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Explaining the express negligence doctrine

| Mar 23, 2018 | Premises Liability |

Certain property owners in San Antonio typically understand that select features of their properties or activities offered therein can present a risk to guests. Thus, they often seek to indemnify themselves from responsibility for accidents and injuries through liability waivers. The general assumption is that once one has signed such a waiver, he or she is barred from pursuing any sort of legal action against the parties protected by it. Yet is that always the case? 

Texas law applies a strict test when determining the validity of indemnification agreements: the express negligence doctrine. According to the Southern Law Journal, Texas Supreme Court rulings show that this doctrine requires that the intent all parties must be specifically stated “within the four corners of the contract.” In this context, “four corners” is taken to mean the meaning of an agreement based solely on its textual content. Essentially, the express negligence doctrine is meant to strip away the ambiguity that some may include in a liability waiver to conceal their true intent. In everyday terms, this calls for an elimination of a contract’s “fine print.” 

For example, liability waivers may be presented as a way to inform guests of the risks that they may encounter from a property’s features and/or activities, so as to give them the information needed to make an informed decision on whether or not they should accept them. Yet if it is determined that ambiguous language in such a waiver is shown to mask the property owner’s true intention of excusing him or herself from liability for activities he or she knows to be dangerous, then it may be viewed as being invalid. 

According to Sports Risk Consulting, Texas law also requires that language outlining indemnification be conspicuous as opposed to being hidden in a contract.