The Waiver Society Project

 TEXAS

Likelihood of Enforcement: High 

A.     Liability Waivers

Under Texas law, a pre-injury contract that releases a party from liability for the consequences of their negligent actions is enforceable if it meets two fair notice requirements. Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 509 (Tex. 1993). First, the express negligence doctrine requires that the party seeking to avoid liability for their negligent acts “express that intent in specific terms within the four corners of the contract.” Id. Second, the “conspicuous 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.” Id. (quoting Ling & Co. v. Trinity Savs. & Loan Ass’n, 482 S.W.2d 841, 843 (Tex.1972)). These requirements are applied to both liability waivers and indemnification clauses. Id. at 508.

i.              Express Negligence

To determine whether the contract meets the express negligence requirement, courts look at whether the contract expresses the party’s intent to waive liability for negligence in “specific terms.” Ethyl Corp. v. Daniel Const. Co., 725 S.W.2d 705, 708 (Tex. 1987). Texas appeals courts have not required that the contract use the term negligence to be enforceable against negligence claims. See, e.g., Banzhaf v. ADT Sec. Sys. Sw., Inc., 28 S.W.3d 180, 189 (Tex. App. 2000) (enforcing contract that waived liability “for failure of [defendant’s] equipment or service in any respect”); Tex. Eng’g Extension Serv. v. Gifford, No. 10-11-00242-CV, 2012 WL 851742, at *4 (Tex. App. Mar. 14, 2012) (enforcing contract that released defendant from “any and all liability . . . 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”).

Texas courts sometimes decline to enforce broad clauses waiving all possible liability without some more specific reference to the types of claims that are covered. Compare Banzhaf (enforcing contract that specifically mentioned failure of equipment, the ultimate cause of injury) and Tex. Eng’g Extension Serv. (enforcing contract that specifically mentioned the risk of falling) with Ramirez v. FFE Transp. Servs., Inc., No. 04-12-00342-CV, 2013 WL 1342453, at *3 (Tex. App. Apr. 3, 2013) (finding contract that “waive[s] any and all claims, rights, and cause[s] of action ... against Motor Carrier ... arising out of any occurrence in connection with travel whenever occurring” does not meet express negligence requirement) and Trinity Indus., Inc. v. Ashland, Inc., 53 S.W.3d 852, 869 (Tex. App. 2001) (finding contract that waives “all claims . . . and liabilities . . . of any nature whatsoever” does not meet express negligence requirement).

ii.            Conspicuousness

To determine whether a provision waiving liability for negligence was conspicuous, Texas courts look at whether the provision is “so written, displayed, or presented 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 2021). The Texas legislature has specified that “conspicuous terms” must include “a heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color” and “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.” Tex. Bus. & Com. Code. Ann. § 1.201(b)(10)(A)-(B). Texas courts have also considered where the clause was located in the contract, whether the heading was clear, and whether surrounding provisions related to the liability waiver. See, e.g., Dresser Indus., Inc., 853 S.W.2d at 509; Littlefield v. Schaefer, 955 S.W.2d 272, 274-75 (Tex. 1997).

B.    Liability Waivers for Gross Negligence

It is unclear whether a contract that releases liability for gross negligence is enforceable in Texas as Texas’s courts of appeals are split on this issue. See Benavidez v. Univ. of Texas-Pan Am., No. 13-13-00006-CV, 2014 WL 5500469, at *5 (Tex. App. Oct. 30, 2014) (“[T]here is some disagreement among the courts of appeals on whether a party may validly release claims of gross negligence.”); Quiroz v. Jumpstreet8, Inc., No. 05-17-00948-CV, 2018 WL 3342695, at *4 (Tex. App. July 9, 2018) (noting that the Texas Supreme Court has not decided this issue). Texas appeals courts have taken three approaches: they have (1) concluded that releases that prevent liability for negligence also cover gross negligence, and therefore enforced them against gross negligence, (2) held that a release of liability for gross negligence is enforceable but only if the contract expressly mentions gross negligence, or (3) held that “pre-accident waivers of gross negligence are invalid as against public policy.” Benavidez, 2014 WL 5500469 at *5.

C.     Liability Waivers Signed By Parents on Behalf of Minor Children

While the Texas Supreme Court has never decided whether pre-injury liability waivers that parents sign on behalf of minor children are enforceable, the Texas Court of Appeals has held that they are not enforceable. Munoz v. II Jaz Inc., 863 S.W.2d 207, 210 (Tex. App. 1993) (holding that Texas law “does not give parents the power to waive a child’s cause of action for personal injuries” given Texas’ “public policy to protect minor children”); see also Williams v. Patton, 821 S.W.2d 141, 147 n.8 (Tex. 1991) (Doggett, J., concurring) (“Parental releases of a minor’s potential claims as a condition to participation in group outings . . . are outrightly disfavored.”); Paz v. Life Time Fitness, Inc., 757 F. Supp. 2d 658, 663 (S.D. Tex. 2010) (citing Munoz and predicting that “if confronted with this question,” the Texas Supreme Court would hold “that the preinjury release executed by the minor’s [parent] . . . is not enforceable” against a commercial enterprise). However, if a parent is injured after signing a liability waiver, that contract may be enforced to prevent children from bringing certain derivative claims, including loss of parental consortium and bystander claims. Quiroz, 2018 WL 3342695, at *4.

Last updated 03/2022

This assessment of the enforceability of waivers has been prepared by non-lawyer law students and does not constitute legal advice.