Cyclists injured on a bike path after running into a downed tree, could not recover because the association that assisted in taking care of the bike path owed no duty to the cyclists.

If there is no duty, there is no liability. Always check to make sure there really is a duty owed to someone before you start to claim or defend negligence actions.

Citation: DeLamar v. Fort Worth Mt. Biker’s Ass’n, 2019 Tex. App. LEXIS 466, 2019 Tex. App. LEXIS 466, 2019 WL 311517

State: Texas; Court of Appeals of Texas, Second District, Fort Worth

Plaintiff: Norman Delamar

Defendant: Fort Worth Mountain Biker’s Association

Plaintiff Claims: general negligence and gross negligence

Defendant Defenses: No Duty

Holding: For the Defendants

Year: 2019

Summary

City parks had an agreement with the local cycling group to assist in keeping the bike pats in good shape. The ultimate responsibility for the bike paths was still held by the city. An injured cyclist who ran into a downed tree could not sue the cycling group because they owed no duty to the cyclists because the association did not have the authority from the city and did not accept a duty with the agreement with the city.

Facts

On July 12, 2014, Norman was riding his mountain bike on a trail in Gateway, a park owned by the City, when he came upon a downed tree resting across the trail at head level. Although known to be a “really good rider,” Norman asserts that because he did not have time to stop or avoid the tree, the tree “clotheslined” his head and neck and knocked him off of his bicycle, causing him injuries.

Norman sued the City, asserting claims of general negligence and gross negligence. In a single pleading, the City filed an answer and identified the Association as a responsible third party because of an “Adopt-A-Park Agreement” (Contract) that made the Association “responsible for constructing and maintaining the bike trail in question.” Norman then amended his petition and added the Association as a defendant in the suit.

The city’s contract with the association outlined things the association was to do to assist the city in keeping the trail available and generally covered trail maintenance. The city did not give up its right to control and manage the park where the trails were located.

The trial court dismissed the plaintiff’s claims, and this appeal ensued.

Analysis: making sense of the law based on these facts.

The first issue the court reviewed was this, a negligence claim or a premises liability claim.

Although premises liability is a form of negligence, “[n]egligence and premises liability claims . . . are separate and distinct theories of recovery, requiring plaintiffs to prove different, albeit similar, elements to secure judgment in their favor.”

The differences are subtle, but:

To prevail on a premises-liability claim, a plaintiff must prove (1) actual or constructive knowledge of some condition on the premises by the owner; (2) that the condition posed an unreasonable risk of harm; (3) that the owner did not exercise reasonable care to reduce or eliminate the risk; and (4) that the owner’s failure to use such care proximately caused the plaintiff’s injuries, whereas under the common law doctrine of negligence, a plaintiff must prove (1) a legal duty owed by one person to another; (2) a breach of that duty; and (3) damages proximately resulting from the breach.

The difference is, one is based on the actions of the defendant, and the other is based on a condition of the land.

While, theoretically, a litigant may maintain causes of action for both general negligence and premises liability, to be viable, the general negligence theory of recovery must be based not upon an injury resulting from the condition of the property, but upon the defendant’s contemporaneous activity. (analyzing claimant’s negligence and premises liability claims together). If the injury is one caused by a premises defect, rather than a defendant’s contemporaneous activity, a plaintiff cannot circumvent the true nature of the premises defect claim by pleading it as one for general negligence.

As similar as they may appear to be, you cannot recover on the same set of facts for both a negligence action and a premise’s liability action. Even the court stated understanding the differences could be “tricky.”

The trial court and appellate court found the plaintiff’s claims sounded in premise’s liability.

However, the court went on to discuss the plaintiff’s allegations that his claim was a negligence claim. The issue was whether the association had a legal duty to the plaintiff.

The question of legal duty is a “multifaceted issue” requiring courts to balance a number of factors such as the risk and foreseeability of injury, the social utility of the actor’s conduct, the consequences of imposing the burden on the actor, and any other relevant competing individual and social interests implicated by the facts of the case. “Although the formulation and emphasis varies with the facts of each case, three categories of factors have emerged: (1) the relationship between the parties; (2) the reasonable foreseeability of harm to the person injured; and (3) public policy considerations.”

Of the three, foreseeability as the dominant consideration, but not the sole consideration the court must review. Foreseeability alone is not sufficient to create a duty. “Foreseeability means that a person who possesses ordinary intelligence should have anticipated the danger that his negligent act would create for others.”

Although the association had some contractual responsibility for the trails, there was nothing the association could do about the trees. Only the city had the use of the chainsaws, and only the city could determine if a tree could be removed and then remove it.

And although it was foreseeable, a tree could fall on the trail; the issue required more analysis than that. The bike path was surrounded by thousands of trees. The plaintiff had ridden that path just two days earlier and admitted that the tree could have fallen two hours before he hit it. Although a tree falling was foreseeable, it was outside of the scope of something that you can do anything about, and on top of that the association had no authority to do anything about trees.

Finally, the agreement between the city and the association said nothing about the association agreeing to assume a legal duty to maintain the safety of the trails.

Based on our de novo review of the record, we hold that Norman failed to establish that the Association owed him a legal duty to protect him from the downed tree across the trail that the Association did not cause to fall, that may have fallen only hours-but no later than a day or two-before Norman struck it, and that the Association was not even authorized to unilaterally remove.

Because there could be no gross negligence if there was no general negligence, the plaintiffs gross and ordinary negligence claims were dismissed.

So Now What?

Foreseeability is a good thing for non-lawyers running a business or program to understand. Are your actions or inactions going to create a danger to someone.

The case does not state whether the city had any liability to the plaintiff, only the issues discussed in this decision were between the plaintiff and the defendant association.

More importantly, the court looked at trees falling as something that no one could really control. It was not liked anyone, the association or the city could come close to identifying trees that may fall in parks.

What do you think? Leave a comment.

Copyright 2019 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn




If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

By Recreation Law    Rec-law@recreation-law.com    James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,

trail, summary judgment, general negligence, premises liability, premises, trial court, legal duty, no evidence, summary judgment motion, pet, hearsay, grant summary judgment, premises liability theory, mountain bike, balancing, nonmovant, falling, dangerous condition, gross negligence, negligence claim, downed tree, contemporaneous, foreseeability, factors, cause of action, yacht club, scintilla, injuries, bicycle, cases


DeLamar v. Fort Worth Mt. Biker’s Ass’n, 2019 Tex. App. LEXIS 466

DeLamar v. Fort Worth Mt. Biker’s Ass’n, 2019 Tex. App. LEXIS 466

Norman Delamar, Appellant

v.

Fort Worth Mountain Biker’s Association, Appellee

No. 02-17-00404-CV

Court of Appeals of Texas, Second District, Fort Worth

January 24, 2019

On Appeal from the 348th District Court Tarrant County, Texas Trial Court No. 348-283758-16

Before Sudderth, C.J.; Gabriel and Pittman, JJ.

MEMORANDUM OPINION

Bonnie Sudderth, Chief Justice.

I. Introduction

Appellant Norman DeLamar filed the underlying lawsuit against Appellee Fort Worth Mountain Biker’s Association (the Association) to recover for injuries he sustained when he was knocked off of his mountain bike after he struck a downed tree across a mountain bike trail at Gateway Park (Gateway). Norman claimed that the Association was negligent in failing to properly maintain a safe mountain bike trail as purportedly required by its contractual agreement with the City of Fort Worth (City). The trial court granted summary judgment on Norman’s claims against the Association. We will affirm.

II. Background

On July 12, 2014, Norman was riding his mountain bike on a trail in Gateway, a park owned by the City, when he came upon a downed tree resting across the trail at head level. Although known to be a “really good rider,” Norman asserts that because he did not have time to stop or avoid the tree, the tree “clotheslined” his head and neck and knocked him off of his bicycle, causing him injuries.

Norman sued the City, asserting claims of general negligence and gross negligence. In a single pleading, the City filed an answer and identified the Association as a responsible third party because of an “Adopt-A-Park Agreement” (Contract) that made the Association “responsible for constructing and maintaining the bike trail in question.” Norman then amended his petition and added the Association as a defendant in the suit.[1] Norman asserted that through the Contract, the Association agreed to “assume responsibility for maintenance, construction and safety of the trails,” and as such owed “a duty to protect the general public from dangerous conditions such as falling trees.” Norman claimed that the Association had breached this alleged duty by

• failing to make any effort to ensure that the trees alongside of the bicycle trail were not a danger to cyclists;

• failing to implement any sort of safety procedure with respect to the danger of falling trees in high bicycle (and pedestrian) traffic areas;

• failing to maintain the trails to prevent dangerous conditions from occurring despite knowing the dangers associated with cycling;

• failing to provide cyclists with adequate safeguards, or any safeguards at all, to prevent dangerous conditions from occurring; and

• consciously disregarding the heath of the trees and the danger that they pose.

The Contract provides that the Association “shall perform all work and services hereunder as an independent contractor . . . . [and] shall have exclusive control of, and the exclusive right to control the details of the work performed hereunder[.]” The Contract specifically provides that the Association “shall, at its sole cost and expense, construct and maintain the Trails in accordance with [the] Agreement,” and it defines “trail maintenance” as including, but not limited to, “repairing, replacing, and rebuilding trails or sections of trails that are eroding or in disrepair; pruning of trees; [and] removal of brush[.]” However, the Contract prohibits the Association from “trimming and pruning, until written approval is obtained from the Director [of the Parks and Community Services Department],” and from “remov[ing] any tree without prior written permission from the City Forester.” [Emphasis added.] Finally, the Contract expressly reserves the City’s right to control and access all portions of Gateway: “The City does not relinquish the right to control the management of the Parks, or the right to enforce all necessary and proper rules for the management and operation of the same. The City . . . has the right at any time to enter any portion of the Parks[.]”

The Association answered and then filed a no-evidence and traditional motion for summary judgment. In its motion, the Association asserted that there was no evidence that

• the Association was negligent as it owed Norman no duty with respect to the condition of the premises; or

• the Association owed a duty to keep the premises in reasonably safe condition, inspect the premise to discover any defects, or to make safe any defect or give an adequate warning of any dangers.

Although the Association clearly challenged the existence of any legal duty it owed to Norman, the Association’s motion primarily argued that Norman’s claim sounded in premises liability rather than general negligence and that he could not artfully plead a general negligence claim when his injuries were caused by a premises defect. Norman filed a response and attached, inter alia, a short affidavit and an expert report from an arborist, Matthew Clemons. In his response, Norman appeared to adopt the Association’s characterization of his claim as one for premises liability and in doing so focused on his status, arguing that he was an invitee. Indeed, Norman’s “Conclusion” sought denial of the summary judgment motions because there was “more than enough credible evidence to find that the [Association] is liable under a premises liability theory for this incident[.]” [Emphasis added.] The Association filed a reply and objected to the expert report from Clemons as inadmissible hearsay.

Following the hearing on the Association’s no evidence and traditional motions for summary judgment, the trial court requested letter briefs and took the matter under advisement. In his letter brief, Norman altered his prior position and for the first time asserted that the Association’s summary judgment theory was flawed because his suit against the Association was based on a general negligence theory, not a premises liability theory. The trial court signed an order sustaining the Association’s objections to Clemons’s expert report and a separate order granting the Association’s no evidence and traditional motions for summary judgment.

On appeal, Norman contends the trial court erred by construing his claim as one for premises liability rather than general negligence and abused its discretion by sustaining the Association’s hearsay objection to Clemons’s report.

III. Norman’s Negligence Claim

A. Standard of Review

The movant for traditional summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). A defendant who conclusively negates at least one essential element of the nonmovant’s cause of action is entitled to summary judgment as to that cause of action. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Once the movant has established a right to summary judgment, the nonmovant has the burden to respond to the motion and present to the trial court any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979). The only question is whether an issue of material fact is presented. See Tex. R. Civ. P. 166a(c).

After an adequate time for discovery, a party without the burden of proof at trial may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense. See Tex. R. Civ. P. 166a(i). Once a no evidence motion has been filed in accordance with Rule 166a(i), the burden shifts to the nonmovant to bring forth evidence that raises a fact issue on the challenged evidence. See Macias v. Fiesta Mart, Inc., 988 S.W.2d 316, 317 (Tex. App.-Houston [1st Dist.] 1999, no pet.). We review a no evidence motion for summary judgment under the same legal sufficiency standards as a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). A no evidence motion is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the nonmovant’s claim on which the nonmovant would have the burden of proof at trial. See id. at 751. If the evidence supporting a finding rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions, then more than a scintilla of evidence exists. Id. A mere scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact, and the legal effect is that there is no evidence. See id.

When reviewing traditional and no evidence summary judgments, we perform a de novo review of the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion. See Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006); KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). We are not required to ascertain the credibility of affiants or to determine the weight of evidence in the affidavits, depositions, exhibits and other summary judgment proof. See Gulbenkian v. Penn, 252 S.W.2d 929, 932 (Tex. 1952); Palestine Herald-Press Co. v. Zimmer, 257 S.W.3d 504, 508 (Tex. App.-Tyler 2008, pet. denied).

All grounds in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court. See Tex. R. Civ. P. 166a(c). “When a trial court’s order granting summary judgment does not specify the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious.” State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).

When a party moves for both a traditional and a no evidence summary judgment, we generally first review the trial court’s summary judgment under the no evidence standard of Rule 166a(i). See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the no evidence summary judgment was properly granted, we need not reach arguments under the traditional motion for summary judgment. See id.

B. General Negligence vs. Premises Liability Theories of Recovery

Although premises liability is a form of negligence, “[n]egligence and premises liability claims . . . are separate and distinct theories of recovery, requiring plaintiffs to prove different, albeit similar, elements to secure judgment in their favor.” United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 471 (Tex. 2017); Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 529 (Tex. 1997) (stating that “[b]ecause premises defect cases and negligent activity cases are based on independent theories of recovery, a simple negligence [jury] question . . . cannot support a recovery in a premises defect case”); E.I. DuPont de Nemours & Co. v. Roye, 447 S.W.3d 48, 57-58 (Tex. App.-Houston [14th Dist.] 2014, pet. dism’d) (“Because [claimant] was limited to a premises liability theory of recovery, . . . the trial court erred when it submitted an ordinary negligence cause of action against [appellant] to the jury. . . . Accordingly, the jury’s finding that [appellant] was negligent is immaterial and cannot support a judgment against [appellant].”). As our sister court has explained, premises liability is a “special form of negligence in which the duty owed to the plaintiff depends upon the plaintiff’s status on the premises at the time of the incident.” Wyckoff v. George C. Fuller Contracting Co., 357 S.W.3d 157, 163-64 (Tex. App.-Dallas 2011, no pet.) (citing Scott & White Mem’l Hosp. v. Fair, 310 S.W.3d 411, 412 (Tex. 2010)).[2]

While, theoretically, a litigant may maintain causes of action for both general negligence and premises liability, to be viable, the general negligence theory of recovery must be based not upon an injury resulting from the condition of the property, but upon the defendant’s contemporaneous activity. See Mangham v. YMCA of Austin, Texas-Hays Comtys., 408 S.W.3d 923, 929 (Tex. App.-Austin 2013, no pet.); see also W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005) (analyzing claimant’s negligence and premises liability claims together). If the injury is one caused by a premises defect, rather than a defendant’s contemporaneous activity, a plaintiff cannot circumvent the true nature of the premises defect claim by pleading it as one for general negligence. Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 389 (Tex. 2016).

Because the lines between negligent activity and premises liability are “sometimes unclear,” Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010), determining whether a claim is one for a premises defect or general negligence “can be tricky.” Austin v. Kroger Tex. L.P., 746 F.3d 191, 196 (5th Cir. 2014), certified question answered, 465 S.W.3d 193 (Tex. 2015). The policy undergirding this distinction is that negligence encompasses a malfeasance theory based on affirmative, contemporaneous conduct that caused the injury, whereas premises liability encompasses a nonfeasance theory based on the owner’s failure to take measures to make the property safe. See Del Lago Partners, 307 S.W.3d at 776; Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex. 1998) (explaining negligent activity concerns “simply doing or failing to do what a person of ordinary prudence in the same or similar circumstances would have not done or done” while premises liability concerns the “failure to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner or occupier [of land] knows about or in the exercise of ordinary care should know about” and quoting Keetch v. Kroger Co., 845 S.W.2d 262, 266-67 (Tex. 1992)).

C. Discussion

In his first issue, Norman argues that the trial court erred by granting summary judgment on a premises liability theory when his claims sounded in general negligence: “The Association characterized [my] lawsuit against it as one for premises liability. This argument is flawed because the Association was not the possessor of the premises when [I] was injured[.]” Norman argues that his “petition is fairly constructed as advancing an ordinary negligence claim” because he pleaded that the Association is liable for “failing to employ any procedure to ensure safety from falling trees, and for failing to maintain a safe bike path and the trees along it.” The Association responds that regardless of how Norman pleaded his claim, he is limited to a premises liability theory of recovery because Norman was injured by an unsafe or dangerous condition on the premises-not by contemporaneous negligent activity.[3]

1. Summary Judgment was Not Granted on an Unaddressed Claim Because the Association’s Motion for Summary Judgment Challenged the Existence of a Legal Duty

As a preliminary matter, we consider Norman’s contention that the trial court improperly granted summary judgment on his negligence claim when the Association’s motion for summary judgment actually addressed only an unpleaded premises-liability claim. See Chessher v. Sw. Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983) (stating it is reversible error to grant summary judgment on a claim not addressed in the motion). Three of our sister courts have addressed similar instances in which defendants filed summary judgment motions on the theory that the plaintiff had impermissibly pleaded a premises defect claim as a general negligence claim. See Griffin v. Shell Oil Co., 401 S.W.3d 150 (Tex. App.-Houston [1st Dist.] 2011, pet. denied); Somoza v. Rough Hollow Yacht Club, Ltd., No. 03-09-00308-CV, 2010 WL 2867372, at *4 (Tex. App.-Austin July 20, 2010, no pet.) (mem. op.); Kalinchuk v. JP Sanchez Construction Co., No. 04-15-00537-CV, 2016 WL 4376628, at *3 (Tex. App.- San Antonio Aug. 17, 2016, no pet.) (mem. op.).

In Griffin, the First District Court of Appeals considered whether “the trial court erred in granting summary judgment in favor of Shell and CH2M on his negligent-activity claims because neither Shell nor CH2M sought summary judgment on these claims.” 401 S.W.3d at 157. After stating that a trial court errs by granting more relief requested by disposing of issues not presented to it in the summary judgment motion, the First court analyzed each defendant’s summary-judgment motion and held that based “upon the plain language,” the defendants sought summary judgment “only on [appellant’s] premises-defect claim” and not his negligent activity claim. Id. at 158-59. Thus, the First court reversed summary judgment on appellant’s negligence claim and remanded the case. Id. The First court did note, however, that “[a] legal duty must be established in order for [appellant] to ultimately recover on his negligent-activity claim[, ]” id. at 163 n.4, thus signaling its concern over the viability of appellant’s negligence claim.

In Somoza, the plaintiff had been injured while operating a jet ski when he allegedly ran into a partially submerged steel cable tethered to a floating dock, near the marina owned and operated by a yacht club. Somoza, 2010 WL 2867372, at *1. He filed suit against the yacht club and alleged negligence and premises liability claims. Id. The yacht club filed a hybrid no evidence and traditional motion for summary judgment, asserting, in part, that the plaintiff “has no claim for general negligence . . . because his negligence claim sounds solely in premises liability,” and that the plaintiff has “produced no evidence of the essential elements of duty, breach, or proximate cause.” Id. The trial court granted the motion.

On appeal, the Third District Court of Appeals considered the plaintiff’s contention that the trial court improperly granted summary judgment on his general negligence claim. Id. at *4. The Third court “assum[ed] without deciding that [the plaintiff] could bring a claim for general negligence despite his failure to allege injury resulting from any contemporaneous activity by the Yacht Club” and nevertheless concluded that “he has still failed to establish the existence of a duty to support a claim in negligence.” Id. at *5.

In Kalinchuk, the plaintiff filed a lawsuit against his putative employer for negligence and gross negligence after he was injured at a baseball field renovation site by a section of bleachers that fell on him. 2016 WL 4376628, at *1. The employer moved for traditional and no evidence summary judgment, and alleged, inter alia, that the plaintiff did not have more than a scintilla of evidence to establish the existence of a legal duty. Id. In its motion, the employer relied on cases involving premises liability claims and asserted that the plaintiff purported to state a claim for negligence when his claim was “actually based on the theory of premises liability because he [sought] to recover for an injury allegedly created by a condition on the premises rather than for an injury created as a result of an activity.” Id. at *3. The plaintiff responded that the employer owed him a common law duty to exercise reasonable care and avoid a foreseeable risk of harm. Id. The trial court granted summary judgment. Id.

On appeal, the Fourth District Court of Appeals reasoned that “[w]hether [plaintiff’s] claim is a claim for negligence as he argues or a premises liability claim as [employer] contends, the question of whether a duty exists remains the same in that it requires a balancing of interrelated factors that make up the risk-utility balancing test.” Id. After applying the risk-utility balancing test to the facts of the case, the Fourth court concluded that the plaintiff had “failed to produce a scintilla of evidence creating a fact issue to support the existence of [a] legal duty owed to him by [the employer.]” Id. at *3-4.

We do not quarrel with the First court’s strict approach in refusing to read into the summary judgment motion a ground that was not clearly articulated. However, we view the approach by the Third and Fourth courts as allowing for a more expedient disposition while maintaining fidelity to Rule 166a(c)’s requirement that summary judgment motions “state the specific grounds therefor.” Tex.R.Civ.P. 166a(c); Somoza, 2010 WL 2867372, at *5; Kalinchuk, 2016 WL 4376628, at *3-4.

The existence of a legal duty is a threshold issue generally decided as a matter of law. Fort Bend Cty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 395 (Tex. 1991). And even assuming under these facts that Norman could bring a claim for general negligence, the Association in its motion for summary judgment challenged the existence of a legal duty owed to him regarding the downed tree and maintenance of trail safety regardless of whether the duty arose under a premises liability theory based on Norman’s status at the time of the injury or a general negligence theory balancing test.[4] See Kalinchuk, 2016 WL 4376628, at *3-4 (explaining whether the plaintiff’s claim is a claim for negligence as he argued or a premises liability claim as the defendant contended, “the question of whether a duty exists remains the same in that it requires a balancing of interrelated factors that make up the risk-utility balancing test”); cf. Del Lago Partners, 307 S.W.3d at 767 (applying risk-utility balancing factors to determine duty in premises liability case); Wyckoff, 357 S.W.3d at 164 (“General negligence principles apply to a contractor who has left [a] premises in an unsafe condition.”). Therefore, because the summary judgment motion fairly challenged the existence of a legal duty, we reject Norman’s contention that the trial court erred by granting the motion on an unchallenged ground, and we now analyze whether the Association owed Norman a legal duty under a general negligence theory.

2. No Legal Duty Under a General Negligence Theory

The question of legal duty is a “multifaceted issue” requiring courts to balance a number of factors such as the risk and foreseeability of injury, the social utility of the actor’s conduct, the consequences of imposing the burden on the actor, and any other relevant competing individual and social interests implicated by the facts of the case. Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 33 (Tex. 2002). “Although the formulation and emphasis varies with the facts of each case, three categories of factors have emerged: (1) the relationship between the parties; (2) the reasonable foreseeability of harm to the person injured; and (3) public policy considerations.” Id. at 34. Of these factors, the Supreme Court of Texas has identified “foreseeability as the ‘foremost and dominant consideration’ in the duty analysis.” Id. at 36 (quoting El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987)). “Foreseeability means that a person who possesses ordinary intelligence should have anticipated the danger that his negligent act would create for others.” Midwest Emp’rs Cas. Co. ex rel. English v. Harpole, 293 S.W.3d 770, 779 (Tex. App.-San Antonio 2009, no pet.). However, foreseeability alone is not sufficient to impose a duty. Id.

Here, Norman pleaded that the Association contractually assumed “responsibility for maintenance, construction and safety of the trails,” and as such, owed a duty to “protect the general public from dangerous conditions[.]” The record, which contains the Contract and deposition excerpts, evidences the Association’s agreement to, and exercise of, some limited control over the construction and maintenance of Gateway’s bike trails by having monthly meetings to discuss maintenance issues and by building trails in the months between May and October. The summary judgment evidence also provided that the Association holds an annual work day in June to make sure the trails are in “tiptop shape” for their annual “fat tire festival.” This workday consists of going through the entire trail to look for places that needed to be trimmed or pruned.

Lawrence “Larry” Colvin, the Association’s president at the time of Norman’s crash, testified that during the monthly meetings, the Association’s members discussed safety of the trees in general as well as identified certain problem trees to City employees who “were the only ones that [could] operate the chainsaws.” Larry also testified that the Association had once asked the City to close the trail because of “so many trees down,” but that the City refused. Larry testified that the Association worked with Melinda Adams, an “urban forester” with the City, who “[took] a look at the trees.” Although Larry acknowledged that the Association had no “tree safety plan” and had never consulted an arborist, he concluded that even retaining a certified arborist to walk Gateway once a week would still not prevent falling trees in a park “hundreds of thousands of trees.”

Larry’s testimony concerning the existence of “hundreds of thousands of trees” along the mountain bike trail provided proof that the danger of a falling tree was plausible. And in his deposition, Larry acknowledged that the likelihood of falling trees would increase in “an unprecedented drought like we were in in 2014”-the year of Norman’s injury.

However, Norman testified in his deposition that he had ridden the same trail “no more [than] two days” earlier and that he had not seen the downed tree, so it was possible that the tree had fallen only a day or two before his crash. Indeed, Norman conceded that it was possible that the tree could have actually fallen only a few hours before his crash. Moreover, the Contract expressly prohibits the Association from pruning trees without the Director’s prior written approval and expressly prohibits the Association from removing any tree without prior written permission from the Forester. Norman does not direct us to any part of the Contract showing that the Association had agreed to assume a legal duty to maintain the safety of the trails for the general public.

Based on our de novo review of the record, we hold that Norman failed to establish that the Association owed him a legal duty to protect him from the downed tree across the trail that the Association did not cause to fall, that may have fallen only hours-but no later than a day or two-before Norman struck it, and that the Association was not even authorized to unilaterally remove.[5] See Felts v. Bluebonnet Elec. Coop., Inc., 972 S.W.2d 166, 169 (Tex. App.-Austin 1998, no pet.) (rejecting complainant’s argument that an electrical co-op’s tree-trimming agreement creating a limited right to trim or clear trees for the purpose of protecting its power lines “created a broader duty to maintain the area for the protection of the general public traveling on the nearby county road”); Jacobs-Cathey Co. v. Cockrum, 947 S.W.2d 288, 292 (Tex. App.-Waco 1997, writ denied) (holding that “a defendant’s policy to remedy dangerous conditions he may come across does not impose a legal duty on him to these third parties” and that a defendant bears “no common law duty to remove debris . . . that was left by some other party”); see also J.P. Morgan Chase Bank, N.A. v. Tex. Contract Carpet, Inc., 302 S.W.3d 515, 530-32 (Tex. App.-Austin 2009, no pet.) (holding a contractual agreement did not create a legal duty to a third party when the contractual benefit to the third party was not clearly intended by the contract and was merely incidental to the agreement).

Therefore, the trial court did not err by granting summary judgment on Norman’s negligence and gross negligence claims. See Gonzalez v. VATR Constr., LLC, 418 S.W.3d 777, 789 (Tex. App.-Dallas 2013, no pet.) (holding that because summary judgment was proper on negligence claim, it was also proper on gross negligence claim). We overrule Norman’s first issue.

IV. Norman’s Excluded Summary Judgment Evidence

Norman’s second issue challenges the trial court’s decision to sustain the Association’s hearsay objection and strike Matthew Clemons’s report. Norman’s contention is that because he submitted an affidavit from Clemons in which Clemons swore that the attached report was a true and correct copy of the report that he had personally prepared, the report was authenticated, “which overcomes the hearsay problem.” The Association responds that Norman misunderstands its objection, which was that the report was inadmissible hearsay, not that it was not properly authenticated.

A. Standard of Review

A trial court’s rulings on the admissibility of evidence are reviewable under an abuse of discretion standard. Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 347 (Tex. 2015). An appellate court must uphold the trial court’s evidentiary ruling if there is any legitimate basis in the record for the ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court’s discretion in determining whether an expert is qualified to testify on a matter is broad but not unbounded. In re Commitment of Bohannan, 388 S.W.3d 296, 307 (Tex. 2012). A trial court abuses its discretion by excluding expert testimony if the testimony is relevant to the issues in the case and is based on a reliable foundation. Id.; State v. Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009) (op. on reh’g).

B. Analysis

Norman attached a short affidavit from Matthew Clemons which stated, in relevant part, as follows:

I certify that the ‘Initial Assessment of Tree Conditions; Gateway Park Mountain Bike Trail’ was prepared on March 21, 2017 for Jackson Davis regarding Norman DeLamar’s bicycle incident, which is attached as an Exhibit to Plaintiff’s Response to Fort Worth Biker’s Association Traditional and No Evidence Motions for Summary Judgment, is a true and correct copy of the report which I personally prepared and provided Mr. Davis.

The March 21, 2017 letter was attached to Norman’s summary judgment response as Exhibit D.

The Association asserts that Clemons’s affidavit (which was not objected to), may authenticate the attached report, but it does not remove the report from the ambit of hearsay. We agree. See Tex. R. Evid. 801, 802; cf. Petty v. Children’s WorldLearning Ctrs., Inc., No. 05-94-00998-CV, 1995 WL 379522, at *5 (Tex. App.-Dallas May 31, 1995, writ denied) (explaining that “[a]uthenticity is separate and apart from qualification as an exception under the hearsay rule”). Further, the report does not obviously fall within any of the exclusions from hearsay (Tex. R. Evid. 801(e)) or exceptions to the rule against hearsay (Tex. R. Evid. 803)-indeed, Norman does not assert any exclusion or exception.

Accordingly, we hold that the court did not abuse its discretion by sustaining the Association’s hearsay objection to Clemons’s report, and we overrule Norman’s second issue.

V. Conclusion

Having held that the trial court did not err by granting summary judgment on Norman’s negligence and gross negligence claims and that the trial court did not abuse its discretion by excluding Norman’s expert’s report as inadmissible hearsay, we affirm the trial court’s judgment.

—–

Notes:

[1]Norman’s suit against the Association for negligence and gross negligence was eventually severed from his suit against the City.

[2]To prevail on a premises-liability claim, a plaintiff must prove (1) actual or constructive knowledge of some condition on the premises by the owner; (2) that the condition posed an unreasonable risk of harm; (3) that the owner did not exercise reasonable care to reduce or eliminate the risk; and (4) that the owner’s failure to use such care proximately caused the plaintiff’s injuries, Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998), whereas under the common law doctrine of negligence, a plaintiff must prove (1) a legal duty owed by one person to another; (2) a breach of that duty; and (3) damages proximately resulting from the breach. Helbing v. Hunt, 402 S.W.3d 699, 702 (Tex. App.-Houston [1st Dist.] 2012, pet. denied).

[3]The Association asserts it is a “non-possessory interest holder” which is “the legal equivalent of the occupier” of the bike trail portion of Gateway. Put differently, the Association contends it has rights akin to that of an easement holder. See Brookshire Katy Drainage Dist. v. Lily Gardens, LLC, 333 S.W.3d 301, 309 (Tex. App.- Houston [1st Dist.] 2010, pet. denied) (“[A]n easement is a nonpossessory interest in another’s property that authorizes its holder to use that property for a particular purpose.”).

[4]Although we do not reach the issue, we believe that Norman’s claim sounds in premises liability in any event. See United Scaffolding, 537 S.W.3d at 472 (“We have recognized that slip/trip-and-fall cases have consistently been treated as premises defect causes of action. In such cases, the plaintiff alleges injury as a result of a physical condition or defect left on the premises, not as a contemporaneous result of someone’s negligence.” (internal citation and quotation marks omitted)); Sampson, 500 S.W.3d at 389-90 (citing Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113 (Tex. 2010) (per curiam), a case with injuries caused by a bicycle crash after the cyclist ran over a metal chain stretched across a college campus driveway as illustrating a “quintessential premises defect claim”); Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 230 (Tex. 2004) (concluding that the “allegation of an injury caused by a tree limb falling on [plaintiff] constitutes an allegation of a condition or use of real property and is an allegation of a premises defect”).

[5]Norman also does not persuade us that we should create a legal duty regarding the downed tree and trail safety based on public policy considerations. See Kalinchuk, 2016 WL 4376628, at *4. Indeed, public policy considerations weigh heavily against imposing such a legal duty on what is essentially a group of volunteer mountain bike enthusiasts who have been granted such limited oversight over the safety of the bike trails, if any.

trail, summary judgment, general negligence, premises liability, premises, trial court, legal duty, no evidence, summary judgment motion, pet, hearsay, grant summary judgment, premises liability theory, mountain bike, balancing, nonmovant, falling, dangerous condition, gross negligence, negligence claim, downed tree, contemporaneous, foreseeability, factors, cause of action, yacht club, scintilla, injuries, bicycle, cases


Texas appellate court allows a release to stop a gross negligence claim.

If you have a clause in your release that says, “except gross negligence” or something like that get rid of it. Why teach the plaintiff’s how to beat you, besides, you may win, which is what happened in this case.

Citation: Quiroz v. Jumpstreet8, Inc., et. al., 2018 Tex. App. LEXIS 5107

State: Texas: Court of Appeals of Texas, Fifth District, Dallas

Plaintiff: Graciela Quiroz, individually, A/N/F of XXXX (“JOHN DOE 1”) and XXXX (“JOHN DOE 2”), Minors, and Robert Sullivan, Individually

Defendant: Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc.

Plaintiff Claims: Negligence and Gross Negligence

Defendant Defenses: Release

Holding: For the Defendant

Year: 2018

Summary

Plaintiff injured her back attempting to do a back flip on a trampoline at the defendant’s facility rendering her a paraplegic. She sued for her injuries claiming negligence and gross negligence. The court found the release stopped the plaintiff’s claims for negligence and gross negligence.

Facts

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.

The trial court granted the defendant’s motion for summary judgment based on the release and denied the plaintiff’s cross motion for summary judgment. The plaintiff appealed.

Analysis: making sense of the law based on these facts.

The issue for the appellate court was whether or not the motion for summary judgment granted for the defendant, and the cross motion for the plaintiff that was denied were done so correctly. Should a release bar a claim for negligence and gross negligence under Texas law.

Release law in Texas appears to be quite specific.

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.

To win Jumpstreet only had to show the fair notice requirement of the law was met.

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.

The fair notice requirement under Texas law requires the release language to be clear, unambiguous and within the four corners of the contract.

The express negligence rule is not an affirmative defense, but it is a rule of contract interpretation. 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.

The issue the court focused on was the claim the plaintiff originally made that the defendant identified in the release was not the defendant who owned and operated the facility where she was injured. The original defendant was an LLC and had been dissolved, and a new LLC had taken its’ place. The release was not updated to show these changes.

In many states, this would have been a fatal flaw for the defendant.

The court found the defendants were owned and run by the same brothers and were the same for the purposes of this lawsuit. The new LLC replaced the old LLC and was covered by the release.

The court then looked at the release and pointed out the reasons why the release was going to be supported.

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. 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. Furthermore, 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.

The plaintiff then argued the release was void because a release under Texas law cannot waive the claims of a minor when signed by a parent. The court agreed. However, since the child was not the injured plaintiff, it did not matter.

The court did look at the issue of whether or not a parent could sign away a minor’s right to sue. The court held the minor could still sue; however, a release signed by the parent would bar all the derivative claims based on the claims of the minor child. That means all claims by the parents, loss of consortium, etc., would be barred by the release. Only the claims of the minor child would survive.

The court then looked at whether a release could stop a claim for gross negligence. The court found that the decision had not been reviewed by the Texas Supreme Court and there was a mix of decisions in Texas regarding that issue.

The Texas courts that have allowed a release to top a gross negligence claim have held there is no difference between negligence and gross negligence under Texas law. The court went on to read the release and found the release in question had language that prevented claims for negligence and gross negligence. Therefore, the gross negligence claim was waived.

The Release met both the fair notice requirement for conspicuousness and the express negligence rule. It was, thus, enforceable. As a result, Jumpstreet met its burden of establishing it was entitled to summary judgment as a matter of law.

The release said it stopped claims for Gross Negligence and the Court agreed.

The defendant one because they had a well-written release that was easy to see and understand and said you can’t sue the defendant for negligence or gross negligence.

So Now What?

This is a first. A release was used to stop a gross negligence claim that was not based on a failure of the plaintiff to allege facts that were gross negligence. The release said it was effective against claims for negligence and gross negligence, and the court agreed.

Unless your state has specific statements were putting gross negligence in a release may void your release, or your supreme Court has specifically said a release cannot protect against gross negligence claims, you may want to add that phrase to your release.

No matter what, GET RID of clauses in your release that state the release is valid against all claims EXCEPT gross negligence. It is just stupid to put that in a release unless you have a legal system that requires it.

Putting that information into your release just tells the plaintiff and/or their attorney how to beat you. Don’t help the person trying to sue you!

Second, you never know; it may work. It did in this case in Texas.

What do you think? Leave a comment.

Copyright 2019 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn

   

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

Word Count: 166

By Recreation Law    Rec-law@recreation-law.com    James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,

gross negligence, entities, public policy, waive, summary judgment motion, summary judgment, partial summary judgment, trial court, cause of action, matter of law, fair notice, pet, negligence rule, conspicuousness, cross-motion, consortium, pre-injury, assumption of risk, trampoline, bystander, lettering, argues


Quiroz v. Jumpstreet8, Inc., et. al., 2018 Tex. App. LEXIS 5107

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

No. 05-17-00948-CV

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. [1]

MEMORANDUM OPINION

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.

Background

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.

Issue Presented

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.

Applicable 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.

Discussion

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.[2] 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.

Conclusion

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.

—–

Notes:

[1] The Hon. Michael J. O’Neill, Justice, Assigned

[2] 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.

gross negligence, entities, public policy, waive, summary judgment motion, summary judgment, partial summary judgment, trial court, cause of action, matter of law, fair notice, pet, negligence rule, conspicuousness, cross-motion, consortium, pre-injury, assumption of risk, trampoline, bystander, lettering, argues


Texas appellate court upholds release for claims of gross negligence in trampoline accident that left plaintiff a paraplegic.

However, the decision is not reasoned and supported in Texas by other decisions or the Texas Supreme Court.

Quiroz et. al. v. Jumpstreet8, Inc., et. al., 2018 Tex. App. LEXIS 5107

State: Texas, Court of Appeals of Texas, Fifth District, Dallas

Plaintiff: 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”)

Defendant: Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc.

Plaintiff Claims: 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.

Defendant Defenses: Release

Holding: for the Defendant

Year: 2018

Summary

Adult paralyzed in a trampoline facility sues for her injuries. The release she signed before entering stopped all of her claims, including her claim for gross negligence.

However, the reasoning behind the support for the release to stop the gross negligence claim was not in the decision, so this is a tenuous decision at best.

Facts

The plaintiff and her sixteen-year-old son went to the defendant’s business. Before entering she signed a release. While on a trampoline, the plaintiff attempted to do a back flip, landed on her head and was rendered a paraplegic from the waist down.

The plaintiff sued on her behalf and on behalf of her minor. Her claim was a simple tort claim for negligence. Her children’s claims were based on the loss of parental consortium and under Texas law bystander claims for seeing the accident or seeing their mother suffer. The plaintiff’s husband also joined in the lawsuit later for his loss of consortium claims.

The defendant filed a motion for summary judgment which the trial court granted and the plaintiff appealed.

Analysis: making sense of the law based on these facts.

The original entity named on the release was a corporation that was no longer in existence. Several successor entities now owned and controlled the defendant. The plaintiff argued the release did not protect them because the release only spoke to the one defendant.

The court did not agree, finding language in the release that stated the release applied to all “jumpstreet entities that engaged in the trampoline business.”

…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 next argument was whether the release met the requirements on Texas law for a release. The court pointed out bold and capital letters were used to point out important parts of the release. An assumption of the risk section was separate and distance from the release of liability section, and the release warned people to read the document carefully before signing.

Texas also has an express negligence rule, the requirements of which were also met by the way the release was written.

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.

Next the plaintiff argued that the release covered her and her sixteen-year-old minor son. As such the release should be void because it attempted to cover a minor and releases in Texas do not work for minors.

The court ignored this argument stating it was not the minor who was hurt and suing; it was the plaintiff who was an adult. The court then also added that the other plaintiffs were also covered under the release because all of their claims, loss of parental consortium and loss of consortium are derivative claims. Meaning they only succeed if the plaintiff s claim succeeds.

The final argument was the plaintiff plead negligence and gross negligence in her complaint. A release in Texas, like most other states, was argued by the plaintiff to not be valid.

The appellate court did not see that argument as clearly. First, the Texas Supreme Court had not reviewed that issue. Other appellate courts have held that there is no difference in Texas between a claim for negligence and a claim 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 a release of liability for negligence also releases a party from liability for gross negligence.

(For other arguments like this see In Nebraska a release can defeat claims for gross negligence for health club injury.)

The court looked at the release which identified negligence and gross negligence as claims that the release would stop.

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.

Although not specifically writing in the opinion why the release stopped the gross negligence claims, the court upheld the release for all the plaintiff claims.

…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.

The court affirmed the trial court’s dismissal of the plaintiff’s claims.

So Now What?

First this case is a great example of believing that once you have a release you don’t have to do anything else. If the defendant’s release would have been checked every year, someone should have noticed that the named entity to be protected no longer existed.

In this case that fact did not become a major issue, however, in other states the language might not have been broad enough to protect everyone.

Second, this case is also proof that being specific with possible risks of the activities and have an assumption of risk section pays off.

Finally, would I go out and pronounce that Texas allows a release to stop claims for gross negligence. No. Finger’s crossed until the Texas Supreme Court rules on the issue or another appellate court in Texas provides reasoning for its argument, this is thin support for that statement.

What do you think? Leave a comment.

Copyright 2017 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

By Recreation Law    Rec-law@recreation-law.com    James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


Quiroz v. Jumpstreet8, Inc., 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

No. 05-17-00948-CV

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

2018 Tex. App. LEXIS 5107

July 9, 2018, Opinion Filed

PRIOR HISTORY: [*1] On Appeal from the 298th Judicial District Court, Dallas County, Texas. Trial Court Cause No. 15-02671.

In re Quiroz, 2017 Tex. App. LEXIS 7423 (Tex. App. Dallas, Aug. 7, 2017)

CASE SUMMARY:

OVERVIEW: HOLDINGS: [1]-The trampoline facility owner met its burden of establishing it was entitled to summary judgment as a matter of law because the release was enforceable when it met both the fair notice requirement for conspicuousness and the express negligence rule.

OUTCOME: Order affirmed.

CORE TERMS: summary judgment, entity, gross negligence, public policy, negligence claims, partial, matter of law, cause of action, pre-injury, consortium, waive, cross-motion, notice requirements, trampoline, bystander, specifically named, unenforceable, signing, mental anguish, signature line, conspicuousness, distinguishable, enforceable, derivative, lettering, parental, waiving, notice, void, issue of material fact

COUNSEL: For Graciela Quiroz, et al, Appellant: John T. Kirtley, Lead counsel, Ferrer, Poirot and Wansbrough, Dallas, TX.

For Jumpstreet8, Inc., Jumpstreet, Inc. and Jumpstreet Construction, Inc., Appellee: Cassie Dallas, Shelby G. Hall, Wade C. Crosnoe, Lead Counsel, Thompson, Coe, Cousins & Irons, L.L.P., Dallas, TX; Michael A. Yanof, Lenahan Law, P.L.L.C., Dallas, TX; Randy Alan Nelson, Thompson Coe, Dallas, TX.

JUDGES: Before Justices Myers, Boatright, and O’Neill.1 Opinion by Justice O’Neill.

1 The Hon. Michael J. O’Neill, Justice, Assigned

OPINION BY: MICHAEL J. O’NEILL

OPINION

MEMORANDUM OPINION

Opinion by Justice O’Neill

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.

Background

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 [*2] 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 [*3] 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.

Issue Presented

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 [*4] 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 [*5] 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.

Applicable Law

[HN1] 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. [*6] 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. [HN2] 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.

Discussion

[HN3] 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 [*7] 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); Missouri, K. & T. R. Co. v. Carter, 95 Tex. 461, 68 S.W. 159, 164 (Tex. 1902) (contract waiving responsibility for fires caused by railroad engines).

[HN4] 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 [*8] 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 [*9] 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 [*10] 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. [*11] Moreover, [HN5] 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.2 Some appellate courts have held that negligence [*12] 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).

2 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.

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 [*13] claims being waived. See Quintana, 347 S.W.3d at 450.

Conclusion

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.

/s/ Michael J. O’Neill

MICHAEL J. O’NEILL

JUSTICE, ASSIGNED

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.

Judgment entered this 9th day of July, 2018.


Texas Campground not liable for wind, rain and rising rivers.

Campground on river sued when river rose, flooding the campground and washing plaintiff’s downstream.

Walker v. UME, Inc. d/b/a Camp Huaco Springs, 2016 Tex. App. LEXIS 5934

State: Texas, Court of Appeals of Texas, Third District, Austin

Plaintiff: Cynthia Walker, Individually and on Behalf of the Estate of Norman Walker; Stephen Walker; Stephanie Walker Hatton; Jordan Walker; and Caren Ann Johnson

Defendant: UME, Inc. d/b/a Camp Huaco Springs; WWGAF, Inc. d/b/a Rockin ‘R’ River Rides; William George Rivers; and Richard Duane Rivers

Plaintiff Claims: negligence, premises liability, and gross negligence

Defendant Defenses: No Duty and Texas Recreational Use Statute

Holding: For the defendants

Year: 2016

Facts

Two couples took their RV’s to the defendant’s campground for the weekend. The first day the plaintiff’s took a canoe trip past the campground and took some cave tours. It was not raining when they went to bed. Around 6:00 AM, the surviving plaintiff woke up to a rainstorm and their RV’s floating.

The RV’s floated down the river. One plaintiff did not survive. The surviving plaintiffs sued the campground, campgrounds alleged owner and several employees. The plaintiff’s claims were based on alleging negligence, premise’s liability, and gross negligence. Overall, their claims were based on numerous claims that the campground had a duty to warn them of the flood.

Appellants asserted that appellees knew that the campground was prone to flooding and failed: to warn appellants of that fact; to warn of the approaching storm; to prepare a plan for flood awareness, communication, and evacuation; to have and use speakers or sirens to warn of flooding; to employ someone to monitor the weather and warn and evacuate guests; to have an employee on site during severe weather; and to make reasonable modifications, have emergency communications, or educate guests about severe-weather risks.

The defendants filed numerous motions for summary judgment arguing they were protected by the Texas Recreational Use Statute, and they owed no duty to the plaintiffs. The trial court dismissed the plaintiff’s claims without comment. The appeal followed.

Analysis: making sense of the law based on these facts.

The appellate court started its analysis by stating the trial court was right and there was no duty owed to the plaintiffs.

Even if we assume that the recreational use statute does not apply, we hold, as a matter of law, that appellees did not owe the Walkers and Johnsons a duty to warn of or ensure against rising river waters.

Texas Premises Liability Act requires landowners with liability for actual or constructive notice of a condition that poses an unreasonable risk of harm and did nothing to reduce or eliminate the risk.

When an injured invitee asserts a premises-liability claim, she must show that the owner or occupier had actual or constructive knowledge about a condition that posed an unreasonable risk of harm and did not exercise reasonable care to reduce or eliminate the risk and that such failure proximately caused her injury.

Rain swollen rivers were described by the court as a condition that came to the land, rather than a condition on the land. Even so, in Texas, rain, mud and ice are natural conditions that do not create an unreasonable risk of harm.

Regardless of that fact, Texas courts have consistently held as a matter of law that naturally occurring or accumulating conditions such as rain, mud, and ice do not create conditions posing an unreasonable risk of harm.

The basis for those rulings is that rain, dirt, and mud are naturally occurring conditions beyond a landowner’s control. (“rain is beyond the control of landowners” and “accidents involving naturally accumulating mud and dirt are bound to happen, regardless of the precautions taken by landowners”). Requiring a landowner to protect an invitee from precipitation or other acts of nature would place an enormous burden on the landowner.

Additionally, the court held the plaintiffs were aware of the issues because they could see the river from their campground and had canoed past the campground earlier in the day.

Further, an invitee is or should be “at least as aware” as the landowner of visible conditions that have “accumulated naturally outdoors” and thus “will often be in a better position to take immediate pre-cautions against injury.

Landowners in Texas cannot be insurers of people on the land for those acts which the landowner has no control, those things we used to call “acts of God.”

Texas courts have repeatedly observed that a landowner “‘is not an insurer'” of an invitee’s safety and generally “has no duty to warn of hazards that are open and obvious or known to the invitee.” Texas courts have held in various contexts that flooding due to heavy rains is an open and obvious hazard. “[T]he owner may assume that the recreational user needs no warning to appreciate the dangers of natural conditions, such as a sheer cliff, a rushing river, or even a concealed rattlesnake.

A landowner can be guilty of gross negligence by creating a condition that a recreational user would not reasonably expect to encounter. However, there was no gross negligence nor negligence because the harm was not created by the landowner.

We see no useful distinction to be drawn between ice and mud, which are natural conditions caused by rain and freezing temperatures, and rising river waters, caused by a natural weather event over which appellees could exercise no control. The June 2010 flood was not a condition inherent in or on the land in question. Instead, the flooding was a condition that came to the campground as the adjacent river, the same river that made the land an attractive place to camp, rose due to heavy rains.

The court then summed up its ruling.

We hold that as a matter of law appellees had no duty to warn the Walkers and Johnsons of the possibility that the river, they were camping beside might rise in the event of heavy rain, posing a risk to the campground.

Because appellees did not owe a duty to warn of or attempt to make the campground safe against flooding of the adjacent river due to torrential rain, the trial court properly granted summary judgment in their favor. We affirm the trial court’s orders.

So Now What?

This is a good ruling. Acts of God have always been outside the control, by their definition and act, of man. Consequently, you should not be able to hold someone liable for such an act.

This may not be true for all situations, or in all states, but for Texas campground owners and landowners don’t need to worry about the rain.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Copyright 2017 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

By Recreation Law           Rec-law@recreation-law.com     James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer,