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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.

Copyright 2017 Recreation Law (720) 334 8529

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Keep Writing Your Own Release

I make more money after you get sued over a bad release.

I watched an attorney tell another shopper in an office-supply store to go ahead and buy the will making software the shopper was holding. I was, to say the least, confused. After the shopper left I asked the attorney why he had said that.

The attorney’s answer was simple. I can get $500 for writing a will. If that guy write’s his own, I or some attorney will get $5000 or more to fix his mistakes once he dies.

Yup, Keep writing your own releases.

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

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Training Peaks is leading the pack in creating a website that works for training

Don’t pay to just record what you have done, that you can do on a piece of paper

Until recently, all software and web based performance programs just recorded what you did. Although it supplies some ego gratification, it does nothing to provide information on how to get better. To do that you need to compare days, weeks and sometimes months of Training Peaks 1training.

Normally that required downloading the info to a spreadsheet and writing your own formula’s to figure out what you had been doing and needed to do. Most coaches worked that way. Once you downloaded your results from your bike or running computer (or phone now days) you sent it in a spreadsheet to your coach.

Training Peaks has been working that direction and announced the next stage in that evolution. Once you upload information to the Training Training Peaks 3Peaks site it will compare your heart rate and power readings to previous uploads and let you know if your training is working.

This is still not what is needed to effectively train; however there is at least one program that understands that graphics online do nothing to help you get better. At present, a spreadsheet can do more to increase your performance than any software or web program.

See Coming Soon: Threshold Improvement Notifications and More

What do you think? Leave a comment.Training Peaks 2

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UIAA Event Schedule

Here is the current UIAA Even Calendar

12 Jan 2013 to 13 Jan 2013

Ice climbing

Ice Climbing World Cup (Lead, Speed) & World Championship (Lead)
Cheongsong, Korea

12 Jan 2013 to 13 Jan 2013
Ice Climbing World Youth Championship
Saas-Grund, Switzerland (lead, speed)

18 Jan 2013 to 19 Jan 2013
Ice Climbing World Cup
Saas-Fee, Switzerland (lead, speed)

26 Jan 2013 to 27 Jan 2013
Ice Climbing World Cup
Rabenstein, Italy (lead, speed)

07 Feb 2013 to 09 Feb 2013
Ice Climbing World Cup
Busteni, Romania (lead, speed)

08 Mar 2013 to 10 Mar 2013
Ice Climbing World Cup (Lead, Speed) & World Championship (Speed)
Kirov, Rusia

The schedule is online at UIAA Calendar

What do you think? Leave a comment.

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Newsletter has good ideas, but also misses the mark a little

Church Mutual newsletter needs a little clarification about allowing groups into your facilities.

The article was a newsletter to insured’s and interested parties to help them reduce their exposure to risk. The issue was a question and answer about how you deal with

English: Charles Simms, March 17, 1796, Fire I...

English: Charles Simms, March 17, 1796, Fire Insurance Policy (Photo credit: Wikipedia)

groups that want to use your facility. There were three issues that I think need clarified.

The first was all groups that want to borrow, rent or use your space should provide the owner with a certificate of insurance. The quote was:

Once approved, all groups must provide a certificate of insurance from either a local or national organization as a condition of using our facility.

1.     The Certificate of Insurance should be from a National Insurance Company.

2.     The certificate of Insurance should name your facility or the owner of the facility as an additional insured on the certificate.

3.     The certificate of insurance should also include a copy of the insurance policy. There are a lot of “fake” certificates of insurance and a copy of a policy allows you to call the issuing company and verify the insurance is in force.

The second issue was:

Small groups without insurance are required to sign a waiver stating that the group and individuals will not hold Presbyterian Church of the Master responsible for any injuries or other losses they might incur while on our property.

1.     When a group signs an agreement that says the group will protect the owner of the property from claims, it is called a hold harmless or an indemnification agreement.

2.     A waiver is a release signed by an individual before an accident releasing the other person from any liability.

3.     A hold harmless or indemnification agreement without an insurance policy behind it is worthless. How many groups of “people” have enough money to reimburse you for a claim?

A better approach would be to have each person coming to the event at the facility to sign a release. Yes, it is a pain in the butt, but it is the only real protection you if cannot get a certificate of insurance and a copy of an insurance policy.

The best thing to do is make sure your facility is as safe as you can make it, any non-safe areas or not accessible and the place is clean. Better to not have an accident then it is to try to defend one. In a building situation, it should be fairly easy to have your facility inspected to make sure it is up to code, standards and the latest and greatest for your guests and others.

The final issue was the group using to facility had to abide by the “standards of use.” Have rules that the group agrees to abide by. Make sure the rules are understood. Do not use acronyms, explain everything. If necessary do a walk-through of the property and make sure the renters understand the rules.

Don’t expect the rules to be followed.

See Risk Reporter talks with Woody Burge about facility rental

What do you think? Leave a comment.

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I won’t tell you how to run your life, you don’t tell me how to run my ski area!

An article Should Ski Areas Expand When Skier Numbers Are Flat? Raises some interesting questions. However I’m not sure those are questions the public should be asking.

The Ski Area Citizens’ Coalition is saying that ski areas should not be expanding their terrain when the number of skiers is not growing. Basically the Ski Area Citizens’ Coalition is grading ski areas on their environmental footprint and expansion is a negative aspect of their score card. They are then tying its grade to the lack of growth in the number of skiers coming to resorts.

Resorts who receive a good grade are happy with it and resorts who receive a bad grade found fault with the grading system. I had the same response all throughout my formal education.

Grading anyone on its sustainability, its environmental concerns are great. I try and check those issues when I deal or make a purchase from some companies. However tying it into an economic issue, when most resorts are making money is a little lame.

This is different from the National Ski Area Association’sSustainable Slopes Program which grades ski areas on their environmental score card.

What do you think? Leave a comment.

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Playgrounds will be flat soon

No swings, teeter totters or anything above a blade of grass…artificial grass.

Cabell County Schools are removing swing-sets from all elementary school playgrounds. The swing-sets are being

Swing seat rust

Swing seat rust (Photo credit: cynicalview)

removed because of insurance issues and lawsuits stemming from swing-set injuries.

In the past two years, the school district has settled two swing-set claims and is fighting two swing-set related lawsuits.

However, there was a quote that caught my attention. “”In this day and age, we have to do everything we can to keep kids safe,” said Jedd Flowers of the school district.

Why? Why is it the school systems’ job to keep kids safe? There is a difference between falling down or falling off a swing and being kept safe. This is not an issue where young children are being put at risk. At what point in time do we start putting kids in bubble wrap before sending them out the door.

See Risk Management: Preventing Injuries or Preventing Lawsuits? for more of my comments on this idea.

It is this quote that sent me through the roof!

Many of the county’s elementary schools use mulch around their swing sets, although national safety standards now call for rubber-based surfaces, Stewart said. Those types of surfaces can cost at least $7,500 per swing set, he said.

A new standard created by some do gooder group has forced the removal of swing-sets from the school yard. Sure rubber surfaces are better but not everyone can afford one. All the creation of this standard did was eliminate swing-sets not keep kids safe. At least it is going to be a standard that will eventually be obsolete because no on will have a swing set.

A commercial swing-set with four swings costs a playground about $1000 to $1500. However, when you add the cost of the rubber matting the total price of a swing-set is $9000! Or roughly 6 swing-sets.

When I said flat ground? The swing-sets are not going to be replaced with anything because the school district no longer deals with playgrounds.

The dictionary will have to change its definitions; playground will now be a synonym for field.

See School system removing swings

For more articles about how ridiculous standards are see Can a Standard Impede Inventions?, Basics of the Article are Good – But it confuses certification, accreditation and most importantly standards. and This is how a standard in the industry changes…..but….

Sorry my headline is incorrect. Teeter totters were removed years ago because they were dangerous………

What do you think? Leave a comment.

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