Texas Injury Lawyer & Attorney : Bailey Law Firm : Automobile Accidents, Product Defect, Consumer Right

I recently settled a case in which a young contestant was required to go without sleep and keep his hand flat on a Nissan truck until the last contestant was standing. The contest was called "Hands on a Hardbody"  He eventually left the contest, broke into a K-Mart, forced the trigger lock out of a shotgun and committed suicide. There was no effective exit strategy to assure safety for contestants although many instances had taken place over the years concerning insane behavior. One woman jumped the fence and ran out in traffic. She had to be tackled by her boyfriend. One contestant argued with his father because he thought he was in Oklahoma although the contest was in Longview Texas. One contestant thought he was pushing daisies down on the hood of the pickup. The examples are endless. Simply put, I argued that minimal protection should have been provided to the contestants to assure they were not a danger to themselves or others. This result of sleep deprivation has been known for decades and studied at length by scientists. The North Koreans used sleep deprivation and stress to break down soldiers in the Korean conflict. It wasn't that the soldiers just got tired, they went into a mental breakdown.

Sleep deprivation combined with stress and stimulants have been used casually in contests as well as work environments. It is simply dangerous and negligent to do so.

Studies have shown:

Patients suffering from insomnia reported a four-fold higher rate of attempted suicide.

The risks of only 24 hours of sleep deprivation are substantial and render an individual in a state of impairment comparable to being intoxicated

More than 80% of people are suffering from hallucinations by 48 hours of sleep deprivation

An important recent study done by the University of California, Berkeley, and Harvard Medical School was published in Current Biology showing objective radiological findings correlating with symptomatic changes in subjects who are sleep deprived. The emotional part of the brain (amygdala) is dramatically different in the images. The amygdala , which alerts the body to protect itself in times of danger, goes into overdrive on no sleep, according to the study. This consequently shuts down the prefrontal cortex, which commands logical reasoning, and thus prevents the release of chemicals needed to calm down the fight-or-flight reflex.

The study showed that sleep deprivation excessively boosts the part of the brain most closely connected to depression, anxiety and other psychiatric disorders.

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“[I]ndemnification of a party for its own negligence in the future is an extraordinary shifting of risk.” Dresser Industries, Inc., 853 S.W.2d at 508. As a result, Texas imposes two “fair notice” requirements upon all attempts at such indemnity -- the express-negligence doctrine and a conspicuousness requirement
Culminating a “trend toward more strict construction of indemnity contracts,” the express-negligence doctrine requires three things before any party can ever be indemnified against or released from the consequences of its own neglect:
• The intent of the parties must be clear.
• The intent to indemnify for the indemnitee’s own negligence must be set forth expressly “in specific terms within the four corners of the contract.”
• No part of the agreement may be left to implication or inference.
Dresser Industries, Inc., 853 S.W.2d at 508; Maxus Exploration Co. v. Moran Bros., 817 S.W.2d 50 (Tex. 1991); Ethyl Corp. v. Daniel Const. Co., 725 S.W.2d 705, 708 (Tex. 1987). Implied obligations to indemnify one’s own negligence thus are invalid. Indeed, this is the essential difference between the express-negligence doctrine and the “clear and unequivocal” test that it replaces.
Contracts purporting to globally release/indemnify any and all claims categorically fail the strict express-negligence doctrine:
A. In Gulf Coast Masonry, Inc. v. Owens-Illinois, Inc. a global attempt to indemnify “any and all loss” to the indemnitee’s “property or operations” failed the express-negligence doctrine and thus indemnified nothing. 739 S.W.2d 239 (Tex.1987).
B. In Trinity Industries v. Ashland, 53 S.W.3d 852, 858 (Tex.App.—Austin 2001, pet.denied), a contract that purported to release “all claims . . . and liabilities . . . of any nature whatsoever” nonetheless was ineffective to release claims of negligent misrepresentation and fraud where the global release “mention[ed] neither negligent misrepresentation nor fraud.” 53 S.W.3d at 868.
C. Singleton v. Crown Central Petroleum Corp. 729 S.W.2d 690 (Tex.1987), the Texas Supreme Court likewise struck down an indemnity provision that did not specifically state (but distinctly implied) that there was indemnity for concurrent negligence.
Any attempted waiver of future negligent acts is an extra-ordinary shifting of risk that can be accomplished only under the most stringent rules of notice. The language must be conspicuous. Storage & Processors, Inc. v. Reyes, 134 S.W. 3d 190, 193 (Tex 2004).
See Tex. Bus. & Comm. Code Ann. Sec 1.201(b)(10) defining conspicuous:
"Conspicuous," with reference to a term, means so written, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it. Whether a term is "conspicuous" or not is a decision for the court. Conspicuous terms include the following:
(A) a heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size; and
(B) language in the body of a record or display in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.
A document attempting to waive personal responsibility must provide the “fair notice” requirement described in Dresser Industries v. Page Petroleum v. Houston Fishing, 853 S.W. 505 (Tex 1993) and can not be a contract of adhesion. In recognizing suicide as a foreseeable, recoverable consequence of negligence, the Supreme Court in Exxon Corporation v. Brecheen, 526 S.W. 2d 519 (Tex. 1975) rejected Exxon Corporation’s release defense citing “disparity of bargaining power”. Also see: Allright, Inc. v. Elledge, 515 S.W.2d 226, 267 (Tex. 1974).

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