Brendan Van Voris and Josephine Durkin v. Team Chop Shop, LLC D/B/A Chop Shop MMA Jerry Howell
2013 Tex. App. LEXIS 7011
| Tex. App. | 2013Background
- VAN VORIS sustained injuries during an aikido demonstration at Chop Shop MMA; his wife Durkin sues on her own and derivatively.
- Plaintiffs allege negligence and gross negligence; they also claim loss of services and loss of consortium.
- Chop Shop moves for summary judgment on negligence and gross negligence based on a pre-injury Release and Waiver of Liability.
- The release, signed by Van Voris, is a one-page document containing explicit waiver of liability for negligence.
- Court analyzes fair notice and express negligence doctrines; concludes the release is conspicuous and expresses intent to exculpate for own negligence.
- Court addresses public policy and separability: holds gross negligence claims are not barred by the release and remands for further proceedings on those claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the release satisfy fair notice for negligence? | Van Voris argues the release lacks conspicuousness and express negligence language. | Chop Shop asserts the release is conspicuous and expressly releases its own negligence. | Yes; release meets fair notice for negligence. |
| Does the release bar gross negligence claims? | Gross negligence is not covered; policy disfavors waivers of gross negligence. | Release precludes all claims including gross negligence because inseparable from negligence. | No; release does not bar gross negligence. |
| Are negligence and gross negligence separable for purposes of a pre-injury release? | Gross negligence can be pursued separately despite a negligence release. | Negligence and gross negligence are inseparable after a pre-injury release. | They are separable; gross negligence not precluded. |
| Should public policy invalidate pre-injury releases of gross negligence? | Pre-injury waivers of gross negligence are against public policy and void. | Public policy concerns not clearly settled; releases may be enforceable. | Public policy disfavors pre-injury releases of gross negligence; not barred here. |
Key Cases Cited
- Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505 (Tex. 1993) (conspicuousness and express negligence doctrine for releases)
- Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d 705 (Tex. 1987) (express negligence doctrine applicability to indemnity terms)
- Atl. Richfield Co. v. Petroleum Pers., Inc., 768 S.W.2d 724 (Tex. 1989) (public policy concerns with indemnity for own negligence)
- Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653 (Tex. 2008) (public policy balancing framework for enforceability of promises)
- Moriel v. Transp. Ins. Co., 879 S.W.2d 10 (Tex. 1994) (definition and requirements of gross negligence; extreme risk and conscious disregard)
- Nabours v. Longview Sav. & Loan Ass’n, 700 S.W.2d 901 (Tex. 1985) (damages prerequisite for punitive (exemplary) damages)
- Anderson v. Trent, 685 S.W.2d 712 (Tex. App.—Dallas 1984) (gross negligence not mere aggravated negligence; public policy context)
- Newman v. Tropical Visions, Inc., 891 S.W.2d 713 (Tex. App.—San Antonio 1994) (inseparability of negligence and gross negligence discussed in pre-injury release context)
- Tesoro Petroleum v. Nabors Drilling USA, Inc., 106 S.W.3d 118 (Tex. App.—Houston [1st Dist.] 2002) (indemnity/negligence release contexts and separability considerations)
- Akin v. Bally Total Fitness Corp., No. 10-05-00280-CV, 2007 WL 475406 (Tex. App.—Waco 2007) (analysis of pre-injury releases and separability (WL cited; official reporter unavailable here))