Robert Hardee v. Kellogg Brown & Root, Inc. ( 2007 )

Affirmed and Memorandum Opinion filed October 16, 2007

Affirmed and Memorandum Opinion filed October 16, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-01048-CV

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ROBERT HARDEE, Appellant

V.

KELLOGG BROWN & ROOT, INC., Appellee

On Appeal from the 280th District Court

Harris County, Texas

Trial Court Cause No. 2003-49486

M E M O R A N D U M   O P I N I O N

This is an appeal from the order granting summary judgment in favor of appellee, Kellogg Brown & Root, Inc., the defendant in a negligence action.  Finding no error, we affirm.

Factual and Procedural Background

Appellant, Robert Hardee, applied for a job as a pipefitter with appellee.  As part of the application process, appellant was required to take a pre-employment Physical Agility Test.  Prior to the test, appellant executed a one-page document entitled: ABrown & Root Companies Physical Agility Test Record and Release@ (the ARelease@).^[1] While appellant was performing the test, he injured his back which ultimately required surgery.  Appellant  filed suit against appellee asserting that appellee was negligent in the administration of the pre-employment physical agility test.^[2] Appellee filed a summary judgment contending appellant had executed a valid pre-injury release which barred appellant=s claims.  The trial court granted appellee=s motion for summary judgment and this appeal followed.

Discussion

In a single issue, appellant contends the trial court erred when it granted appellee=s motion for summary judgment as the Release did not meet the fair notice requirements because the release language (1) does not comply with the Express Negligence Doctrine; and (2) is not conspicuous.

A.      Standard of Review

The summary judgment movant has the burden to show there is no genuine issue of material fact and it is entitled to judgment as a matter of law.  Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985).  If a defendant is the summary judgment movant, and he  negates at least one essential element of a plaintiff=s cause of action, then he is entitled to summary judgment on that claim.  Sydlik v. REEIII, Inc., d/b/a Curves for Women, 195 S.W.3d 329, 332 (Tex. App.CHouston [14th Dist.] 2006, no pet.).  We review a trial court=s summary judgment de novo.  Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

B.      The Release Meets the Fair Notice Requirements

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

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

Conclusion

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

/s/      John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed October 16, 2007.

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

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^[1]  The one-page Release provides:

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

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

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

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

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

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

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

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

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

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