The Protections of Pre-injury Release Agreements

The Protections of Pre-injury Release Agreements

By Brian Schrumpf from The Fuentes Firm published on November 20, 2014.

Pre-injury release agreements are a powerful tool for limiting exposure from workplace injuries of independent contractors. A pre-injury release agreement is a contract in which an individual gives up his/her right to bring a claim against another party, regardless of the other party’s negligence. If the injured person executes a pre-injury release agreement and brings a claim for negligence against the other party, the other party can obtain summary judgment for the injured person’s negligence claim.

de Tamez v. Southwestern Motor Transport, Inc. shows the powerful effect of a pre-injury release agreement. In de Tamez, one independent contractor driver died and another was seriously injured when the tractor they were driving as team drivers crashed into an overpass. Southwester Motor Transport, Inc. (“SMT”), the motor carrier, required the drivers sign a pre-injury release agreement before driving for SMT. The pre-injury release agreement released SMT from any liability due to negligent acts and/or omissions on SMT’s part. The representatives of the deceased driver’s estate and the injured driver brought suit against SMT for negligence. The San Antonio Court of Appeals found the pre-injury release agreement was enforceable and upheld summary judgment in favor of SMT.

Pre-injury release agreements are also enforceable as a condition of entering upon another’s property. In Smith v. Golden Triangle Raceway, the Beaumont Court of Appeals enforced a pre-injury release agreement where the injured person was granted access to the infield of a race track in exchange for a release of claims. The court upheld summary judgment for the injured person’s negligence claim.

Texas enforces pre-injury release agreements if certain requirements are met, including:

• Fair notice;

• A meeting of the minds; and

• The agreement is supported by valid consideration.

Fair notice and valid consideration require sensitive contract language, so pre-injury release agreements must be carefully drafted. Fair notice requires (1) the party seeking to enforce a release provision comply with the express negligence doctrine and (2) the release provision be conspicuous. Valid consideration requires the independent contractor give up some benefit or some detriment is imposed on the party being released.

Two caveats must be noted when using pre-injury release agreements:

• Pre-injury release agreements are enforceable with independent contractors, not employees; and

• Pre-injury release agreements are enforceable for acts of negligence, but Texas courts have found pre-injury release of gross negligence claims void against public policy.