Opinion

Autumn Biscamp v. Special Pals Incorporated

Court: Texas Court of Appeals, 1st District (Houston)
Filed: Feb 13, 2020
Status: Published
Cited by: 0 cases
Authority: More cited than 11.0%

holding “contract as a whole [was] sufficient to define the parties’ intent that Christie indemnify Enserch for the consequences of Enserch’s own negligence”

How later courts described this case

holding “contract as a whole [was] sufficient to define the parties’ intent that Christie indemnify Enserch for the consequences of Enserch’s own negligence”

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The opinion

Opinion issued February 13, 2020

In The

Court of Appeals

For The

First District of Texas

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NO. 01-19-00005-CV

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AUTUMN BISCAMP, Appellant

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

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

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

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

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?

Trial began on July 19, 2018.

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

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.

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]

The parties use the terms “cage” and “kennel” interchangeably.

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.”

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.

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

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”).

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.).

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: