
                              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 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 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 . . . .
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:
      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,  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.


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.    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 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






-----------------------
      [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]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]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.
      [4]But see, McClain v. Baker, No. 14-96-00487-CV, 1997 Tex. App. Lexis
3808, at *4 (Tex. App.- Houston [14th 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).


      [5]Whether that conduct may be imputed to his employers is not  before
us.


