By Doyice Cotten
Graciela Quiroz and her sixteen-year-old son went to Jumpstreet for trampolining. Before jumping, she signed a pre-injury waiver of liability “Jumpstreet, LLC Release and Parent/Guardian Waiver of Liability and Assumption of Risk.” After signing the waiver, Graciela attempted to do a flip and injured her neck; this resulted in paralysis from the waist down. She sued Jumpstreet for negligence and gross negligence and as next friend of two minor children for their loss of parental consortium and for mental anguish; her husband joined the suit for loss of consortium.(Quiroz v. Jumpstreet8, Inc. (2018))
Jumpstreet filed a Motion for Summary Judgment based on the waiver which claimed to release Jumpstreet from liability for both negligence and gross negligence. In a response, Quiroz claimed that summary judgment was improper because of an issue of material fact. Among her claims were:
- The waiver was “void, voidable and unenforceable” because the named entity did not exist at the time of her injury.
- The waiver was ambiguous because a parent could not waive claims of minors.
- The waiver could not waive gross negligenceclaims because it would be against public policy to do so.
The trial court granted Jumpstreet’s traditional motion for summary judgment and denied Quiroz’s cross-motion for partial summary judgment. Quiroz appealed.
Quiroz asserts no contract existed as a matter of law, stating
no contract existed between her and Jumpstreet, LLC, the entity named in the Release. Quiroz argues there was no “meeting of the minds on the contract’s essential terms” between her and Jumpstreet, LLC because Jumpstreet, LLC had been dissolved in June 2011 and did not exist at the time of her injury in November 2014.
She contended that a “nonexistent entity cannot form or enter into a contract.” In addition, she claimed that the waiver did not meet the “fair notice requirement” because none of the Jumpstreet defendants are named in the waiver.
Texas Waiver Law
The court cited Texas waiver law as declared by prior courts:
- Parties have the right to contract as they see fit as long as their agreement does not violate the law or public policy.
- Texas law recognizes and protects a broad freedom of contract.
- Under Texas law, a release is a contract and is subject to avoidance just like any other contract.
- A release is an absolute bar to the released matter and extinguishes a claim or cause of action.
- When construing a contract, the court’s primary concern is to give effect to the written expression of the parties’ intent.
- Public policy dictates that courts are not to interfere lightly with this freedom of contract. A tortfeasor can claim the protection of a release only if the release refers to him by name or with such descriptive particularity that his identity or his connection with the tortious event is not in doubt.
Issues: Existence of Entity
The major challenge by Quiroz regarded the issue that Jumpstreet, LLC no longer existed when the waiver was signed. The court pointed out that all the Jumpstreet entities were engaged in the trampoline business, and the entity named “Jumpstreet, Inc.” was the parent company. It pointed out that although the waiver named Jumpstreet, LLC, it also stated that the waiver 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 court concluded that the Jumpstreet entities were “described with such particularity that their identity was never in doubt.”
Issue: Texas Fair Notice
Regarding the “fair notice” issue, the waiver conspicuously 1) contains bolded headings and capitalized fonts, 2) warns readers to read because signers “are giving up legal rights,” 3) release language is repeated in the document, and 4) contains several emphasized warnings of risks and dangers. Further, the waiver satisfies the express negligence rule. The waiver language 1) is in capital letters, 2) acknowledges “potentially hazardous activity,” 3) lists possible injuries, and 4) lists what is being waived (including “negligence”). The waiver met the Fair Notice requirement.
Issue: Loss of Consortium
Moreover, the cause of action for loss of parental consortium, like the cause of action for loss of spousal consortium, is a derivative cause of action. As such, the defenses that bar all or part of the injured parent’s recovery have the same effect on the child’s recovery. Since the waiver protected against negligence of the provider, this issue fails.
Issue: Gross Negligence
The final issue addressed was whether it is against public policy to enforce a pre-injury waiver of liability for gross negligence. The court stated that generally, a contract provision “exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy;” however, 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. It added that “some appellate courts have held that negligence and gross negligence are not separable claims and that therefore a release of liability for negligence also releases a party from liability for gross negligence.”
The court noted that some appellate courts in Texas have enforced waivers involving gross negligence while others have opted not to enforce. In this case the waiver specified that it included both negligence and gross negligence—so the court ruled that Quiroz received fair notice regarding the claims being waived. Subsequently it enforced the waiver protecting Jumpstreet, Inc. from liability for gross negligence.
The court upheld the waiver and the summary judgment ruling of the trial court in favor of Jumpstreet, Inc.
Photo Credit: thanks to djromanj via Flickr.