Express Negligence Doctrine Texas
In 1987 the Texas Supreme Court adopted the express negligence doctrine. Ethyl Corp. v. Daniel Const. Co., 725 S.W.2d 705, 708 (Tex. 1987).
Prior to the Ethyl decision, Texas courts had considered numerous clauses which were used by contracting parties to attempt to shift responsibility for future acts of negligence of one party or the other.
Such clauses met with varying degrees of success when presented to the judiciary for interpretation or enforcement. See id.
In adopting the express negligence rule, the Ethyl court did not indicate that such contractual provisions were invalid; it held only that in order for one party to shift the risk of its future negligent conduct to another, the agreement must expressly so state. Id.
In Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505 (Tex. 1993), the court addressed the issue of whether fair notice requirements applicable to indemnity agreements apply to releases that operate to relieve a party of responsibility for its own negligence in advance of the damage-causing event. In holding that fair notice requirements were applicable to such releases, the court quoted with approval the court of appeals language describing the kinds of agreements at issue:
These agreements, whether labeled as indemnity agreements, releases, exculpatory agreements, or waivers, all operate to transfer risk . . . these particular agreements are used to exculpate a party from the consequences of its own negligence. Dresser, 853 S.W.2d at 508.
The Dresser court did not hold or suggest that agreements to relieve a party of liability for its future negligence were invalid.
In 1997 the Texas Supreme Court revisited the subject matter of risk-shifting clauses in agreements. Green Intern., Inc. v. Solis, 951 S.W.2d 384 (Tex. 1997).
In Green, the court considered whether the rules set forth in Dresser would apply to provisions in construction contracts known as "no-damages-for-delay" clauses:
[The no-damage-for-delay] clause does not constitute the type of extraordinary risk-shifting found in Dresser. It is not an indemnity agreement because it does not shift Green's liability for third party claims to Solis. Dresser, 853 S.W.2d at 508.
Also, this clause is not a release as defined in Dresser because it neither "extinguishes the claim or cause of action" nor establishes "an absolute bar to any right of action on the released matter." Id.