By Doyice Cotten
Two couples, the Beckmans and the Jaegers, were injured while participating in a commercial jeep tour of a ranch (Jaeger v. Hartley, 2013 Tex. App. LEXIS 613). The ranch driver became aware that the Jeep’s brakes were not working during the tour. He radioed for some brake fluid, but when it arrived no fluid was added. The driver instructed the guests to get back in the jeep and continued the tour. While proceeding up a steep incline in a canyon, the Jeep stalled and its brakes failed. As the jeep began rolling backwards down the incline, the driver told the guests to jump out. They were injured and filed suit.
The defendant’s request for summary judgment based on a waiver signed by the plaintiffs was granted by the trial court. The pertinent waiver language follows:
I . . . voluntarily sign this Waiver and Assumption of Risk in favor of ELKINS RANCH, its Owners, agents, or employees, in consideration for the opportunity to enter upon and use the Ranch facilities; and to engage in activities sponsored by the Owners . . .
Driving, or parking, of customers’ vehicles; Walking; Hiking; Horseback riding and instruction; Jeep tours; Hunting; Interactions with all livestock, or wildlife; Camping . . .; Consumption of food, or beverage; Use of customers [sic] own personal horse, vehicle, trailer, or equipment while on Ranch property; Any and all indoor, or outdoor activities, however related, while on Ranch premises.
I understand that there are certain risks and dangers associated with the various activities, use of the facilities, and the wilderness environment; and that these risks have been fully explained to me. I fully understand the danger involved. I fully assume the risks involved as acceptable to me, and I agree to use my best judgment in undertaking these activities and follow all safety instructions.
I do hereby waive, release, acquit and forever discharge ELKINS RANCH, its Owners, agents, employees and all persons and entities of; [sic] from any/all actions, causes of action, claims, demands, damages, costs, loss of services, expenses, and compensation, on account of, or in any way growing out of, any and all known and unknown personal injuries, property damage, or death resulting from my presence on Ranch premises, use of facilities, or from my participation in the activities. This Waiver/Release contains the Entire Agreement between the parties, and the terms of this Waiver/Release are contractual and not a mere recital.
I further state that I am a competent adult of lawful age, and I have car efully read the foregoing Waiver/Release and know its contents. I assume these risks and sign the same of my own free will . . . .
The appellate court, however, stated that the risks covered in the agreement were limited to 1) the nature of the environment, i.e., a ranch and wilderness, 2) the facilities present and their use, and 3) the activities being conducted. It pointed out that none of these risks caused the incident; the injuries arose from the driver attempting to ascend a steep slope with a Jeep that had defective brakes. There was no evidence that anyone told the guests that they would be traversing rugged terrain in such a vehicle before they signed the release instrument.
It is important to note that nothing in the waiver indicated that the signers were releasing the provider from liability for negligent acts by the provider. In fact, the court stated that
To be reckless, a defendant must engage in conduct that he knew or should have known posed a high degree of risk of serious injury but disregarded that risk. Evidence appears of record here disclosing that the Jaegers and Beckmans were directed by Elkins to obey the employee provided as their tour guide, their tour guide informed them not to wear their seat belts, the tour guide began and then became aware of the jeep’s defective brakes, and the employee continued that tour by going up a steep slope despite knowing of the defect. A factfinder could reasonably infer from it that the employee acted recklessly. [emphasis added.]
The appellate court reversed the summary judgment and remanded the case for retrial.
Here, the provider was relying on a document referred to as a Waiver and Assumption of Risk. It referred only to named inherent risks of the activity and failed to provide protection from liability for negligence. Interestingly, the provider’s actions probably exceeded negligence – reaching the level of reckless conduct. Texas courts do enforce liability waivers that meet strict standards; unfortunately for the defendants, the poorly conceived waiver failed to meet those standards.
Photo Credit: Thanks to Planetc1 at http://www.flickr.com/photos/chiropractic/5597540803/sizes/n/.