Texas Judiciary Online - HTML Opinion

In=20 Sydlik, this court recently addressed a pre-injury release = with=20 remarkably similar language to the one at issue here.^{^[3]} =20 Sydlik, 195 S.W.3d at 331. In Sydlik, the = plaintiff=20 filed suit against multiple defendants alleging she was injured = while=20 using one of the defendant=3Ds exercise=20 machines. Id. The defendants moved for summary = judgment=20 contending the plaintiff had executed a valid pre-injury release, = which=20 the trial court granted. Id. The plaintiff = appealed=20 arguing the trial court erred because the release language was not = conspicuous and did not meet the requirements of the Express = Negligence=20 Doctrine. Id. Finding that the release language = at=20 issue in Sydlik was both conspicuous and met the = requirements of=20 the Express Negligence Doctrine, we affirmed the trial = court=3Ds summary=20 judgments as to the two Curves defendants.^{^[4]} =20 Id. at 332B33.

Because=20 Sydlik is binding precedent, and as there is no significant = legal=20 difference between the release language at issue in this case and = that=20 found in Sydlik, we find the trial court did not err when = it=20 granted appellee=3Ds motion=20 for summary judgment based on appellant=3Ds=20 execution of the pre-injury release. Accordingly, we = overrule=20 appellant=3Ds single=20 issue on appeal.

Conclusion

Having=20 overruled appellant=3Ds single=20 issue on appeal, we affirm the trial court=3Ds granting=20 of appellee=3Ds motion=20 for summary judgment.

/s/ =20 John S. Anderson

Justice

Judgment=20 rendered and Memorandum Opinion filed October 16, 2007.

Panel=20 consists of Chief Justice Hedges and Justices Anderson and = Seymore. =20 (Seymore, J. dissents without an opinion.)

^{^[1]} The one-page Release = provides:

This agreement is entered into by and = between=20 Employer, hereinafter referred to a ABrown & Root@ (including any and all subsidiaries of = Brown=20 & Root, affiliates, and their employees and agents), and the=20 undersigned, for and in consideration of the mutual promises = contained=20 herein:

1. =20 Brown & Root, in considering the undersigned for employment, = agrees to=20 administer a Physical Agility Test to the undersigned in order to = assess=20 his/her physical agility to perform the reasonable and necessary = duties=20 required of a ___P/F___

2. =20 The undersigned understands that he/she will be required to exert=20 significant physical effort on his/her part during the physical = agility=20 test administered by Brown & Root, its employees, contractors, = or=20 assigns. This test will place significant stress on your = back,=20 joints and muscle. If you have a history of injuries or = weaknesses=20 in any of those areas and/or feel that you can not safely complete = the=20 test, you should not take it.

3. =20 The undersigned releases and agrees to hold Brown & Root, Inc. = harmless from any claim by or liability to me based upon the = foregoing=20 testing or results thereof, including any claim or liability which = for any=20 reason Brown & Root is alleged to be legally liable, including = liability based on Brown & Root negligence.

4. =20 The physical agility test must be successfully completed without = actual or=20 alleged injury.

^{^[2]} Appellant also filed suit against = Lafayette=20 Instrument Co., Inc., (ALafayette@) the manufacturer of the machine used = in the=20 Physical Agility Test. Appellant settled with Lafayette and = a take=20 nothing judgment was entered by the trial court. Lafayette = is not a=20 party to this appeal.

^{^[3]} In Sydlik, the plaintiff = executed a=20 one-page pre-injury release containing the following relevant=20 provision:

In consideration of being allowed to = participate=20 in the activities and programs of Curves for Women7 and to use its facilities, equipment = and=20 machinery in addition to the payment of any fee or charge, I do = hereby=20 waive, release and forever discharge Curves International Inc., = Curves for=20 Women7, and their officers, agents, employees, = representatives, executors, and all others (Curves7 representatives) from any and all=20 responsibilities, or liabilities, from injuries or damages = arriving [sic]=20 out of or connected with my attendance at Curves for = Women7, my participation in all activities, my = use of=20 equipment or machinery, or any act or omission, including = negligence by=20 Curves7 representatives.

Sydlik v. REEEIII, Inc. d/b/a Curves for = Women, 195 S.W.3d 329,=20 331B32 (Tex. App.CHouston [14th Dist.] 2006, no=20 pet.).

^{^[4]} We reversed the summary judgment = as to the=20 one non-Curves defendant, the manufacturer of the machine at = issue, as=20 that defendant was not named in the release. Id. at=20 = 335.