Liability waivers in Texas must contain both negligence and gross negligence in order to actually waive those liabilities under the Express Negligence Doctrine, that is, the party providing the waiver and seeking to be covered by the waiver must express in the waiver the desire to be covered in terms of its own negligent actions. Texas courts are, unfortunately, split on the issue as this applies to gross negligence however, with some arguing that gross negligence must be separately stated in order to be waived, while others follow the idea that gross negligence is a kind of negligence, so simply saying negligence will cover gross negligence as well.
But what is the difference between gross negligence and just plain old negligence? Gross negligence, under Texas statute, means an act or omission: which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others, AND of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of the others. With plain negligence, there must exist a duty or minimum standard of care that is expected of a person, and that person failed to provide that minimum duty or standard.
Suffice it to say, for landowners or companies looking to have individuals or participants sign liability waivers, the best practice is to include provisions for both negligence and gross negligence. The Express Negligence Doctrine in Texas is the perfect example of why free online liability waivers should never be used by those looking to limit their liability exposure—You simply do not know enough about where the wavier comes from or who drafted it to be able to accurately determine whether the waiver will be enforced if challenged by an injured person.
San Antonio Attorney Nathaniel Gilbert drafts custom tailored liability waivers for landowners, hunting outfitters, and corporations in Texas on a flat fee basis. Having a liability waiver drafted specifically for your property and activity will ensure that specific dangers and cautions are expressly provided for, and your assets adequately protected. For a free consultation on Texas liability waivers, click here to get in touch with Nate.