Never Waive Goodbye: Pre-Injury Releases and Their Requirements

It’s summer time again, and many are headed to the gym hoping to recapture their swimsuit physique. Seeing an ad for a fitness boot camp, you register for the class, and in connection therewith you sign a number of papers, including a release which purports to prohibit you from suing the gym for injuries you receive during the program. In the course of the boot camp, an instructor has the class engage in a tug-of-war using some standard rope. The instructor tells you to wrap the rope around your hand for better grip. When the participants yank on the rope, however, the force constricts the loop around your hand, causing severe injuries. You consider a lawsuit to help pay some of the costs of the required medical treatment, but then you remember that you signed a release. You are out of luck, you think. This may not, however, be the end of the story.[1]

Indemnification agreements such as releases and waivers must meet certain criteria imposed at law in Texas. A pre-suit agreement which purports to release a party in advance from damages resulting from its own negligence, for example, must adhere to the “express negligence doctrine,” and satisfy requirements of “conspicuousness.” See Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190, 192 (Tex. 2004). Under the “express negligence doctrine,” a party seeking to provide for indemnification from the consequences of their own negligence must express that intent in specific terms within the four corners of the release in question. See Dresser Indus. v. Page Petroleum, 853 S.W.2d 505, 508 (Tex. 1993). This frequently will require specific reference to “negligence.” For example, “[l]anguage that specifically refers to ‘any negligent act of [the released party]’ may be sufficient to define the parties’ intent.” Quintana v. Crossfit Dallas, L.L.C., 347 S.W.3d 445, 450 (Tex.App.—Dallas 2011, no pet.). On the other hand, more generalized language purporting to release a party “from any and all claims…of any nature whatsoever” has been held not to satisfy the rule. Linden-Alimak, Inc. v. McDonald, 745 S.W.2d 82, 85–86 (Tex.App.—Fort Worth 1988, writ denied).

Conspicuousness requires “that something must appear on the face of the [release] to attract the attention of a reasonable person when he looks at it.” Dresser, 853 S.W.2d at 508. Thus, for example, provisions located on the back of a contract in a series of paragraphs in the same font, typeface, and color as the rest of the agreement are not conspicuous. See Am. Home Shield Corp. v. Lahorgue, 201 S.W.3d 181, 184–185 (Tex.App.—Dallas 2006, pet. denied). On other hand, language in capital letters, contrasting type or color, or in an extremely short document, such as a telegram, is conspicuous. See Dresser, 853 S.W.2d at 511.

Unless the waiver you signed before you received your injuries[2] was conspicuous, and made specific reference to an intent to release the party for its own acts of negligence, you may still have a right to sue for your injuries. Further, even if the release in question satisfies the requirements of conspicuousness and the express negligence doctrine, the released party may still be amenable to suit if they were grossly negligent. See Smith v. Golden Triangle Raceway, 708 S.W.2d 574, 576 (Tex.App.—Beaumont 1986, no writ) (pre-injury release of liability or damages for gross negligence violates public policy). But see Van Voris v. Team Chop Shop, LLC, 402 S.W.3d 915, 924–926 (Tex.App.—Dallas 2013, no pet.) (pre-suit release for party’s own negligence also released them from liability for gross negligence). It is important, therefore, to consult an experienced attorney before concluding that you have given up any right to sue in the face of a signed pre-injury release.

[1] This hypothetical was based upon the facts of an actual case handled by this attorney.

[2] Releases signed after such injury-producing event are not subject to these requirements.