NO. 07-05-0190-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
SEPTEMBER 13, 2006
______________________________
SANDRA WILLIS, ALLEN WILLIS, and FREMONT INDUSTRIAL
INDEMNITY COMPANY,
Appellants
v.
GARY WILLOUGHBY, individually and d/b/a WILLOUGHBY’S
ENTERPRISE-BACK OFF,
Appellee
_________________________________
FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;
NO. 32,464; HON. JOHN T. FORBIS, PRESIDING
_______________________________
Opinion
_______________________________
Before QUINN, C.J., and REAVIS and HANCOCK, JJ.
Sandra Willis (Sandra), her husband Allen Willis (Allen), and Fremont Industrial
Indemnity Company appeal from a summary judgment wherein the trial court decreed that
they take nothing against appellee Gary Willoughby, individually and d/b/a Willoughby’s
Enterprise-Back Off (Willoughby). Through their various issues, they contend that the trial
court erred in granting the summary judgment. We affirm.
Background
The dispute involved a release executed by Sandra prior to receiving instruction in
self-defense from Willoughby. While participating in the self-defense class, Sandra broke
her ankle. Thereafter, she and her husband sued Willoughby for negligence. Fremont
intervened, asserting a claim for subrogation. It had allegedly paid Sandra worker’s
compensation benefits arising from the injury and believed itself entitled to recoup the
payments made to her.
Willoughby moved for summary judgment. He contended that he owed duties to
neither the plaintiffs nor intervenor. This was purportedly so because 1) the injury arose
from a risk inherent in the activity, 2) Sandra expressly assumed the risk of injury, 3)
Sandra released Willoughby from liability and had actual knowledge of the release, and 4)
Sandra waived all claims arising from participation in the classes. The motion was granted;
however, in granting same, the trial court did not specify the ground upon which it relied.
Law and Its Application
It is beyond dispute that one moving for a traditional summary judgment has the
burden to prove his entitlement to it, as a matter of law. Southwestern Elec. Power Co. v.
Grant, 73 S.W.3d 211, 215 (Tex. 2002). In determining whether this standard was met,
we must view the summary judgment evidence in a light most favorable to the non-movant.
Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41,
47 (Tex. 1965). Moreover, when judgment is sought on multiple grounds and the trial
court does not specify the ground upon which it relied in granting the motion, the burden
lies with the appellant to negate the viability of each ground. Carr v. Brasher, 776 S.W.2d
2
567, 569 (Tex. 1989). In other words, if at least one of the several grounds supports the
trial court’s decision, then we must affirm that decision.
The crux of Willoughby’s motion for summary judgment involved the effect of a pre-
injury “Waiver/Release of Liability Form” executed by Sandra. Therein, Sandra expressed
that she wished to participate in self-defense training and certified that she was at least 18
years old. She further represented, via the document, that:
“I understand that self-defense training is inherently dangerous and I
knowingly and willingly assume all risk of injury or other damage associated
with such training. I release all teachers, students, and other parties from
any claim of any and all liability that may result from any injury received, and
I hereby waive all claims that I, or anyone else on my behalf, may make with
respect to such injury or damages. I agree for myself and my successors that
. . . should I or my successors assert any claim in contravention to this
agreement, I and my successors shall be liable for the expenses including
. . . legal fees incurred by the other party or parties in defending unless the
party or parties are adjudged finally liable on such claim for willful and
wanton negligence . . . .”1
According to Sandra, partaking in the self-defense class was an aspect of her
employment as a jailer for the Gray County Sheriff’s department. Furthermore, the injury
at issue occurred when Willoughby and Sandra were engaged in a training exercise. As
part of the exercise, Willoughby charged Sandra, who was expected to thwart the charge.
As he did, she attempted a “block,” but when the two came into physical contact, they fell.
1
Sandra alleged in her petition that the injuries she suffered “were proximately caused by reckless
and wan ton cond uct of De fendan t” and she sought punitive damages due to “Defendant’s . . . ‘willful and
wanton’ negligence . . . .” Yet, she does not argue before us that the provision of the release concerning
W illoughby’s potential liability for “willful and wanton negligence” removed her claims from the scope of the
waiver. Nor does she assert that the release encompasse d o nly injury arising from negligent activity as
opposed to reckless or wanton conduct or gross negligence. So we nee d no t consider thos e m atters . See
Hathaway v. Tascosa Country Club, Inc., 846 S.W .2d 614, 617 (Tex. App.–Am arillo 1993, no pet.) (holding
that for one to be liable for injuring another while participating in a sport where injury is foreseeable, the injury
m ust arise fro m reck less or inten tional cond uct).
3
Willoughby landed atop her. During the exchange, Sandra heard a “pop” and realized that
she injured her ankle.
Next, of the various grounds for summary judgment uttered by Willoughby, one
involved the doctrine of assumed risk. However, the doctrine propounded was not that
arising under common law but that emanating contractually. In other words, Willoughby
argued that Sandra contractually assumed the risk of engaging in what she expressly
agreed to be an inherently dangerous activity. That the allegation was founded upon
contract was and is of import since the common law doctrine of assumed risk is no longer
viable in Texas. Farley v. M M Cattle Co., 529 S.W.2d 751, 758 (Tex. 1975); Moore v. Phi
Delta Theta, 976 S.W.2d 738, 741 (Tex. App.–Houston [1st Dist.] 1998, pet. dism’d). Yet,
that founded upon contract remains live and well. Id. Additionally, when one assumes, via
contract, the risk of engaging in a particular activity, the applicable body of law is that
developed under the umbrella of the common law doctrine. See Farley v. M M Cattle Co.,
529 S.W.2d at 758 (in vitiating the common law doctrine of assumed risk, the court stated
that the current status of the defense when founded upon contract or strict liability remains
unaffected). Finally, the effect of the defense is to negate any duty owed the plaintiff by
the defendant to protect against foreseeable risks. Adam Dante Corp. v. Sharpe, 483
S.W.2d 452, 458 (Tex. 1972); see Hathaway v. Tascosa Country Club, Inc., 846 S.W.2d
614, 616-17 (Tex. App.–Amarillo 1993, no pet.) (holding that one injured while participating
in a sport where injury is foreseeable may not sue another participant for negligently
causing the injury).
4
Given the provision of the release wherein Sandra both expressly acknowledged the
inherent danger involved in self-defense training and “knowingly and willingly assume[d]
all risk of injury or other damage associated with such training,” we cannot but conclude
that the contractual doctrine of assumed risk applied at bar. (Emphasis added). Sandra
having assumed “all risk of injury . . . associated with such training,” she effectively relieved
Willoughby of the duty to protect her from foreseeable injury while instructing her in self-
defense.2 Adam Dante Corp. v. Sharpe, supra.
Sandra did argue that suffering physical injury was not an inherent risk of
undergoing training in self-defense, i.e. that the risk of injury was not foreseeable. Yet, we
must disagree for several reasons. First, she expressly conceded the issue via her
execution of a release stating that the activity was “inherently dangerous.” Second, she
cites us to no evidence of record, lay or otherwise, purporting to negate her concession or
rebut Willoughby’s attestation that “the risk of injury is inherent in martial arts and self-
defense training.” Third, the training contemplated here involved learning techniques to
counteract physical attack from those whom she guarded. The techniques were not merely
verbal but implicated the use of physical contact and force. That the application of contact
and force sufficient to deter aggression can result in bodily injury is a matter of common
sense; indeed, Sandra herself admitted, via deposition, that she understood the possibility
of that happening while engaged in the class.3 Thus, the evidence of record coupled with
2
Again, we n ote that the question of whether the release also relieved W illoughby of a ny duty to avoid
acting rec kle ss ly, wa nto nly, or grossly negligent is not raised by Sandra on appeal. Nor do we suggest that
the document relieved him of such duties since the matter is not before us.
3
The injuries she m entioned were “bu m ps and b ruises,” however.
5
reason established, as a matter of law, that injury caused by participating in self-defense
training was and is foreseeable.
Finally, and to the extent Sandra posits that enforcing contractual claims of assumed
risk violate public policy, we again note that such a defense is recognized by our Supreme
Court. Being so recognized, we cannot say that it is against public policy.4
In short, the risk of injury attendant to engaging in the type of self-defense course
involved at bar was and is foreseeable. The injury being foreseeable and Sandra having
contractually assumed the risk of foreseeable injury, Willoughby was entitled to judgment
as a matter of law. And, given the record and arguments before us, we cannot say that the
trial court erred in granting him that relief.
Having found at least one ground supporting summary judgment, we affirm the
judgment of the trial court.
Brian Quinn
Chief Justice
4
Sandra also discussed the expres s n eg ligence doctrine in her brief. Yet, a fair reading of the
argument leads us to conclude that she posed the theory as a means of attacking the effect of the release
and waiver provisions of the document she signed. It was not used as a means of negating the claim of
assumed risk.
6