Texas Waiver Fails to protect against an intentional act

By Doyice Cotten

Samuel Brennan and Matthew Kaufman were competing against each other in a soccer match when Brennan was seriously injured when their heads collided. Brennan claimed the action by Kaufman was an intentional assault and sued Kaufman.(Brennan v. Kaufman, 2021) Kaufman claims the action was a part of the game – an inherent risk.

During the trial Brennan provided two witness statements in which the witnesses recalled the incident and “averred that appellee acted intentionally and that the move was not an accident stating “[appellee] did not appear to be trying to use his head to intercept the soccer ball, but instead appeared to intentionally hit [appellant’s] face with the back of his head…. [appellee’s] act was intentional and not an accident.” Brennan argued that the eyewitness testimony created a fact issue on appellant’s claim for assault.


Brennan’s suit listed two major issues. First, he contends that the trial court erred in enforcing the waiver of liability – contending that the waiver does not protect against intentional actions. Second, he says that the trial court erred in granting a no evidence summary judgment in favor of the defendant.

The appellate court stated that when one seeks summary judgment on the ground that there is no evidence to support one or more essential elements of the non-movant’s claim, the non-movant is required to present evidence raising a genuine issue of material fact supporting each element contested in the motion. In this case, Brennan did present the two witness statements and summary judgment should not have been granted.

Intentional Actions

Regarding the nature of the collision, the court said “an assault occurs if a person intentionally, knowingly, or recklessly causes bodily injury to another.” It noted that this court has on three occasions ruled that  “… regardless or whether the risk that resulted in plaintiff’s injury is inherent in the nature of the sport in question, a participant-defendant owes a duty not to engage in gross negligence or intentional conduct causing injury to the plaintiff.”

Regarding the waiver, the appellate court quoted the Texas State Supreme Court ruling in a previous case “Generally, a contractual provision ‘exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy.” The court added that other courts have said that a “contract provision including a pre-injury waiver of liability for gross negligence or willful misconduct may be so unreasonable as to violate public policy. The waiver in question here included the wording:

“[t]he term ‘claims’ includes all actions and causes of action, claims, losses, costs, expenses and damages, including legal fees and related expenses. THE RELEASING PARTIES HEREBY RELEASE, WAIVE, DISCHARGE, AND COVENANT NOT TO SUE THE RELEASED PARTIES FROM ANY AND ALL CLAIMS      RELATED TO OR ARISING FROM THE CLUB OR THE ACTIVITY, INCLUDING, BUT NOT LIMITED TO, THOSE CLAIMS ARISING FROM OR RELATED TO PERSONAL INJURY, ACCIDENTS OR ILLNESSES (INCLUDING DEATH), AND/OR PROPERTY  LOSS.” “Activity” is defined as “the programs of the Club.”

The court emphasized that the waiver is meant to apply to “all actions and causes of action” and cited  “One cannot exempt himself from such liability for harm that is caused either intentionally or recklessly.” RESTATEMENT (SECOND) OF CONTRACTS § 195.


The court sustained both of Brennan’s motions,  reversed the trial court ruling, and remanded the case to the trial court.

Risk Management Take-away

Waivers can often provide protection for service providers against liability in many situations. However, when the action involves gross negligence, recklessness, or intentional actions, chances of gaining protection from a waiver are slim and none.

Photo Credit

Thanks go to    via Flickr.