NO. 07-11-0381-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
JANUARY 23, 2013
_____________________________
FRANCIS JAEGER, CHRISTIE JAEGER, DAN BECKMAN
AND JERETTA BECKMAN,
Appellants
v.
ROBERT HARTLEY, MARY CORRIGAN, CHARLES ALLEN REEVES AND EDITH M.
VAUGHT A/K/A MARY EDITH VOUGHT A/K/A MARY EDITH VOUGHT,
INDIVIDUALLY AND D/B/A ELKINS RANCH, ET AL.,
Appellees
_____________________________
FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;
NO. 59,377-B; HONORABLE JOHN B. BOARD, PRESIDING
_____________________________
Opinion
_____________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
We have before us an appeal from final summary judgments denying Francis
and Christie Jaeger (the Jaegers) and Dan and Jeretta Beckman (the Beckmans)
recovery against Robert Hartley, Mary Corrigan, Charles Allen Reeves, and Edith M.
Vaught, individually and as Elkins Ranch, Mary Corrigan and Charles Allen Reeves, as
co-trustees of the Louise Reeves Revocable Living Trust UTD, independently and as
Elkins Ranch, Edith Vaught as trustee of the Vaught Family Revocable Living Trust,
independently and as Elkins Ranch, and Michael Lancaster (collectively referred to as
Elkins). We reverse. 1
Background
The dispute arose from an accident occurring on the Elkins Ranch. The
Beckmans and Jaegers were participating in a commercial tour of Palo Duro Canyon
allegedly conducted by Elkins Ranch. The latter provided both a jeep for them to ride in
and a driver or tour guide (i.e., Lancaster) to operate the vehicle. Evidence also
appears that indicates they were told to obey Lancaster’s directions.
While the tour was proceeding up a steep incline in the canyon, the jeep stalled,
its brakes failed, and it began rolling down the incline. As it did, Lancaster told the
Jaegers and Beckmans to jump from the vehicle. They were not wearing seat belts at
the time per the directive of Lancaster. Eventually the jeep tumbled onto its side and
stopped.
The Jaegers and Beckmans suffered injuries and sued Elkins. The latter moved
for summary judgment, contending that the document entitled Waiver and Assumption
of Risk executed by their opponents relieved them of liability, that their opponents
1
Question has again arisen as to whether this court has jurisdiction over the appeal. The matter
involves the claims asserted against Robert Hartley. He was a named defendant who died before filing
any motion for summary judgment. Nonetheless, the trial court executed a summary judgment expressly
stating that “[t]his judgment finally disposes of all parties and all claims and is appealable.” (Emphasis
added). The latter is a clear expression of the trial court’s intent to render a final, appealable decree
despite granting relief to a defendant who had not requested it. This situation is akin to that described by
the Supreme Court in Jacobs v. Satterwhite, 65 S.W.3d 653, 655 (Tex. 2001), where it recognized a
difference between granting relief to parties in excess of that actually sought in a motion for summary
judgment and granting relief that fails to dispose of all claims and parties. The latter does not result in a
final, appealable decree while the former is. Here, the words used by the trial court in its summary
judgment granted complete relief and disposed of all parties and claims. As such, it is final, though
reversible as to the claims asserted against Robert Hartley.
2
breached the foregoing contractual waiver by suing, and that recovery could be had
only if they were reckless (as opposed to merely negligent). The motions for summary
judgment were granted, but the trial court specified no particular ground upon which it
acted.
Discussion
1. Standard of Review
The standard of review we must apply when entertaining an appeal from a final
summary judgment is described in Nixon v. Mr. Property Management Co., 690 S.W.2d
546, 548 (Tex. 1985). There is no need for us to reiterate it.
2. Effect of the Waiver and Assumption of Risk Document
In its motion for summary judgment, Elkins asserted that the Jaegers and
Beckmans assumed the risk of injury arising from their participation in the tour by
signing the aforementioned waiver and assumption of risk agreement. 2 The latter
contained the following language:
I . . . voluntarily sign this Waiver and Assumption of Risk in favor of
ELKINS RANCH, its Owners, agents, or employees, in consideration for
the opportunity to enter upon and use the Ranch facilities; and to engage
in activities sponsored by the Owners . . .
Driving, or parking, of customers’ vehicles; Walking; Hiking; Horseback
riding and instruction; Jeep tours; Hunting; Interactions with all livestock,
or wildlife; Camping . . .; Consumption of food, or beverage; Use of
customers [sic] own personal horse, vehicle, trailer, or equipment while on
Ranch property; Any and all indoor, or outdoor activities, however related,
while on Ranch premises.
I understand that there are certain risks and dangers associated with the
various activities, use of the facilities, and the wilderness environment;
and that these risks have been fully explained to me. I fully understand
2
While the document mentions both an assumption of risk and waiver, Elkins relies simply on the
former to defeat liability. So we render no opinion on whether the two defenses are one and the same or
actually two distinct theories.
3
the danger involved. I fully assume the risks involved as acceptable to
me, and I agree to use my best judgment in undertaking these activities
and follow all safety instructions.
I do hereby waive, release, acquit and forever discharge ELKINS RANCH,
its Owners, agents, employees and all persons and entities of; [sic] from
any/all actions, causes of action, claims, demands, damages, costs, loss
of services, expenses, and compensation, on account of, or in any way
growing out of, any and all known and unknown personal injuries, property
damage, or death resulting from my presence on Ranch premises, use of
facilities, or from my participation in the activities. This Waiver/Release
contains the Entire Agreement between the parties, and the terms of this
Waiver/Release are contractual and not a mere recital.
I further state that I am a competent adult of lawful age, and I have
carefully read the foregoing Waiver/Release and know its contents. I
assume these risks and sign the same of my own free will . . . .
The executed document allegedly “precludes any recovery” by the signatories against
Elkins. And, the latter cite our opinion in Willis v. Willoughby, 202 S.W.3d 450 (Tex.
App.–Amarillo 2006, pet. denied) to support their position.
In Willis, the plaintiff (Willis) broke her ankle while participating in self-defense
training. That is, she was attempting to thwart a charge by her instructor when the two
collided and fell to the ground. Engaging in this exercise somehow resulted in the
broken ankle. Before participating in the activity, Willis executed a document containing
the following language:
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 . . . .
4
Willis v. Willoughby, 202 S.W.3d at 452. We held that by signing the document, Willis
had contractually “assumed ‘all risk of injury . . . associated with such training,’” and she
“effectively relieved Willoughby of the duty to protect her from foreseeable injury while
instructing her in self-defense.” Id. at 453; accord Thom v. Rebel's Honky Tonk, No.
03-11-0700-CV, 2012 Tex. App. LEXIS 7555, *17-18 (Tex. App.–Austin August 30, 2012,
no pet.) (stating that “[t]he effect of the [contractual] assumed-risk defense is to negate
any duty owed to the plaintiff by the defendant to protect against foreseeable risks”).
We have no question about the continued viability of the law espoused in Willis. Yet,
that does not mean it is of benefit to Elkins.
As we said in Willis, the common law doctrine of assumed risk no longer exists.
Willis v. Willoughby, 202 S.W.3d at 453. Yet, one may still assume the risks inherent in
engaging in a certain activity by contract and thereby relieve others of a duty to protect
against foreseeable risks. Id. And, therein lies the quandry -- determining what risks
are foreseeable. A good starting point in making that determination would be the writing
or contract that supposedly vitiates the duty of care. See Rice v. Metropolitan Life Ins.
Co., 324 S.W.3d 660, 669 (Tex. App.–Fort Worth 2010, no pet.) (stating that we turn to
the contract’s wording to assess the obligations assumed by the parties).
The agreement before us explains that it was to be executed in exchange for the
signatory being allowed to “enter upon and use the Ranch facilities; and to engage in
activities sponsored by the Owners.” Through it, the signatory agreed to “fully assume
the risks involved.” The “risks involved” consisted of those “certain risks and dangers
associated with the various activities, use of the facilities, and the wilderness
environment . . . .” And, the “activities” contemplated or occurring on the Ranch were:
5
Driving, or parking, of customers’ vehicles; Walking; Hiking; Horseback
riding and instruction; Jeep tours; Hunting; Interactions with all livestock,
or wildlife; Camping . . .; Consumption of food, or beverage; Use of
customers [sic] own personal horse, vehicle, trailer, or equipment while on
Ranch property; Any and all indoor, or outdoor activities, however related,
while on Ranch premises.
So, 1) the nature of the environment, i.e., a ranch and wilderness, 2) the facilities
present and their use, and 3) the activities being conducted combine to form the
nucleus from which the risks assumed were to emanate. That the Jaegers and
Beckmans were injured while venturing into the canyon wilderness while on a jeep tour
of that wilderness is clear. But the injuries did not stem simply from the tour being
conducted in a wilderness or canyon environment. That is, canyon walls did not give
way or the ground subside or the terrain cause the jeep in which they rode to leave the
pathway or flip, or the like. Similarly, exposure to or interaction with the flora or fauna of
the environment was not the event that caused injury.
Instead, summary judgment evidence indicates that the injuries arose from the
Elkins’ tour guide attempting to ascend a steep slope with a jeep that had defective
brakes. There is no evidence that anyone told the Jaegers or Beckmans that they
would be traversing rugged terrain in such a vehicle before they signed the release
instrument. Nor is there evidence that they were made aware of the possibility that the
vehicle on which they would ride could be defective and ill-suited for the venture. Nor
were they told that the tour would or could continue on equipment that became
defective during the event. More importantly, the Elkins’ tour guide became aware of
the defect with the brakes yet continued the tour. These circumstances and the
relationship between the act and injury they evince are unlike those in Willis. There,
6
Willis’ injury occurred during a training exercise that went somewhat awry. The nexus
between the two was quite direct. As we said there:
. . . the training contemplated . . . involved learning techniques to
counteract physical attack from those whom [Willis] 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.
Willis v. Willoughby, 202 S.W.3d at 453. Suffering injury as a result of being struck or
falling during a self-defense exercise is quite foreseeable since the exertion of force or
application of physical contact by another is part of the exercise. Willis had agreed to
engage in an exercise involving forceful physical contact, knew of the potential for injury
arising from such contact, and suffered an injury caused by the very contact in which
she was to engage. Had she been injured because the exercise had resulted in her
falling upon a mat containing a sharp object or because the floor gave way from the
impact, or the like, the outcome may not have been the same.
The same is true of the circumstances in Honky Tonk. There, the plaintiff was
thrown from a mechanical bull. He had previously signed a release with the following
language:
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.
7
Thom v. Rebel's Honky Tonk, No. 03-11-00700-CV, 2012 Tex. App. LEXIS 7555, at *18-
19. That verbiage expressly mentioned risks of injury due to being thrown from the
device, and more importantly, that is how the plaintiff in Honky Tonk suffered injury -- he
was thrown from the bull. There was no evidence that the ride was defective or that the
owners knew of any defect in the bull yet allowed the participant to mount it.
Here, it may be reasonable to foresee from the writing at bar the potential for
injury arising from one’s traversing a wilderness or canyon by vehicle. But, it is not
reasonable to infer from the same verbiage that part of the tour would consist of being
driven around a wilderness and canyon area in a vehicle with defective brakes or that
an Elkins’ employee would continue a tour through a canyon while knowing about the
defect. 3
We therefore conclude that the summary judgment record submitted by Elkins
does not demonstrate as a matter of law that the risk at bar (i.e., using a jeep with
defective brakes to conduct a wilderness tour and continuing the tour after gaining
knowledge of such a defect) causing the injury at bar (i.e., being thrown from the jeep
because its brakes could not stop it from rolling down a steep ascent) was foreseeable.
Said another way, Elkins has not demonstrated as a matter of law that the Jaegers and
Beckmans gave, in the words used in Farley v. M M Cattle Co., 529 S.W.2d 751, 758
(Tex. 1975), “knowing and express oral or written consent to the dangerous activity or
condition.” Elkins has not shown its entitlement to summary judgment under the
contractual doctrine of assumed risk.
3
We note that the record contains evidence that the tour guide requested another employee of
Elkins to bring him brake fluid during the tour because the jeep’s brakes were not working. That individual
appeared in a separate vehicle, but no fluid was added to the brake system. It was after this event that
the tour guide 1) directed the Beckmans and Jaegers to return to the jeep, and 2) continued the tour.
8
3. Standard of Liability Requires Recklessness
Elkins also sought summary judgment on the ground that its jeep tour was
comparable to participating in a sporting event and that those sponsoring such events
are liable only for injuries arising from reckless or grossly negligent conduct. They cited
our decision in Hathaway v. Tascosa Country Club, Inc., 846 S.W.2d 614 (Tex. App.–
Amarillo 1993, no writ), as support for the proposition. In Hathaway, the plaintiff was hit
by a golf ball while playing golf. Because getting hit with a golf ball while on a golf
course was a foreseeable event, we concluded “that for a plaintiff to prevail in a cause
of action against a fellow golfer, the defendant must have acted recklessly or
intentionally.” Id. at 617. 4 Were we to assume that participating in a canyon tour is
comparable to playing golf, Elkins still would not be entitled to summary judgment as a
matter of law, however.
To be reckless, a defendant must engage in conduct that he knew or should
have known posed a high degree of risk of serious injury but disregarded that risk.
Wal-mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 326 (Tex. 1996). Evidence
appears of record here disclosing that the Jaegers and Beckmans were directed by
Elkins to obey the employee provided as their tour guide, their tour guide informed them
not to wear their seat belts, the tour guide began and then became aware of the jeep’s
defective brakes, and the employee continued that tour by going up a steep slope
despite knowing of the defect. A factfinder could reasonably infer from it that the
4
But see, McClain v. Baker, No. 14-96-00487-CV, 1997 Tex. App. LEXIS 3808, at *4 (Tex. App.–
th
Houston [14 Dist.] July 24, 1997, no writ) (not designated for publication) (stating that “the Texas
Supreme Court recently rejected the reckless disregard standard for claims involving competitive contact
sports because the reckless or intentional standard ‘is not workable to ferret out unmeritorious claims.’
Davis v. Greer, 940 S.W.2d 582, 583 (Tex. 1997)” and that the standard is simply one of foreseeability).
9
employee acted recklessly. 5 Thus, there is evidence satisfying the standard of
misconduct invoked by Elkins.
4. Breach of Contract
Elkins finally sought summary judgment on the ground that the Beckmans and
Jaegers breached their contract wherein they assumed the risk of injury by suing Elkins.
Having previously concluded that the risks assumed did not encompass the risk causing
injury here, Elkins failed to prove, as a matter of law, that the suit breached the
agreement.
The summary judgments are reversed and the cause remanded to the trial court.
Brian Quinn
Chief Justice
5
Whether that conduct may be imputed to his employers is not before us.
10