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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.

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Association of Independent Camps is moving forward

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In early February I wrote to you indicating that the AIC board of Directors voted unanimously to take the steps necessary to create a 501 (C) 6 non-profit organization separate from it’s ACA subsidiary AIC organization.

The purpose of this letter is to let you know of the steps that have been taken.

We have a new name. I am excited to announce that The Camp Owners and Directors Association (CODA) has been reserved as a non-profit Corporation in Massachusetts. We have the name, website and the means to continue our mission which, quite frankly, does not change from what it was as AIC.

We know:

That the mission of Independent Camp Owners, directors and administrators is to provide safe, fun, productive camping experiences for children helping them grow, mature and gain independence.

It is the mission of CODA to help you achieve this vision.

Our goal is for CODA to become so effective that every independent camp director, owner and administrator, whether for profit or non-profit will feel the need to belong. To this end we will double our membership by the end of 2014.

We have not stood still while we work through the legalities and complexities of moving from AIC to CODA. In the past month you have received information about riflery equipment and horseback riding training. We have a lot more to share. In the near future we will communicate to you on the following:

  • We are offering an innovative CODA insurance product that protects the camp parent’s investment and the camp owner’s income. This product is administered through Bollinger Insurance and Ed Schirick:
  • An agreement with Care.com to get our message to the over 4 million visitors to their website:
  • We are planning THE project we’ve all wanted for the past 20 years. A HUGE endeavor that will encompass every aspect of our organization. A project that is America’s Summer Camps!
  • We are creating a relationship with Firestorm, an organization that will help us plan, prepare and be ready for the unthinkable situations that inevitable happen at camp;
  • We will be bringing you information from a “Magician” (direct quote from Michael Brandwein) in camp marketing, Travis Allison, the Camp Hacker.
  • And a new website to be revealed shortly.

There is a lot more to come from your old, NEW organization, The Camp Owners and Directors Association.

Be on the lookout for more information!

Robert Lebby

Camp Directors and Owners Association

Executive Director

520 577 7925

robertleb45


PEAK: Preparing Educators for Adventures with Kids Conference

I wanted to make you aware of the Outdoor Education Conference PEAK: Preparing Educators for Adventures with Kids, February 16-18 in Cedar Mountain, NC. Check out http://www.campgreenville.org/peak.php for a list of presentations and to register. Also included in the conference is a Level 1 and Level 2 Challenge Course certification course and Project WET.

Looking forward to having you with us!

Susan W. Huter

Senior Program Director
YMCA Camp Greenville

PO Box 390Cedar Mountain, NC28718

(P) 864 836 3291 ext 106 (F) 864 836 3140

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