                                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
