Autumn Biscamp v. Special Pals Incorporated ( 2020 )

Opinion issued February 13, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00005-CV
———————————
AUTUMN BISCAMP, Appellant
V.
SPECIAL PALS, INC., Appellee
On Appeal from the 133rd District Court
Harris County, Texas
Trial Court Case No. 2017-37057
MEMORANDUM OPINION
While performing community service at an animal shelter, Special Pals, Inc.
(“Pals”), appellant, Autumn Biscamp, was bitten by a dog and injured. Biscamp
sued Pals for negligence, and Pals asserted an affirmative defense of release. A jury
found both Pals and Biscamp negligent and awarded Biscamp damages. Pals moved
for judgment on its affirmative defense, which the trial court granted and rendered a
take-nothing judgment against Biscamp. In her sole issue, Biscamp contends that
the trial court erred in rendering judgment against her because the pre-injury releases
she signed do not comport with the express negligence doctrine and thus are
unenforceable as a matter of law.
We affirm.
Background
Pals is a limited-intake, no-kill animal shelter that rescues dogs and cats and
provides them with temporary shelter and medical care until adopted into permanent
homes. Pals is a non-profit organization that operates on private donations. Pals is
a member of the Harris County Community Supervision and Correctional
Department (“HCCSCD”) Community Service Restitution Program (“Program”).
As a member of the Program, Pals is an approved location for the HCCSCD to assign
individuals to perform court-ordered community service hours.
After a trial court ordered Biscamp to complete community service hours
through the Program, she selected Pals. On May 31, 2015, as a condition of her
service, Biscamp signed certain documents, including a Community Service
Agreement (“Agreement”) and a Tetanus Vaccination Waiver (“Waiver”).
The two-page Agreement includes the following release:
I understand that although [Pals] will make every attempt to ensure the
safety of their volunteers and animals, rescue animals are by nature
2
unpredictable in their behavior. Therefore, I assume the risks of being
bitten, scratched, injured, or frightened by cats, kittens, dogs, and
puppies in connection with my volunteer work for [Pals]. Neither
[Pals] or any of its Directors, volunteers, fosters, or other affiliates are
liable to me for any injuries, damages, liabilities, losses, judgments,
costs, damage to property or expenses whatsoever that I might suffer or
sustain in connection with the performance of my volunteer activities
for [Pals]. I will indemnify, defend, and hold the [Pals] Board of
Directors, volunteers, fosters, or other affiliates harmless from and
against any claims, lawsuits, injuries, damages, losses, costs, or
expenses whatsoever sustained by any foster animal or any person in
connection with my intentional misconduct or grossly negligent
performance of volunteer activities for [Pals] or my breach of [Pals’s]
rules, regulations, policies, and programs.
The one-page Waiver includes the following release:
I agree that on behalf of myself, my heirs, personal representatives and
executors, I release, discharge indemnify, and hold harmless [Pals], its
agents, employees, directors and board of directors from any and all
claims, causes of action, or demands of any nature of cause, including
costs and attorney’s fees incurred by [Pals] in connection with the same,
based on damages, or injuries which may be incurred or sustained by
me in any way connected with my services for [Pals], including but not
limited to animal bites, accidents or injuries.
During Biscamp’s first day of service, June 3, 2015, a dog bit her leg, as
discussed below. Biscamp sued Pals for negligence, alleging that Pals failed to
provide a safe environment, adequate equipment, safe cages with “properly locking
latches,” and adequate training and supervision. She further alleged that the dog at
issue had “dangerous propensities,” of which Pals failed to warn her. Biscamp
sought past and future medical care and expenses; past pain, suffering, and mental
anguish; future pain and suffering; past and future physical impairment and
3
disfigurement; lost earnings; loss of earning capacity; “fear of future disease or
condition”; and “cost of medical monitoring and prevention in the future.”
In its answer, as amended, Pals generally denied the allegations and asserted,
among its affirmative defenses, that Biscamp’s claims were “barred by the defense
of waiver, release, quasi-estoppel, and assumption of the risk.” Pals asserted that
Biscamp “had knowledge of the facts basic to the exercise of her rights and
intentionally and unequivocally released, discharged and waived those rights by
agreement.” Further, her alleged damages were caused, in whole or in part, by her
own negligence, and she assumed the risk inherent in the work and failed to mitigate
her alleged damages.
At trial, Biscamp testified that, on May 31, 2015, she attended an orientation
session at Pals and signed the Agreement and Waiver. The trial court admitted the
Agreement and Waiver into evidence. After reading aloud to the jury the release
paragraphs contained in the Agreement and Waiver, stated above, Biscamp testified
that she understood them.
On Biscamp’s first day of service, June 3, 2015, one of her assigned duties
was to clean cages, which involved moving dogs housed in inside cages to one of
twelve outside cages. A Pals staff member, “John,” explained to her that some of
the outside cages were “good” and some were “bad.” Biscamp testified that a “good
cage” was one that, when “the door was closed,” the door and cage “[met] at the
4
bottom.” A “bad cage” was one that, when the door was closed, “it wasn’t all the
way closed” at the bottom. Accordingly, John instructed her not to put small dogs
in “bad cages.”
Biscamp testified that, after moving five dogs, she moved “Moses,” a black
Labrador Retriever, who was “about 55 pounds,” to “cage number 5.” Then, while
moving a yellow Labrador Retriever (“yellow Lab”) to an outside kennel, she passed
by Moses. While she and the yellow Lab were “5 or 10 feet away,” Moses started
growling. She noted that the two dogs were the same size. Biscamp testified that
she tried to move the yellow Lab, but, “once [she] looked down,” “Moses was just
right there on [her] knee,” and he bit her on her right knee.
Biscamp noted that shelter personnel placed a bandage on her knee and that
she completed a Pals incident report. In the report, which the trial court admitted
into evidence, Biscamp handwrote the details of the incident as follows: “Walking
the dogs out and Moses got out of his cage along with another[.] [Tried] to hold one
back but my leg was in the way therefore he bit my leg[.]” Biscamp signed
underneath her notes and again under a pre-printed statement: “*NO MEDICAL
ATTENTION WAS DESIRED AND/OR REQUIRED.”
Biscamp continued working and did not go to a doctor. Later that day, she
became sore and went to two urgent care clinics. She stated that they “didn’t do
5
anything,” however, and she went home. She later went to a third medical provider,
who cleaned her knee and gave her antibiotics and pain medication.
On June 5, 2015, Biscamp’s leg was swollen and painful, and she was having
difficulty walking. She testified that she went to a hospital, where she was diagnosed
with “flesh-eating bacteria” and underwent surgery. She noted that, afterwards, she
could not walk for two weeks. Although she was “supposed to do physical therapy,”
she only “went once.” With respect to her future damages, Biscamp testified:
Q. Are you done treating today?[1]
A. Yeah.
Q. Do you remember the last time you went to a medical doctor,
what date that was?
A. Three years ago.
....
Q. And how are you feeling now?
A. I still have problems.
Q. Can you tell me what those are?
A. I can’t sit Indian style. I can’t drive for very long. I can’t sit on
my knee. If I stand for long hours—which I do a lot—my leg
just hurts. And I do have back pain still.
Q. Do you require additional medical treatment?
A. I’m supposed to, yes.
Q. When you say you were supposed to, what happened to that?
A. After the first surgery, I was supposed to have a second surgery.
....
Q. So what were you supposed to have done?
1
Trial began on July 19, 2018.
6
A. I was supposed to have the rest of the infection removed.
Q. And what would that consist of, from your understanding?
A. Flesh-eating bacteria.
Q. What were you supposed to have done?
A. They were just supposed to reopen the scar and take everything
that was still there out.
Biscamp testified that she incurred $53,000.00 in medical bills. The trial court
admitted into evidence her medical records and billing. The medical records reflect
that she was diagnosed with necrotizing fasciitis in her knee, underwent debridement
and drainage, was treated with antibiotics, and was released on June 9, 2015.
Biscamp explained that she has owned dogs, is familiar with handling them,
knows that dogs can be dangerous and unpredictable, and that it was “common
sense” not to “go near” a dog fight. She placed Moses in cage number 5, which was
one of the “good cages,” because it was a bigger cage and “seemed like it was more
secure.” Biscamp emphasized, “There was absolutely nothing wrong with that cage
because it met all the way to the end to the top.” Rather, “[t]here was nothing to
hold the latch.” She noted that, right after the bite, she looked at cage number 5, and
“it seem[ed] like the latch was all the way up.”
Douglas Worthy, an independent animal control officer, performed an
inspection of the Pals facility and kennels. He testified that “all of the kennels were
in good condition,” the kennel at issue was adequate for the type of dog at issue, and
“there were no defects in the door latches.” Each of the outside kennels had a “U
7
fork latch and a carabiner,” including the kennel into which Biscamp placed Moses.
He opined that there was “nothing more that can be done to secure the doors” and
that it was “possible that Biscamp forgot to put it [the carabiner] on.”
Elizabeth Trick, executive director of Pals, testified that all volunteers at Pals
participate in an orientation. During orientation, a Pals representative gives each of
the volunteers a copy of the Agreement and Waiver, and the representative sits down
with the volunteers, reads each line aloud, and solicits questions. Volunteers are
instructed during orientation, and reminded during shifts, that if they ever feel
uncomfortable while handling a dog, to simply drop the leash, walk away, and seek
help from shelter staff. Pals assigns color-coded tags (red, yellow, or green) to the
dogs based on their weight, which correlates to ease of handling. Any dog over 40
pounds receives a red tag. Trick testified that Biscamp represented to Pals that she
had owned large dogs and felt comfortable handling them.
Trick testified generally that, on June 3, 2015, a shelter employee, John, was
managing the “adoption section,” to which Biscamp was assigned. Biscamp was
directed to move dogs from one area of the shelter to another. Biscamp moved
Moses to a new kennel. Then, as she was leading another dog past him, Moses began
growling. Biscamp tried to pull the other dog away, but the situation escalated.
Moses came out of his kennel, and a dog fight ensued. Biscamp attempted to
intervene by pushing her leg between the dogs and was bitten.
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Trick testified that Pals’s policy is that whenever a handler puts a dog in a
kennel, or cage,2 the handler is to “close the latch and clip it.” Although Biscamp
stated that she did not see it, “[t]he clip is on the cage,” and “[t]hey are on every cage
with every door.” Trick noted that the staff checks the kennels daily. She and the
staff inspected the kennel into which Biscamp placed Moses. Trick noted that the
kennel has a latch and a hook securing the door, it was in working order, and “there
was nothing wrong with it.”
Trick noted that Pals is an adoption center and does not accept aggressive
dogs. Moses transferred to Pals from a Harris County shelter approximately three
weeks before the incident. And, there was “no indication that he was aggressive.”
The jury found that Biscamp’s injuries were proximately caused by the
negligence of both Pals and Biscamp, and it apportioned 70 percent of the liability
to Pals and 30 percent to Biscamp. The jury awarded Biscamp damages for past
medical expenses in the amount of $54,000.00; past pain and suffering of
$10,000.00; past physical impairment of $5,000.00; future medical expenses of
$75,000.00; future pain and suffering of $20,000.00; future physical impairment of
$25,000.00; past disfigurement of $10,000.00; and future disfigurement of
$5,000.00. In questions 3, 4, and 5 of the charge, the jury also found that Biscamp
understood that the Agreement and Waiver she executed “released [and/or]
2
The parties use the terms “cage” and “kennel” interchangeably.
9
discharged [Pals] of responsibility or liability for dog bites and related injuries that
[Biscamp] might sustain as a result of working as a community service worker.”
Pals moved for judgment on its affirmative defense of release. After a
hearing, the trial court granted the motion and rendered judgment that Biscamp take
nothing on her negligence claim.
Biscamp moved to modify the trial court’s judgment and for judgment
notwithstanding the verdict, asserting that the evidence “establishe[d] that the
releases were void as a matter of law”; “it was improper for the releases to be
submitted to the jury”; “the questions [were] immaterial and should be disregarded”;
and “there [was] no evidence to support [Pals’s] affirmative defense of release.” The
trial court denied Biscamp’s motion.
Release
In her sole issue, Biscamp asserts that the trial court erred in rendering a take-
nothing judgment against her based on Pals’s affirmative defense of release. She
argues that the pre-injury releases in the Agreement and Waiver are unenforceable
as a matter of law because they do not satisfy the express negligence doctrine, and
the jury’s findings that she understood them are immaterial.
A. Standard of Review and Overarching Legal Principles
A release is a “contractual arrangement whereby one party assumes the
liability inherent in a situation, thereby relieving the other party of responsibility.”
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Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993). “It
operates to extinguish the claim or cause of action as effectively as would a prior
judgment between the parties and is an absolute bar to any right of action on the
released matter.” Id. Release is an affirmative defense. TEX. R. CIV. P. 94. The
interpretation of a release is a question of law to be decided by the trial court and
reviewed de novo on appeal. MCI Telecomm. Corp. v. Tex. Util. Elec. Co., 995
S.W.2d 647, 650–51 (Tex. 1999); Mem’l Med. Ctr. of E. Tex. v. Keszler, 943 S.W.2d
433, 434 (Tex. 1997).
“[R]eleasing a party in advance of liability for its own negligence” constitutes
“an extraordinary shifting of risk.” Storage & Processors, Inc. v. Reyes, 134 S.W.3d
190, 193 (Tex. 2004); Grijalva v. Bally Total Fitness Corp., No. 01-14-00217-CV,
2015 WL 1544582, at *4 (Tex. App.—Houston [1st Dist.] Apr. 2, 2015, no. pet.)
(mem. op.). A release of liability for future negligence is enforceable only if it
comports with both prongs of the “fair notice requirements”: (1) conspicuousness
and (2) the express negligence doctrine. See Reyes, 134 S.W.3d at 192; Grijalva,
2015 WL 1544582, at *4. “Thus, fair notice is the chief test we must apply, and
conspicuousness and express negligence are merely the two prongs of that test.”
Sydlik v. REEIII, Inc., 195 S.W.3d 329, 332 (Tex. App.—Houston [14th Dist.] 2006,
no pet.). Whether a provision complies with both fair notice requirements is a
question of law for the court. Dresser Indus., 853 S.W.2d at 509.
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B. Analysis
Biscamp does not challenge whether the releases in the Agreement and
Waiver satisfy the first prong of the fair notice requirements, that of
conspicuousness.3 She argues, rather, that the releases do not satisfy the second
prong, the express negligence doctrine, because “[n]either release mentions or
purports to release any claims based on Pals’s negligence.”
The purpose of the express negligence doctrine “is to require scriveners to
make it clear when the intent of the parties is to exculpate [a releasee] for the
[releasee’s] own negligence.” Fisk Elec. Co. v. Constructors & Assocs., Inc., 888
S.W.2d 813, 815 (Tex. 1994) (quoting Atl. Richfield Co. v. Petroleum Personnel,
Inc., 768 S.W.2d 724, 726 (Tex. 1989)); see also Ethyl Corp. v. Daniel Const. Co.,
725 S.W.2d 705, 707–08 (Tex. 1987) (“[T]he scriveners of indemnity agreements
have devised novel ways of writing provisions which fail to expressly state the true
intent of those provisions. The intent of the scriveners is to indemnify the indemnitee
for its negligence, yet be just ambiguous enough to conceal that intent from the
3
A provision is conspicuous if a reasonable person “ought to have noticed it.”
Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 511 (Tex. 1993).
“Language may satisfy the conspicuousness requirement by appearing in capital
headings, contrasting type, font, or color, or an extremely short document, or by
otherwise calling attention to itself.” Plasma Fab, LLC v. BankDirect Capital Fin.,
LLC, 468 S.W.3d 121, 129 (Tex. App.—Austin 2015), aff’d, 519 S.W.3d 76 (Tex.
2017); see Sydlik v. REEIII, Inc., 195 S.W.3d 329, 333 (Tex. App.—Houston [14th
Dist.] 2006, no pet.) (release contained in one-page, three-paragraph document,
identified as “release” in large, bold underlined statement at top was
“conspicuous”).
12
indemnitor. The result has been a plethora of lawsuits to construe those ambiguous
contracts.”). “Either the [release] agreement is clear and enforceable or it is not.”
Fisk Elec. Co., 888 S.W.2d at 815. The determination does not depend on the
outcome of the underlying suit; rather, it is established as a matter of law from the
pleadings. Id.
The express negligence doctrine provides that “a party’s intent to be released
from all liability caused by its own future negligence must be expressed in
unambiguous terms within the four corners of the contract.” Littlefield v. Schaefer,
955 S.W.2d 272, 274 (Tex. 1997) (citing Ethyl Corp., 725 S.W.2d at 707–08). The
express negligence doctrine does not require that a release provision include the
word “negligence.” See Lehmann v. Har-Con Corp., 76 S.W.3d 555, 562 n.3 (Tex.
App.—Houston [14th Dist.] 2002, no pet.); Banzhaf v. ADT Sec. Sys. Sw., Inc., 28
S.W.3d 180, 189 (Tex. App.—Eastland 2000, pet. denied). Rather, the test is
whether the parties made it clear in the agreement that it was their intent to release
claims of a party’s own negligent acts. See Lehmann, 76 S.W.3d at 562 n.3; Banzhaf,
28 S.W.3d at 189; see also Enserch Corp. v. Parker, 794 S.W.2d 2, 8 (Tex. 1990).
That is, there must be “some express language that would indicate an intention to
waive claims of a party’s own negligence.” Ramirez v. FFE Transp. Servs., Inc.,
No. 04-12-00342-CV, 2013 WL 1342453, at *2 (Tex. App.—San Antonio Apr. 3,
2013, pet. denied) (mem. op.).
13
The express negligence doctrine is not an affirmative defense but a rule of
contract interpretation. Fisk Elec. Co., 888 S.W.2d at 814. As such, we apply
familiar contract principles. Sydlik, 195 S.W.3d at 333. We ascertain and give effect
to the parties’ intentions as expressed in the instrument. Frost Nat’l Bank v. L&F
Distribs., Ltd., 165 S.W.3d 310, 311–12 (Tex. 2005). We give terms their plain,
ordinary, and generally accepted meaning. Heritage Res., Inc. v. NationsBank, 939
S.W.2d 118, 121 (Tex. 1996). We consider the entire writing and attempt to
harmonize and give effect to all the provisions by analyzing them with reference to
the whole agreement, so that none will be rendered meaningless. MCI Telecomms.
Corp., 995 S.W.2d at 652; Enserch Corp., 794 S.W.2d at 8 (holding “contract as a
whole [was] sufficient to define the parties’ intent that Christie indemnify Enserch
for the consequences of Enserch’s own negligence”). We presume that the parties
intend every clause to have some effect. Heritage Res., Inc., 939 S.W.2d at 121.
“Specific and exact terms are given greater weight than general language.” Pratt-
Shaw v. Pilgrim’s Pride Corp., 122 S.W.3d 825, 829 (Tex. App.—Dallas 2003, pet.
denied).
Here, the release in the Agreement states, in pertinent part:
I understand that although [Pals] will make every attempt to ensure the
safety of their volunteers and animals, rescue animals are by nature
unpredictable in their behavior. Therefore, I assume the risks of being
bitten, scratched, injured, or frightened by cats, kittens, dogs, and
puppies in connection with my volunteer work for [Pals]. Neither
[Pals] or any of its Directors, volunteers, fosters, or other affiliates are
14
liable to me for any injuries, damages, liabilities, losses, judgments,
costs, damage to property or expenses whatsoever that I might suffer or
sustain in connection with the performance of my volunteer activities
for [Pals].
(Emphasis added.)
The release in the Waiver states, in pertinent part:
I agree that on behalf of myself, my heirs, personal representatives and
executors, I release, discharge indemnify, and hold harmless [Pals], its
agents, employees, directors and board of directors from any and all
claims, causes of action, or demands of any nature of cause, including
costs and attorney’s fees incurred by [Pals] in connection with the same,
based on damages, or injuries which may be incurred or sustained by
me in any way connected with my services for [Pals], including but not
limited to animal bites, accidents or injuries.
(Emphasis added).
Thus, the plain, ordinary language of the releases, read as a whole, reflects
that, although Pals will endeavor to fulfill its duty to maintain a safe environment at
the shelter, the behavior of dogs in rescue situations is by nature unpredictable, and
Pals intended that it be released from all liability caused by its own failure to prevent
dog bites that might be sustained by volunteers.
In support of its argument that the releases in this case are not specific enough
to satisfy the express negligence doctrine, Biscamp argues that this case is like
Stanford v. Evans, No. 14-08-00776-CV, 2010 WL 2517675 (Tex. App.—Houston
[14th Dist.] June 24, 2010, no pet.) (mem. op.). There, the Stanfords leased a house
from Evans. Id. at *1. After the house was destroyed by a fire caused by the
15
electrical system, the Stanfords sued Evans, alleging that he was negligent in
maintaining the house. Id. The trial court rendered a take-nothing judgment against
the Stanfords based on exculpatory provisions in the parties’ lease, which stated:
[LANDLORD IS] NOT RESPONSIBLE FOR DAMAGE OR LOSS
OF [TENANTS’] PERSONAL PROPERTY STORED IN THE
PREMISES. . . .
....
Indemnification. [Landlord] shall not be liable for any
damage . . . to any property, occurring in or near the premises, and
[Tenants] agree to hold [Landlord] . . . harmless from any claims for
damages no matter how caused.
Id. at *2. The court of appeals held that these provisions failed to satisfy the express
negligence doctrine because they only “broadly assert” that “Evans will be held
harmless from ‘any claims’ or ‘any damage,’ ‘no matter how caused.’” Id. at *3.
The court held that this broad language did not “specifically and unambiguously
express the parties’ intent to hold Evans blameless for his own negligent acts.” Id.
Pals argues that the releases in this case are more like that in Texas
Engineering Extension Service v. Gifford, No. 10-11-00242-CV, 2012 WL 851742
(Tex. App.—Waco Mar. 4, 2012, no pet.) (mem. op.). There, the plaintiff suffered
injuries when he fell while participating in an industrial-fire-brigade training
program, and he brought claims based in negligence against the defendant. Id. at *1.
The defendant asserted that its liability was barred by a release that the plaintiff had
signed during orientation, which provided:
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1. I hereby release, indemnify, and covenant not to sue[,]
[defendant] . . . from any and all liability, claims, costs and
causes of action arising out of or related to any property damage
or personal injury, including death, that may be sustained by me,
while participating in such activity or while on the premises . . . .
2. I am fully aware of the risks and hazards involved with
Emergency Response Training, including but not limited
to . . . falls, and other related injuries, and I choose to voluntarily
participate . . . .
See id. at 2–3 (emphasis added). The court of appeals noted that the “purpose of the
express negligence rule is to require scriveners to make it clear when the intent of
the parties is to exculpate a party for that party’s own negligence.” Id. at *3. And,
“the express negligence doctrine does not require that the indemnity provision use
the specific word ‘negligence.’”4 Id. The court held that the release satisfied the
express negligence doctrine and effectively barred the plaintiff from recovering for
injuries related to his fall. Id. at *4.
The conclusion in Gifford was examined in Ramirez, 2013 WL 1342453, at
*4. In Ramirez, Ramirez’s husband was employed as a truckdriver at FFE. Id. at
*1. In order for Ramirez to travel with him, FFE required her to execute a release.
Id. After Ramirez was injured while riding in the truck, she sued FFE for negligence.
Id. FFE argued that Ramirez’s claim was barred by the release she signed, which
provided:
4
The express negligence doctrine applies to both indemnity agreements and releases.
Dresser Indus., 853 S.W.2d at 509.
17
It is further agreed that Sponsoring Driver and Guest Passenger . . .
hereby waive any and all claims, rights, and cause[s] of action which
either or both of them may have in the future against [defendant]. . . and
hereby release . . . [defendant] . . . from any claim[,] loss[,] or cause of
action by Guest Passenger . . . arising out of any occurrence in
connection with travel whenever occurring.
Id. at *1, 3. FFE argued that this language eliminated the concerns articulated in
Ethyl because it did not attempt to conceal the claims for which FFE sought a release
of liability. Id. Rather, the language clearly indicated FFE’s intention to be released
from any claim related to Ramirez’s travel. Id. In support, FFE relied on Gifford.
The Ramirez court noted that the language in Gifford was “much more specific
and provided notice of the exact type of claims for which [the defendant] sought
exculpation.” Id. at *4. “Indeed, Gifford was injured as the result of a hazard
(falling) specifically listed in the second paragraph of the release.” Id. The court
concluded that “the more specific language used in the release agreement in Gifford
[was] distinguishable from the general language” in the Ramirez release. Id.
In Banzhaf, the court held that an indemnity provision was sufficient to satisfy
the express negligence doctrine. 28 S.W.3d at 188–89. There, after an employee
was injured and another killed in a robbery at a sporting goods store, the injured
employee and family of the deceased sued ADT, the security company that had
provided security to the store, for various claims, including negligence. Id. at 183.
ADT sought indemnity from the store based on a provision in their contract, which
stated:
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IN THE EVENT ANY PERSON, NOT A PARTY TO THIS
AGREEMENT, SHALL MAKE A CLAIM OR FILE ANY LAWSUIT
AGAINST ADT FOR FAILURE OF ITS EQUIPMENT OR SERVICE
IN ANY RESPECT, CUSTOMER AGREES TO INDEMNIFY,
DEFEND, AND HOLD ADT HARMLESS FROM ANY AND ALL
SUCH CLAIMS AND LAWSUITS INCLUDING THE PAYMENT
OF ALL DAMAGES, EXPENSES, COSTS, AND ATTORNEY’S
FEES.
Id. at 189 (emphasis added). The court noted that the express negligence doctrine
did not require that the indemnity provision use the specific word “negligence.” Id.
The court held that the “language, ‘for failure of its equipment or service in any
respect,’ covered claims against ADT for negligence” and was sufficient to satisfy
the express negligence doctrine. Id. (noting that ADT “made no attempt to conceal
its purpose to be indemnified” (citing Ethyl, 725 S.W.3d at 707–08)).
Here, we conclude that the language in the releases in the instant case is
similar to that in Gifford and in Banzhaf because it is “specific and provided notice
of the exact type of claims for which [Pals] sought exculpation.” See Ramirez, 2013
WL 1342453, at *4 (discussing Gifford); see also Banzhaf, 28 S.W.3d at 188–89.
Again, the express negligence doctrine does not require that a release include the
word “negligence.” Stanford, 2010 WL 2517675, at *3; Lehmann, 76 S.W.3d at 562
n.3; Banzhaf, 28 S.W.3d at 189. Rather, there must be “some express language that
would indicate an intention to waive claims of a party’s own negligence.” Ramirez,
2013 WL 1342453, at *2.
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The releases, read as a whole, expressly and unambiguously state Pals’s intent
to be released from all liability caused by its own failure to ensure a safe environment
for volunteers with respect to the risk of injuries from dog bites that might occur.
See id.; see Littlefield, 955 S.W.2d at 274; cf. Stanford, 2010 WL 2517675, at *3.
The release language sufficiently defines the parties’ intent and affords fair notice
that Pals intends to be released from claims of its own negligence. See Enserch
Corp., 794 S.W.2d at 8–9; Banzhaf, 28 S.W.3d at 188–89. We hold that the releases
are sufficient to satisfy the requirements of the express negligence doctrine.
Accordingly, we hold that the trial court did not err in rendering judgment in
favor of Pals on its affirmative defense.
We overrule Biscamp’s sole issue.5
Conclusion
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Landau and Hightower.
5
We do not reach Biscamp’s second sub-issue, in which she asserts that the jury’s
answers to Questions 3, 4, and 5 of the charge (finding that Biscamp understood the
releases) are immaterial with respect to the express negligence issue. Whether the
express negligence doctrine is satisfied is a question of law for the trial court.
Dresser Indus., 853 S.W.2d at 509. Thus, the jury’s findings are superfluous and
not necessary to our disposition of the appeal. See TEX. R. APP. P. 47.1.
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