                                 IN THE
                         TENTH COURT OF APPEALS

                                 No. 10-11-00242-CV

TEXAS ENGINEERING EXTENSION SERVICE,
                                                           Appellant
v.

COREY GIFFORD AND LISA ELAINE GIFFORD,
                                    Appellees



                          From the 361st District Court
                              Brazos County, Texas
                        Trial Court No. 09-001138-CV-361


                          MEMORANDUM OPINION


      Corey and Lisa Gifford filed a premises liability suit against Texas Engineering

Extension Service (TEEX) for injuries Corey received while participating in an industrial

fire brigade training program.     TEEX filed a plea to the jurisdiction, motion for

summary judgment, and motion to dismiss. The trial court denied the motions, and

TEEX appeals. We reverse.
                                         Background Facts

       Corey was employed by Nalco, Inc. and was a member of their emergency

response team. Corey and other members of the Nalco emergency response team

attended a three-day fire brigade training session at the TEEX facilities. On the third

day, Corey slipped and fell while participating in the training. Corey alleged that he

fell when he slipped on algae that was hidden under several inches of water. After he

fell, Corey declined medical attention and completed the training session. Corey began

experiencing pain from the fall later that night and eventually sought medical treatment

for his injuries.

                                       Waiver of Immunity

       The Giffords filed a premises liability suit under the Texas Tort Claims Act. TEX.

CIV. PRAC. & REM. CODE ANN. § 101.001 et seq. (West 2011). The Giffords allege a

limited waiver of sovereign immunity by TEEX. A governmental unit is liable for

personal injury caused by a condition or use of tangible personal or real property if the

government would be liable, were it a private person, according to Texas law. TEX. CIV.

PRAC. & REM. CODE ANN. § 101.021 (West 2011). If a claim arises from a premise defect,

the governmental unit owes to the claimant only the duty that a private person owes to

a licensee on private property, unless the claimant pays for the use of the premises.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.022 (a) (West 2011).

Invitee or Licensee

       In the first issue on appeal, TEEX argues that Corey was a licensee under the

Texas Tort Claims Act because he did not pay for the use of the premises. The record

Texas Engineering Extension Service v. Gifford                                     Page 2
shows that Nalco, Corey’s employer, contracted with TEEX for fire brigade training and

that Nalco paid a fee for each participant attending the training.       Nalco paid the

required fee for Corey to participate in the training.

       The payment of a fee related to the premises does not establish that the plaintiff

has paid for the use of the premises. Clay v. City of Fort Worth, 90 S.W.3d 414, 417 (Tex.

App.─Fort Worth 2002, no pet.). Only a fee charged for entry onto a particular premises

is sufficient to confer invitee status under Section 101.022(a). Id. Nalco paid TEEX a fee

for each participant in the fire brigade training class.      The fee was required for

participation in the training class. Although Corey did not pay the required fee himself,

a fee was paid for him to enter the premises and participate in the training. See City of

Dallas v. Patrick, 347 S.W.3d 452, 457 (Tex. App.─Dallas 2011, no pet.). Therefore,

pursuant to Section 101.022(a), TEEX owed Corey the duty it would an invitee. We

overrule the first issue.

Duty of Licensee

       In the second issue TEEX contends that under the licensee standard, the Giffords

failed to establish that TEEX possessed actual knowledge of the alleged dangerous

condition.    A licensee must prove that the premises owner actually knew of the

dangerous condition, while an invitee need only prove that the owner knew or

reasonably should have known. See Reyes v. City of Laredo, 335 S.W.3d 605, 606 (Tex.

2010). TEEX argues that to establish a waiver of sovereign immunity, the Giffords had

the burden to plead and prove that TEEX possessed actual knowledge of the dangerous



Texas Engineering Extension Service v. Gifford                                      Page 3
algae at the time of the accident. As previously stated, this Court finds that TEEX owes

Corey the duty it would owe an invitee. We overrule the second issue.

Duty to Warn

       In the third issue TEEX argues that under the licensee standard, the Giffords

failed to plead and prove that TEEX did not use ordinary care to warn of the dangerous

condition. If the landowner has actual knowledge of a dangerous condition on the

premises and the licensee is unaware of the condition, then the landowner has the

additional duty to use ordinary care to either warn the licensee of the condition or make

the condition reasonably safe. Taylor v. Louis, 349 S.W.3d 729, 735 (Tex. App.─Houston

[14th Dist.] 2011, no pet.). A licensee has the burden to plead and prove that he did not

actually know of the condition. Id. TEEX contends that the Giffords did not establish

that TEEX waived sovereign immunity by failing to warn of the dangerous condition.

Because we find that Corey was an invitee, we overrule the third issue.

                               Assumption of Risk and Release

       In the fourth issue, TEEX argues that Corey’s express assumption of risk

extinguished any liability owed by TEEX pursuant to the Tort Claims Act. In the fifth

issue, TEEX argues that Corey’s execution of a release and indemnity agreement

extinguished any liability owed by TEEX pursuant to the Tort Claims Act.

       Corey attended an orientation session on the TEEX premises prior to beginning

fire brigade training. During the orientation session, each participant was given a

registration form to complete. On the back of the registration form, there was a section

titled “RELEASE” that stated:

Texas Engineering Extension Service v. Gifford                                     Page 4
       1. In consideration for receiving permission to participate in Emergency
          Response Training, including but not limited to fire and rescue
          training, on behalf of my agency/organization, I hereby release,
          indemnify, and covenant not to sue the Texas Engineering Extension
          Service (TEEX), the Texas A&M University System, the State of Texas,
          their officers, agents or employees (Releasees) 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 owned or leased by Releasees. I acknowledge there may be
          physically strenuous activities. I know of no physical or mental
          condition which would preclude my full participation.
       2. I am fully aware of the risks and hazards involved with Emergency
          Response Training, including but not limited to burns, heat stroke,
          heart attack, heat exhaustion, falls, and other related injuries, and I
          choose to voluntarily participate in said activity with full knowledge
          that said activity may be hazardous to me and my property.
       3. I understand that TEEX does not maintain any insurance policy
          covering any circumstance arising from my participation in this
          activity or any event related to that participation. As such, I am aware
          that I should review my personal insurance coverage.
       4. In signing this release, I acknowledge that I have read and understood
          the Release; and I am at least eighteen (18) years of age and fully
          competent.

Corey signed and dated the Release. During his deposition testimony, Corey stated that

although he signed the Release, he did not read it. Corey stated that he had time to

read the Release, but did not because he thought it was a registration form to get credit

for the class.

       A release is a contractual agreement where one party assumes the liability

inherent in a situation thereby relieving the other party of responsibility.       Dresser

Industries, Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993).      A release

surrenders legal rights or obligations between the parties to an agreement.            Id. It

operates to extinguish the claim or cause of action as effectively as would a prior


Texas Engineering Extension Service v. Gifford                                         Page 5
judgment between the parties and is an absolute bar to any right of action on the

released matter. Id. The fair notice requirements of conspicuousness and the express

negligence doctrine apply to both indemnity agreements and to releases. Id at 508-9.

       A release is conspicuous when a reasonable person against whom a clause is to

operate ought to have noticed it. Id. at 511. Language in capital headings or language

in contrasting type or color is conspicuous. Dresser Industries, Inc. v. Page Petroleum, Inc.,

853 S.W.2d at 511; Quintana v. CrossFit Dallas, L.L.C., 347 S.W.3d 445, 450 (Tex.

App.─Dallas 2011, no pet.).

       The release signed by Corey was part of a two page document. The section was

titled “RELEASE” in all capital letters and bold font. The release contains four short

sections set apart by numerals. The risks associated with the training, including falls,

were underlined.         Corey’s signature appears directly under the section titled

“RELEASE”. We find that the release is sufficiently conspicuous to provide fair notice.

       The express negligence rule states that if a party intends to be released from its

own future negligence it must express that intent in clear, unambiguous terms within

the four corners of the contract. Quintana v. CrossFit Dallas, L.L.C., 347 S.W.3d at 450.

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. The

express negligence doctrine does not require that the indemnity provision use the

specific word "negligence." Banzhaf v. ADT Security Systems Southwest, Inc., 28 S.W.3d

180, 189 (Tex. App.─Eastland 2000, pet. den’d).



Texas Engineering Extension Service v. Gifford                                          Page 6
       The language used in the release states that the participant does “hereby release,

indemnify, and covenant not to sue” for “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”. The language makes clear that TEEX intends to be released from its own

negligence. We find that the release language is sufficient to satisfy the requirements of

the express negligence rule.

       The release and indemnity clause effectively bars Corey from recovering for

injuries related to his fall. A governmental unit is liable for personal injury if the

government would be liable, were it a private person, according to Texas law. TEX. CIV.

PRAC. & REM. CODE ANN. § 100.021 (West 2011). Corey’s execution of the release and

indemnity agreement extinguished any liability owed by TEEX. Because a private

person would not be liable for Corey’s personal injuries, TEEX has not waived its

sovereign immunity. We sustain the fifth issue on appeal. We need not address the

fourth issue on appeal. See TEX. R. APP. P. 33.1.

                                        Conclusion

       We reverse the trial court’s order denying TEEX’s plea to the jurisdiction. We

render judgment dismissing the Giffords’ cause for lack of subject matter jurisdiction.




                                                 AL SCOGGINS
                                                 Justice


Texas Engineering Extension Service v. Gifford                                      Page 7
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
(Chief Justice Gray concurring with a note)*
Reversed and rendered
Opinion delivered and filed March 14, 2012
[CV06]

*(Chief Justice Gray concurs in the judgment a separate opinion will not issue. He
notes, however, that based upon the disposition of the fifth issue, the discussion and
disposition of the first three issues is unnecessary to the disposition of the appeal.)




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