the Risk
Holding: for the Defendant
There are some risks that the courts say you understand and accept the risks because we know of them. Examples are cliffs and water. Here, the family of a student who died on a study abroad trip while swimming in the ocean could not sue because the student assumed the risks of swimming.
What is interesting is the assumption of the risk defense was used to defeat a claim of negligence and Gross Negligence.
During the 2010-2011 academic year, Oglethorpe offered to their students a 12-day study-abroad trip to Costa Rica. The students were charged a fee for the trip to pay for expenses such as airfare, lodging, and food. The students were also required to pay the ” per credit tuition rate” and were to receive four credits toward their degree for academic work associated with the trip. Oglethorpe retained Horizontes, a Costa Rican tour operator, to coordinate the trip and to provide transportation and an English-speaking guide.
Dr. Jeffrey Collins was then the director of Oglethorpe’s study-abroad program. According to Collins, Oglethorpe tried to follow ” best practices,” which is ” defined as those protocols, procedures that as best and as far as possible ensure[ ] the safety of students.” He acknowledged that students would swim on the trips. Collins was not aware of any potential dangers in Costa Rica and did no investigation to ascertain if there were potential dangers in Costa Rica.
During pre-trip meetings with Downes and the five other students who had registered for the program, Dr. Roark Donnelly and Dr. Cassandra Copeland, the two professors who accompanied the students on the trip, asked the students if everyone was a good swimmer, and the students agreed that they were. The group also discussed swimming in the ocean, including ” that there are going to be currents.” One of the professors told the students that, during a previous study-abroad trip to another location, a student had recognized that he was a weak swimmer and was required to wear a life jacket during all water activities. After hearing this, the students continued to express that they were good swimmers. Before leaving on the trip, the students were required to sign a release agreement which included an exculpatory clause pertaining to Oglethorpe.
The students and professors flew to Costa Rica on December 28, 2010. During the course of the trip, on the afternoon of January 4, 2011, the group arrived at a hotel on the Pacific coast. The six students, two professors, the guide, and the driver got into their bus and drove to a nearby beach, Playa Ventanas, which had been recommended by the hotel. Upon their arrival, there were other people on the beach and in the water. There were no warning signs posted on the beach, nor any lifeguards or safety equipment present.
The students swam in the ocean, staying mostly together, and eventually ventured out into deeper water. After about 20 minutes, Dr. Donnelly yelled for the students to move closer to shore. Shortly thereafter, student Robert Cairns, a former lifeguard, heard a female student screaming. Cairns swam toward the screams, and the student informed him that Downes needed help. Cairns realized that ” some kind of current … had pulled us out.” Cairns swam to within ten feet of Downes and told him to get on his back and try to float. Downes could not get on his back, and Cairns kept telling him he had to try. After some time, Downes was struck by a wave, went under the water, and disappeared from Cairns’s view. Downes’s body was recovered from the ocean three days later.
Analysis: making sense of the law based on these facts.
The deceased student signed a release in this case, however the trial court and the appellate court made their decisions based on assumption of the risk.
Under Georgia law, assumption of the risk is a complete bra to a recovery.
The affirmative defense of assumption of the risk bars a plaintiff from recovering on a negligence claim if it is established that he[,] without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not.
Absent a showing by the plaintiff of coercion or a lack of free choice assumption of the risk prevents the plaintiff from recovery any damages for negligence from the defendant.
To prove the deceased assumed the risk the college must show:
A defendant asserting an assumption of the risk defense must establish that the plaintiff (i) had knowledge of the danger; (ii) understood and appreciated the risks associated with such danger; and (iii) voluntarily exposed himself to those risks.
The plaintiff does not have to know and understand every aspect and facet of the risk. The knowledge can be that there are inherent risks in an activity even if the specifics of those risks are not known.
The knowledge requirement does not refer to a comprehension of general, non-specific risks. Rather, the knowledge that a plaintiff who assumes the risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury.
Assumption of the risk is usually a jury decision because the jury must weigh whether or not the plaintiff truly understood the risks. However, if the risk is such that there is undisputed evidence that it exists and the plaintiff knew or should have known about it, the court can act.
As a general rule, whether a party assumed the risk of his injury is an issue for the jury that should not be decided by summary judgment unless the defense is conclusively established by plain, palpable and undisputed evidence.
Drowning is a known and understood risk under Georgia law of being in the water.
It is well established under Georgia law that ” [t]he danger of drowning in water is a palpable and manifest peril, the knowledge of which is chargeable to [persons] in the absence of a showing of want of ordinary capacity.
Because the deceased student was a competent adult, meaning over the age of 18 and not mentally informed or hampered, the risk was known to him. “As Downes was a competent adult, he was necessarily aware of the risk of drowning when he voluntarily entered the Pacific Ocean.”
The plaintiff’s argued the college created the risk because they did not investigate the beach, have an emergency preparedness plan, ensure the professors had adequate training and did not supply safety equipment. However, the court did not buy this because there was nothing in the record to show the College created or agreed to these steps to create an additional duty on the colleges part.
Assuming that Oglethorpe, having undertaken a study-abroad program, was under a duty to act with reasonable care, and that there is evidence of record that Oglethorpe failed to do so, assumption of risk is nevertheless a defense to negligence.
The college was under not statutory or common law duty to provide any of the issues the plaintiff argued. Nor did the college create a duty by becoming an insurer of the students.
Appellants do not show, however, that Oglethorpe was under a statutory or common law duty to provide safety equipment to its students during an excursion to the beach, or that the ocean is analogous to a nonresidential swimming pool. Nor can we conclude that Oglethorpe became an insurer for the safety of its students by undertaking a study-abroad program, or that it was responsible for the peril encountered by Downes in that it transported him to the beach.
Even then the assumption of the risk defense would apply because assuming the risk relieves the defendant of any negligence.
Even if a defendant is negligent, a determination that a plaintiff assumed the risk or failed to exercise ordinary care for [his] own safety bars recovery for the resulting injury suffered by the plaintiff, unless the injury was wilfully and wantonly inflicted.
The defendant was not liable because the student, as an adult would have appreciated the risks of drowning in the Pacific Ocean.
Because he was a competent adult, Downes would have appreciated the specific risk of drowning posed by entering a body of water so inherently dangerous as the Pacific Ocean. As Downes voluntarily did so, Oglethorpe established that he assumed that risk. Although Downes’s death was undeniably tragic, we are constrained to conclude that the trial court correctly granted Oglethorpe’s motion for summary judgment.
So Now What?
There are two important points in this decision.
First, although not discussed, the court allowed assumption of the risk to stop a claim for gross negligence. Normally, like assumption of the risk, whether or not a defendant was grossly negligent requires a review by the jury to determine if the facts alleged meet the definition of gross negligence in the state.
Second is the issue that the less you do the less liability you create. In the pre-trip briefing with the students the risks of swimming in the ocean were discussed. The students all stated they were strong swimmers and nothing more was done.
If the college had made them take a swim test, further questioned their swimming skills by requiring more information or making sure a professor who was a lifeguard was on the trip, the college would have created an additional duty owed to the students.
Copyright 2019 Recreation Law (720) 334 8529
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Quiroz v. Jumpstreet8, Inc., et. al., 2018 Tex. App. LEXIS 5107
Graciela Quiroz, individually, A/N/F OF XXXX (“JOHN DOE 1”) AND XXXX (“JOHN DOE 2”), Minors, and Robert Sullivan, Individually, A/N/F OF XXXX (“JOHN DOE 3”), Appellants v. Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc., Appellees
Court of Appeals of Texas, Fifth District, Dallas
July 9, 2018
On Appeal from the 298th Judicial District Court Dallas County, Texas Trial Court Cause No. 15-02671
Before Myers, Boatright, and O’Neill Justices. 
MICHAEL J. O’NEILL JUSTICE, ASSIGNED
Appellant Graciela Quiroz brought a negligence suit against appellees Jumpstreet8, Inc., Jumpstreet, Inc., and Jumpstreet Construction, Inc. (collectively Jumpstreet) for injuries she sustained while jumping on a trampoline at a Jumpstreet facility. Jumpstreet moved for summary judgment based upon a pre-injury release signed by Quiroz. Quiroz responded and filed a cross-motion for partial summary judgment. The trial court granted Jumpstreet’s motion for summary judgment, denied Quiroz’s cross-motion for partial summary judgment, and dismissed all of Quiroz’s claims. In one issue, Quiroz contends the trial court erred in granting Jumpstreet’s motion for summary judgment and denying her motion for partial summary judgment. We affirm the trial court’s order.
On November 29, 2014, Quiroz and her sixteen-year-old son went to Jumpstreet. Prior to using the facility, Quiroz was given a pre-injury release form that was titled “Jumpstreet, LLC Release and Parent/Guardian Waiver of Liability and Assumption of Risk.” The Release recited the following statements under the title: “PLEASE READ THIS DOCUMENT CAREFULLY. BY SIGNING IT, YOU ARE GIVING UP LEGAL RIGHTS.” After signing the Release, Quiroz and her son jumped on a trampoline. When Quiroz attempted to do a flip, she injured her neck. Quiroz is now paralyzed from the waist down. Quiroz brought suit, individually, against Jumpstreet for negligence and gross negligence and as next friend of two minor children for their loss of parental consortium and their bystander claims for mental anguish. Robert Sullivan (Quiroz’s spouse) joined the suit for loss of consortium and as next friend of a third minor child for loss of parental consortium and a bystander claim for mental anguish.
Jumpstreet filed a “Traditional Motion for Summary Judgment” alleging summary judgment was proper because Quiroz had signed a Release. In the motion, Jumpstreet stated that because Quiroz alleged negligence and gross negligence claims against Jumpstreet arising from her utilizing a Jumpstreet facility, the Release signed by Quiroz expressly released any negligence and gross negligence claims. Jumpstreet asserted the Release was valid and enforceable because it specifically named the party to be released, it met the fair notice requirements of conspicuousness and the express negligence rule, and it met the contractual elements of mutual intent and valid consideration.
Quiroz filed a response to Jumpstreet’s motion for summary judgment and a cross-motion for partial summary judgment that alleged summary judgment for Jumpstreet was improper because there was an issue of material fact regarding the Release. Quiroz alleged she was entitled to a partial summary judgment because the Release was “void, voidable and unenforceable” because the named entity did not exist at the time of her injury, the Release was ambiguous, a parent could not waive claims of minors, and the Release could not waive gross negligence claims because it would be against public policy to do so. The trial court granted Jumpstreet’s traditional motion for summary judgment and denied Quiroz’s cross-motion for partial summary judgment. Quiroz timely filed this appeal.
In her sole issue on appeal, Quiroz contends the trial court erred by granting Jumpstreet’s motion for summary judgment and denying her cross-motion for partial summary judgment. Quiroz asserts that as a matter of law, no contract existed between her and Jumpstreet, LLC, the entity named in the Release. Quiroz argues there was no “meeting of the minds on the contract’s essential terms” between her and Jumpstreet, LLC because Jumpstreet, LLC had been dissolved in June 2011 and did not exist at the time of her injury in November 2014. Quiroz contends that because a nonexistent entity cannot form or enter into a contract, the Release is void and unenforceable as a matter of law.
Quiroz further contends the Release did not meet the “fair notice requirement” because none of the Jumpstreet defendants are named in the Release; only the nonexistent entity “Jumpstreet, LLC” is specifically named in the Release. Quiroz argues the Release also never specifically identified or released a claim for an injury due to paralysis. Further, Quiroz asserts that as a matter of law, a parent cannot waive a minor’s claims, and a Release cannot waive any claims for gross negligence because that is against public policy.
Jumpstreet responds that the trial court properly granted summary judgment in their favor because Quiroz signed a valid, enforceable Release before using its facility. The Release satisfied both the fair notice requirement and the express negligence rule as to both negligence and gross negligence claims. Jumpstreet also argues the Release meets the general requirements of a valid contract because it shows a “meeting of the minds” and valid consideration. Jumpstreet further responds that because the consortium and bystander claims are derivative claims, they are barred as a matter of law.
We review a trial court’s summary judgment order de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). A party moving for summary judgment has the burden of showing that no genuine issue of material fact existed and that it was entitled to judgment as a matter of law. City of Dallas v. Dallas Morning News, LP, 281 S.W.3d 708, 712 (Tex. App.- Dallas 2009, no pet.); see also Tex. R. Civ. P. 166A(c). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When both sides move for summary judgment, however, each party bears the burden of establishing it is entitled to judgment as a matter of law. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000). When the trial court grants one motion and denies the other, we review the summary judgment evidence presented by both parties and determine all the questions presented. S. Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676, 678 (Tex. 2013).
The Release signed by Quiroz was a prospective release of future claims, including claims based on Jumpstreet’s own negligence. A release is an absolute bar to the released matter and extinguishes a claim or cause of action. Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 509 (Tex. 1993). Jumpstreet had to show that the Release’s language met the fair notice requirement of conspicuousness and the express negligence rule. See id. “Conspicuous” means the terms must be presented in a manner that a reasonable person against whom it is to operate ought to have notice. Quintana v. CrossFit Dallas, L.L.C., 347 S.W.3d 445, 450 (Tex. App.- Dallas 2011, no pet, ).
The express negligence rule is not an affirmative defense, but it is a rule of contract interpretation. See Fisk Elec. Co. v. Constructors & Assocs., Inc., 888 S.W.2d 813, 814 (Tex. 1994). This rule states that if a party intends to be released from its own future negligence, it must express that intent in clear, unambiguous terms within the four corners of the contract. Atl. Richfield Co. v. Petroleum Pers., Inc., 768 S.W.2d 724, 726 (Tex. 1989); Quintana, 347 S.W.3d at 450.
Parties have the right to contract as they see fit as long as their agreement does not violate the law or public policy. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 129 & n.11 (Tex. 2004). Texas law recognizes and protects a broad freedom of contract. Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653, 671 (Tex. 2008). Under Texas law, a release is a contract and is subject to avoidance just like any other contract. Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990). When construing a contract, the court’s primary concern is to give effect to the written expression of the parties’ intent. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994). Public policy dictates that courts are not to interfere lightly with this freedom of contract. See, e.g., Gym-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d 905, 912 (Tex. 2007) (commercial lease expressly waiving warranties); In re Prudential, 148 S.W.3d at 129 & n.11 (contractual jury waiver); BMG Direct Mktg., Inc. v. Peake, 178 S.W.3d 763, 767 (Tex. 2005) (liquidated damages clause); Mo., Kan. & Tex. Ry. Co. of Tex. v. Carter, 68 S.W. 159, 164 (Tex. 1902) (contract waiving responsibility for fires caused by railroad engines).
A tortfeasor can claim the protection of a release only if the release refers to him by name or with such descriptive particularity that his identity or his connection with the tortious event is not in doubt. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 420 (Tex. 1984); see also Frazer v. Tex. Farm Bureau Mut. Ins. Co., 4 S.W.3d 819, 823-24 (Tex. App.-Houston [1st Dist.] 1999, no pet.) (with use of “and its affiliated companies,” release sufficiently identified Texas Farm Bureau Underwriters such that its identity is not in doubt.). Here, the Release clearly and unambiguously stated it applied to all Jumpstreet entities that are engaged in the trampoline business. Although the Release specifically named “Jumpstreet, LLC,” it also stated the Release equally applied to “its parent, subsidiaries, affiliates, other related entities, successors, owners, members, directors, officers, shareholders, agents, employees, servants, assigns, investors, legal representatives and all individuals and entities involved in the operation of Jumpstreet.”
The record shows the entity named “Jumpstreet, LLC” was dissolved in June, 2011. The record also contains a deposition transcript from Martin L. Brooks who testified he and Tim Crawford were cousins and the sole owners of all the Jumpstreet entities, all the Jumpstreet entities were engaged in the trampoline business, and the entity named “Jumpstreet, Inc.” was the parent company. The record shows that in her original petition, Quiroz named seventeen different Jumpstreet entities, including “Jumpstreet, Inc.,” the parent company. In her “fourth amended petition” that was in effect at the time of the summary judgment hearing, however, she named only three of the Jumpstreet entities, including the parent company. The Jumpstreet appellees in this case are all engaged in the trampoline business and described with such particularity that their identity was never in doubt. Duncan, 665 S.W.2d at 420; Frazer, 4 S.W.3d at 823-24.
Although the Release in this case contains two pages, it conspicuously contains several paragraphs with bolded headings and capitalized font. On page one, an “assumption of risk” section is separate from a “release of liability” section. The Release warns prospective patrons to “please read this document carefully” and “by signing it, you are giving up legal rights.” This warning appears directly under the title of the Release and is written in all capital letters. On page two, the Release has an “assumption of the risk” paragraph in all capital letters and surrounded by a box, calling specific attention to it. On both pages, there are several references to the risks and dangers of participating in Jumpstreet services throughout the Release. The “waiver and release” language is repeated a final time, in capital lettering, immediately above the signature line where Quiroz printed her name, date of birth, age, address, and telephone number. See Quintana, 347 S.W.3d at 452 (concluding a two-page contract titled “Health Assessment Waiver and Goals Work Sheet” that included word “release” in larger and bold print near top of second page and initialed by party was “sufficiently conspicuous to provide fair notice”).
The Release also does not run afoul of the express negligence rule. As noted above, the waiver and release language is in capital lettering immediately above the signature line where Quiroz printed her name, date of birth, age, address, and telephone number. See Quintana, 347 S.W.3d at 452. Further, on page one in the assumption of risk paragraphs, the person signing the Release acknowledges the “potentially hazardous activity,” and the Release lists possible injuries including “but not limited to” sprains, heart attack, and even death. Although paralysis is not specifically named as an injury, it is certainly less than death and thus would be included within the “but not limited to” language. Also, the release of liability paragraph above Quiroz’s signature expressly lists the types of claims and causes of action she is waiving, including “negligence claims, gross negligence claims, personal injury claims, and mental anguish claims.” Id.
Quiroz next argues that a parent cannot waive a minor child’s claims. Quiroz asserts Munoz v. II Jaz Inc., 863 S.W.2d 207 (Tex. App.-Houston [14th Dist.] 1993), is the leading Texas case. In Munoz, the parents sued an amusement park for damages after their child was injured on a ride. The trial court granted the park’s motion for summary judgment based upon a pre-injury release signed by the parents. The appellate court reversed, holding that the Family Code did not give parents the power to waive a child’s cause of action for personal injuries. Munoz is distinguishable from Quiroz’s claims in that Quiroz sustained the injury and not her children. Moreover, the cause of action for loss of parental consortium, like the cause of action for loss of spousal consortium, is a derivative cause of action. As such, the defenses that bar all or part of the injured parent’s recovery have the same effect on the child’s recovery. Reagan v. Vaughn, 804 S.W.2d 463, 468 (Tex. 1990), on reh’g in part (Mar. 6, 1991). And although bystander claims are considered independent and not derivative, it is also true that the bystander plaintiff cannot recover unless the injured person can recover. Estate of Barrera v. Rosamond Vill. Ltd. P’ship, 983 S.W.2d 795, 799- 800 (Tex. App.-Houston [14th Dist.] 1998, no pet.).
Quiroz lastly argues a pre-injury release cannot apply to gross negligence claims because that is against public policy. Generally, a contract provision “exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy. Restatement (Second) of Contracts § 195(1 (1981). Quiroz cites our case in Van Voris v. Team Chop Shop, 402 S.W.3d 915 (Tex. App.-Dallas 2013, no pet.), for this proposition. There is disagreement among the courts of appeals as to whether a party may validly release claims for gross negligence. The Texas Supreme Court has not ruled on whether a pre-injury release as to gross negligence is against public policy when there is no assertion that intentional, deliberate, or reckless acts cause injury. Some appellate courts have held that negligence and gross negligence are not separable claims and that therefore a release of liability for negligence also releases a party from liability for gross negligence. See Tesoro Petroleum Corp. v. Nabors Drilling U.S., 106 S.W.3d 118, 127 (Tex. App.-Houston [1st Dist.] 2002, pet. denied); Newman v. Tropical Visions, Inc., 891 S.W.2d 713, 722 (Tex. App.-San Antonio 1994, writ denied).
In contrast, we recently held that a plaintiff’s execution of a contract specifically releasing a defendant from liability for negligence did not release the defendant from liability for gross negligence. Van Voris, 402 S.W.3d at 926. We reasoned that the public policy requiring an express release from negligence also requires an express release from gross negligence. See id. We specifically pointed out that “our conclusion is limited to the context presented by this case.” See id. Other courts have held that pre-accident waivers of gross negligence are invalid as against public policy. See Sydlik v. REEIII, Inc., 195 S.W.3d 329, 336 (Tex. App.-Houston [14th Dist.] 2006, no pet.); Smith v. Golden Triangle Raceway, 708 S.W.2d 574, 576 (Tex. App.-Beaumont 1986, no writ).
Van Voris is distinguishable from the case here in that Quiroz’s Release specifically stated that both negligence and gross negligence claims were waived. The assumption of risk paragraph that lists the specific types of claims/causes of actions that were included in the Release was encased in a box, had all capital lettering, and appeared above the signature line. As noted above, Quiroz received fair notice regarding the claims being waived. See Quintana, 347 S.W.3d at 450.
The Release met both the fair notice requirement for conspicuousness and the express negligence rule. It was, thus, enforceable. See Quintana, 347 S.W.3d at 452. As a result, Jumpstreet met its burden of establishing it was entitled to summary judgment as a matter of law. See City of Garland, 22 S.W.3d at 356. We conclude the trial court properly granted Jumpstreet’s motion for summary judgment. See Travelers Ins. Co., 315 S.W.3d at 862.
We affirm the trial court’s order granting Jumpstreet’s motion for summary judgment and denying Quiroz’s cross-motion for partial summary judgment.
On Appeal from the 298th Judicial District Court, Dallas County, Texas Trial Court Cause No. 15-02671. Opinion delivered by Justice O’Neill. Justices Myers and Boatright participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellees Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc. recover their costs of this appeal from appellants Graciela Quiroz and Robert Sullivan.
 The Hon. Michael J. O’Neill, Justice, Assigned
 We note that Quiroz cited Zachry Construction Corp. v. Port of Houston Authority Of Harris County., 449 S.W.3d 98 (Tex. 2014), in her “First Supplemental Brief,” for the proposition that “a pre-injury release of future liability for gross negligence is void as against public policy.” In Zachry, the Texas Supreme Court had to decide, in a breach of contract case, whether a no-damages-for-delay provision shielded the owner from liability for deliberately and wrongfully interfering with the contractor’s work. In Zachry, the Texas Supreme Court held the no-damages-for-delay provision at issue was unenforceable as against public policy. Zachry, however, is distinguishable because that case concerned how a no-delay-for-damages provision could be enforced if the Port’s intentional misconduct caused the delay. Here, Quiroz has not asserted that Jumpstreet’s alleged negligence was intentional, deliberate, or reckless.
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“Outdoor Recreation Insurance, Risk Management, and Law” is a definitive guide to preventing and overcoming legal issues in the outdoor recreation industry
Denver based James H. Moss, JD, an attorney who specializes in the legal issues of outdoor recreation and adventure travel companies, guides, outfitters, and manufacturers, has written a comprehensive legal guidebook titled, “Outdoor Recreation Insurance, Risk Management, and Law”. Sagamore Publishing, a well-known Illinois-based educational publisher, distributes the book.
Mr. Moss, who applied his 30 years of experience with the legal, insurance, and risk management issues of the outdoor industry, wrote the book in order to fill a void.
“There was nothing out there that looked at case law and applied it to legal problems in outdoor recreation,” Moss explained. “The goal of this book is to provide sound advice based on past law and experience.”
While written as a college-level textbook, the guide also serves as a legal primer for executives, managers, and business owners in the field of outdoor recreation. It discusses how to tackle, prevent, and overcome legal issues in all areas of the industry.
The book is organized into 14 chapters that are easily accessed as standalone topics, or read through comprehensively. Specific topics include rental programs, statues that affect outdoor recreation, skiing and ski areas, and defenses to claims. Mr. Moss also incorporated listings of legal definitions, cases, and statutes, making the book easy for laypeople to understand.
TABLE OF CONTENTS
Table of Cases
Outdoor Recreation Law and Insurance: Overview
Perception versus Actual Risk
Risk v. Reward
Risk Management Strategies
Humans & Risk
Risk = Accidents
Accidents may/may not lead to litigation
How Do You Deal with Risk?
How Does Acceptance of Risk Convert to Litigation?
Negative Feelings against the Business
Risk, Accidents & Litigation
No Real Acceptance of the Risk
No Money to Pay Injury Bills
No Health Insurance
Insurance Company Subrogation
Dealing with Different People
Dealing with Victims
Develop a Friend & Eliminate a Lawsuit
Don’t Compound Minor Problems into Major Lawsuits
Emergency Medical Services
Additional Causes of Lawsuits in Outdoor Recreation
How Do You Handle A Victim?
Dealing with Different People
Dealing with Victims
Legal System in the United States
State Court System
Federal Court System
Other Court Systems
Parties to a Lawsuit
Breach of the Duty
Determination of Duty Owed
Duty of an Outfitter
Duty of a Guide
Duty of Livery Owner
Duty of Rental Agent
Duty of Volunteer Youth Leader
In Loco Parentis
Willful & Wanton Negligence
Negligence Per Se
Results of Acts That Are More than Ordinary Negligence
Breach of Contract
Breach of Warranty
Warranty of Fitness for a Particular Purpose
Warranty of Merchantability
Warranty of Statute
Food Service Liability
Skier Safety Acts
Whitewater Guides & Outfitters
Equine Liability Acts
Assumption of Risk
Express Assumption of Risk
Implied Assumption of Risk
Primary Assumption of Risk
Secondary Assumption of Risk
Assumption of Risk & Minors
Assumption of Risk Documents.
Assumption of Risk as a Defense.
Statutory Assumption of Risk
Express Assumption of Risk
Joint and Several Liability
Release, Waivers & Contracts Not to Sue
Why do you need them
Covenants Not to sue
Who should be covered
What should be included
Jurisdiction & Venue Clause
Assumption of Risk
Hold Harmless Agreement
Drug and/or Alcohol clause
Medical Transportation & Release
What the Courts do not want to see
Statute of Limitations
Agreements to Participate
Parental Consent Agreements
Informed Consent Agreements
Standards, Guidelines & Protocols
Specific Occupational Risks
Personal Liability of Instructors, Teachers & Educators
College & University Issues
Animal Operations, Packers
Canoe Livery Operations
Ski Rental Programs
Indoor Climbing Walls
Retail Rental Programs
Risk Management Plan
Introduction for Risk Management Plans
What Is A Risk Management Plan?
What should be in a Risk Management Plan
Risk Management Plan Template
Ideas on Developing a Risk Management Plan
Preparing your Business for Unknown Disasters
Building Fire & Evacuation
Dealing with an Emergency
Theory of Insurance
Personal v. Commercial Policies
Types of Policies
Personal Injury Protection
Named Peril v. All Risk
Types of Policies
Federal and State Government Insurance Requirements
These states do not allow a recreational business or program to use a release to stop litigation. Assumption of the risk is your best defense in these states.
|Releases are Void|
|Louisiana||C.C. Art. 2004 (2005)||Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party. Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.|
|Montana||MCA § 27-1-701
A new statute has been passed, § 27-1-753. Limitation on liability in sport or recreational opportunity. However it has not been tested in court and is very weak.
|Liability for negligence as well as willful acts. Except as otherwise provided by law, everyone is responsible not only for the results of his willful acts but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person except so far as the latter has willfully or by want of ordinary care brought the injury upon himself.|
|Virginia||Johnson’s Adm’x v. Richmond and Danville R.R. Co., 86 Va. 975, 11 S.E. 829 (1890)||Except for Equine Activities Chapter 62. Equine Activity Liability § 3.2-6202. Liability limited; liability actions prohibited|
|Oregon||Bagley v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore. LEXIS 994||Oregon Supreme Court finds release signed at ski area is void as a violation of public policy.|
|Use of a Release is Restricted|
|Arizona||Phelps v. Firebird Raceway, Inc., 2005 Ariz. LEXIS 53|
|New Mexico||Berlangieri v. Running Elk Corporation, 132 N.M. 332;2002 NMCA 60;48
P.3d 70;2002 N.M. App. 39;41 N.M. St. B. Bull. 25
|State created Equine Liability Statute so no need for release|
|West Virginia||Kyriazis v. University of West Virginia; 192 W. Va. 60; 450 S.E.2d 649;
1994 W. Va. LEXIS 161
|Use of Releases is Probably Void|
|Connecticut||Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005) and Reardon v. Windswept Farm, LLC, Et Al., 280 Conn. 153; 905 A.2d 1156; 2006
Conn. LEXIS 330
|Mississippi||Turnbough v. Ladner, 754 So. 2d 467; 1999 Miss. LEXIS 375||Mississippi Supreme Court makes it almost impossible to write a release that is enforceable because the court does not give direction as to what it wants.|
|Wisconsin||Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2||Wisconsin decision has left the status of release law in Wisconsin in jeopardy|
|Wisconsin||Roberts v. T.H.E. Insurance Company, et al., 2016 WI 20; 2016 Wisc. LEXIS 121||Wisconsin Supreme Court voids another release because it violates public policy. Public Policy as defined in Wisconsin requires the ability to bargain before signing the release.|
|Vermont||Dalury v. S-K-I, Ltd, 164 Vt 329; 670 A.2d 795; 1995 Vt. Lexis 127|
|Specific uses of Releases are Void|
|Alaska||Sec. 05.45.120(a). Use of liability releases||A ski area operator may not require a skier to sign an agreement releasing the ski area operator from liability in exchange for the right to ride a ski area tramway and ski in the ski area. A release that violates this subsection is void and may not be enforced.|
|Hawaii||King v. CJM Country Stables, 315 F. Supp. 2d 1061, 2004 U.S. Dist. LEXIS 7511 (D. Haw. 2004)||Found that Hawaii statute § 663-1.54. Recreational activity liability prevented the use of a release|
|New York||General Obligation Law § 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable||Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.|
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