Archive for September 2009

A Fort Worth jury awarded more than $11 million Monday to the family of a boy who was seriously injured after being struck by a car driven by another child at Texas Motor Speedway. The case arose from an incident where Ryan Davies (11 at the time of the 2006 incident) when another boy lost control of a miniature race car while driving across a pit area at the Speedway. The driver of the miniature race car was a 12-year-old boy with a pervasive development disorder experts said is similar to mild forms of Asperger’s syndrome or autism, but he had no restrictions on his activities. In any event, the young driver lost control of the race car and narrowly missed a trailer and several parked cars before slamming into Ryan Davies who was playing football with other boys in the pit area while his parents watched the incident occur. As a result of being struck, Ryan sustained a traumatic brain injury that has left him with significant cognitive deficits.

Because young driver had a disorder, it is not surprising that a large part of the case focused on whether the driver should have been driving and what precautions the Speedway should have taken that would have prevented this incident. Karen Zina and William Davies, the parents of Ryan Davies, brought a claim against Texas Motor Speedway claiming it was negligent and that the Speedway’s negligence proximately caused the wreck because the race track did not provide barricades, signs, a kill switch on the car and proper instructions to prevent an accident. The Speedway however, contended that the young driver and his parents were responsible because they knew that their son had a “mental and/or emotional condition” that made him “incompetent” to drive the car. After a three-week trial in 348th District Court before the Honorable Dana Womack, a jury found that the negligence of the Texas Motor Speedway and the parents of the young driver caused the occurrence. The jury found that the Speedway’s negligence was 80 percent of the cause of the occurrence, while the parents of the driver were each 10 percent negligent. The jury did not find the young driver or William Davies to be negligent.

While the verdict amount may sound high because it was a total of $11.4 million, the majority of the damages were only awarded to compensate the Davies family for the past medical expenses of $1.4 million and $8.5 million in future medical damages. Sadly, the injuries Ryan received are life changing injuries for this young boy. Ryan Davies spent 10 months at Cook Children’s Medical Center recovering from traumatic brain injury. In addition, a neurologist testified that Ryan will never live independently and will need help with daily tasks such as bathing, dressing and eating. In addition, because in cases such as this the jury is not entitled to award damages for attorney’s fees and legal expenses, the damages awarded will be further reduced to cover those fees and expenses.

The jury also determined that parental consent and liability waivers signed by the injured boy’s Denton County parents did not apply to the accident. Frequently, companies to try to avoid being liable for their negligence by hiding waivers and releases in forms in small print. However, Texas law is clear that those types of waivers and releases are not valid.

“We are encouraged that the jury’s award will provide the financial means necessary to provide for Ryan’s good care and treatment for the rest of his life,” Collins said. “We are also hopeful that news of this case will generate support for a heightened level of participant and spectator safety awareness for all facilities that offer motor sports to the young and inexperienced.”

Texas Motor Speedway President and General Manager Eddie Gossage said through attorney Mark Hatten that “Texas Motor Speedway respects the jury’s decision. However, we want to assure our fans that safety is our top priority.”

This case points out that just because the business may try to discourage people from holding it accountable through a waiver or release, often times the waivers and releases are not valid because they are not prepared properly. These issues involved complicated legal analysis that require an attorney to evaluate. However, Texas has specific requirements for these types of releases including the requirement that the language must meet the requirements of fair notice. Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993). There are two fair notice requirements:

1. the express negligence doctrine and
2. the conspicuousness requirement.

In general, Texas law does not favor the releases which waive liability for causing someone’s injuries in advance of the incident occurring especially where the business providing the release tries to hide the language or prints the language in a manner that the person signing the form is not expected to see the language.

The classic example of a case where the release has been held invalid because the language was not conspicuous was therefore invalid and unenforceable because it was hidden on the reverse side of a sales order. For obvious reasons, the Court held that the language on the back of form was not conspicuous. K & S Oil Well Service, Inc. v. Cabot Corp., 491 S.W.2d 733, 737 (Tex. Civ. App.–Corpus Christi 1973, writ ref’d n.r.e.)

Another classic example of a release that has been held invalid under Texas law is where the language is printed in small print or is imbedded in a form where the person signing the form would not expect to see such language. The Houston appellate court also refused to enforce indemnity language in Scaffold Co. v. Safway Steel Prod., Inc., 570 S.W.2d 225, 228 (Tex. Civ. App.–Houston [1st Dist.] 1978, writ ref’d n.r.e.) because the language appeared in small, light type on the back of a rental form and was surrounded by unrelated terms.

To protect the public and to discourage the use of deceptive efforts to get a release, the Texas Supreme Court adopted a clear rule for determining whether the language in a release is conspicuousness if the release seeks to release a party for its own negligence in advance of the incident. The Court expressly adopted the standard set forth in the TEX. BUS. & COM. CODE ANN. § 1.201(10) (Tex. UCC). The Court noted that this standard for conspicuousness in Code cases is familiar to the courts of this state and conforms to our objectives of commercial certainty and uniformity. See Cate v. Dover Corp., 790 S.W.2d 559, 561 (Tex. 1990). Section 1.201(10) of the Texas Bus.& Commerce Code defines “Conspicuous,” as follows, “with reference to a term, means so written, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it. Whether a term is “conspicuous” or not is a decision for the court. Conspicuous terms include the following:

1. a heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size; and

2. 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 fromsurrounding text of the same size by symbols or other marks that call attention to the language.”

This case also shows how suddenly tragedy can occur and that within a flash of a moment lives are changed forever because of the negligence of other people. We absolutely hope that you and your family never have to face the issues of dealing with these types of significant injuries, especially a traumatic brain injury, but if you are, it is important that you seek prompt legal advice. If you are injured by the negligence of someone else, contact Rachel Montes at (214) 522-9401 for a free, no obligation, case consultation.