Texas appellate court upholds release for claims of gross negligence in trampoline accident that left plaintiff a paraplegic.Posted: October 8, 2018
However, the decision is not reasoned and supported in Texas by other decisions or the Texas Supreme Court.
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
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.
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.
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Mt Baker Highway, AKA Washington State Highway 542 stretches 58 miles from sea level in Bellingham, Washington to Artist’s Point at an elevation of 5,140 feet – a scenic overlook above tree line that on clear days treats visitors to sublime views of Mt Baker and Mt Shuksan.
Since 1992 Whatcom County has had plans to build a pedestrian pathway from Bellingham to Artist’s Point and dubbed it the Bay to Baker Trail (B2B). However due to a number of factors little has been accomplished. Right of way has been established in some areas, and in those areas some sections of the trail is under water for much of the year, some travel heavily undercut banks 100 feet above the North Fork Nooksack River, and at least one section acts as the local garbage dump.
Due to its beauty the highway attracts heavy traffic during the winter ski and summer hiking seasons. RVs, families coming up to recreate in SUVs, sports cars, sport motorcycles traveling at triple digits due to virtually no speed enforcement, and road cyclists all share this road. To compound the mix there are residential communities on the highway with limited options for residents to safely walk or ride bikes to community destination. At the local middle school if a child shows up to school with their bike they are sent home due to the hazard that riding on the road represents.
The mild winter that the Pacific Northwest experienced this last year was a shock to the small, tourist dependent communities in the shadow of Mt Baker. Businesses closed and residents watched as skiers, snowboarders and snowmobilers, who bring much needed revenue to the area, disappeared. It was a call to action as residents and business owners realized that perhaps some diversification of recreational opportunities was in order.
Inventorying the material that they had to work with, a group of residents and business owners has banded together in an attempt to motivate government to take action on the Bay to Baker Trail. John Adam, owner of Glacier Ski Shop, believes that pedestrian infrastructure will not only make the area more attractive to visitors, but will also provide residents with a safe option to getting in a vehicle and burning fossil fuels when they need a quart of milk. Paul Engel, who owns Wild and Scenic River Tours, added that, “Hundreds of reports show that when pedestrian pathways are created in a community it brings nothing but good – the population is healthier, vehicular traffic is reduced, property values are stable and local businesses see more traffic. Everyone benefits”
It would be easy to see why businesses would want to increase tourist traffic, and a small group of locals have pointed fingers at them and stating that they just want to “cash in”. When in reality it is more a matter of staying in businesses. And while a very small group of locals oppose the trail effort, the vast majority are for it. One of those is Marty Grabijas, a product developer in the outdoor industry. According to Marty, “What we have here is so special. The access to big wilderness and high alpine environments is incredible, and I can see why some want this to remain their private paradise. However no matter how much we want it we can’t turn the clock back. We do however have an opportunity to engineer the Mt Baker Highway corridor for the future. With a pedestrian pathway we can reduce vehicle congestion, and provide residents and visitors with a safe way to get around on foot or on a bike. My motive for being involved is to create safe places to walk and ride for everyone. The Mt Baker area is visually stunning, and with a safe pathway in the highway corridor a bike is the perfect vehicle for visiting services in one of the several small towns, or connecting to Forest Service roads and exploring the area.”
This citizens group is in the due diligence stage of forming a pedestrian and equestrian advocacy group. Part of that process is showing a want and need for pedestrian pathways by gauging interest of residents, visitors and potential visitors. By participating in their survey you will provide them with the data points they need to attempt to secure funding in Whatcom County’s 2017 / 18 budget to see portions of the Bay to Baker Trail become reality.
Regardless if you have been to the Mt Baker area, your feedback is valuable.
Go to the Survey Here: https://www.surveymonkey.com/s/MTBAKERTA
What do you think? Leave a comment.
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Call for Papers – Tourist Studies
Special Issue: TOURISM MORALITIES AND MOBILITIES
Guest Editors: Dr. Bryan Grimwood and Dr. Kellee Caton
Several recent epistemological ‘turns’ within tourism studies have enriched and complicated the landscapes of knowledge produced and used within the field. The ‘moral’ (Caton, 2012) and ‘mobility’ (Hannam, 2009) turns are two examples that, when taken together, produce fertile terrain for generating important questions and new meanings about tourism (e.g., Grimwood, 2014). The purpose of this special issue of Tourist Studies is to examine and critique the intersections of tourism moralities and mobilities. More specifically, we seek papers that contribute to fleshing out, and teasing apart, the conceptual, theoretical, methodological, and empirical nature of tourism moralities and mobilities. That tourism mobilities give shape to diverse spaces and places, including the ‘embodied’, ‘mundane’, and ‘exotic’ (Edensor, 2007; Reis, 2013), is justification enough for thinking through moral questions and perspectives. That moralities are likely to shift or become entrenched as we move through tourism spaces adds additional degrees of relevance to the special issue theme (Mostafanezhad & Hannam, 2014).
The guest editors invite submissions that speak to the intersections of tourism moralities and mobilities. We especially encourage papers that shift consideration away from what morality is to what morality does or can do in relation to tourism mobilities (and vice versa). Potential questions underpinning contributions may include:
- How do we carry morality with us (in tourism and in tourism research) and to what effect? How does morality become anchored/moored in touristic places, or performed across tourism spaces? To what extent is morality mobile?
- How are tourism mobilities disciplined/controlled by moralities? What spaces of resistance can be/are being mobilized through the practice and being of tourism moralities?
- How (or to what extent?) do tourist, community, researcher, and non-human subjectivities move/shift in relation to moralities encountered through tourism?
- How (or to what extent?) are multiple moralities consumed/performed through tourism mobilities, including those associated with tourism research?
- In a world increasingly (re)made in relation to various (im)mobilities, what moral positionalities are most productive/destructive?
- What anchors morality when ontological and epistemological foundations are multiple, hybrid, and/or fluid? As scholars? As researchers? As an epistemic community?
- What is (or should be) the role of morality in tourism epistemology? What meanings or insights does morality provide in relation to how knowledge moves and changes (or doesn’t) in our field, and how certain knowledge is (or fails to be) legitimized?
- What can tourism studies learn from inter-/multi-/trans-/post-disciplinary approaches to moralities and mobilities? What contributions do such perspective make to the field of tourism studies?
In addition to those with interests in the intersections of tourism morality and mobility, we anticipate the special issue to resonate with scholars situated within ‘critical’ and ‘hopeful’ tourism studies (Pritchard et al., 2011) and build on recent literatures that have helped contextualize tourism ethics from multi-disciplinary perspectives (e.g., Fennell, 2006; Mostafanezhad & Hannam, 2014; Weeden & Boluk, 2014).
· Abstracts of 250 words must be submitted no later than May 01, 2015. Please submit your abstract to the guest editors, Dr. Bryan Grimwood (bgrimwood) and Dr. Kellee Caton (Kcaton).
· Authors of selected papers will be notified by May 15, 2015.
· Full manuscripts are due to the guest editors by September 15, 2015. The target length of papers is 8000 words and all style guidelines of Tourist Studies must be followed (see http://www.sagepub.com/journals/Journal201263/manuscriptSubmission). A preliminary review of all submissions will help authors shape and revise papers prior to the usual blind review process commencing.
· We are targeting December 2016 as the final publication date. Tourist Studies has allocated Volume 16, Issue 3 for this special issue.
Caton, K. (2012). Taking the moral turn in tourism studies. Annals of Tourism Research, 39(4),
Edensor, T. (2007). Mundane mobilities, performances and spaces of tourism. Social and
Cultural Geography, 8(2), 199–215.
Fennell, D. A. (2006). Tourism ethics. New York: Routledge.
Hannam, K. (2009). The end of tourism? Nomadology and the mobilities paradigm. In J. Tribe
(ed.) Philosophical issues in tourism (pp. 101-113). Toronto, ON: Channel View Publications.
Grimwood, B. S. R. (2014). Advancing tourism’s moral morphology: Relational metaphors for
just and sustainable arctic tourism. Tourist Studies, 1–24, DOI: 10.1177/1468797614550960.
Mostafanezhad, M., & Hannam, K. (Eds.) (2014). Moral encounters in tourism. Burlington, VT:
Pritchard, A., Morgan, N., & Ateljevic, I. (2011). Hopeful tourism: A transformative approach.
Annals of Tourism Research, 38(3), 941-963.
Reis, A. C. (2012). Experiences of commodified nature: Performances and narratives of
nature-based tourists on Stewart Island, New Zealand. Tourist Studies, 12(3), 305–324.
Weeden, C., & Boluk, K. (Eds.). (2014). Managing ethical consumption in tourism. New York:
2013 National Extension Tourism Conference
Building Lasting Relationships
DoubleTree Suites Detroit
Downtown – Fort Shelby
August 6-9, 2013
The 2013 National Extension Tourism (NET) Conference Program Committee invites proposals for the 2013 NET Conference, the theme of which is “Building Lasting Relationships.” Based on this theme, the Conference Program Committee is seeking proposals for oral presentations, poster presentations, and panel presentations/workshops in the following nine broad topical areas:
- Rural Tourism Development/Tourism in Resilient Communities
- Community and Regional Planning and Development
- Economic, Environmental, and Social Impacts of Tourism and Recreation
- Agritourism—Local Foods, Farmers Markets, Culinary Tourism
- Heritage and Cultural Tourism
- Nature-Based Tourism: Ecotourism, Wildlife Enterprises, Adventure Tourism, Coastal Tourism
- Marketing and Promotion
- Tourism Research and Evaluation
- Tourism Education, Training, and Certification Programs
The Program Committee encourages all proposal submitters to “connect” their work in tourism and recreation development to the conference’s “Building Lasting Relationships” theme, and is calling for new presentations (previously unpublished) and/or projects in progress. Please note: If a proposal is accepted for presentation at the conference, presenters must register for the conference.
The deadline for proposal submission is March 1, 2013, with notification of submission status by March 22, 2013. Visit the conference website at http://www.extensiontourism.net/ for further information on the 2013 NET Conference, Proposal Submission and Guidelines, and to view the program agenda and abstracts of presentations and posters presented at both the 2011 NET Conference in Charleston, SC, and 2009 NET Conference in Park City, UT.
On behalf of the 2013 NET Conference Planning Committee,
Michelle Walk, Chair, 2013 NET Conference
Tom Chesnutt and Steve Burr, Co-Chairs, 2013 NET Conference Program Committee
Miles Phillips Chair NET Design Team
Attend the National Extension Tourism Conference (NET) Aug 6-9, 2013