NO. 07-11-0381-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS 

AT AMARILLO

PANEL D 

JANUARY 23, 2013

_____________________________

FRANCIS JAEGER, CHRISTIE JAEGER, DAN BECKMAN 

AND JERETTA BECKMAN,

Appellants

v.

ROBERT HARTLEY, MARY CORRIGAN, CHARLES ALLEN REEVES AND EDITH M. 

VAUGHT A/K/A MARY EDITH VOUGHT A/K/A MARY EDITH VOUGHT, 

INDIVIDUALLY AND D/B/A ELKINS RANCH, ET AL.,

Appellees

_____________________________

FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;

NO. 59,377-B; HONORABLE JOHN B. BOARD, PRESIDING

_____________________________

Opinion

_____________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

We have before us an appeal from final summary judgments denying Francis 

and Christie Jaeger (the Jaegers) and Dan and Jeretta Beckman (the Beckmans) 

recovery against Robert Hartley, Mary Corrigan, Charles Allen Reeves, and Edith M. 

Vaught, individually and as Elkins Ranch, Mary Corrigan and Charles Allen Reeves, as 

co-trustees of the Louise Reeves Revocable Living Trust UTD, independently and as 
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Elkins Ranch, Edith Vaught as trustee of the Vaught Family Revocable Living Trust, 

independently and as Elkins Ranch, and Michael Lancaster (collectively referred to as 

Elkins). We reverse.1

Background

The dispute arose from an accident occurring on the Elkins Ranch. The 

Beckmans and Jaegers were participating in a commercial tour of Palo Duro Canyon 

allegedly conducted by Elkins Ranch. The latter provided both a jeep for them to ride in 

and a driver or tour guide (i.e., Lancaster) to operate the vehicle. Evidence also 

appears that indicates they were told to obey Lancaster’s directions. 

While the tour was proceeding up a steep incline in the canyon, the jeep stalled, 

its brakes failed, and it began rolling down the incline. As it did, Lancaster told the 

Jaegers and Beckmans to jump from the vehicle. They were not wearing seat belts at 

the time per the directive of Lancaster. Eventually the jeep tumbled onto its side and 

stopped. 

The Jaegers and Beckmans suffered injuries and sued Elkins. The latter moved 

for summary judgment, contending that the document entitled Waiver and Assumption 

of Risk executed by their opponents relieved them of liability, that their opponents 

 1

Question has again arisen as to whether this court has jurisdiction over the appeal. The matter 

involves the claims asserted against Robert Hartley. He was a named defendant who died before filing 

any motion for summary judgment. Nonetheless, the trial court executed a summary judgment expressly 

stating that “[t]his judgment finally disposes of all parties and all claims and is appealable.” (Emphasis 

added). The latter is a clear expression of the trial court’s intent to render a final, appealable decree 

despite granting relief to a defendant who had not requested it. This situation is akin to that described by 

the Supreme Court in Jacobs v. Satterwhite, 65 S.W.3d 653, 655 (Tex. 2001), where it recognized a 

difference between granting relief to parties in excess of that actually sought in a motion for summary 

judgment and granting relief that fails to dispose of all claims and parties. The latter does not result in a 

final, appealable decree while the former is. Here, the words used by the trial court in its summary 

judgment granted complete relief and disposed of all parties and claims. As such, it is final, though 

reversible as to the claims asserted against Robert Hartley.
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breached the foregoing contractual waiver by suing, and that recovery could be had 

only if they were reckless (as opposed to merely negligent). The motions for summary 

judgment were granted, but the trial court specified no particular ground upon which it 

acted. 

Discussion

1. Standard of Review 

The standard of review we must apply when entertaining an appeal from a final 

summary judgment is described in Nixon v. Mr. Property Management Co., 690 S.W.2d 

546, 548 (Tex. 1985). There is no need for us to reiterate it.

2. Effect of the Waiver and Assumption of Risk Document

In its motion for summary judgment, Elkins asserted that the Jaegers and 

Beckmans assumed the risk of injury arising from their participation in the tour by 

signing the aforementioned waiver and assumption of risk agreement.2

 The latter

contained the following language:

I . . . voluntarily sign this Waiver and Assumption of Risk in favor of 

ELKINS RANCH, its Owners, agents, or employees, in consideration for 

the opportunity to enter upon and use the Ranch facilities; and to engage 

in activities sponsored by the Owners . . .

Driving, or parking, of customers’ vehicles; Walking; Hiking; Horseback 

riding and instruction; Jeep tours; Hunting; Interactions with all livestock, 

or wildlife; Camping . . .; Consumption of food, or beverage; Use of 

customers [sic] own personal horse, vehicle, trailer, or equipment while on 

Ranch property; Any and all indoor, or outdoor activities, however related, 

while on Ranch premises.

I understand that there are certain risks and dangers associated with the 

various activities, use of the facilities, and the wilderness environment; 

and that these risks have been fully explained to me. I fully understand 

 2

While the document mentions both an assumption of risk and waiver, Elkins relies simply on the 

former to defeat liability. So we render no opinion on whether the two defenses are one and the same or 

actually two distinct theories. 
4

the danger involved. I fully assume the risks involved as acceptable to 

me, and I agree to use my best judgment in undertaking these activities 

and follow all safety instructions.

I do hereby waive, release, acquit and forever discharge ELKINS RANCH, 

its Owners, agents, employees and all persons and entities of; [sic] from 

any/all actions, causes of action, claims, demands, damages, costs, loss 

of services, expenses, and compensation, on account of, or in any way 

growing out of, any and all known and unknown personal injuries, property 

damage, or death resulting from my presence on Ranch premises, use of 

facilities, or from my participation in the activities. This Waiver/Release

contains the Entire Agreement between the parties, and the terms of this 

Waiver/Release are contractual and not a mere recital.

I further state that I am a competent adult of lawful age, and I have 

carefully read the foregoing Waiver/Release and know its contents. I 

assume these risks and sign the same of my own free will . . . .

The executed document allegedly “precludes any recovery” by the signatories against 

Elkins. And, the latter cite our opinion in Willis v. Willoughby, 202 S.W.3d 450 (Tex. 

App.–Amarillo 2006, pet. denied) to support their position.

In Willis, the plaintiff (Willis) broke her ankle while participating in self-defense 

training. That is, she was attempting to thwart a charge by her instructor when the two 

collided and fell to the ground. Engaging in this exercise somehow resulted in the 

broken ankle. Before participating in the activity, Willis executed a document containing 

the following language:

I understand that self-defense training is inherently dangerous and I 

knowingly and willingly assume all risk of injury or other damage 

associated with such training. I release all teachers, students, and other

parties from any claim of any and all liability that may result from any injury 

received, and I hereby waive all claims that I, or anyone else on my 

behalf, may make with respect to such injury or damages. I agree for 

myself and my successors that . . . should I or my successors assert any 

claim in contravention to this agreement, I and my successors shall be 

liable for the expenses including . . . legal fees incurred by the other party 

or parties in defending unless the party or parties are adjudged finally 

liable on such claim for willful and wanton negligence . . . .
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Willis v. Willoughby, 202 S.W.3d at 452. We held that by signing the document, Willis 

had contractually “assumed ‘all risk of injury . . . associated with such training,’” and she 

“effectively relieved Willoughby of the duty to protect her from foreseeable injury while 

instructing her in self-defense.” Id. at 453; accord Thom v. Rebel's Honky Tonk, No. 

03-11-0700-CV, 2012 Tex. App. LEXIS 7555, *17-18 (Tex. App.–Austin August 30, 2012, 

no pet.) (stating that “[t]he effect of the [contractual] assumed-risk defense is to negate 

any duty owed to the plaintiff by the defendant to protect against foreseeable risks”). 

We have no question about the continued viability of the law espoused in Willis. Yet, 

that does not mean it is of benefit to Elkins.

As we said in Willis, the common law doctrine of assumed risk no longer exists. 

Willis v. Willoughby, 202 S.W.3d at 453. Yet, one may still assume the risks inherent in 

engaging in a certain activity by contract and thereby relieve others of a duty to protect 

against foreseeable risks. Id. And, therein lies the quandry -- determining what risks 

are foreseeable. A good starting point in making that determination would be the writing 

or contract that supposedly vitiates the duty of care. See Rice v. Metropolitan Life Ins. 

Co., 324 S.W.3d 660, 669 (Tex. App.–Fort Worth 2010, no pet.) (stating that we turn to 

the contract’s wording to assess the obligations assumed by the parties).

The agreement before us explains that it was to be executed in exchange for the 

signatory being allowed to “enter upon and use the Ranch facilities; and to engage in 

activities sponsored by the Owners.” Through it, the signatory agreed to “fully assume 

the risks involved.” The “risks involved” consisted of those “certain risks and dangers 

associated with the various activities, use of the facilities, and the wilderness 

environment . . . .” And, the “activities” contemplated or occurring on the Ranch were:
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Driving, or parking, of customers’ vehicles; Walking; Hiking; Horseback 

riding and instruction; Jeep tours; Hunting; Interactions with all livestock, 

or wildlife; Camping . . .; Consumption of food, or beverage; Use of 

customers [sic] own personal horse, vehicle, trailer, or equipment while on 

Ranch property; Any and all indoor, or outdoor activities, however related, 

while on Ranch premises.

So, 1) the nature of the environment, i.e., a ranch and wilderness, 2) the facilities 

present and their use, and 3) the activities being conducted combine to form the

nucleus from which the risks assumed were to emanate. That the Jaegers and 

Beckmans were injured while venturing into the canyon wilderness while on a jeep tour 

of that wilderness is clear. But the injuries did not stem simply from the tour being 

conducted in a wilderness or canyon environment. That is, canyon walls did not give 

way or the ground subside or the terrain cause the jeep in which they rode to leave the 

pathway or flip, or the like. Similarly, exposure to or interaction with the flora or fauna of 

the environment was not the event that caused injury. 

Instead, summary judgment evidence indicates that the injuries arose from the 

Elkins’ tour guide attempting to ascend a steep slope with a jeep that had defective 

brakes. There is no evidence that anyone told the Jaegers or Beckmans that they 

would be traversing rugged terrain in such a vehicle before they signed the release 

instrument. Nor is there evidence that they were made aware of the possibility that the 

vehicle on which they would ride could be defective and ill-suited for the venture. Nor 

were they told that the tour would or could continue on equipment that became 

defective during the event. More importantly, the Elkins’ tour guide became aware of 

the defect with the brakes yet continued the tour. These circumstances and the 

relationship between the act and injury they evince are unlike those in Willis. There, 
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Willis’ injury occurred during a training exercise that went somewhat awry. The nexus 

between the two was quite direct. As we said there: 

. . . the training contemplated . . . involved learning techniques to 

counteract physical attack from those whom [Willis] guarded. The 

techniques were not merely verbal but implicated the use of physical 

contact and force. That the application of contact and force sufficient to 

deter aggression can result in bodily injury is a matter of common sense; 

indeed, Sandra herself admitted, via deposition, that she understood the 

possibility of that happening while engaged in the class.

Willis v. Willoughby, 202 S.W.3d at 453. Suffering injury as a result of being struck or 

falling during a self-defense exercise is quite foreseeable since the exertion of force or 

application of physical contact by another is part of the exercise. Willis had agreed to 

engage in an exercise involving forceful physical contact, knew of the potential for injury 

arising from such contact, and suffered an injury caused by the very contact in which 

she was to engage. Had she been injured because the exercise had resulted in her 

falling upon a mat containing a sharp object or because the floor gave way from the 

impact, or the like, the outcome may not have been the same. 

The same is true of the circumstances in Honky Tonk. There, the plaintiff was 

thrown from a mechanical bull. He had previously signed a release with the following 

language:

I acknowledge that riding a mechanical bull entails known and 

unanticipated risks that could result in physical or emotional injury, 

paralysis, death to myself, to property, or to third parties. I understand that 

such risk simply cannot be eliminated without jeopardizing the essential 

qualities to the activity.

THE RISKS INCLUDE, BUT ARE NOT LIMITED TO[]: Falling off of or 

being thrown from the mechanical bull, which could result in 

muscu[lo]skeletal injuries including head, neck and back injuries.
8

Thom v. Rebel's Honky Tonk, No. 03-11-00700-CV, 2012 Tex. App. LEXIS 7555, at *18-

19. That verbiage expressly mentioned risks of injury due to being thrown from the 

device, and more importantly, that is how the plaintiff in Honky Tonk suffered injury -- he 

was thrown from the bull. There was no evidence that the ride was defective or that the 

owners knew of any defect in the bull yet allowed the participant to mount it. 

Here, it may be reasonable to foresee from the writing at bar the potential for 

injury arising from one’s traversing a wilderness or canyon by vehicle. But, it is not 

reasonable to infer from the same verbiage that part of the tour would consist of being 

driven around a wilderness and canyon area in a vehicle with defective brakes or that 

an Elkins’ employee would continue a tour through a canyon while knowing about the 

defect.3

We therefore conclude that the summary judgment record submitted by Elkins

does not demonstrate as a matter of law that the risk at bar (i.e., using a jeep with 

defective brakes to conduct a wilderness tour and continuing the tour after gaining 

knowledge of such a defect) causing the injury at bar (i.e., being thrown from the jeep 

because its brakes could not stop it from rolling down a steep ascent) was foreseeable. 

Said another way, Elkins has not demonstrated as a matter of law that the Jaegers and 

Beckmans gave, in the words used in Farley v. M M Cattle Co., 529 S.W.2d 751, 758 

(Tex. 1975), “knowing and express oral or written consent to the dangerous activity or 

condition.” Elkins has not shown its entitlement to summary judgment under the 

contractual doctrine of assumed risk. 

 3

We note that the record contains evidence that the tour guide requested another employee of 

Elkins to bring him brake fluid during the tour because the jeep’s brakes were not working. That individual 

appeared in a separate vehicle, but no fluid was added to the brake system. It was after this event that 

the tour guide 1) directed the Beckmans and Jaegers to return to the jeep, and 2) continued the tour. 
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3. Standard of Liability Requires Recklessness

Elkins also sought summary judgment on the ground that its jeep tour was 

comparable to participating in a sporting event and that those sponsoring such events 

are liable only for injuries arising from reckless or grossly negligent conduct. They cited 

our decision in Hathaway v. Tascosa Country Club, Inc., 846 S.W.2d 614 (Tex. App.–

Amarillo 1993, no writ), as support for the proposition. In Hathaway, the plaintiff was hit 

by a golf ball while playing golf. Because getting hit with a golf ball while on a golf 

course was a foreseeable event, we concluded “that for a plaintiff to prevail in a cause 

of action against a fellow golfer, the defendant must have acted recklessly or 

intentionally.” Id. at 617.4

 Were we to assume that participating in a canyon tour is 

comparable to playing golf, Elkins still would not be entitled to summary judgment as a 

matter of law, however.

To be reckless, a defendant must engage in conduct that he knew or should 

have known posed a high degree of risk of serious injury but disregarded that risk. 

Wal-mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 326 (Tex. 1996). Evidence 

appears of record here disclosing that the Jaegers and Beckmans were directed by 

Elkins to obey the employee provided as their tour guide, their tour guide informed them 

not to wear their seat belts, the tour guide began and then became aware of the jeep’s 

defective brakes, and the employee continued that tour by going up a steep slope 

despite knowing of the defect. A factfinder could reasonably infer from it that the 

 4

But see, McClain v. Baker, No. 14-96-00487-CV, 1997 Tex. App. LEXIS 3808, at *4 (Tex. App.–

Houston [14th Dist.] July 24, 1997, no writ) (not designated for publication) (stating that “the Texas 

Supreme Court recently rejected the reckless disregard standard for claims involving competitive contact 

sports because the reckless or intentional standard ‘is not workable to ferret out unmeritorious claims.’ 

Davis v. Greer, 940 S.W.2d 582, 583 (Tex. 1997)” and that the standard is simply one of foreseeability). 
10

employee acted recklessly.5 Thus, there is evidence satisfying the standard of 

misconduct invoked by Elkins. 

4. Breach of Contract

Elkins finally sought summary judgment on the ground that the Beckmans and 

Jaegers breached their contract wherein they assumed the risk of injury by suing Elkins. 

Having previously concluded that the risks assumed did not encompass the risk causing 

injury here, Elkins failed to prove, as a matter of law, that the suit breached the 

agreement.

The summary judgments are reversed and the cause remanded to the trial court.

Brian Quinn

Chief Justice

 5

Whether that conduct may be imputed to his employers is not before us.