                          NUMBER 13-12-00546-CV

                         COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI – EDINBURG

ED BLANKENSHIP,                                                       Appellant,

                                        v.

SPECTRA ENERGY
CORPORATION
AND SPECTRA ENERGY
OPERATING COMPANY,
LLC,                                                                  Appellees.


                 On appeal from the 156th District Court
                     of San Patricio County, Texas.


                       MEMORANDUM OPINION
      Before Chief Justice Valdez and Justices Garza and Perkes
               Memorandum Opinion by Justice Garza

      In this appeal, appellant Ed Blankenship challenges the trial court’s summary

judgment dismissing his personal injury suit against appellees, Spectra Energy
Corporation and Spectra Energy Operating Company, LLC (collectively “Spectra”). We

reverse and remand in part and affirm in part.

                                        I. BACKGROUND

       In 2011, Blankenship applied for a job with Spectra, a company that develops

and operates natural gas and crude oil pipelines.            As part of the pre-employment

application process, Spectra required that Blankenship undergo a physical strength test,

which involved, among other things, a “vertical pull” or “dead lift.”               Blankenship

attempted the lift three times. The first two attempts were successful, but the third

resulted in an injury to Blankenship’s back, requiring surgery. Blankenship then sued

Spectra, alleging that Spectra’s “negligent, intentional and gross[ly] negligent conduct”

was a proximate cause of his injury, and requesting actual and exemplary damages.

       Spectra answered the suit1 and filed a motion for traditional summary judgment.

See TEX. R. CIV. P. 166a(b). In its motion, Spectra argued that Blankenship’s claims

were barred because he executed a release form prior to undergoing the strength test.

The release stated, in its entirety, as follows:

                                    RELEASE OF CLAIMS

       I, Ed Blankenship, understand that I am required to submit to physical
       performance testing as part of the employment screening process for
       Spectra Energy Operating Company.            I understand that physical
       performance testing has a component which involves a test of my physical
       strength and abilities. I have been advised that this is a strenuous test of
       my physical abilities which simulates the workload of job tasks (e.f., [sic]
       heavy pulling, lifting, and pushing) which will substantially elevate my
       heart rate.



       1
          Blankenship’s petition named Spectra Energy Corporation and Spectra Energy Operating
Company, LLC as defendants. In its answer, Spectra contends that it was “improperly named” in
Blankenship’s suit. According to Spectra’s answer, its actual name is Spectra Energy Corp (with no
concluding period). Spectra did not move for summary judgment on this basis.

                                                2
       I hereby voluntarily and knowingly release Spectra Energy Operating
       Company, its parent company, subsidiaries, and affiliated companies and
       their directors, officers, employees, agents, and other representatives,
       from any and all liability and/or damages arising in any manner
       whatsoever in connection with my submitting to the physical performance
       testing, including, but not limited to medical claims, and claims for
       personal injury arising out of such testing. This release extends to my
       dependents, heirs and assigns.

Spectra asserted in its summary judgment motion that the release, a copy of which was

attached to the motion, met applicable fair notice requirements because it was

conspicuous and expressly stated the claims to be released. See Dresser Indus. v.

Page Petroleum, 853 S.W.2d 505, 508 (Tex. 1993). Spectra further contended that it

was unnecessary for the release to have satisfied the fair notice requirements because

Blankenship had actual knowledge of its contents.

       Finally, Spectra argued in its motion that Blankenship cannot establish the

elements of gross negligence because: (1) the strength test did not involve an extreme

degree of risk; and (2) Spectra was not “consciously indifferent to [Blankenship’s] rights,

welfare, and safety.” See TEX. CIV. PRAC. & REM. CODE ANN. § 41.001(11) (West 2008)

(defining “gross negligence”).     In support of these assertions, Spectra attached

deposition testimony by Farrell Gregory Morris, a Spectra employee, stating that, to his

knowledge, no job candidates had previously been injured while performing the dead lift

strength test.

       In his written response to Spectra’s summary judgment motion, Blankenship

argued that “it was [his] understanding that he was releasing the possibility of damages

and/or injuries specifically relating to an ‘elevated heart rate’ while performing the

required strength testing.” Blankenship also argued that Spectra “must have had a

conscious awareness of an ‘extreme risk’ or else they would not have insisted on a

                                            3
release signed by their pre-employment appliers.”        Finally, Blankenship’s response

noted that Morris testified only as to strength tests that he had personally administered

and that this “is not evidence concerning tests in which he was not involved.” After

Spectra filed a reply to Blankenship’s response, Blankenship filed a second response

arguing, among other things, that the release was invalid for failure to comply with the

applicable fair notice requirements.

       The trial court granted Spectra’s motion for summary judgment and this appeal

followed.

                                       II. DISCUSSION

       By one issue and several sub-issues on appeal, Blankenship contends that the

trial court erred in granting summary judgment in favor of Spectra.

A.     Standard of Review

       In a traditional motion for summary judgment, the movant has the burden to

establish that no genuine issue of material fact exists and that it is entitled to judgment

as a matter of law. TEX. R. CIV. P. 166a(c). If the movant meets its burden, the burden

shifts to the non-movant to produce summary judgment evidence that raises a fact

issue. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222 (Tex. 1999).

       We review the granting of a traditional motion for summary judgment de novo.

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.

2009). We review the evidence presented in the motion and response in the light most

favorable to the party against whom the summary judgment was rendered, crediting

evidence favorable to that party if reasonable jurors could, and disregarding contrary

evidence unless reasonable jurors could not. Id.



                                             4
       When a defendant moves for summary judgment based on an affirmative

defense, such as release, the defendant, as movant, bears the burden of conclusively

proving each essential element of that defense. Fed. Deposit Ins. Corp. v. Lenk, 361

S.W.3d 602, 609 (Tex. 2012); Velsicol Chem. Corp. v. Winograd, 956 S.W.2d 529, 530

(Tex. 1997) (per curiam). A matter is conclusively established if reasonable people

could not differ as to the conclusion to be drawn from the evidence. City of Keller v.

Wilson, 168 S.W.3d 802, 816 (Tex. 2005).

B.     Applicable Law

       Because indemnification of a party for its own negligence is an extraordinary

shifting of risk, courts have developed fair notice requirements applicable to these types

of agreements. Dresser Indus., 853 S.W.2d at 508. These requirements include (1)

conspicuousness and (2) compliance with the express negligence doctrine.               Id.;

Enserch Corp. v. Parker, 794 S.W.2d 2, 9 (Tex. 1990). A contract which fails to satisfy

either requirement is unenforceable as a matter of law. Storage & Processors, Inc. v.

Reyes, 134 S.W.3d 190, 192 (Tex. 2004).

       The conspicuousness requirement mandates that “something must appear on

the face of the [contract] to attract the attention of a reasonable person when he looks at

it.” Reyes, 134 S.W.3d at 192 (quoting Dresser Indus., 853 S.W.2d at 508; Amtech

Elevator Servs. Co. v. CSFB 1998-P1 Buffalo Speedway Office Ltd. P’ship, 248 S.W.3d

373, 377 (Tex. App.—Houston [1st Dist.] 2007, no pet.)). “Conspicuous” is defined in

the Texas Business and Commerce Code as a term “so written, displayed, or presented




                                            5
that a reasonable person against which it is to operate ought to have noticed it.” TEX.

BUS. & COM. CODE ANN. § 1.201(b)(10) (West 2009).2

       The express negligence doctrine provides that a party seeking to indemnify the

indemnitee from the consequences of its own negligence must express that intent in

specific terms. Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d 705, 708 (Tex. 1987).

The intent to release a party from the consequences of its own negligence “must be

specifically stated in the four corners of the document.” Reyes, 134 S.W.3d at 192

(quoting Ethyl Corp., 725 S.W.2d at 707); Amtech, 248 S.W.3d at 377. It “must be

expressed in unambiguous terms.”                OXY USA, Inc. v. Sw. Energy Prod. Co., 161

S.W.3d 277, 282 (Tex. App.—Corpus Christi 2005, pet. denied); see also ALCOA v.

Hydrochem Indus. Servs., No. 13-02-00531-CV, 2005 Tex. App. LEXIS 2010, at *20–21

(Tex. App.—Corpus Christi Mar. 17, 2005, pet. denied) (mem. op.) (“Express

negligence does not mandate that in order for an indemnity clause to be enforceable it

must be the best or the briefest possible statement of the parties’ intentions, only that it

specifically define the parties’ intent.”). Whether an agreement meets either fair notice

requirement is a question of law for the court. Dresser Indus., 853 S.W.2d at 509.




       2
           The statute provides that conspicuous terms include the following:

       (A) a heading in capitals equal to or greater in size than the surrounding text, or in
           contrasting type, font, or color to the surrounding text of the same or lesser size; and

       (B) language in the body of a record or display in larger type than the surrounding text,
           or in contrasting type, font, or color to the surrounding text of the same size, or set
           off from surrounding text of the same size by symbols or other marks that call
           attention to the language.

TEX. BUS. & COM. CODE ANN. § 1.201(b)(10) (West 2009).

                                                     6
C.      Ordinary Negligence

        Blankenship first contends that summary judgment was improper because the

release was not conspicuous and did not expressly state that it applied to negligence. 3

        We note first that it is immaterial whether the release was conspicuous because

Spectra’s summary judgment evidence established that Blankenship had “actual

knowledge” of its terms. See Reyes, 134 S.W.3d at 192 (“[I]f both contracting parties

have actual knowledge of the [release]’s terms, an agreement can be enforced even if

the fair notice requirements were not satisfied.”); Dresser Indus., 853 S.W.2d at 508 n.2

(“The fair notice requirements are not applicable when the indemnitee establishes that

the indemnitor possessed actual notice or knowledge of the indemnity agreement.”);

Cate v. Dover Corp., 790 S.W.2d 559, 561 (Tex. 1990) (“Because the object of the

conspicuousness requirement is to protect the buyer from surprise and an unknowing

waiver of his or her rights, inconspicuous language is immaterial when the buyer has

actual knowledge of the disclaimer.”). In particular, Blankenship testified at deposition

that he received, read, and executed the release form.4 This type of evidence has been


        3
            Blankenship’s second response to Spectra’s summary judgment motion—the only instance in
the record where Blankenship raised the issue of compliance with fair notice requirements—did not make
this exact argument. Instead, his second response stated that the release failed to comply with fair notice
requirements only because “[i]t listed only the possibility of an elevated heart rate and never mentioned
any other injury. . . . The only ‘specific term’ or ‘conspicuousness’ listed on the Release was not what
seriously injured Ed Blankenship.” This is not precisely the complaint made on appeal. See Knapp v.
Wilson N. Jones Mem’l Hosp., 281 S.W.3d 163, 170 (Tex. App.—Dallas 2009, no pet.) (“To preserve an
error for appeal, a party’s argument on appeal must comport with its argument in the trial court.”).
However, Blankenship’s responses cite case law regarding fair notice requirements for releases and he
generally asserts in his second response that the release “fails to provide sufficient fair notice, as well as
failing to satisfy the express negligence test.” We therefore conclude that this issue has been preserved
for our review. See TEX. R. APP. P. 33.1.
        4
         When asked at deposition what he understood he was signing, Blankenship gave an unclear
response:

        I understood that, you know, I was, you know, signing, you know—you know, a heart
        condition. You know, that—you know, that—you know, a lot of times when, you know,
        you get on this job that, you know, you’re not, you know, physically, you know, able to do

                                                      7
held to establish actual notice. See Coastal Transp. Co. v. Crown Cent. Petroleum

Corp., 20 S.W.3d 119, 126 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (“We

find the fact that [plaintiff’s president] read the [release] to be sufficient to establish

actual notice.”).

       However, we find that the release failed the express negligence doctrine.                      It

provided that Blankenship was releasing Spectra from “any and all liability and/or

damages arising in any manner whatsoever in connection with my submitting to the

physical performance testing” and it specifically mentioned “claims for personal injury

arising out of such testing.” However, the release does not use the word “negligence”

and it does not refer to a negligence cause of action by other words.                     It does not

“mention” a negligence cause of action, nor does it refer to one, explicitly or implicitly.

See Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 938 (Tex. 1991) (holding that,

to release a claim, a releasing document must “mention” the claim).                      The release

therefore fails to satisfy the express negligence doctrine. See Polley v. Odom, 957

S.W.2d 932, 938 (Tex. App.—Waco 1997, no writ) (finding that a release stating “all risk

of loss to personal property or loss to business resulting from any cause whatsoever

shall be born exclusively by Lessee” failed the express negligence test, noting that “the

express negligence doctrine has been literally applied” and “is not satisfied by implicit



       . . . [remainder of testimony omitted from summary judgment record].

When Blankenship was asked whether the release was explained to him prior to his signing it, he was
similarly equivocal: “You know, it—it probably was but, you know, I don’t remember, you know, what
verbiage they—you know, they actually used.” It is undisputed, though, that Blankenship read, reviewed,
and executed the agreement. Accordingly, he is charged with actual knowledge of its terms. See
Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 20 S.W.3d 119, 126 (Tex. App.—Houston [14th
Dist.] 2000, pet. denied); see also Mo. Pac. R.R. Co. v. Lely Dev. Corp., 86 S.W.3d 787, 791 (Tex. App.—
Austin 2002, pet. dism’d) (“One who signs a contract is presumed to know its contents and its legal
effects.”).


                                                   8
reference to liability for negligence”); Rickey v. Houston Health Club, Inc., 863 S.W.2d

148, 150 (Tex. App.—Texarkana 1993, writ denied) (same where release stated “You

hereby agree to waive any claims or rights you might otherwise have to sue the health

club, its employees or agents for injury to you on account of these activities”); Haring v.

Bay Rock Corp., 773 S.W.2d 676 (Tex. App.—San Antonio 1989, no writ) (same where

release stated “[Operator] shall have no liability to owners of interests in said wells and

leases for losses sustained, or liabilities incurred, except such as may result from gross

negligence or from breach of the provisions of this agreement”); see also Ethyl Corp.,

725 S.W.2d at 708 (finding that a release stating “Contractor shall indemnify and hold

Owner harmless against any loss . . . as a result of operations growing out of the

performance of this contract and caused by the negligence or carelessness of

Contractor” failed to satisfy the express negligence doctrine with respect to Owner’s

negligence).

       This conclusion is consistent with our holding in Rackley v. Advanced Cycling

Concepts, Inc., No. 13-08-00254-CV, 2009 Tex. App. LEXIS 1888, at *9–15 (Tex.

App.—Corpus Christi Mar. 19, 2009, no pet.) (mem. op.). In that case, the plaintiff

executed a form releasing the defendant “from and against any and all claims, injuries,

liabilities or damages arising out of or related to participation” at defendant’s facility. Id.

at *3. The release also stated: “I . . . knowingly and freely assume all such risks, both

known and unknown, even if arising from the negligence of others . . . .” Id. On appeal,

we concluded that the express negligence doctrine was satisfied because “the intent to

shift the risk of [defendant]’s negligence to [plaintiff] is specifically and unambiguously

stated in the release form . . . .” Id. at *14–15. However, unlike the release at issue



                                              9
here, the release in that case specifically mentioned the “negligence of others” as

among the claims being released. See id. at *9.

        Spectra asserts that Blankenship’s actual notice obviated the need for the

release to comply with the express negligence doctrine. However, it has been held that,

though “actual notice may serve as a substitute for conspicuousness,” it “may not serve

as a substitute for express negligence.” Sydlik v. REEIII, Inc., 195 S.W.3d 329, 333

(Tex. App.—Houston [14th Dist.] 2006, no pet.).                  Accordingly, Blankenship’s actual

notice does not excuse the release’s failure to expressly shift the risk of Spectra’s

negligence.5

        Because the release failed to comply with fair notice requirements, the release

was unenforceable. The trial court therefore erred in granting judgment as a matter of

law on Blankenship’s ordinary negligence claim.

D.      Gross Negligence

        Spectra additionally argued in its summary judgment motion that, even if the

release was ineffective,6 Blankenship’s gross negligence claim must fail because: (1)


        5
           Blankenship additionally argues that: (1) the release is void as being against public policy; and
(2) the summary judgment was improper because there was no evidence that the defendants to the suit
(i.e., Spectra Energy Operating Company, LLC and Spectra Energy Corporation) are related to the entity
named in the release (i.e., Spectra Energy Operating Company). However, he did not raise these issues
in either of his responses to Spectra’s motion for summary judgment. Accordingly, we may not reverse
on either basis. See TEX. R. CIV. P. 166a(c). In any event, we need not address these issues because of
our conclusion that the release did not comply with fair notice requirements and was unenforceable for
that reason. See TEX. R. APP. P. 47.1.
        6
          There is some disagreement among the courts of appeals as to whether a party may validly
release claims of gross negligence. Compare Sydlik v. REEIII, Inc., 195 S.W.3d 329, 336 (Tex. App.—
Houston [14th Dist.] 2006, no pet.) (noting that “pre-accident waivers of gross negligence are against
public policy”) and Smith v. Golden Triangle Raceway, 708 S.W.2d 574, 576 (Tex. App.—Beaumont
1986, no writ) (same) with Tesoro Petroleum Corp. v. Nabors Drilling U.S., 106 S.W.3d 118, 127 (Tex.
App.—Houston [1st Dist.] 2002, pet. denied) (holding that, in the context of a release for acts of
negligence, negligence and gross negligence are not separable) and Newman v. Tropical Visions, Inc.,
891 S.W.2d 713, 722 (Tex. App.—San Antonio 1994, writ denied) (same). We need not decide the issue
because of our conclusions herein that (1) the release was unenforceable because it failed to satisfy the
fair notice requirements, and (2) Spectra’s summary judgment evidence conclusively negated

                                                    10
the strength test did not involve an extreme degree of risk; and (2) Spectra was not

“consciously indifferent to [Blankenship’s] rights, welfare, and safety.” Gross negligence

is defined as an act or omission:

       (A) which when viewed objectively from the standpoint of the actor at the
           time of its occurrence involves an extreme degree of risk, considering
           the probability and magnitude of the potential harm to others; and

       (B) of which the actor has actual, subjective awareness of the risk
           involved, but nevertheless proceeds with conscious indifference to the
           rights, safety, or welfare of others.

TEX. CIV. PRAC. & REM. CODE ANN. § 41.001(11); Mobil Oil Corp. v. Ellender, 968 S.W.2d

917, 921 (Tex. 1998). “Under the first element, ‘extreme risk’ is not a remote possibility

of injury or even a high probability of minor harm, but rather the likelihood of serious

injury to the plaintiff.” Mobil Oil Corp., 968 S.W.2d at 921. “Under the second element,

actual awareness means that the defendant knew about the peril, but its acts or

omissions demonstrated that it did not care.”       Id. (citing Wal-Mart Stores, Inc. v.

Alexander, 868 S.W.2d 322, 326 (Tex. 1993)).

       To support its argument that Blankenship “cannot establish” the two elements of

gross negligence, Spectra pointed to Morris’s deposition testimony in which he stated

that he had personally administered “[t]wo to three hundred” dead lift tests in fifteen

years, all of which were similar to the test that Blankenship took, and that, to his

knowledge, no one has ever been injured as a result of taking those tests. We agree

with Spectra that this testimony, even when viewed in the light most favorable to

Blankenship, see Fielding, 289 S.W.3d at 848, establishes that the “dead lift” test did

not present an objective “likelihood of serious injury” and therefore negates the first


Blankenship’s gross negligence claim.


                                           11
element necessary to establish gross negligence. See Mobil Oil Corp., 968 S.W.2d at

921. The burden therefore shifted to the non-movant to present evidence generating a

fact issue. See Rhone-Poulenc, Inc., 997 S.W.2d at 222. Blankenship failed to meet

that burden. He did not attach any evidence to his responses other than a copy of the

release.     Instead, with respect to the gross negligence claim, Blankenship merely

argued that Spectra “must have had a conscious awareness of an ‘extreme risk’ or else

they would not have insisted on a release signed by their pre-employment appliers.”7

He did not cite any case law or other authority supporting that position, and we find

none. Accordingly, we conclude summary judgment on Blankenship’s gross negligence

claim was proper.

E.      Intentional Tort Claim

        We finally address Blankenship’s intentional tort claim.8 The factual basis of this

claim is unclear from the record. Blankenship’s live pleading merely asserted “[t]he

equipment for the test was set up in a very dangerous system and resulted in severe

injuries” and that Spectra’s “intentional . . . conduct” was a proximate cause of those

injuries, but he did not specify precisely what that alleged intentional conduct was.

However, Spectra, as a movant for traditional summary judgment, bore the initial burden

to establish its entitlement to judgment as a matter of law on Blankenship’s claims. See
        7
           This was the only argument made in Blankenship’s first response to the summary judgment
motion regarding the gross negligence claim. His second response to the motion made the same
argument in slightly different words: “The Defendants in the instant case obviously knew about the
potential peril or they would not have used releases to try to avoid responsibility for such injuries.”
        8
           Although some courts have held that a party may not validly release a gross negligence claim,
see, e.g., Sydlik, 195 S.W.3d at 336, it is well-established that, in some circumstances, a party may
validly release claims based on intentional acts. See Smith v. Holley, 827 S.W.2d 433, 438 (Tex. App.—
San Antonio 1992, pet. denied) (“[I]t is universally held that in the right circumstances one can consent to
certain actions that otherwise would be intentional torts. This is true of defamation, surgical procedures,
trespass to land, sporting events that involve physical contact, and a host of other acts that would be
tortious in the absence of consent.”).


                                                    12
TEX. R. CIV. P. 166a(c). Its motion for summary judgment did not address Blankenship’s

intentional tort claim; instead, it addressed only Blankenship’s negligence and gross

negligence claims.9       Therefore, even though Blankenship’s intentional tort claim is

vague and undefined, Spectra did not meet its burden to establish its entitlement to

judgment as a matter of law on that claim.10 The trial court therefore erred in granting

summary judgment on that claim.

                                          III. CONCLUSION

       We affirm the trial court’s summary judgment dismissing Blankenship’s gross

negligence claim. We reverse the remainder of the judgment and remand the cause to

the trial court for further proceedings consistent with this opinion.



                                                       ________________________
                                                       DORI CONTRERAS GARZA,
                                                       Justice

Delivered and filed the
15th day of August, 2013.




       9
         Spectra’s reply to Blankenship’s response to the motion for summary judgment also failed to
address the intentional tort claim.
       10
           Spectra did not file special exceptions or any other motion objecting to Blankenship’s vague
pleading, nor did Spectra file a motion for no-evidence summary judgment. See TEX. R. CIV. P. 166a(i).
Therefore, Blankenship was under no burden to file more specific pleadings or to produce evidence to
support his intentional tort claim.

                                                  13
