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Do Texas Courts Enforce Waivers for Gross Negligence?

By Doyice Cotten

Last week’s post, Court in Texas Trampoline Park Case Enforces Waiver for Gross Negligence, involved an occasion when a Texas Appellate court did enforce a waiver for gross negligence. But, when one looks at previous court rulings, it becomes clear that there are two schools of thought on the matter of whether waivers can protect against liability for gross negligence.

Some Texas courts feel that gross negligence is not a separate cause of action from that of negligence. Instead, they hold that gross negligence is just an extreme form of negligence. Under this theory, a waiver protecting a provider against liability for negligence would, likewise, protect the provider from liability for its gross negligence.

The other school of thought is that negligence and gross negligence are not the same – that gross negligence differs from and is far more extreme than mere negligence. Under this theory, a waiver of liability for negligence would not protect the provider for liability for its gross negligence.

Texas Supreme Court

While the Texas Supreme Court has never ruled as to whether waivers of gross negligence are enforceable, it has stated that that to release a claim, the releasing document must “mention” it. It has also stated that gross negligence differs in that the degree of risk is much greater and that gross negligence involves a different mental state.

Both the Texas Supreme Court and the Texas Legislature have defined gross negligence “as an act or omission involving subjective awareness of an extreme degree of risk, indicating conscious indifference to the rights, safety, or welfare of others.” (State of Texas v. Shumake, 2006) The court has held that gross negligence is distinguished from ordinary negligence by (1) the extreme degree of risk associated with gross negligence and 2) the required mental state. On more than one occasion, the Texas Supreme Court has said that gross negligence is not just an aggravated form of negligence.

Texas District Courts of Appeal

While the Texas Supreme Court has not directly ruled on the enforceability of a waiver, a number of Texas appellate courts have addressed sport, fitness, and recreation waivers. Unfortunately, they have not all agreed.

In an early case (Smith v. Golden Triangle Raceway, 1986), a racecar driver was injured after having signed a waiver relieving the raceway of liability for negligence. Smith also alleged gross negligence, but the 9th District Court of Appeals of Texas refused to enforce the waiver for gross negligence. The court cited the treatises by Corbin and Prosser and held that a waiver “attempting to exempt one from liability or damages occasioned by gross negligence is against public policy.”

In a 1994 case, a man drowned in a scuba certification course (Newman v. Tropical Visions, Inc.). The waiver signed by the deceased specified relief of liability for negligence; the trial court granted summary judgment enforcing the waiver for negligence and gross negligence. The trial court pointed out that the waiver warned against injury and death and ruled the claim was barred by the waiver. The 4th District Court of Appeals cited the Texas Supreme Court statement “In order to effectively release a claim in Texas, the releasing instrument must ‘mention’ the claim to be released.” The appellate court recognized the distinction between negligence and gross negligence, but due to an appeal technicality, the court ruled that the waiver was enforceable for both negligence and gross negligence. NOTE: The court made it clear that the ruling applied only in the circumstances of this particular case and did not express an opinion as to whether waivers of gross negligence violate public policy. For more information, see the case report.

In 1995, a drag racer was injured in a race after having signed a waiver (Rosen v. National Hot Rod Association).  The 14th District Court of Appeals examined the waiver which specified protection from liability for negligence. The court had previously held that negligence and gross negligence were two separate causes of action. Consequently, they agreed with the 9th district court in Smith v. Golden Triangle Raceway concluded that a waiver of negligence will not relieve a defendant of liability for gross negligence.

In 1996, a motocross rider was injured when he collided with a tractor working on the facility while riders were using the track (Texas Moto-plex v. Phelps). The language of the waiver provided protection for liability for negligence. The 11th District Court of Appeals stated that extreme risk (as required for gross negligence) requires proof that serious injury to the plaintiff was likely; it concluded that “having tractors engaged in maintenance activities on the track at the same time as it is being used by motocross riders creates the very risk manifested here: collisions between riders and equipment.” The appellate court upheld the trial court ruling that the waiver did not protect against gross negligence.

In a 2007 case (Akins v. Bally Total Fitness), a health club patron drowned and a suit alleging negligence and gross negligence resulted. Once again, the waiver specified protection against provider negligence. The trial court granted summary judgment on both allegations. The 10th District Court of Appeals pointed out that most Texas courts hold that pre-injury waivers of gross negligence are void as against public policy. In this case, the court held that the waiver did not release a claim for gross negligence. NOTE: The court limited its opinion to this case and stated that Bally did not affirmatively attempt to negate the elements of gross negligence and did not prove all the elements of a defense to gross negligence.

The latest two cases have occurred in the same district court of appeals, the 5th.  The first was a case in which a student was injured while participating in an aidido martial arts course (Van Voris v. Team Chop Shop, LLC, 2013). The waiver signed by Van Voris claimed protection for liability for negligence by the provider. The trial court granted summary judgment on all claims, thereby, enforcing the waiver for both negligence and gross negligence. The 5th District Court of Appeals stated that in Texas, the definition of gross negligence focuses on two aspects – an act or omission that involves an extreme degree of risk and a “mental state” of actual awareness of the risk coupled with conscious indifference to the welfare of others. It reiterated that the Texas Supreme Court has not ruled on the enforceability of waivers of gross negligence and cited one appellate court that interpreted supreme court language as prohibiting such waivers as against public policy. Among other things, the Van Voris court pointed out that the waiver effectively released pre-injury claims based on negligence, but failed to mention gross negligence. In a ruling, the court noted that it limits the ruling to the context presented by this case; the court held that the waiver did not release Van Voris’ gross negligence claim and remanded the case for further proceedings.

Five years later, the 5th District Court of Appeals addressed the issue again in Quiroz v. Jumpstreet8, Inc. (2018). Mrs. Quiroz suffered a spinal injury while at a trampoline park. She filed suit claiming negligence and gross negligence on the part of Jumpstreet, Inc.; this case differed significantly from the previous cases in that the language of the waiver stipulated protection against liability for both negligence and gross negligence. The court pointed to the disagreement among the Texas courts of appeals; it noted that in Van Voris, this court had “reasoned that public policy requiring an express release from negligence also requires an express release from gross negligence.” The court stated that this case was distinguishable from Van Voris in that the Quiroz waiver specifically stated that both negligence and gross negligence were waived.

Conclusion

So, is the enforcement of waivers of liability for gross negligence against public policy in Texas? The Texas Supreme Court has not stepped forward with a ruling. Obviously, there is considerable disagreement among the district appellate courts as to the nature of gross negligence and its relationship to negligence.

One thing seems to be certain. According to the Texas Supreme Court, “In order to effectively release a claim in Texas, the releasing instrument must ‘mention’ the claim to be released.” So if a provider wants to gain protection against gross negligence, the provider should see that its waiver includes both negligence and gross negligence.

Author’s Note

It is easy to justify excusing sport, recreation, and fitness providers from liability for the provider’s ordinary negligence. Ordinary negligence has been defined as “failure to use reasonable care, resulting in damage or injury to another;” Gross negligence, on the other hand, involves actions involving an extreme likelihood of risk in which the provider has actual awareness of the risk and proceeds with conscious indifference to the welfare of others. A waiver for negligence can be justified in that the waiver enables providers to offer more recreational opportunities at a reasonable price. On the other hand, protection for providers who place patrons in a situation of high risk while being indifferent to their well-being seems unjustifiable and unethical.

Photo Credit: Thanks to J D Hancock via Flickr.

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