By Doyice Cotten

While in a bar after watching others, Revel Thom decided to ride a mechanical bull.(Thom v. Rebel’s Honkey Tonk, 2012 Tex. App. LEXIS 7555) Before riding the bull, he completed and signed a document entitled PARTICIPANT AGREEMENT, RELEASE, AND ASSUMPTION OF RISK. When he was thrown from the bull, he fractured two vertebrae in his back.

He then sued appellees for his injuries. The trial court awarded summary judgment to Rebel’s Honky Tonk.

On appeal, only the following pertinent agreement language was reported:

 I acknowledge that riding a mechanical bull entails known and unanticipated risks that could result in physical or emotional injury, paralysis, death to myself, to property, or to third parties. I understand that such risk simply cannot be eliminated without jeopardizing the essential qualities to the activity.

THE RISKS INCLUDE, BUT ARE NOT LIMITED TO[]: Falling off of or being thrown from the mechanical bull, which could result in muscu[lo]skeletal injuries including head, neck and back injuries.

. . . .

I expressly agree and promise to accept and assume all of the risks existing with this activity. My participation in this activity is purely voluntary and I elect to participate in spite of the risks.

 Texas law requires that release language pass a fair notice rule. This consists of conspicuousness  and  express-negligence tests.  The Uniform Commercial Code’s definition of “conspicuous” is codified in the Texas Business and Commerce Code:

(10) “Conspicuous,” with reference to a term, means so written, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it. Whether a term is “conspicuous” or not is a decision for the court. Conspicuous terms include the following:

(A) a heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size; and

(B) language in the body of a record or display in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding  text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.  Tex. Bus. & Com. Code Ann. § 1.201(b)(10) (West 2009).

The appellate court determined that the release was not hidden (since it constituted the whole document) and that the title (bold, underlined, large font) left no doubt as to purpose. The court held it was conspicuous – the only element of fair notice challenged.

Concerning the question of whether the release applied to other defendants, the release stated:

 In consideration of the services of REBELS HONKY TONK their agents, owners, officers, volunteers, participants, employees and all other persons or entities acting on behalf of myself, my spouse, my children, my parents, my heirs, assigns, personal representative and estate . . .

 On appeal, the court found that the release satisfied all of the fair-notice requirements. The release that appellant signed made its intent clear by taking up an entire letter-sized page, using a reasonable font size, and not surrounding the release language with text unrelated to riding the bull. Despite claiming he had not read the release, appellant testified that he knew he was signing a “waiver” for possible injuries. Because one is presumed to know the contents of a contract that one signs, and because the risks were expressly identified and accepted in the agreement, appellant had no excuse to be oblivious to the risks associated with riding the bull. The court affirmed summary judgment ruling in favor of the defendant.

Since the trial court granted summary judgment but failed to specify grounds for the ruling, the appellate court determined that they had to affirm the ruling if any of the theories presented to the trial court were meritorious. Since the evidence conclusively established it affirmative defenses of release and assumption of risk, the court affirmed the summary judgment ruling.

One might notice the similarity with the Jaeger v. Hartley case addressed last week in Poor Waiver Construction & Reckless Conduct Result in Texas Waiver Failure. Jaeger involved injuries resulting when a tour jeep was used with malfunctioning brakes. That case also focused on the inherent risks of the activity. Summary judgment was overturned in that case because the plaintiffs were not warned of the risk of a tour jeep without brakes. In this case, summary judgment was upheld because the release clearly warned of the danger of being thrown from the mechanical bull. In the Jaeger case, the trial court also failed to specify grounds for its ruling.

 

Photo Credit: Thanks to Fort Meade at http://www.flickr.com/photos/ftmeade/8164986149/sizes/n/.