75 Ft waterfall, middle of the night, no lights and a BAC of .18% results in two fatalities and one lawsuit. However, facts that created fatalities were the defense.

Tennessee’s duty to protect its citizens more than its duty to safety to invitees to its state parks is refreshing.

Morgan v. State of Tennessee, 2004 Tenn. App. LEXIS 62

State: Tennessee Court of Appeals

Plaintiff: Evelean Morgan

Defendant: State of Tennessee

Plaintiff Claims: negligently creating or maintaining a dangerous condition at Colditz Cove State Natural Area

Defendant Defenses: (1) Tennessee recreational use statute Tenn. Code Ann. § 70-7-102 (1995), (2) lack of actual or constructive notice of a dangerous condition, and (3) assertion that the decedent’s fault exceeded its own

Holding: For the Defendant State of Tennessee

Year: 2004

After the local bars closed the deceased and several friends went to a local state park to continue talking and drinking. The park was created because of the rock formations and the 75’ Northrup Falls. After taking and drinking in the parking lot, several members of the group decided to walk to the falls. The trail was primitive with no lights. One member of the group of five had a flashlight.

At a Y in the trail, two members of the group sat down to talk. The remaining three continued to walk. At one point, one person went into the bushes to pee and fell over the cliff on his way back. One member of the group sitting at the Y came down to assist. Later that same person decided to go for help, taking the flashlight with him.

The two remaining parties tried to start a fire to no avail. Eventually, the deceased, the daughter of the plaintiff in this lawsuit, also fell over the cliff. Approximately, an hour later rescue workers found the deceased floating in the water at the base of the falls. The deceased, the subject to this lawsuit had a blood-alcohol content of .18%

The mother of the deceased, the plaintiff, sued the State of Tennessee because the falls were a state park. In Tennessee this means filing a claim with the Tennessee Claims Commission. The claims commission commissioner reviewed the motions and granted the State of Tennessee’s motion for summary judgment. The plaintiff appealed. The commissioner’s decision was not based on the Tennessee Recreational Use Act but was based on the state’s defense of “(2) its lack of actual or constructive notice of a dangerous condition, and (3) its assertion that the decedent’s fault exceeded its own

Several states employ a separate state agency to handle claims against the state. The commissioner or judge hearing the claims is usually an attorney, called an administrative law judge. These judges operate with a separate set of rules of civil procedure and sometimes rules of evidence. The entire procedure is controlled by the statute that outlines how the state may be sued.

Summary of the case

The appellate court first looked at the Tennessee Recreation Use Act to see if it applied to this case. For the plaintiff to defeat the recreational use act, she must:

(1) prove that the defendant is not a “landowner,” (2) prove that the injured party was not engaged in a recreational activity, or (3) prove that the landowner’s conduct fits within one of the three exceptions in Tenn. Code Ann. § 70-7-104.

The court quickly determined that Tennessee was a landowner and that hiking and/or sightseeing (at night) was a recreational activity. The third issue was whether an exception to the act applied to the case. The sole exception argued by the plaintiff was the actions of the state were gross negligence.

Under Tennessee’s law, gross negligence is defined as:

… negligent conduct reflecting a reckless disregard for the safety of others. It does not require a particular state of mind as long as it creates an extremely unjustified risk to others. It differs from ordinary negligence only in degree, not in kind. Thus, gross negligence is a negligent act or failure to act that reflects more than lack of ordinary care (simple negligence) but less than intentional misconduct.

Ordinarily, the determination of whether a defendant’s actions were gross negligence is a factual determination, which can only be done by the trier of fact or a jury. However, if the facts are not in dispute and conclusions reasonable drawn from the facts would only lead to one conclusion; a court can determine if the acts rose to the level of gross negligence.

We find no evidence in this record upon which a reasonable person would conclude that the State was grossly negligent with regard to the construction or maintenance of the Colditz Cove State Natural Area.

The court then made a statement that places Tennessee in the minority, that the protection of the natural area in this case takes precedence over the safety issues.

The State had a statutory obligation to maintain this area in a pristine, natural condition. Erecting warning signs, installing lighting along the trails, fencing the entire area, or installing guard rails, barriers, or other sorts of buffers, while perhaps appropriate at Dollywood, would have been entirely unwarranted and unnecessary for a natural area such as Colditz Cove.

The court held that the recreational use act applied, and the plaintiff had not raised any defenses to its application.

The court then looked at the second issue, whether the state met the ordinary reasonable person standard of care for a landowner.

The State is not the insurer of the safety of persons on its property. It is, however, liable to these persons to the same extent that private owners and occupiers of land are liable, because Tenn. Code Ann. § 9-8-307(a)(1)(C) has imposed this common-law duty on the State. Tenn. Code Ann. § 9-8-307(a)(1)(C) provides that the State may be held monetarily liable for negligently created or maintained dangerous conditions on state controlled real property.

The state, as a landowner, has a duty to exercise reasonable care to prevent foreseeable injuries to persons on the premises. To prevail, the plaintiff must prove the actions leading to the fatality were a reasonably foreseeable probability. The court found this had not been proven.

The record contains no factual, legal, or policy basis for concluding that the State should have foreseen that intoxicated persons that were unfamiliar with the Colditz Cove State Natural Area would hike down the trail to Northrup Falls in the middle of the night without adequate illumination.

The final argument made by the plaintiff was the state’s gross negligence was greater than the negligence of the deceased. Having found the state was not grossly negligent, this argument also failed.

Ms. Zegilla’s [deceased] voluntary intoxication on the evening of July 26, 1997 does not relieve her from the responsibility of her own negligence. She was required to use reasonable care under the circumstances, and her conduct must be measured against the conduct of an ordinary, reasonable person rather than an ordinary and reasonable intoxicated person. Accordingly, if her conduct while intoxicated was a proximate cause of her death, it may be compared with the fault of the other parties whose fault was also a proximate cause.

It cannot be reasonably disputed that Ms. Zegilla was intoxicated when she arrived at Colditz Cove State Natural Area after midnight on July 26, 1997. Even though she had never visited the natural area before, she decided to venture into a wooded area down an unfamiliar, rough foot path in the dark. After one of her companions fell to his death, she continued to walk around in the darkness even though she must have known that danger was close at hand. As tragic as her death is, the only conclusion that reasonable persons can draw from these facts is that her fault far exceeded any fault that may reasonably be attributed to the State.

The plaintiff failed to make any arguments that the state could be held liable for the death of her daughter.

So Now What?

State statutes that outline the procedures for a claim against a state are so varied; it is difficult to rely on any decision on this issue. Similar arguments can be made when reviewing a state’s Recreational Use Statute.

However, here, the State of Tennessee did nothing to cause injury to the deceased. More importantly for future generations, the state does not have to destroy its natural areas to prevent drunks walking around parks at night from getting hurt.

What do you think? Leave a comment.

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Morgan v. State of Tennessee, 2004 Tenn. App. LEXIS 62

Morgan v. State of Tennessee, 2004 Tenn. App. LEXIS 62

Evelean Morgan v. State of Tennessee

No. M2002-02496-COA-R3-CV

COURT OF APPEALS OF TENNESSEE, AT NASHVILLE

2004 Tenn. App. LEXIS 62

November 3, 2003, Session

January 27, 2004, Filed

PRIOR HISTORY: [*1] Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Claims Commission Affirmed. Appeal from the Tennessee Claims Commission No. 99000125 W. R. Baker, Commissioner.

DISPOSITION: Affirmed and remanded.

COUNSEL: David H. Dunaway, LaFollette, Tennessee, for the appellant, Evelean Morgan.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Christopher Michael Fancher, Assistant Attorney General, for the appellee, State of Tennessee.

JUDGES: WILLIAM C. KOCH, JR., P.J., M.S., delivered the opinion of the court, in which WILLIAM B. CAIN and PATRICIA J. COTTRELL, JJ., joined.

OPINION BY: WILLIAM C. KOCH, JR., P.J., M.S.

OPINION

This appeal involves a fatal accident at the Colditz Cove State Natural Area in Fentress County. The mother of a woman who fell to her death from the bluff surrounding Northrup Falls filed a claim with the Tennessee Claims Commission. The State of Tennessee denied liability based on (1) the recreational use defense in Tenn. Code Ann. § 70-7-102 (1995), (2) its lack of actual or constructive notice of a dangerous condition, and (3) its assertion that the decedent’s fault exceeded its own. The commissioner granted the State’s motion for summary judgment. [*2] While he did not rely on the statutory recreational use defense, the commissioner determined that the State had no notice of a dangerous condition at the natural area, it was not reasonably foreseeable that intoxicated persons who were unfamiliar with the natural area would hike into the area of the falls in the middle of the night, and the decedent’s actions were the sole proximate cause of her death. The decedent’s mother has appealed. We have determined that the commissioner properly granted the summary judgment because, as a matter of law, (1) the State established a defense under Tenn. Code Ann. § 70-7-102, (2) the decedent’s estate presented no evidence that the State had actual or constructive notice of an allegedly dangerous condition on the trail in the natural area, and (3) the decedent’s fault far exceeded whatever fault could be attributed to the State.

I.

Rochelle Copeland Zegilla and her two small children were living with her mother in mid-1997 following a separation from her husband. On Saturday evening, July 26, 1997, she told her mother that she was “going to go out for awhile,” and then she drove to the Top of the Mountain Lounge in [*3] Jamestown, Tennessee. After the lounge closed at midnight, Ms. Zegilla and four companions 1 decided to drive to a nearby VFW club. When they arrived at the club, however, they discovered that it had closed earlier than usual. After a brief discussion in the club parking lot, the group decided to continue their drinking and talking in the parking lot of the Colditz Cove State Natural Area.

1 Ms. Zegilla’s companions at the Top of the Mountain Lounge were Chris Smith, Loretta Johnson, Edward Raines, and Larry King.

The Colditz Cove State Natural Area is a 165-acre Class II natural-scientific area in Fentress County owned by the State of Tennessee. It is heavily wooded and contains the 75-foot Northrup Falls and a scenic gorge with interesting rock formations. 2 The area has been designated by statute as “worthy of perpetual preservation,” 3 and accordingly, improvements to the area are limited to foot trails, foot bridges, and primitive campgrounds 4 and “facilities as may be reasonably necessary . . .for [*4] the safe and proper management and protection of the area.” 5 In addition to a parking lot, the State had erected several signs and a gate and had constructed a 1.5 mile foot trail along the bluff overlooking Northrup Falls, as well as a scenic overlook. The State had not installed lights in the parking lot or along the foot trail.

2 Tenn. Code Ann. § 11-14-108(b)(2)(F) (Supp. 2003).

3 Tenn. Code Ann. § 11-14-105(2) (1999).

4 Tenn. Code Ann. § 11-14-106(a)(1)(B) (1999).

5 Tenn. Code Ann. § 11-14-106(a)(2).

All of the group except Mr. Raines had been drinking throughout the evening, and they continued drinking in the parking lot because Messrs. Smith and King had brought along a cooler of beer purchased earlier in the evening at Midway Qwick Stop. After talking for several minutes, the group decided to walk down the foot trail toward Northrup Falls in the pitch dark even though [*5] three of them, including Ms. Zegilla, had never been to Colditz Cove before. The only illumination they had was Mr. King’s flashlight.

When the group reached a fork in the trail, Mr. Raines and Ms. Johnson decided to walk no further and sat near a trash container to talk and drink. Ms. Zegilla and Messrs. Smith and King kept walking along the trail toward Northrup Falls. After they stopped to drink and talk, Mr. King asked Mr. Smith to shine the flashlight into the bushes to enable him to find a place to urinate. Mr. King walked into the bushes and, on his return, he fell over the bluff into the gorge below.

Mr. Smith yelled, “Larry has fallen off,” and called to Mr. Raines for assistance. Mr. Raines made his way down the trail to Mr. Smith and Ms. Zegilla. After they all called out to Mr. King to no avail, Mr. Raines decided to go for help and took the flashlight to help make his way back up the foot path to the parking lot. Ms. Zegilla and Mr. Smith, now joined by Ms. Johnson, continued to call for Mr. King. Mr. Smith decided to start a fire with his shirt to make some light. After his shirt went out, Ms. Zegilla somehow fell over the bluff. The rescue workers who arrived at the [*6] scene at approximately 1:30 a.m. on Sunday, July 27, 1997, found the lifeless bodies of both Mr. King and Ms. Zegilla in the water at the bottom of the falls. An autopsy revealed that Ms. Zegilla’s blood alcohol level was .18%.

On July 23, 1998, Evelean Morgan, Ms. Zegilla’s mother and her personal representative, filed a claim for $ 500,000 with the Tennessee Claims Commission asserting that the State had violated Tenn. Code Ann. § 9-8-307(a)(1)(C) (Supp. 2003) by negligently creating or maintaining a dangerous condition at Colditz Cove State Natural Area. 6 The State moved to dismiss the claim on the ground that it was shielded from liability by the recreational use statute [Tenn. Code Ann. §§ 70-7-101, -105 (1995)]. After the claims commissioner denied its motion, the State filed an answer denying Ms. Morgan’s negligence claims. The State asserted, as affirmative defenses, (1) that Tenn. Code Ann. § 70-7-102 shielded it from liability, (2) that it had no actual or constructive notice of a dangerous condition at Colditz Cove State Natural Area and that it was not reasonably foreseeable that intoxicated [*7] persons who were unfamiliar with the natural area would hike into the area of the falls in the middle of the night, and (3) that Ms. Zegilla’s own negligence “contributed in excess of 50% to the cause of her death.”

6 Ms. Morgan also filed a civil damage action in the Circuit Court for Fentress County against Ms. Johnson, Messrs. Smith and Raines, and the estate of Mr. King.

In February 2002, following lengthy and somewhat contentious discovery, the State moved for a summary judgment on two grounds – Tenn. Code Ann. § 70-7-102 and its assertion that Ms. Zegilla’s “negligence was equal to or greater than [the] negligence of the State, if any.” 7 In April 2002, Ms. Morgan responded by asserting that the State was not entitled to a judgment on either ground because the State was grossly negligent and because its negligence was greater than Ms. Zegilla’s. The claims commissioner held a hearing on the State’s motion for summary judgment after conducting his own personal inspection of [*8] the Colditz Cove State Natural Area without the lawyers or parties present. On June 5, 2002, the commissioner filed an order granting the State’s motion for summary judgment. While the commissioner declined to base his decision on Tenn. Code Ann. § 70-7-102, he determined that the undisputed evidence demonstrated as a matter of law that Ms. Morgan had not shown that she could prove notice and foreseeability as required by Tenn. Code Ann. § 9-8-307(a)(1)(C) and that Ms. Zegilla was “preponderantly negligent in her own death.” 8 The commissioner later denied Ms. Morgan’s request for a hearing before the entire claims commission. Ms. Morgan has appealed.

7 The State based the latter assertion on what it called the “step in the dark” rule, i.e., that stepping into an unfamiliar dark area constitutes the proximate cause of injuries sustained by falling down stairs hidden in the darkness. Eaton v. McLain, 891 S.W.2d 587, 594 (Tenn. 1994); Goodman v. Memphis Park Comm’n, 851 S.W.2d 165, 171 (Tenn. Ct. App. 1992).

[*9]

8 We construe this finding to be that Ms. Zegilla’s fault exceeded the fault of the State, if any. The claims commissioner stated later in its order that “the sole proximate cause of Ms. Zegilla’s death was her own actions.”

II.

THE STANDARD OF REVIEW

The standards for reviewing summary judgments on appeal are well-settled. [HN1] Summary judgments are proper in virtually any civil case that can be resolved on the basis of legal issues alone. Fruge v. Doe, 952 S.W.2d 408, 410 (Tenn. 1997); Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993); Pendleton v. Mills, 73 S.W.3d 115, 121 (Tenn. Ct. App. 2001). They are not, however, appropriate when genuine disputes regarding material facts exist. Tenn. R. Civ. P. 56.04. Thus, a summary judgment should be granted only when the undisputed facts, and the inferences reasonably drawn from the undisputed facts, support one conclusion – that the party seeking the summary judgment is entitled to a judgment as a matter of law. Pero’s Steak & Spaghetti House v. Lee, 90 S.W.3d 614, 620 (Tenn. 2002); [*10] Webber v. State Farm Mut. Auto. Ins. Co., 49 S.W.3d 265, 269 (Tenn. 2001).

[HN2] The party seeking a summary judgment bears the burden of demonstrating that no genuine dispute of material fact exists and that it is entitled to a judgment as a matter of law. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002); Shadrick v. Coker, 963 S.W.2d 726, 731 (Tenn. 1998). To be entitled to a judgment as a matter of law, the moving party must either affirmatively negate an essential element of the non-moving party’s claim or establish an affirmative defense that conclusively defeats the non-moving party’s claim. Byrd v. Hall, 847 S.W.2d at 215 n. 5; Cherry v. Williams, 36 S.W.3d 78, 82-83 (Tenn. Ct. App. 2000).

[HN3] Once the moving party demonstrates that it has satisfied Tenn. R. Civ. P. 56’s requirements, the non-moving party must demonstrate how these requirements have not been satisfied. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). Mere conclusory generalizations will not suffice. Cawood v. Davis, 680 S.W.2d 795, 796-97 (Tenn. Ct. App. 1984). The non-moving party must convince the [*11] trial court that there are sufficient factual disputes to warrant a trial (1) by pointing to evidence either overlooked or ignored by the moving party that creates a factual dispute, (2) by rehabilitating evidence challenged by the moving party, (3) by producing additional evidence that creates a material factual dispute, or (4) by submitting an affidavit in accordance with Tenn. R. Civ. P. 56.07 requesting additional time for discovery. McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998); Byrd v. Hall, 847 S.W.2d at 215 n. 6. A non-moving party who fails to carry its burden faces summary dismissal of the challenged claim because, as our courts have repeatedly observed, the “failure of proof concerning an essential element of the cause of action necessarily renders all other facts immaterial.” Alexander v. Memphis Individual Practice Ass’n, 870 S.W.2d 278, 280 (Tenn. 1993).

[HN4] A summary judgment is not appropriate when a case’s determinative facts are in dispute. However, for a question of fact to exist, reasonable minds must be able to differ over whether some alleged occurrence or event did or did not happen. Conatser v. Clarksville Coca-Cola Bottling Co., 920 S.W.2d 646, 647 (Tenn. 1995); [*12] Harrison v. Southern Ry. Co., 31 Tenn. App. 377, 387, 215 S.W.2d 31, 35 (1948). If reasonable minds could justifiably reach different conclusions based on the evidence at hand, then a genuine question of fact exists. Louis Dreyfus Corp. v. Austin Co., 868 S.W.2d 649, 656 (Tenn. Ct. App. 1993). If, on the other hand, the evidence and the inferences to be reasonably drawn from the evidence would permit a reasonable person to reach only one conclusion, then there are no material factual disputes and the question can be disposed of as a matter of law. Godfrey v. Ruiz, 90 S.W.3d at 695; Seavers v. Methodist Med. Ctr., 9 S.W.3d 86, 91 (Tenn. 1999); Beaudreau v. General Motors Acceptance Corp., 118 S.W.3d 700, 703 (Tenn. Ct. App. 2003).

[HN5] Summary judgments enjoy no presumption of correctness on appeal. BellSouth Advertising & Publ’g Co. v. Johnson, 100 S.W.3d 202, 205 (Tenn. 2003); Scott v. Ashland Healthcare Ctr., Inc., 49 S.W.3d 281, 285 (Tenn. 2001). Accordingly, appellate courts must make a fresh determination that the requirements of Tenn. R. Civ. P. 56 have been satisfied. [*13] Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997). We must consider the evidence in the light most favorable to the non-moving party, and we must resolve all inferences in the non-moving party’s favor. Godfrey v. Ruiz, 90 S.W.3d at 695; Doe v. HCA Health Servs., Inc., 46 S.W.3d 191, 196 (Tenn. 2001). When reviewing the evidence, we must determine first whether factual disputes exist. If a factual dispute exists, we must then determine whether the fact is material to the claim or defense upon which the summary judgment is predicated and whether the disputed fact creates a genuine issue for trial. Byrd v. Hall, 847 S.W.2d at 214; Rutherford v. Polar Tank Trailer, Inc., 978 S.W.2d 102, 104 (Tenn. Ct. App. 1998).

III.

THE APPLICATION OF TENN. CODE ANN. § 70-7-102

The State’s defense predicated on Tenn. Code Ann. § 70-7-102 figures prominently in this appeal even though the claims commissioner expressly declined to base his decision on this defense. 9 For her part, Ms. Morgan asserts that the commissioner erred by “failing and refusing” [*14] to rule on this defense. While the State does not specifically assert that the commissioner erred by not addressing this defense, 10 it asserts that it did not owe a duty to Ms. Zegilla by virtue of Tenn. Code Ann. § 70- 7-102. Accordingly, we have decided to address the applicability of Tenn. Code Ann. § 70-7-102 to this case head on.

9 The commissioner’s cryptic rulings regarding Tenn. Code Ann. § 70-7-102 are not easy to reconcile. He stated:

The Commission renders its ruling without considering the applicability of the state Recreational Use Immunity Statute. The individuals involved in this incident were using the State property for recreation, thus the Recreational Use Statute applies.

As for gross negligence, if the facts involved the Recreational Use statute alone, in absence of the other three factors discussed heretofore, then this claim should probably proceed to trial. Although the Commission believes there was not any gross negligence, it does not base its conclusion on the Recreational Use Immunity statute.

Because the commissioner stated twice that he was not basing his decision on Tenn. Code Ann. § 70-7-102, we will take him at his word.

[*15]

10 The State could have raised this issue pursuant to Tenn. R. App. P. 13(a).

A.

At common law, property owners could be held liable for injuries to persons who were using their property, with or without their permission, for recreational purposes. Beginning in the 1950s, state legislatures began to enact statutes to limit property owners’ liability when persons were using their property for recreational purposes. 11 The Tennessee General Assembly enacted one of these statutes in 1963. 12 As originally enacted, the statute was applicable only to private landowners and excluded from its coverage the “willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity.”

11 James C. Becker, Landowner or Occupier Liability for Personal Injuries and Recreational Use Statutes: How Effective Is the Protection?, 24 Ind. L. Rev. 1587, 1587-88 (1991).

12 Act of Mar. 15, 1963, ch. 177, 1963 Tenn. Pub. Acts 784, codified at Tenn. Code Ann. §§ 70-7-101, -105 (1995).

[*16] In 1987, the Tennessee General Assembly amended the recreational use statute in two significant ways that are directly applicable to this case. First, it amended the statute to explicitly apply to real property owned by governmental entities. 13 Second, it broadened the exemption to cover “gross negligence, willful or wanton conduct.” 14

13 Act of May 7, 1987, ch. 448, § 8, 1987 Tenn. Pub. Acts 897, 899, codified at Tenn. Code Ann. § 70-7-101(2)(B).

14 Act of May 7, 1987, ch. 448, § 5, 1987 Tenn. Pub. Acts 897, 898, codified at Tenn. Code Ann. § 70-7-104(1).

The operation of the recreational use statutes is straightforward. Tenn. Code Ann. § 70-7-102 [HN6] is an affirmative defense available to persons who fit within the definition of “landowner” in Tenn. Code Ann. § 70-7-101(2). Parent v. State, 991 S.W.2d 240, 242 (Tenn. 1999); Bishop v. Beckner, 109 S.W.3d 725, 728 (Tenn. Ct. App. 2002). [*17] Landowners may assert a Tenn. Code Ann. § 70-7-102 defense if they prove that the injured person was engaged in a recreational activity 15 at the time of the injury. Plaintiffs may defeat this affirmative defense in essentially three ways: (1) prove that the defendant is not a “landowner,” (2) prove that the injured party was not engaged in a recreational activity, or (3) prove that the landowner’s conduct fits within one of the three exceptions in Tenn. Code Ann. § 70-7-104. The exceptions in Tenn. Code Ann. § 70-7-104 do not create new independent causes of action against the landowner. Rather, they enable a plaintiff to pursue its negligence claim by negating a landowner’s Tenn. Code Ann. § 70-7-102 defense. Parent v. State, 991 S.W.2d at 242-43.

15 The applicable recreational activities are identified in Tenn. Code Ann. §§ 70-7-102, -103.

[HN7] Applying Tenn. Code Ann. §§ 70-7-101 [*18] , -105 to a particular case requires a three-step analysis. First, the court must determine whether the party asserting the Tenn. Code Ann. § 70-7-102 defense is a landowner. Second, the court must determine whether the activity in which the injured party was engaged at the time of the injury is a recreational activity. Third, the court must determine whether any of the exceptions in Tenn. Code Ann. § 70-7-104 are applicable to the case. See Parent v. State, 991 S.W.2d at 243. If the activity is recreational and no Tenn. Code Ann. § 70-7-104 exceptions apply, the landowner is shielded from liability by Tenn. Code Ann. § 70-7-102. If, however, the activity is recreational, but one of the exceptions applies, the landowner may be liable.

B.

Based on the undisputed facts, there can be no dispute (1) that the State, as a governmental entity, is a “landowner” under Tenn. Code Ann. § 70-7-101(2)(B), (2) that Ms. Zegilla was engaged in a recreational activity because she was “hiking” or “sightseeing” when she fell to her death, [*19] and (3) that the land on which Ms. Zegilla was killed was not exempt from coverage of the statute. 16 Thus, the only remaining question with regard to the application of the recreational use statute is whether one of Tenn. Code Ann. § 70-7-104’s exceptions applies to this case. Ms. Morgan insists that the exception for gross negligence in Tenn. Code Ann. § 70-7-104(1) applies.

16 Ms. Morgan argued before the claims commissioner that improvements in state natural areas and parks were somehow exempt from Tenn. Code Ann. §§ 70-7-101, -105. However, both the Tennessee Supreme Court and this court have recognized that [HN8] the recreational use statute may apply to state parks and wildlife management areas. Parent v. State, 991 S.W.2d at 241; Rewcastle v. State, 2002 Tenn. App. LEXIS 943, No. E2002-00506-COA-R3-CV, 2002 WL 31926848, at *1 (Tenn. Ct. App. Dec. 31, 2002) (No Tenn. R. App. P. 11 application filed).

[HN9] Gross negligence [*20] is negligent conduct reflecting a reckless disregard for the safety of others. Davidson v. Power Bd., 686 S.W.2d 581, 586 (Tenn. Ct. App. 1984); Odum v. Haynes, 494 S.W.2d 795, 807 (Tenn. Ct. App. 1972). It does not require a particular state of mind as long as it creates an extremely unjustified risk to others. 1 DAN B. DOBBS, THE LAW OF TORTS § 147, at 351 (2001). It differs from ordinary negligence only in degree, not in kind. W. PAGE KEETON, PROSSER & KEETON ON THE LAW OF TORTS § 34, at 212 (5th ed. 1984). Thus, gross negligence is a negligent act or failure to act that reflects more than lack of ordinary care (simple negligence) but less than intentional misconduct. Inter-City Trucking Co. v. Daniels, 181 Tenn. 126, 129-30, 178 S.W.2d 756, 757 (1944); Bennett v. Woodard, 60 Tenn. App. 20, 31-32, 444 S.W.2d 89, 94 (1969).

[HN10] Determining whether particular conduct rises to the level of gross negligence is ordinarily a question of fact. 3 STUART M. SPEISER ET AL., THE AMERICAN LAW OF TORTS § 10:05, at 368 (1986) (“SPEISER”); see also Adams v. Roark, 686 S.W.2d 73, 76 (Tenn. 1985) (gross negligence [*21] determined from the facts alleged in the complaint). However, it may be decided as a matter of law when the material facts are not in dispute and when these facts, and the conclusions reasonably drawn from them, would permit a reasonable person to reach only one conclusion. Leatherwood v. Wadley, 121 S.W.3d 682, ___, 2003 WL 327517, at *8-9 (Tenn. Ct. App. 2003) (affirming summary judgment dismissing gross negligence claim); Buckner v. Varner, 793 S.W.2d 939, 941 (Tenn. Ct. App. 1990) (affirming summary judgment dismissing gross negligence claim); Fellows v. Sexton, 46 Tenn. App. 274, 282, 327 S.W.2d 391, 394 (1959) (granting a judgment notwithstanding the verdict on a gross negligence claim).

We find no evidence in this record upon which a reasonable person would conclude that the State was grossly negligent with regard to the construction or maintenance of the Colditz Cove State Natural Area. The State had a statutory obligation to maintain this area in a pristine, natural condition. Erecting warning signs, installing lighting along the trails, fencing the entire area, or installing guard rails, barriers, or other sorts of buffers, [*22] while perhaps appropriate at Dollywood, would have been entirely unwarranted and unnecessary at a natural area such as Colditz Cove. Accordingly, we have determined that the record, as a matter of law, supports the claims commissioner’s conclusion that “there was not any gross negligence.” 17 The State was simply not acting recklessly with disregard of the safety of persons entering the natural area.

17 Ms. Morgan asserts in her brief that “the State of Tennessee knew that at Northrop [sic] Falls . . . there was a cliff that eroded into a commonly used path which suddenly dropped at a ninety degree angle approximately one hundred feet and that it posed a deadly, dangerous condition.” This is the only assertion in her papers that approaches an allegation of gross negligence. We have searched the record for substantiation of this claim and have found none. There is no evidence that any of the trails in Colditz Cove had dangerously eroded on July 26, 1997. There is no evidence that the State had actual or constructive notice of any dangerous erosion along any of the trails in the natural area. There is likewise no evidence that either Ms. Zegilla or Mr. King fell to their deaths at a spot on the trail that had eroded.

[*23] Because the State was not grossly negligent, it was entitled to assert a defense predicated on Tenn. Code Ann. § 70-7-102. Therefore, we have concluded, based on the undisputed facts, that the recreational use statute shields the State from liability for Ms. Zegilla’s death and that the State was entitled to a summary judgment dismissing her claims on this ground alone.

IV.

THE STATE’S LIABILITY UNDER TENN. CODE ANN. § 9-8-307(a)(1)(C)

Despite our conclusion that the State has established an affirmative defense under Tenn. Code Ann. § 70-7-102 as a matter of law, we will also address Ms. Morgan’s assertion that the claims commissioner erred by concluding that she had failed to demonstrate that she would be able to prove that the State was liable for her daughter’s death under Tenn. Code Ann. § 9-8-307(a)(1)(C). We have concluded that the undisputed facts also support the commissioner’s conclusion that the State was entitled to a judgment as a matter of law because Ms. Morgan had not demonstrated that she would be able to prove the essential elements of her claim.

[*24] [HN11] The State is not the insurer of the safety of persons on its property. Byrd v. State, 905 S.W.2d 195, 197 (Tenn. Ct. App. 1995). It is, however, liable to these persons to the same extent that private owners and occupiers of land are liable, Sanders v. State, 783 S.W.2d 948, 951 (Tenn. Ct. App. 1989), because Tenn. Code Ann. § 9-8-307(a)(1)(C) has imposed this common-law duty on the State. Parent v. State, 991 S.W.2d at 242. Tenn. Code Ann. § 9-8-307(a)(1)(C) provides that the State may be held monetarily liable for

Negligently created or maintained dangerous conditions on state controlled real property. The claimant under this subsection must establish the foreseeability of the risks and notice given to the proper state officials at a time sufficiently prior to the injury for the state to have taken appropriate measures.

Based on this statute, the State, like a private landowner, has a duty to exercise reasonable care under the circumstances to prevent foreseeable injuries to persons on the premises. Eaton v. McLain, 891 S.W.2d at 593-94. This duty is [*25] grounded on the foreseeability of the risk involved. To recover, a claimant must prove that the injury was a reasonably foreseeable probability. Dobson v. State, 23 S.W.3d 324, 331 (Tenn. Ct. App. 1999).

Tenn. Code Ann. § 9-8-307(a)(1)(C) required Ms. Morgan to prove that Ms. Zegilla was injured in a manner that was reasonably foreseeable and that the State had actual or constructive notice of the dangerous condition that caused Ms. Zegilla’s death in time to take “appropriate measures.” The claims commissioner properly concluded that she failed on both counts.

The record contains no factual, legal, or policy basis for concluding that the State should have foreseen that intoxicated persons who were unfamiliar with the Colditz Cove State Natural Area would hike down the trail to Northrup Falls in the middle of the night without adequate illumination.

Likewise, the record contains no evidence meeting the standards in Tenn. R. Civ. P. 56.04 and Tenn. R. Civ. P. 56.06 that the improvements to Colditz Cove are either inherently dangerous 18 or, as we have already pointed out, that the State had actual or constructive notice of any particular [*26] dangerous condition in the natural area that caused Ms. Zegilla’s death.

18 Ms. Morgan’s lawyer asserted in the proceeding below that he had consulted an architect who “felt” that the Colditz Cove State Natural Area was “unduly dangerous” and that “the majority of the defects were certainly foreseeable and could have been rectified at a relatively modest capital investment.” While the record contains an unauthenticated letter from this architect summarizing his impressions of the improvements in the natural area, it does not contain the architect’s affidavit or deposition stating these conclusions. The architect’s letter does not meet the requirements in Tenn. R. Civ. P. 56.04 and Tenn. R. Civ. P. 56.06 for evidentiary materials that may be used to support or oppose a motion for summary judgment.

V.

COMPARISON OF MS. ZEGILLA’S FAULT WITH THE STATE’S FAULT

As a final issue, Ms. Morgan asserts that the claims commissioner erred by determining that Ms. Zegilla’s fault exceeded the State’s fault. [*27] She bases her argument on the assertion that the State’s “gross negligence” should somehow count for more in a comparative fault analysis. We have determined that this argument has no merit for two reasons. First, we have already concluded that the undisputed facts demonstrate, as a matter of law, that the State was not grossly negligent. Second, even if the States could somehow be considered grossly negligent, its fault would still be compared with Ms. Zegilla’s fault. Conroy v. City of Dickson, 49 S.W.3d 868, 873 (Tenn. Ct. App. 2001). A majority of the courts in comparative fault jurisdictions permit gross negligence to be compared to ordinary negligence. 3 SPEISER, § 13:25, at 764; 1 ARTHUR BEST, COMPARATIVE NEGLIGENCE LAW & PRACTICE § 4.40[3] (1999); Restatement (Third) of Torts: Apportionment of Fault § 7 cmt. b (1999).

[HN12] The allocation of fault is ordinarily a question of fact for the jury or the trial court sitting without a jury. Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785, 789 (Tenn. 2000). The task of allocating fault should be taken from the fact-finder only when it can be determined beyond question (or alternatively, when reasonable [*28] minds cannot differ) that the plaintiff’s fault is equal to or greater than the defendant’s. Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 91-92 (Tenn. 2000); Eaton v. McLain, 891 S.W.2d at 589; Kim v. Boucher, 55 S.W.3d 551, 556-57 (Tenn. Ct. App. 2001). The procedural avenues for obtaining a decision that the plaintiff’s fault exceeds the defendant’s as a matter of law are governed by the Tennessee Rules of Civil Procedure. The question may be raised using (1) a motion for summary judgment under Tenn. R. Civ. P. 56, (2) a motion for directed verdict governed by Tenn. R. Civ. P. 50.01, and (3) a post-trial motion for a judgment as a matter of law governed by Tenn. R. Civ. P. 50.02. Henley v. Amacher, 2002 Tenn. App. LEXIS 72, No. M1999-02799-COA-R3-CV, 2002 WL 100402, at *6 (Tenn. Ct. App. Jan. 28, 2002) (No Tenn. R. App. P. 11 application filed).

Ms. Zegilla’s voluntary intoxication on the evening of July 26, 1997 does not relieve her from the responsibility of her own negligence. Kirksey v. Overton Pub, Inc., 739 S.W.2d 230, 235 (Tenn. 1987); Schwartz v. Johnson, 152 Tenn. 586, 592, 280 S.W. 32, 33 (1926). [*29] She was required to use reasonable care under the circumstances, and her conduct must be measured against the conduct of an ordinary, reasonable person rather than an ordinary and reasonable intoxicated person. Louisville & Nashville R.R. v. Hall, 5 Tenn. Civ. App. 491, 502 (1915). Accordingly, if her conduct while intoxicated was a proximate cause of her death, it may be compared with the fault of the other parties whose fault was also a proximate cause. Worley v. State, 1995 Tenn. App. LEXIS 755, No. 02A01-9312-BC-00267, 1995 WL 702792, at *6 (Tenn. Ct. App. Nov. 28, 1995) (No Tenn. R. App. P. 11 application filed).

It cannot be reasonably disputed that Ms. Zegilla was intoxicated when she arrived at Colditz Cove State Natural Area after midnight on July 26, 1997. Even though she had never visited the natural area before, she decided to venture into a wooded area down an unfamiliar, rough foot path in the dark. After one of her companions fell to his death, she continued to walk around in the darkness even though she must have known that danger was close at hand. As tragic as her death is, the only conclusion that reasonable persons can draw from these facts is that her fault [*30] far exceeded any fault that may reasonably be attributed to the State. Accordingly, the claims commissioner properly concluded the State was not liable to Ms. Zegilla’s estate because her fault exceeded any fault that could be attributed to the State.

VI.

We affirm the order dismissing the Tenn. Code Ann. § 9-8-307(a)(1)(C) claim of Ms. Zegilla’s estate against the State and remand the case to the Tennessee Claims Commission for whatever further proceedings may be required. We tax the costs of this appeal to Evelean Morgan for which execution, if necessary, may issue.


Tennessee Recreational Use Statute

Tennessee Recreational Use Statute

Title 70  Wildlife Resources 

Chapter 7  Liability for Activities 

Part 1  Liability of Landowner to Persons Using Land

GO TO THE TENNESSEE ANNOTATED STATUTES ARCHIVE DIRECTORY

Tenn. Code Ann. § 70-7-102  (2014)

70-7-101.  Part definitions.

As used in this part, unless the context otherwise requires:

(1)  (A) “Land” or “premises” means and includes all real property, waters, private ways, trees and any building or structure that might be located on real property, waters and private ways;

(B) “Land” or “premises” includes real property, waters, private ways, trees and any building or structure located on the land or premises, owned by any governmental entity, including, but not limited to, the Tennessee valley authority; and

(C) “Land” or “premises” does not include the landowner’s principal place of residence and any improvements erected for recreational purposes that immediately surround such residence, including, but not limited to, swimming pools, tennis or badminton courts, barbecue or horse shoe pits, jacuzzis, hot tubs or saunas;

(2)  (A) “Landowner” means the legal title holder or owner of such land or premises, or the person entitled to immediate possession of the land or premises, and includes any lessee, occupant or any other person in control of the land or premises; and

(B) “Landowner” includes any governmental entity.

70-7-102.  Landowner’s duty of care.

(a) The landowner, lessee, occupant, or any person in control of land or premises owes no duty of care to keep such land or premises safe for entry or use by others for such recreational activities as hunting, fishing, trapping, camping, water sports, white water rafting, canoeing, hiking, sightseeing, animal riding, bird watching, dog training, boating, caving, fruit and vegetable picking for the participant’s own use, nature and historical studies and research, rock climbing, skeet and trap shooting, skiing, off-road vehicle riding, and cutting or removing wood for the participant’s own use, nor shall such landowner be required to give any warning of hazardous conditions, uses of, structures, or activities on such land or premises to any person entering on such land or premises for such purposes, except as provided in § 70-7-104.

(b) The landowner, lessee, occupant, or any person in control of land or premises owes no duty of care to keep such land or premises safe for entry or use by others for recreational noncommercial aircraft operations or recreational noncommercial ultra light vehicle operations on private airstrips except as to known hazards or defects and except as provided in § 70-7-104.

70-7-103.  Effect of landowner’s permission.

Any landowner, lessee, occupant, or any person in control of the land or premises or such person’s agent who gives permission to another person to hunt, fish, trap, camp, engage in water sports, participate in white water rafting or canoeing, hike, sightsee, ride animals, bird watch, train dogs, boat, cave, pick fruit and vegetables for the participant’s own benefit, engage in nature and historical studies and research, climb rocks, shoot skeet and trap, ski, ride off-road vehicles, recreational noncommercial aircraft operations or recreational noncommercial ultra light vehicle operations on private airstrips, and cut and remove wood for the participant’s own use upon such land or premises does not by giving such permission:

(1) Extend any assurance that the premises are safe for such purpose;

(2) Constitute the person to whom permission has been granted to legal status of an invitee to whom a duty of care is owed; or

(3) Assume responsibility for or incur liability for any injury to such person or purposely caused by any act of such person to whom permission has been granted except as provided in § 70-7-104.

70-7-104.  Conditions under which liability unaffected.

(a) This part does not limit the liability that otherwise exists for:

(1) Gross negligence, willful or wanton conduct that results in a failure to guard or warn against a dangerous condition, use, structure or activity; or

(2) Injury caused by acts of persons to whom permission to hunt, fish, trap, camp, hike, sightsee, cave, recreational noncommercial aircraft operations or recreational noncommercial ultra light vehicle operations on private airstrips, or any other legal purpose was granted, to third persons or to persons to whom the person granting permission, or the landowner, lessee, occupant, or any person in control of the land or premises, owed a duty to keep the land or premises safe or to warn of danger.

(b) Subdivision (a)(1) shall not be construed to impose liability or remove the immunity conferred by § 70-7-102 for failure to guard or warn of a dangerous condition created by forces of nature.

70-7-105.  Waiver of landowner’s duty of care.

Any person eighteen (18) years of age or older entering the land of another for the purpose of camping, fishing, hunting, hiking, dog training, cutting or removing firewood, recreational noncommercial aircraft operations or recreational noncommercial ultra light vehicle operations on private airstrips, for such person’s use for a consideration may waive, in writing, the landowner’s duty of care to such person for injuries that arise from camping, fishing, hunting, hiking, dog training, cutting or removing firewood, recreational noncommercial aircraft operations or recreational noncommercial ultra light vehicle operations on private airstrips for such person’s use, if such waiver does not limit liability for gross negligence, or willful or wanton conduct, or for a failure to guard or warn against a dangerous condition, use, structure or activity.

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Tennessee Whitewater Rafting Professionals

Tennessee Whitewater Rafting Professionals

Title 70 Wildlife Resources 

Chapter 7 Liability for Activities 

Part 2 Whitewater Rafting Professionals

GO TO THE TENNESSEE ANNOTATED STATUTES ARCHIVE DIRECTORY

Tenn. Code Ann. § 70-7-201  (2013)

70-7-201. Part definitions.

As used in this part, unless the context otherwise requires:

(1) “Engages in whitewater activity” means whitewater rafting;

(2) “Inherent risks of whitewater activities” means those dangers or conditions that are an integral part of whitewater activities, including, but not limited to:

(A) Water;

(B) Rocks and obstructions;

(C) Cold water and weather; and

(D) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or other, such as failing to follow instructions or not acting within the participant’s ability;

(3) “Participant” means any person who engages in a whitewater activity;

(4) “Whitewater” means rapidly moving water;

(5) “Whitewater activity” means navigation on rapidly moving water in a watercraft; and

(6) “Whitewater professional” means a person, corporation, LLC, partnership, natural person or any other entity engaged for compensation in whitewater activity.

HISTORY: Acts 2012, ch. 862, § 1.

NOTES: Compiler’s Notes.

For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.

Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed effective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.

Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.

Effective Dates.

Acts 2012, ch. 862, § 2. May 1, 2012.

70-7-202.  Limitations on liability of whitewater professional.

Except as provided in § 70-7-203:

(1) A whitewater professional shall not be liable for an injury to or the death of a participant resulting from the inherent risks of whitewater activities; and

(2) No participant or participant’s representative shall make any claim against, maintain an action against, or re-cover from a whitewater professional, or any other participant for injury, loss, damages, or death of the participant resulting from any of the inherent risks of whitewater activities.

HISTORY: Acts 2012, ch. 862, § 1.

NOTES: Compiler’s Notes.

For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.

Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed ef-fective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.

Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.

Effective Dates.

Acts 2012, ch. 862, § 2. May 1, 2012.

Section to Section References.

This section is referred to in § 70-7-203.

70-7-204.  Warning notice.

(a) Every whitewater professional shall either post and maintain signs that contain the warning notice prescribed in subsection (d) or give the warning in writing to participants. The signs shall be placed in clearly visible locations on or near places where the whitewater professional conducts whitewater activities, if the places are owned, managed, or controlled by the professional.

(b) The warning notice specified in subsection (d) shall appear on the sign in black letters, with each letter to be a minimum of one inch (1”) in height.

(c) Every written contract entered into by a whitewater professional for the purpose of providing professional services, instruction, or the rental of equipment to a participant, whether or not the contract involves activities on or off the location or site of the whitewater professional’s business, shall contain in clearly readable print the warning notice specified in subsection (d).

(d) The signs and contracts described in subsection (a) shall contain the following warning notice:

WARNING

Pursuant to Tenn. Code Annotated title 70, chapter 7, part 2, a whitewater professional is not liable for an injury to or the death of a participant in whitewater activities resulting from the inherent risks of whitewater activities.

HISTORY: Acts 2012, ch. 862, § 1.

NOTES: Compiler’s Notes.

For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.

Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed ef-fective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.

Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.

Effective Dates.

Acts 2012, ch. 862, § 2. May 1, 2012.

70-7-203.  When liability of whitewater professional imposed.

Nothing in § 70-7-202 shall be construed to prevent or limit the liability of a whitewater professional, or any other person if the whitewater professional:

(1) Provided the equipment and knew or should have known that the equipment was faulty, and the equipment was faulty to the extent that it caused the injury;

(2) Owns, leases, rents, or otherwise is in the lawful possession and control of the land or facilities upon which the participant sustained injuries because of a dangerous latent condition that was known to the whitewater professional, or person and for which warning signs have not been conspicuously posted;

(3) Commits an act or omission that constitutes gross negligence or willful or wanton disregard for the safety of the participant, and the act or omission caused the injury; or

(4) Intentionally injures the participant.

HISTORY: Acts 2012, ch. 862, § 1.

NOTES: Compiler’s Notes.

For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.

Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed effective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.

Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.

Effective Dates.

Acts 2012, ch. 862, § 2. May 1, 2012.

Section to Section References.

This section is referred to in § 70-7-202.

70-7-205. Written waivers, exculpatory agreements and releases.

Nothing in this part shall modify, constrict or prohibit the use of written waivers, exculpatory agreements or releases. This part is intended to provide additional limitations of liability for whitewater professionals, whether or not such agreements are used.

HISTORY: Acts 2012, ch. 862, § 1.

NOTES: Compiler’s Notes.

For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.

Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed ef-fective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.

Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.

Effective Dates.

Acts 2012, ch. 862, § 2. May 1, 2012.


Release signed for whitewater rafting also works to stop claim for tripping getting out of raft bus. Tennessee release law broad enough to protect items enumerated in the release

Henderson v. Quest Expeditions, Inc. 174 S.W.3d 730; 2005 Tenn. App. LEXIS 334

Plaintiff: Nathan & Brandy Henderson

Defendant: Quest Expeditions, Inc.

Plaintiff Claims: negligence

Defendant Defenses: Release

Holding: for the defendant based on the release

This Tennessee case is quite interesting. The plaintiff was a first-time whitewater rafter. After the raft trip ended, he boarded the bus to ride back to the office. For some reason, not in the record, he was forced to get out of the first bus and board another bus. While disembarking from the first bus he slipped and fell sustaining injuries.

He filed this suit which was dismissed by the trial court based on a Motion for Summary Judgment. The plaintiff appealed arguing the release was barred by public policy and void because it was too excessive in its scope.

Summary of the case

The court looked at all arguments raised by the plaintiff on appeal. Some that I have reviewed and written about before and some new and “novel” theories.

The first issue was the plaintiff stated the release should be thrown out because the plaintiff “had no previous white-water rafting experience, and was given a pre-printed document to sign prior to the excursion which was not reviewed with him by an employee of defendant.”

Can you imagine the pile up in an office if you had to go over each release with each patron who came to purchase a trip from you?

The plaintiff also argued that “he was not advised whether there were any other rafting companies who would allow him to go rafting without having to sign a waiver, or whether he could pay additional money to not have to sign the waiver.”

This is a rare argument, but it has been used to defeat releases in a few cases. See Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2.

The next argument was the release was void because it violated public policy. The court first looked at whether releases were valid in Tennessee. The Tennessee Supreme Court upheld releases.

It is well settled in this State that parties may contract that one shall not be liable for his negligence to another but that such other shall assume the risk incident to such negligence. . . . Further, it is not necessary that the word ‘negligence’ appear in the exculpatory clause and the public policy of Tennessee favors freedom to contract against liability for negligence.

Of note is the statement by the court that the word negligence does not need to appear in the release. The Tennessee Supreme Court adopted the requirements of Tunkl v. Regents of University of California, 60 Cal. 2d 92, 383 P.2d 441, 32 Cal. Rptr. 33 (Ca. 1963) to determine if an activity should not be covered by a release.

(a.) It concerns a business of a type generally thought suitable for public regulation.

(b.) The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public.

(c.) The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.

(d.) As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.

(e.) In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.

(f.) Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.

The court then looked at the factors as explained by the Tennessee Supreme Court. Generally, professionals are not allowed to receive a release for their negligence, where tradesmen could.

…not all of the factors had to be present in order to invalidate an exculpatory agreement, but generally, the factors were limited to circumstances involving “a contract with a profession, as opposed to ‘tradesmen in the marketplace’

Whitewater rafting is not a professional trade and as such the defendant could use a release. Whitewater rafting “is not a service of “great importance to the public, which is often a matter of practical necessity for some members of the public.” There is no necessity that one goes whitewater rafting.

The plaintiff then argued that because whitewater rafting was regulated it was of a public interest. Tennessee’s legislature passed 2005 Tenn. Pub. Acts 169 which regulated whitewater rafting in the state. However, the statute specifically allowed the use of releases. T.C.A. 70-7-205. Written waivers, exculpatory agreements and releases.

The final argument was the injury received by the plaintiff, slipping exiting a bus, which not an inherent risk of whitewater rafting and thus of outside the scope of the release. The plaintiff described the busses of the defendant in his complaint as: “…dilapidated school buses.” (Seems like a normal rafting company to me……

However, the court rejected that argument on two grounds. The first was the release was written broadly and covered all negligent acts of the defendant. The second was the release mentioned bus or van transportation. “Moreover, the Contract specifically mentions that plaintiffs are being furnished and participating in white-water rafting and “bus or van transportation” provided by the defendant.”

The court concluded:

The Contract under consideration is clear and unambiguous, and states that plaintiffs agreed to release defendant from any and all liability, including defendant’s own negligence. Moreover, the Contract specifically mentions that plaintiffs are being furnished and participating in white water rafting and “bus or van transportation” provided by the defendant. The Contract states that plaintiffs realize that they could be injured due to dangers from the rafting as well as the use of white water equipment, forces of nature, or even due to the negligence of defendant’s employees and other rafters. The Con-tract states that defendant is being relieved of any liability caused by its own negligence in no less than four places, the last of which is in bold print above the signature line. This Contract is plain, and enforceable as written.

So Now What?

First never run the risk of having a release thrown out because it does not include the magic word negligence. Even though the Supreme Court may not require it today, your lawsuit tomorrow may set precedence on that issue. It is easy to put in and should be in every release.

To defeat the argument that you should be able to bargain your way out of the release or that whether there are any other companies offering trips without requiring a release to be signed you should put language in your release advising your clients about those issues. A release that states that the person is signing the release voluntarily and undertaking the activity voluntarily and is free to go, as in this case, whitewater rafting with someone else can eliminate this argument in most states.

To engage or purchase a trip with you without signing a release have your insurance company send you a letter stating how much your insurance would cost if a release is not signed. Then if asked you can show a patron the letter to support charging the normal price plus the increase in your insurance premium to go on a trip without signing a release. A $10,095.00 raft trip is probably not worth it for a day on the water.

If anyone asks if they can go rafting and not sign a release, the easiest way to respond is to send them to a competitor.

Whether or not transportation will be covered by a release will be different for each state. In some states if the transportation is incidental to the activity it may be covered. Here the release was written broadly, and releases are interpreted broadly to allow the scope of the release to cover transportation.

In some states, however, transportation is an activity that cannot be released because it is protected by public policy.

 

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#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Quest Expeditions, Inc., Nathan & Brandy Henderson, Whitewater Rafting, Tennessee, Rafting Bus, Negligence, Public Policy, Statute, Whitewater Rafting, Rafting, Release, Bus, Transportation,

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Henderson v. Quest Expeditions, Inc. 174 S.W.3d 730; 2005 Tenn. App. LEXIS 334

Henderson v. Quest Expeditions, Inc. 174 S.W.3d 730; 2005 Tenn. App. LEXIS 334

Nathan & Brandy Henderson v. Quest Expeditions, Inc.

No. E2004-02585-COA-R3-CV

COURT OF APPEALS OF TENNESSEE, AT KNOXVILLE

174 S.W.3d 730; 2005 Tenn. App. LEXIS 334

April 4, 2005, Session

June 8, 2005, Filed

SUBSEQUENT HISTORY: Appeal denied by Henderson v. Quest Expeditions, Inc., 2005 Tenn. LEXIS 962 (Tenn., Oct. 24, 2005)

PRIOR HISTORY: [**1] Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Affirmed. Direct Appeal from the Circuit Court for Polk County. No. CV-03-130. Hon. John B. Hagler, Circuit Judge.

DISPOSITION: Judgment of the Circuit Court Affirmed.

COUNSEL: H. Franklin Chancey, Cleveland, Tennessee, for appellants.

Gary A. Cooper, Chattanooga, Tennessee, for appellee.

JUDGES: HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR., J., and D. MICHAEL SWINEY, J., joined.

OPINION BY: HERSCHEL PICKENS FRANKS

OPINION

[*731] In this action for personal injuries allegedly due to defendant’s negligence, the Trial Court granted defendant summary judgment on the grounds that plaintiffs had executed a Waiver and Release of Liability which was required by defendant prior to plaintiffs’ participation in white water rafting. Plaintiffs have appealed, insisting the Release is void as against the public policy of this State. We affirm.

Plaintiffs’ Complaint alleged that Henderson was injured while on a white water rafting expedition operated by defendant. The Complaint alleged that defendant “ferries rafters to and from the Ocoee River by means of a series of dilapidated school buses.”, and that [**2] after Henderson had completed his rafting trip, he and other rafters were put on a bus, and then told to get on another bus, and when disembarking from the first bus he slipped and fell, sustaining severe personal injuries. Plaintiffs further alleged that defendant’s negligence was the proximate cause of his injuries.

Defendant in its Answer admitted that Henderson had participated in a rafting trip sponsored by defendant, and among its defenses raised was waiver, because plaintiff had signed a “Waiver and Release of Liability”, which defendant attached to its Answer.

In their Answers to Requests for Admissions, plaintiffs admitted that the waiver in question had been signed by Henderson. Defendant then filed a Motion for Summary Judgment, which plaintiffs opposed and Henderson filed his Affidavit which stated that Henderson had no previous white-water rafting experience, and was given a pre-printed document to sign prior to the excursion which was not reviewed with him by an employee of defendant. He further stated that he was not advised whether there were any other rafting companies who would allow him to go rafting without having to sign a waiver, or whether he could pay additional [**3] money to not have to sign the waiver.

The Trial Court determined that the waiver in this case did not affect the public interest, and thus the waiver was not void as against public policy. The court noted that Olson v. Molzen, 558 S.W.2d 429 (Tenn. 1977) did not apply to this situation and he was guided by the rule adopted in California, which states that “exculpatory agreements in the recreational sports context do not implicate the public interest.” Citing Allan v. Snow Summit, Inc., 51 Cal. App. 4th 1358, 59 Cal.Rptr.2d 813, 823 (Ca. App. 1996).

Plaintiffs on appeal insist the Waiver is void against public policy, and in the alternative, that the Waiver was void on the grounds it was too excessive in scope.

Plaintiffs concede that if the Waiver is enforceable then this action is barred, but argue the waiver violates the public policy of this State.

[*732] As our Supreme Court has explained:

[HN1] It is well settled in this State that parties may contract that one shall not be liable for his negligence to another but that such other shall assume the risk incident to such negligence. . . . Further, it is not necessary that the word ‘negligence’ appear [**4] in the exculpatory clause and the public policy of Tennessee favors freedom to contract against liability for negligence.

Empress Health and Beauty Spa, Inc. v. Turner, 503 S.W.2d 188 (Tenn. 1973).

An exception to this rule was recognized by the Supreme Court in Olson v. Molzen, wherein the Court held that certain relationships required greater responsibility which would render such a release “obnoxious”. Olson, at p. 430. The Court adopted the opinion of the California Supreme Court in Tunkl v. Regents of University of California, 60 Cal. 2d 92, 383 P.2d 441, 32 Cal. Rptr. 33 (Ca. 1963), which held that where the public interest would be affected by an exculpatory provision, such provision could be held invalid. Olson, at p. 431.

[HN2] Our Supreme Court adopted the six criteria set forth in Tunkl as useful in determining when an exculpatory provision should be held invalid as contrary to public policy. See Olson. These criteria are:

(a.) It concerns a business of a type generally thought suitable for public regulation.

(b.) The party seeking exculpation is engaged in performing a service of great importance to [**5] the public, which is often a matter of practical necessity for some members of the public.

(c.) The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.

(d.) As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.

(e.) In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.

(f.) Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.

Olson, at p. 431.

In Olson, the Supreme Court invalidated a contract between a doctor and patient which attempted to release the doctor from liability for his negligence in the performance of medical [**6] services. Also see Carey v. Merritt, 148 S.W.3d 912 (Tenn. Ct. App. 2004) and Russell v. Bray, 116 S.W.3d 1 (Tenn. Ct. App. 2003). In Russell, this Court refused to enforce an exculpatory contract between home buyers and the home inspectors who were hired by the buyers, because the Court found that the home inspectors were professionals whose services affected the public interest, and thus the contracts were offensive to public policy, based on the factors enumerated in Olson. In Carey, this Court made clear that [HN3] not all of the factors had to be present in order to invalidate an exculpatory agreement, but generally, the factors were limited to circumstances involving “a contract with a profession, as opposed to ‘tradesmen in the marketplace’.” Carey, at p. 916; cf. Parton v. Mark Pirtle Oldsmobile-Cadillac-Isuzu, Inc., 730 S.W.2d 634 [*733] (Tenn. Ct. App. 1987) (auto repair shop is not “professional” as would qualify it as service affecting public interest in order to invalidate exculpatory contract).

This case is factually different from Olson, Carey, and Parton because the white-water rafting service offered [**7] by defendant is not a “professional” trade, which affects the public interest. As discussed in factor number two quoted above, this is not a service of “great importance to the public, which is often a matter of practical necessity for some members of the public.” See Olson. There is no necessity that one go white-water rafting. In fact, [HN4] many jurisdictions have recognized that such recreational sporting activities are not activities of an essential nature which would render exculpatory clauses contrary to the public interest. See Seigneur v. National Fitness Institute, Inc., 132 Md. App. 271, 752 A.2d 631 (Md. Ct. Spec. App. 2000) (health club services not essential for purposes of holding exculpatory clause unenforceable as offensive to public interest); Allan v. Snow Summit, Inc., 51 Cal. App. 4th 1358, 59 Cal.Rptr.2d 813 (Cal. Ct. App. 1996) (“voluntary participation in recreational and sports activities [skiing] does not implicate the public interest”); Schutkowski v. Carey, 725 P.2d 1057 (Wyo. 1986) (sky diving and other private recreational businesses generally do not involve services which are necessary to the public such [**8] that exculpatory contract would be invalidated).

Plaintiffs argue that the Release in this case does affect the public interest because the business involved, i.e. commercial white-water rafting, is subject to regulation. While this is true, the presence of this factor does not render this Release offensive to the public interest. In fact, [HN5] recent legislation passed by the Tennessee Legislature “recognizes that the State has a legitimate interest in maintaining the economic viability of commercial white water rafting operations” because the State and its citizens benefit thereby. 2005 Tenn. Pub. Acts 169. This act states the legislative intent is to “encourage white water rafting by discouraging claims based on injury, death or damages resulting from risks inherent in white water rafting.” Id. Thus, the Tennessee legislature has evidenced that the public policy of this State is that commercial white water rafting companies be protected from claims for injuries to patrons.

Accordingly we affirm the Trial Court’s determination that the exculpatory contract in this case does not affect the public interest such that it should be invalidated pursuant to the Olson criteria.

Finally, [**9] appellants argue that the Release in this case should not operate as a bar to their claims because the injury suffered by Henderson was not within the “inherent risks” of the sport of white water rafting, and thus was not within the contemplation of the parties when the release was signed.

In the cases relied on by the plaintiffs regarding the scope of exculpatory provisions in the context of a sport, there are no provisions in those agreements which purport to release the defendant from its own negligence. For example, in Johnson v. Thruway Speedways, Inc., 63 A.D.2d 204, 407 N.Y.S.2d 81 (N.Y. App. Div. 1978), the Court refused to uphold a grant of summary judgment based on a release signed by the plaintiff prior to the sporting event. The Court stated that language of the release (which was not quoted in the opinion) “could lead to the conclusion that it only applied to injuries sustained by a spectator which were associated with the risks inherent in the activity of automobile racing”. The plaintiff in that case was injured when he was hit by a maintenance vehicle not involved in the race. Id. at 205. Thus, the Court [*734] held that this created a triable issue of fact [**10] as to whether the incident was of the type contemplated by the parties when the release was signed. Id.

Similarly, in the case of Larsen v. Vic Tanny International, 130 Ill. App. 3d 574, 474 N.E.2d 729, 85 Ill. Dec. 769 (Ill. App. Ct. 1984), the plaintiff was injured when he inhaled dangerous vapors created by the negligent mixing of cleaning compounds by the defendant health club’s employee. Plaintiff had signed a membership contract which contained exculpatory language regarding plaintiff’s use of the facilities (but did not mention any negligence by defendant). Id. The Court stated this type of injury was arguably not foreseeable to plaintiff when he signed the release, and thus a fact question existed regarding the parties’ intent behind the exculpation clause, which precluded summary judgment. Id. 1

1 The Court noted the result would have been different if plaintiff’s injuries stemmed from a slip and fall in an area adjacent to a swimming pool, citing its previous decision in Owen v. Vic Tanny Enterprises, 48 Ill. App. 2d 344, 199 N.E.2d 280 (Ill. App. Ct. 1964).

[**11] In another case where “negligence” is included in the release, Sweat v. Big Time Auto Racing, Inc., 117 Cal. App. 4th 1301, 12 Cal.Rptr. 3d 678 (Cal. Ct. App. 2004), the plaintiff was injured when the pit-area bleachers collapsed. Plaintiff had signed a release before entering the pit area, which stated that he released the defendant from all liability “whether caused by the negligence of the releasees or otherwise while the undersigned is in or upon the restricted area and/or . . . observing . . . the event.” Id. at 680. The Court found that the release was ambiguous due to the “and/or” language used, and thus relied on extrinsic evidence in interpreting the release, such as the fact that anyone could enter the pit area without signing the release once the race was over. The Court concluded that the release was only intended to apply to the risks inherent in being in close proximity to a race, and was not intended to cover the type of incident which occurred when the bleachers collapsed due to defective construction/maintenance. Id.

[HN6] The majority view from sister states is that an exculpatory provision which specifically and expressly releases a defendant from [**12] its own negligence will be upheld, without regard to whether the injury sustained is one typically thought to be “inherent in the sport”. In fact, there seems to be a split of authority among the states regarding whether the word “negligence” is even required to be present in the exculpation clause for the provision to be construed as releasing the defendant from its own negligence. Cases from Connecticut, for example, have held that in order for an exculpatory provision to be construed as releasing a defendant from its own negligence, the provision must expressly mention negligence . The cases are equally clear, however, that if the provision does expressly release the defendant from its own negligence, then it will be upheld as written. See Hyson v. White Water Mtn. Resorts, 265 Conn. 636, 829 A.2d 827 (Conn. 2003) (snowtubing); Brown v. Sol, 2004 Conn. Super. LEXIS 2430, 2004 WL 2165638 (Conn. Super. Ct. Aug. 31, 2004) (racing school); DiMaggio v. LaBreque, 2003 Conn. Super. LEXIS 2823, 2003 WL 22480968 (Conn. Super. Ct. Oct. 9, 2003) (parachuting).

[HN7] Most jurisdictions, including Tennessee, have held that if the exculpation contract sufficiently demonstrates the parties’ intent to eliminate [**13] liability for negligence, the absence of the word “negligence” is not fatal. See Krazek v. Mountain River Tours, Inc., 884 F.2d 163 (4th Cir. 1989) (white water rafting); Saenz v. Whitewater Voyages, Inc., 226 Cal. App. 3d 758, 276 Cal.Rptr. 672 (Cal. Ct. App. 1991) (white water rafting); Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781 (Colo. 1989) (horseback [*735] riding); Seigneur v. National Fitness Institute, Inc., 132 Md. App. 271, 752 A.2d 631 (Md. Ct. Spec. App. 2000) (health club); Petry v. Cosmopolitan Spa Intern., Inc., 641 S.W.2d 202 (Tenn. Ct. App. 1982) (health club); Murphy v. North American River Runners, Inc., 186 W. Va. 310, 412 S.E.2d 504 (W. Va. 1991) (white water rafting); Schutkowski v. Carey, 725 P.2d 1057 (Wyo. 1986) (skydiving). In these cases, the fact that the injury occurred during an activity that was not foreseeable or not associated with a risk “inherent in the sport” did not matter. See, e.g., Benedek (health club member injured when adjusting a television set above exercise machines which fell); Murphy (white water rafter injured [**14] when her raft tried to engage in rescue of another raft), and Petry (patron of health club injured when exercise machine she was sitting on collapsed).

In this case, the Release in question does specifically and expressly release defendant from any liability for its negligence or that of any employees, owners, agents, etc. In the matter of contract interpretation, this Court has previously explained:

[HN8] The cardinal rule in the construction of contracts is to ascertain the intent of the parties. West v. Laminite Plastics Mfg. Co., 674 S.W.2d 310 (Tenn. App. 1984). If the contract is plain and unambiguous, the meaning thereof is a question of law, and it is the Court’s function to interpret the contract as written according to its plain terms. Petty v. Sloan, 197 Tenn. 630, 277 S.W.2d 355 (1955). The language used in a contract must be taken and understood in its plain, ordinary, and popular sense. Bob Pearsall Motors, Inc. v. Regal Chrysler-Plymouth, Inc., 521 S.W.2d 578 (Tenn. 1975). In construing contracts, the words expressing the parties’ intentions should be given the usual, natural, and ordinary meaning. Ballard v. North American Life & Cas. Co., 667 S.W.2d 79 (Tenn. App. 1983). [**15] If the language of a written instrument is unambiguous, the Court must interpret it as written rather than according to the unexpressed intention of one of the parties. Sutton v. First Nat. Bank of Crossville, 620 S.W.2d 526 (Tenn. App. 1981). Courts cannot make contracts for parties but can only enforce the contract which the parties themselves have made. McKee v. Continental Ins. Co., 191 Tenn. 413, 234 S.W.2d 830, 22 A.L.R.2d 980 (1951).

Bradson Mercantile, Inc. v. Crabtree, 1 S.W.3d 648, 652 (Tenn. Ct. App. 1999).

The Contract under consideration is clear and unambiguous, and states that plaintiffs agreed to release defendant from any and all liability, including defendant’s own negligence. Moreover, the Contract specifically mentions that plaintiffs are being furnished and participating in white water rafting and “bus or van transportation” provided by the defendant. The Contract states that plaintiffs realize that they could be injured due to dangers from the rafting as well as the use of white water equipment, forces of nature, or even due to the negligence of defendant’s employees and other rafters. The Contract states [**16] that defendant is being relieved of any liability caused by its own negligence in no less than four places, the last of which is in bold print above the signature line. This Contract is plain, and enforceable as written. We conclude the Trial Court properly granted summary judgment to defendant on plaintiffs’ negligence claims.

The Trial Court’s Judgment is affirmed, and the cost of the appeal is assessed to plaintiffs Nathan and Brandy Henderson.

HERSCHEL PICKENS FRANKS, P.J.

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Liability for Activities Whitewater Rafting Professionals

Tennessee Whitewater Rafting Statute

TENNESSEE CODE ANNOTATED

Title 70           Wildlife Resources

Chapter 7      Liability for Activities

Part 2  Whitewater Rafting Professionals

GO TO THE TENNESSEE ANNOTATED STATUTES ARCHIVE DIRECTORY

Tenn. Code Ann. § 70-7-204         (2013)

70-7-201. Part definitions.

As used in this part, unless the context otherwise requires:

(1) “Engages in whitewater activity” means whitewater rafting;

(2) “Inherent risks of whitewater activities” means those dangers or conditions that are an integral part of whitewater activities, including, but not limited to:

(A) Water;

(B) Rocks and obstructions;

(C) Cold water and weather; and

(D) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or other, such as failing to follow instructions or not acting within the participant’s ability;

(3) “Participant” means any person who engages in a whitewater activity;

(4) “Whitewater” means rapidly moving water;

(5) “Whitewater activity” means navigation on rapidly moving water in a watercraft; and

(6) “Whitewater professional” means a person, corporation, LLC, partnership, natural person or any other en-tity engaged for compensation in whitewater activity.

HISTORY: Acts 2012, ch. 862, § 1.

NOTES: Compiler’s Notes.

For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.

Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed ef-fective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.

Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.

Effective Dates.

Acts 2012, ch. 862, § 2. May 1, 2012.

70-7-202. Limitations on liability of whitewater professional.

Except as provided in § 70-7-203:

(1) A whitewater professional shall not be liable for an injury to or the death of a participant resulting from the inherent risks of whitewater activities; and

(2) No participant or participant’s representative shall make any claim against, maintain an action against, or re-cover from a whitewater professional, or any other participant for injury, loss, damages, or death of the participant resulting from any of the inherent risks of whitewater activities.

HISTORY: Acts 2012, ch. 862, § 1.

NOTES: Compiler’s Notes.

For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.

Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed ef-fective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.

Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.

Effective Dates.

Acts 2012, ch. 862, § 2. May 1, 2012.

Section to Section References.

This section is referred to in § 70-7-203.

70-7-203. When liability of whitewater professional imposed.

Nothing in § 70-7-202 shall be construed to prevent or limit the liability of a whitewater professional, or any other person if the whitewater professional:

(1) Provided the equipment and knew or should have known that the equipment was faulty, and the equipment was faulty to the extent that it caused the injury;

(2) Owns, leases, rents, or otherwise is in the lawful possession and control of the land or facilities upon which the participant sustained injuries because of a dangerous latent condition that was known to the whitewater professional, or person and for which warning signs have not been conspicuously posted;

(3) Commits an act or omission that constitutes gross negligence or willful or wanton disregard for the safety of the participant, and the act or omission caused the injury; or

(4) Intentionally injures the participant.

HISTORY: Acts 2012, ch. 862, § 1.

NOTES: Compiler’s Notes.

For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.

Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed ef-fective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.

Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.

Effective Dates.

Acts 2012, ch. 862, § 2. May 1, 2012.

Section to Section References.

This section is referred to in § 70-7-202.

70-7-204. Warning notice.

(a) Every whitewater professional shall either post and maintain signs that contain the warning notice prescribed in subsection (d) or give the warning in writing to participants. The signs shall be placed in clearly visible locations on or near places where the whitewater professional conducts whitewater activities, if the places are owned, managed, or controlled by the professional.

(b) The warning notice specified in subsection (d) shall appear on the sign in black letters, with each letter to be a minimum of one inch (1”) in height.

(c) Every written contract entered into by a whitewater professional for the purpose of providing professional services, instruction, or the rental of equipment to a participant, whether or not the contract involves activities on or off the location or site of the whitewater professional’s business, shall contain in clearly readable print the warning notice specified in subsection (d).

(d) The signs and contracts described in subsection (a) shall contain the following warning notice:

WARNING

Pursuant to Tenn. Code Annotated title 70, chapter 7, part 2, a whitewater professional is not liable for an injury to or the death of a participant in whitewater activities resulting from the inherent risks of whitewater activities.

HISTORY: Acts 2012, ch. 862, § 1.

NOTES: Compiler’s Notes.

For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.

Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed effective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.

Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.

Effective Dates.

Acts 2012, ch. 862, § 2. May 1, 2012.

70-7-205. Written waivers, exculpatory agreements and releases.

Nothing in this part shall modify, constrict or prohibit the use of written waivers, exculpatory agreements or releases. This part is intended to provide additional limitations of liability for whitewater professionals, whether or not such agreements are used.

HISTORY: Acts 2012, ch. 862, § 1.

NOTES: Compiler’s Notes.

For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.

Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed ef-fective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.

Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.

Effective Dates.

Acts 2012, ch. 862, § 2. May 1, 2012.

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