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Release upheld in Ohio to stop negligence claims for indoor ski jumping. However, gross negligence claims survived.

Motions by the defendant eliminated a lot of the claims of the plaintiff; however, the reckless claims are always a pain used to negotiate a settlement. If the judge bought the idea, maybe the plaintiff can get the jury to buy the idea.

Cantu, et al, vs. Flytz Gymnastics, Inc., et al, 2016 Ohio Misc. LEXIS 12186

State: Ohio, Court of Common Pleas, Summit County, Civil Division

Plaintiff: Michael A. Cantu, et al,

Defendant: Flytz Gymnastics, Inc., et al,

Plaintiff Claims: Negligence, willful, wanton and reckless action and Product Liability

Defendant Defenses: Release, Assumption of the Risk and the Statute of Repose

Holding: For the Defendant and the Plaintiff

Year: 2016

Summary

Recreation activities have moved indoors for more than 75 years. Now, all sorts of outdoor recreation activities have moved indoors and created additional activities and variations of those activities.

This decision concerns injuries received when the plaintiff jumped into a foam pit. The plaintiff and friends were there to practice skiing jumps. When the plaintiff landed he became a quadriplegic and sued for negligence, gross negligence and product liability claims.

Facts

The plaintiff and his friends decided to go to the defendant’s facility to practice skiing flips. The facility had a foam pit where the participants could land. While using a springboard to go over a vault the plaintiff landed head first in the pit sustaining a spinal cord injury rendering him a quadriplegic.

The plaintiff was a minor and had been driven to the facility by his mother. Both, he and his mother signed the release to participate in the activity. His mother claimed the form was long, and she did not read it. (The release was one page.)

Kristine Cantu testified that, consistent with her practice related to any other sports release or waiver, she “never read them” because they were “usually lengthy.” Although she indicated that the Flytz Release and Waiver Form was also lengthy, the Court notes that the form is one page long,….

The plaintiff and his parents admitted they had signed releases before, knew that the activities were risky and had participated in other risky activities and had been injured doing so.

The defendants filed a motion for summary judgment, and this is the decision of the court.

Analysis: making sense of the law based on these facts.

Ohio allows a parent to sign away a minor’s right to sue. See States that allow a parent to sign away a minor’s right to sue and Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998).

The release in question described the risks of the activity and included the risks and resulted in the plaintiff suffered, “including permanent disability, paralysis and death, which may be caused.”

A release is a contract and under Ohio law to be valid a contract must be “clear, unequivocal and unambiguous and it must be specific enough to cover only those claims of which the participant would be aware.” The court found this release met those requirements.

The plaintiffs argued the they were fraudulently induced to sign the release. A release signed by fraudulent inducement is voidable upon proof of the fraud. However, that fraud must be than saying you were misled if a reading of the contract would have shown that was not the case.

A person of ordinary mind cannot say that he was misled into signing a paper which was different from what he intended to sign when he could have known the truth by merely looking when he signed…. If a person can read and is not prevented from reading what he signs, he alone is responsible for his omission to read what he signs.”

The court found there was no fraud because the release itself was clear and there was no evidence from the plaintiff of any act or action that was fraudulent by the defendants.

The court granted the defendants motion for summary judgment to the negligence claims of the plaintiff.

The court also would have granted summary judgment to the defendants because the plaintiff assumed the risk of his injuries.

The Ohio Supreme Court has held that individuals engaged in recreational or sports activities “assume the ordinary risks of the activity and cannot recover for any injuries unless it can be shown that the other participant’s actions were either ‘reckless’ or ‘intentional’ as defined in Sections 500 and 8A of the Restatement of Torts 2d.”. “The doctrine of primary assumption of risk prevents a, Plaintiff from setting forth a prima facie case of negligence.” “Primary assumption of the risk relieves a recreation provider from any duty to eliminate the risks that are inherent in the activity…because such risk cannot be eliminated.”

The defense is not affected on whether or not the participant was able to appreciate the inherent dangers in the activity.

To defeat a primary assumption of risk defense the plaintiff must be able to prove the defendant’s conduct was reckless or intentional, and it does not matter if it is adults or minors organized or unorganized, supervised or unsupervised.

The plaintiff could not prove the actions of the defendant were reckless or intentional.

Under the doctrine of primary assumption of the risk, a, Plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity unless the defendant acted recklessly or intentionally in causing the injuries.

However, this part of the decision treads a narrow classification of the facts because the court found the plaintiff had pled enough facts for the reckless or intentional conduct claims to survive. The plaintiff pleaded and argued facts along with his expert witness “Defendant level of supervision and safety procedures, and whether, Defendant’s actions or inactions rose to the level of recklessness.”

The plaintiff’s expert argued the defendant failed to:

…ensure that Michael Cantu possessed an adequate level of performer readiness to safely participate in the intended activity,” “failing to provide adequate supervision of the open gym participants,” “failing to instruct Michael Cantu on how to land safely in a loose foam landing pit,” and “failing to provide a reasonably safe physical environment for the intended gymnastics activity,” specifically directing attention to the violative nature of the foam pit. Report at 3-6. Dr. George opines, among other things, that, given these violations and conduct, Defendants actions were “grossly inadequate” reckless and that, Defendants exhibited “willful and wanton” disregard for caution.

The final claim was a product liability claim arguing the foam pit was defective. The defendant argued the statute of repose applied.

The statute of repose is a statute that says if a claim against a product has not occurred in the first ten years after its creation, then no claims can be made after that period of time.

…no cause of action based on a product liability claim shall accrue against the manufacturer or sup-plier of a product later than ten years from the date that the product was delivered to its first purchaser or first lessee who was not engaged in a business in which the product was used the component in the production, construction, creation, assembly, or rebuilding of another product.

The foam pit had been constructed in 2000, and the plaintiff’s injury occurred in 2011. Consequently, the ten-year statute of repose had run preventing the plaintiff’s product liability claim.

The court granted the defendants motion for summary judgment for all claims of the plaintiff except for the claim of recklessness, which could lead to punitive damages.

So Now What?

Foam pits, trampolines, free fall towers join climbing walls indoors as types of activities or training for outdoor recreation activities are popping up everywhere. What used to be confined to Olympic training venues can now be accessed on the corner with a credit card.

We are going to see more of these types of actions. Like any recreational activity, they advertise, make promises, and are still in a growing mode both in the number of locations and the learning process in how their liability will evolve.

What do you think? Leave a comment.

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Cantu, et al, vs. Flytz Gymnastics, Inc., et al, 2016 Ohio Misc. LEXIS 12186

Cantu, et al, vs. Flytz Gymnastics, Inc., et al, 2016 Ohio Misc. LEXIS 12186

Michael A. Cantu, et al, Plaintiffs vs. Flytz Gymnastics, Inc., et al, Defendants.

CASE NO. CV-2014-01-0317

State of Ohio, Court OF Common Pleas, Summit County, Civil Division

2016 Ohio Misc. LEXIS 12186

June 2, 2016, Filed

CORE TERMS: summary judgment, reckless, wanton, willful, gymnastics, waiver form, moving party, nonmoving party, pit, releasee, liability claim, recreational activities, issue of material fact, genuine, foam, claims of negligence, repose, sports, genuine issue, initial burden, punitive damages, recklessness, inducement, indemnity, matter of law, fact remains, loss of consortium, inherent risks, assumption of risk, proprietor’

JUDGES: [*1] TAMMY O’BRIEN, JUDGE

OPINION BY: TAMMY O’BRIEN

OPINION

ORDER

The matters before the Court are, Defendant, Flytz Gymnastics, Inc.’s Motion for Summary Judgment filed on January 29, 2016, and, Defendant, John King’s Motion for Summary Judgment filed on January 29, 2016., Plaintiffs filed Separate Briefs in Opposition to these motions on March 4, 2016. Both, Defendants, Flytz Gymnastics, Inc. (“Flytz”) and John King (“King”), filed Reply briefs on March 21, 2016. For the reasons which follow, the Court GRANTS IN PART AND DENIES IN PART, Defendants’ Motions for Summary Judgment.

ANALYSIS

A. Facts:

The instant action arises out of an incident which occurred on August 22, 2011. On that day, Plaintiff Michael Cantu, sustained catastrophic personal injury when he attempted to use a spring board to go over a vault at Flytz Gymnastics and landed head first into a foam block pit. See, Plaintiffs’ Amended Complaint., Plaintiff sustained a spinal cord injury which left him a quadriplegic. See, Plaintiffs’ Amended Complaint.

Plaintiffs, Michael Cantu and his parents, have sued Flytz and its owner, King, alleging that they are liable for his injury., Plaintiffs have alleged that Flytz was negligent with respect to the “open [*2] gym night” attended by Michael Cantu and his friends and that this negligence resulted in Michael’s injury., Plaintiffs have further alleged that the conduct of Flytz and its employees, including King, was willful, wanton and reckless. In addition, Plaintiffs have brought a product liability claim against Flytz under R.C. 2307.71 et seq., Plaintiff’s parents, Aaron and Kristine Cantu, have also asserted a loss of consortium claim.

On the day in question, Michael was with a group of friends when one of them suggested that the group go to Flytz. Michael Cantu depo. at 57. This friend had been to Flytz before to practice his skiing flips. Id. at p. 43. Michael Cantu testified that the group intended to use the trampoline to practice ski tricks. Id. at 43, 63 and 93. Michael’s mother, Kristine Cantu, drove the group to Flytz.

Cantu and his friends were given Nonmember Release and Waiver Forms to read and sign. Because Michael was a minor, his mother signed the form on his behalf. Flytz Motion for Summary Judgment Exhibit B at pp. 32 and 33. Both Michael and his mother have acknowledged that neither of them read the entire form before Kristine signed it. Exhibit A at 69 and 103; Exhibit B at 34 and 35.

Subsequent [*3] to his injury, Kristine Cantu claimed that, had she read the release, she would never have allowed her son to participate in the activities. However, there is undisputed testimony from both Kristine and Michael Cantu that, throughout his life, Michael Cantu participated in many sports activities and many recreational activities, and that his mother signed release forms on his behalf in the past. Flytz Motion, Exhibit A at 18, 103; Flytz Motion, Exhibit Bat 15-16.

Plaintiff Michael Cantu, was involved in many sports and recreational activities and both he and his mother testified that they were aware that, inherent in those activities, there was always the risk of injury. Michael had previously participated in football, karate, volleyball and golf, and was interested in skiing, snowboarding and skateboarding. In fact, Plaintiff acknowledged he had sustained prior sports injuries. Flytz Motion, Exhibit B at 13-18.

Defendant Flytz moves for summary judgment on several bases which include the, Plaintiffs’ execution of a Release and Waiver form, the doctrine of primary assumption of the risk, lack of evidence of willful and wanton conduct by the, Defendants, and the statute of repose., Defendant [*4] King also moves for summary judgment.

B. Law and Analysis:

1. Standard.

In reviewing, Defendants’ Motions for Summary Judgment, the Court must consider the following: (1) whether there is no genuine issue of material fact to be litigated; (2) whether in viewing the evidence in a light most favorable to the non-moving party it appears that reasonable minds could come to but one conclusion; and (3) whether the moving party is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996); Wing v. Anchor Media, L.T.D., 59 Ohio St.3d 108, 570 N.E.2d 1095 (1991). If the Court finds that the non-moving party fails to make a sufficient showing on an essential element of the case with respect to which it has the burden of proof, summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L.E.2d 265 (1986).

Civ.R. 56(C) states the following, in part, in regards to summary judgment motions:

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts

of the evidence in the pending case, and written stipulations of fact, if any timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

Where a party seeks summary judgment on the ground that the nonmoving party cannot [*5] prove its case, the moving party bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party’s claims. Dresner, 75 Ohio St.3d at 293. The Dresner court continued, the moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party’s claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party.

Banks v. Ross Incineration, 9th App. No. 98CA007132 (Dec. 15, 1999).

In this case, [*6] as demonstrated below, this Court finds that summary judgment is appropriate as to the, Plaintiffs’ claims of negligence, but finds that a genuine issue of material fact exists as to, Plaintiffs’ claims of reckless and wanton conduct and punitive damages.

2. Release and Waiver of Liability, Assumption of Risk, and Indemnity Agreement (“Release and Waiver”).

The Release and Waiver Form signed by, Plaintiff Kristine Cantu, is entitled, “Nonmember/Special Event/Birthday Party Activity, Release and Waiver Form.” Flytz Motion, Exhibit C. After the name of the person and contact information, the verbiage of the release and waiver form warns that “this activity involves risks of serious bodily injury, including permanent disability, paralysis and death.” Id.

Kristine Cantu testified that, consistent with her practice related to any other sports release or waiver, she “never read them” because they were “usually lengthy.” Kristine Cantu depo. at 15-16. Although she indicated that the Flytz Release and Waiver Form was also lengthy, the Court notes that the form is one page long, as is shown in part below:

Release and Waiver of Liability, Assumption of Risk, and Indemnity Agreement

In consideration [*7] of participating in the activities and programs at FLYTZ GYMNASTICS, INC., I represent that I understand the nature of this activity and that I am qualified, in good health, and in proper physical condition to participate in such activity. I acknowledge that if I believe event conditions are unsafe, I will immediately discontinue participation in this activity. I fully understand that this activity involves risks of serious bodily injury, including permanent disability, paralysis and death, which may be caused by my own actions, or inactions, those of others participating in the event, the condition in which the event takes place, or the negligence of the “releasees” named below, and that there may be other risks either not known to me or not readily foreseeable at this time and I fully accept and assume all risks and all responsibility for losses, cost and damages I incur as a result of my participation in the activity.

I hereby release, discharge, and covenant not to sue FLYTZ GYNMASTICS, INC., its respective administrators, directors, agents, officers, volunteers, and employees, other participants, any sponsors, advertisers and if applicable, owners and lessors of premises on which [*8] the activity takes place (each considered one of the “RELEASEES” herein) from all liability, claims, damages, losses or damages, on my account caused, or alleged to be caused, in whole, or in part, by the negligence of the “releasees” or otherwise, including negligent rescue operations and further agree that if, despite this release, waiver of liability and assumption of risk, I, or anyone on my behalf makes a claim against any of the Releasees, I will indemnify, save and hold harmless each of the Releasees from any loss, liability, damage or cost which may incur as a result of such claim.

I have read the RELEASE AND WAIVER OF LIABIITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT, understand that I have given up substantial rights by signing it and have signed it freely and without any inducement or assurance of any nature and intend it to be a complete and unconditional release of all liability to the greatest extent allowed by law and agree that if any portion of this agreement is held to be invalid the balance, notwithstanding, shall continue in full force and effect.

The form specifically acknowledges that the activities and programs at Flytz involved “risks of serious bodily injury, [*9] including permanent disability, paralysis and death which may be caused” by the releasee’s actions or by the actions of others. It further identifies that “there may be risks either not known” or “not readily foreseeable” and that the releasee “accepts and assumes all risks for losses and damages.” Id. The form further releases claims of negligence by Flytz and includes a covenant not to sue, as well as indemnity and hold harmless provisions. The release was signed by Kristine Cantu on behalf of her son and indicated that she understood all the risks involved.

It is well established in Ohio that participants in recreational activities and the proprietor of a venue for such an activity are free to enter into contracts designed to relieve the proprietor from responsibility to the participant for the proprietor’s acts of negligence. See, Bowen v. Kil-Kare, Inc. (1992), 63 Ohio St.3d 84, 585 N.E.2d 384; Zivich v. Mentor Soccer Club, Inc. 82 Ohio St.3d 367, 696 N.E.2d 201, 1998-Ohio-389. As noted by the Ninth District Court of Appeals, in order to be upheld, the contract must be clear, unequivocal and unambiguous and it must be specific enough to cover only those claims of which the participant would be aware. Levine v. Gross, 123 Ohio App.3d 326, 330, 704 N.E.2d 262 (9th Dist. 1997). In the instant action, the Release and Waiver Form signed by Kristine Cantu clearly meets these requirements.

Plaintiffs argue [*10] that the intake clerk, Stacey King, did not specifically advise Kristine that, by signing the forms, she would be absolving Flytz of liability for injuries sustained by her son, by his negligence or the negligence of others., Plaintiffs attempt to circumvent the Release and Waiver by alleging it is unenforceable because of fraud in the inducement. They argue that Kristine Cantu was induced to sign the form upon misrepresentations made by Stacey King.

The Court notes that, Plaintiffs have not pled fraud in their Amended Complaint. Even if, Plaintiffs can be found to have properly pled a claim of fraud in the inducement, a release obtained by fraudulent inducement is merely voidable upon proof of fraud. Holler v. horror Corp., (1990), 50 Ohio St.3d 10, 14 at ¶ 1 of the syllabus. “A person of ordinary mind cannot say that he was misled into signing a paper which was different from what he intended to sign when he could have known the truth by merely looking when he signed…. If a person can read and is not prevented from reading what he signs, he alone is responsible for his omission to read what he signs.” Haller, supra at 14. In the instant action, there is no evidence of fraud. The Court finds that, Plaintiffs were advised of [*11] serious inherent risks by virtue of the Release and Waiver Form. Accordingly, the Court GRANTS summary judgment on any claims of negligence.

3. Primary Assumption of Risk.

Even without the Release and Waiver, this Court would also find that the, Defendants are entitled to summary judgment related to the, Plaintiffs’ claims of negligence under the doctrine of primary assumption the risk.

The Ohio Supreme Court has held that individuals engaged in recreational or sports activities “assume the ordinary risks of the activity and cannot recover for any injuries unless it can be shown that the other participant’s actions were either ‘reckless’ or ‘intentional’ as defined in Sections 500 and 8A of the Restatement of Torts 2d.” Marchetti v. Kalish (1990), 53 Ohio St.3d 95, 559 N.E.2d 699, syllabus. “The doctrine of primary assumption of risk prevents a, Plaintiff from setting forth a prima facie case of negligence.” Aber v. Zurz, 9th Dist No. 23876, 2008-Ohio-778, ¶9. “Primary assumption of the risk relieves a recreation provider from any duty to eliminate the risks that are inherent in the activity…because such risk cannot be eliminated.” (Citations omitted.) Bastian v. McGannon, 9th Dist. Lorain No. 07CA009213, 2008-Ohio – l149, ¶11.

As noted by the Ohio Supreme Court, the determining fact in such cases is the conduct of the defendant, “not the [*12] participant’s or spectator’s ability or inability to appreciate the inherent dangers of the activity.” Gentry v. Craycraft, 101 Ohio St.3d 141, 802 N.E.2d 1116, 2004-Ohio-

379, ¶9. To survive a primary assumption of risk claim, the, Plaintiff must prove the defendant’s conduct was reckless or intentional. Furthermore, “the reckless/intentional standard of liability applies regardless of whether the activity was engaged in by children or adults, or was unorganized, supervised, or unsupervised.” Gentry, supra at ¶8.

In the instant action, there can be no dispute that, Plaintiff Michael Cantu was engaged in a recreational activity at the time of his injury. Likewise, there can be no dispute that a fall, like that sustained by Michael, is an inherent risk in gymnastics, particularly when one is using a springboard to go over a piece of equipment. As such, there can be no recovery by, Plaintiffs unless it can be shown that Flytz’s actions were either “reckless” or “intentional.” Gentry, supra at ¶6 quoting Marchetti, supra at syllabus; see also, Mainv. Gym X-Treme, 10th Dist. No. 11A0-643, 2102-Ohio-1315 (Under the doctrine of primary assumption of the risk, a, Plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity [*13] unless the defendant acted recklessly or intentionally in causing the injuries. Id. at9.)

Accordingly, Defendants entitled to summary judgment related to the, Plaintiffs’ claims of negligence under the doctrine of primary assumption the risk. However, because the, Plaintiffs also claim that, Defendants acted in a reckless, willful and wanton manner, this does not end the analysis.

3. Reckless or Intentional Conduct and Punitive Damages.

The Supreme Court of Ohio has held that there can be no liability for injuries arising out of sporting or recreational activities unless the defendant was reckless or intentionally injured the, Plaintiff. Marchetti v. Kalish, 53 Ohio St.3d 95, 96-98, 559 N.E.2d 699 (1990). In this case, the Court finds that there are genuine issues of material fact as to whether or not, Defendants engaged in recklessness or willful or wanton conduct which resulted in injury to Michael Cantu.

All parties cite to testimony which appears to create genuine issues of material fact related to the instructions given by the, Defendants, Michael Cantu’s responding behavior, Defendant level of supervision and safety procedures, and whether, Defendants actions or inactions rose to the level of recklessness.

Plaintiffs have also cited the testimony [*14] of their expert, Gerald S. George, PhD. Dr. George reviewed industry rules and regulations and examined the facts and evidence in this case. Dr. George admitted that under “appropriate conditions, gymnastics is a reasonably safe and healthy activity for young people.” He, however, cautioned that “in the absence of appropriate safeguards, however, gymnastics becomes an unreasonably dangerous activity. Report at p. 2. Dr. George opines that, Defendants violated a number of safety regulations including “failing to ensure that Michael Cantu possessed an adequate level of performer readiness to safely participate in the intended activity,” “failing to provide adequate supervision of the open gym participants,” “failing to instruct Michael Cantu on how to land safely in a loose foam landing pit,” and “failing to provide a reasonably safe physical environment for the intended gymnastics activity,” specifically directing attention to the violative nature of the foam pit. Report at 3-6. Dr. George opines, among other things, that, given these violations and conduct, Defendants actions were “grossly inadequate” reckless and that, Defendants exhibited “willful and wanton” disregard for caution. [*15]

Upon this examination, the Court determines that genuine issues of material fact related to, Defendants’ alleged recklessness and/or willful and wanton conduct exist. Therefore, summary judgment is inappropriate on this issue. Because a question of fact remains on the issue of reckless and/or willful and wanton conduct, summary judgment on the issue of punitive damages is also denied.

4. Ohio’s Product Liability Statute, R.C. 2307.71et seq.

Defendants have also moved for summary judgment on the, Plaintiffs’ product liability claim related to the foam pit into which Michael Cantu fell., Defendants argue that this claim is barred by the statute of repose. This Court agrees.

The statute of repose applicable to claims of product liability, R.C. 2305.10 (C) (1) provides:

Except as provided in division (C)(2), (3), (4), (5), (6), and (7) of this section or in Section 2305.19 of the Revised Code, no cause of action based on a product liability claim shall accrue against the manufacturer or supplier of a product later than ten years from the date that the product was delivered to its first purchaser or first lessee who was not engaged in a business in which the product was used the component in the production, construction, creation, assembly, or rebuilding of another [*16] product.

The evidence demonstrated that the foam pit was constructed in 2000, and that there were no modifications to the pit at any time thereafter. John King depo. at 61, 67 and 85., Plaintiff’s accident occurred on August 22, 2011, 11 years after the installation of the foam pit. Pursuant to the specific language of R.C. 2305.10 (C) (1), Plaintiffs’ product liability claim is barred by the statute of repose.

From review of, Plaintiff’s brief, Plaintiffs appear to have abandoned this argument. Also, as discussed above, claims for negligence have been released by the, Plaintiffs. However, even barring that analysis, the statute of repose also applies to the, Plaintiffs’ product liability claim, and this claim is, therefore, barred.

5. Consortium.

The claims for loss of consortium by Michael Cantu’s parents, and punitive damages claim are directed at both, Defendants. A cause of action that is based upon loss of consortium is a derivative claim. Messmore v. Monarch Mach Tool Co., 11 Ohio App.3d 67 (9th Dist., 1983). As this Court has determined that, Plaintiff Michael Cantu is not entitled to recovery on negligence claims, the same applies to his parents. However, as genuine issues of material fact remain on the issues of reckless and/or willful and wanton conduct, as well [*17] as on punitive

damages, this Court denies summary judgment to both defendants on the loss of consortium and punitive damages claims.

CONCLUSION

Upon due consideration, after review of the briefs of the parties, the applicable law, exhibits, testimony and other evidence, the Court GRANTS, Defendants’ Motions for Summary Judgment as a matter of law on, Plaintiffs’ negligence claims. However, the Court finds that genuine issues of material fact remain as to whether, Defendants were reckless or acted in a willful or wanton manner. Accordingly the Court DENIES summary judgment as it pertains to, Plaintiffs’ claims of recklessness, and their claims for punitive damages.

The Final Pretrial previously schedule on July 22, 2016 at 8:30 AM, as well as the trial date of August 1, 2016, are confirmed.

IT IS SO ORDERED.

/s/ [Signature]

JUDGE TAMMY/O’BRIEN

Attorneys Terrance P. Gravens/Kimberly A. Brennan

Attorney Michael W. Czack


Tennessee still does not allow a parent to sign away a minor’s right to sue, but might enforce a jurisdiction and venue clause, maybe an arbitration clause.

The release was written poorly choosing California as the forum state for the lawsuit and applying California law. The accident occurred in Tennessee, and the defendant was based in Nevada so the court quickly through the venue and jurisdiction clauses out.

Blackwell, v. Sky High Sports Nashville Operations, LLC. 2017 Tenn. App. LEXIS 6

State: Tennessee, Court of Appeals of Tennessee, at Nashville

Plaintiff: Crystal Blackwell, as Next Friend to Jacob Blackwell, a Minor

Defendant: Sky High Sports Nashville Operations, LLC

Plaintiff Claims: negligence

Defendant Defenses: release

Holding: for the plaintiff

Year: 2017

Another trampoline case, another stretch outside the normal subject matter of these articles, however, the case is instructive on two points. (1.) The court just slammed the defendant’s release based on a jurisdiction and venue clause that had nothing to do with the place where the accident occurred and (2.) The judge stated a jurisdiction and venue clause in a release; if it met Tennessee’s law would be valid when signed by a parent to stop the claims of a child.

The minor plaintiff was injured while jumping on a trampoline at the defendant’s facility in Nashville, Tennessee. Prior to his injury, his mother signed a release. The minor plaintiff visited the defendant’s facilities on numerous occasions prior to his injury. He was injured playing a game of trampoline dodgeball.

The release included a forum selection (venue) clause, which stipulated California was the site of any lawsuit applying California law. (California allows a mother to sign away a parent’s right to sue. See States that allow a parent to sign away a minor’s right to sue).

The mother and the son sued the defendant. The defendant filed a motion to change parties, meaning the defendant named in the lawsuit was not the defendant who owned the facility where the accident occurred. The parties eventually stipulated to that, and the correct parties were identified and in the lawsuit. The defendant filed a motion to enforce the contract between the parties, meaning the lawsuit should be moved to California as stated in the release. The motion also stated the claims made by the mother should be dismissed because she signed the release.

The mother voluntarily dismissed her claims against the defendant. By doing so, the defendant was now arguing release law only against the minor plaintiff in a state with a long history of denying those releases. (See States that allow a parent to sign away a minor’s right to sue).

The trial court had a hearing on the issue of the venue and jurisdiction clauses and ruled them unenforceable.

Therein, the trial court ruled that neither the forum selection clause nor the choice of law provision were valid because their enforcement would cause a great hardship for Son to prosecute his action in California and, Tennessee, rather than California, has “a more significant relationship to the facts surrounding this case.”

The court also ruled that the release was not valid to protect against the claims of the minor, now the sole plaintiff in the case finding “The trial court also noted that Tennessee’s law included a fundamental public policy regarding the protection of children.”

The trial court eventually granted the defendant’s motion for an interlocutory appeal. An interlocutory appeal is an appeal prior to the granting of a final decision by the court. This type of appeal is rare and only done when one party can argue the issue should be decided by the appellate court prior to going to trial and has a good basis for their argument.

Analysis: making sense of the law based on these facts.

The Appellate Court found four issues to review:

1. Whether the trial court erred in refusing to enforce the forum selection clause contained in the release?

2. Whether the trial court erred in refusing to enforce the choice of law provision contained in the release?

3. Whether the trial court erred in refusing to enforce the waiver of liability against Son contained in the release signed by Mother?

4. Whether the trial court erred in refusing to allow the amendment to the complaint to allow Son to recover for pre-majority medical expenses.

Starting with issue one the court looked at the exact same issues discussed in Your Jurisdiction and Venue clause must be relevant to the possible location of the accident. Screw this up and you can void your release as occurred in this ski racing case. The court started with the general law concerning venue or forum selection clauses.

Generally, a forum selection clause is enforceable and binding on the parties entering into the contract. A forum selection clause will be upheld if it is fair and reasonable in light of all the circumstances surrounding its origin and application.

Forum selection clauses will be enforced unless:

(1) the plaintiff cannot secure effective relief in the other state, for reasons other than delay in bringing the action; (2) or the other state would be a substantially less convenient place for the trial of the action than this state; (3) or the agreement as to the place of the action was obtained by misrepresentation, duress, abuse of economic power, or other unconscionable means; (4) or it would for some other reason be unfair or unreasonable to enforce the agreement.

The forum selection clause is valid unless the party arguing against the clause proves it would be unfair and inequitable. “Tennessee law is clear, however, that the party challenging the enforcement of the forum selection clause “should bear a heavy burden of proof.”

The plaintiffs were from Tennessee, and the accident occurred in Tennessee. All the plaintiff’s witnesses were from Tennessee because that is where the injured minor received his medical treatment. The defendant was a Nevada corporation doing business in Nevada. However, the defendant’s release stated that California was the place for any litigation. The reason for that is California allows a parent to sign away a minor’s right to sue. (See States that allow a parent to sign away a minor’s right to sue).

California was obviously a “less convenient place” to have a trial because the majority, if not all the witnesses, were based in Tennessee. However, inconvenience or annoyance is not enough to invalidate a venue clause, nor will increased cost of litigating the case.

Still, the Tennessee Supreme Court has previously held that where neither company at issue was a resident of the proposed forum and none of the witnesses were residents of the proposed forum, the party resisting a forum selection clause had met its burden to show that the proposed forum was a substantially less convenient forum.

What triggered the court in its decision is the total lack of any real relationship of the parties to the case or the facts of the case to California. Add to that California first issue, the law would allow the release to be effective. Under Tennessee’s law, California would not provide a fair forum for the plaintiff. The release was signed in Tennessee, which the court stated was the default location for the litigation. “Tennessee follows the rule of lex loci contractus. This rule provides that a contract is presumed to be governed by the law of the jurisdiction in which it was executed absent a contrary intent.”

The choice of law or jurisdiction question sunk for the same reason.

Instead, the choice of law provision fails for largely the same reason that the forum selection clause fails: no material connection exists between the transaction at issue and California. As previously discussed, the contract at issue was signed in Tennessee, between Tennessee residents and a Nevada company, concerning activities taking place in Tennessee. Black’s Law Dictionary defines “material” as “[h]aving some logical connection with the consequential facts.” The simple fact that Sky High’s parent company was founded in California over a decade ago and now operates several facilities there is simply not sufficient to show a logical connection to the transaction at issue in this case.

The choice of law provision in Tennessee and most if not all states, will be honored when there is a “material connection” to the transactions at issue. That means that a jurisdiction and venue clause must be based where the plaintiff is, where the defendant is or where the accident happened. IF the jurisdiction and venue clause is based on the defendant’s location, the courts are looking for more than just location. They want witnesses needed to be there or a real reason why the defendant’s location to be the site of the trial and the law to be applied.

After throwing out the jurisdiction and venue clauses in the release for being an attempt to get around an issue, the court then looked at the release itself. The court first looked at limitations on releases in Tennessee.

These types of agreements, however, are subject to some important exceptions, such as waivers involving gross negligence or willful conduct or those involving a public duty. These types of provisions must also be clear and unambiguous.

The plaintiff’s argument was the release violated Tennessee’s public policy.

[T]he public policy of Tennessee is to be found in its constitution, statutes, judicial decisions and applicable rules of common law.'” “Primarily, it is for the legislature to determine the public policy of the state, and if there is a statute that addresses the subject in question, the policy reflected therein must prevail.”

To determine if a contract violates public policy the court must look at the purpose of the contract, if the contract will have a detrimental effect on the public. “‘The principle that contracts in contravention of public policy are not enforceable should be applied with caution and only in cases plainly within the reasons on which that doctrine rests.’”

The court then reviewed the Childress decision in detail and found it to still be viable law in Tennessee.

Based on the foregoing, we conclude that there is no basis to depart from this Court’s well-reasoned decision in Childress. Because the law in Tennessee states that parents may not bind their minor children to pre-injury waivers of liability, releases, or indemnity agreements, the trial court did not err in refusing to enforce the waiver of liability and indemnity provisions of the release signed by Mother on behalf of Son.

This court agreed, releases signed by parents to stop claims of a minor are invalid in Tennessee. Tennessee now has two appellate court decisions prohibiting a parent from signing away a minor’s right to sue. The Tennessee Supreme Court declined to review the decision, Blackwell v. Sky High Sports Nashville Operations, LLC, 2017 Tenn. LEXIS 305.

The court then looked at a motion filed by the plaintiff to increase the damages based on pre-majority medical expenses. These were medical bills paid by the mother prior to the injured plaintiff reaching the age of 18. Those bills under Tennessee’s law where the mother’s bills, the person who paid them, however, since she had dismissed her claims, those damages were no longer part of the suit. Now the plaintiff was trying to include them in the injured plaintiff’s claims.

The court denied that motion based on the release the mother signed, which prevented her claims and the plaintiff as a minor had no legal duty to pay those bills, only the mother could. Therefore, those damages could not be included in the lawsuit.

The release in that regard proved valuable to the defendant because the medical bills incurred right after the accident were the largest amount of claims to be paid.

So Now What?

This is a great example of a case where the local business accepted the release from above, home office, without checking to see if that release was valid. This occurs every day, with the same results, when an insured asks for a release from their insurance company or a new franchise opens up and accepts the paperwork from the franchisor as is.

Always have your release reviewed to see if it meets the needs of your business and the laws of your state.

The release was effective to stop the lawsuit for claims made by the mother of the injured minor. Those medical bills paid by the mother were probably substantial and would the largest amount of claims owed. In many cases with the reduced amount of medical bills, other damages would be significantly reduced because those damages tend to be a factor of the medical bills.

What is of note in this decision is the jurisdiction and venue clause, or choice of law and forum selection clause as defined in the decision would have been upheld if it was not so absurd. If the choice of law clause was based on the requirements that it have some relationship to the parties or the accident, it seems to have been a valid decision and upheld.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

What do you think? Leave a comment.

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Blackwell, v. Sky High Sports Nashville Operations, LLC. 2017 Tenn. App. LEXIS 6

Blackwell, v. Sky High Sports Nashville Operations, LLC. 2017 Tenn. App. LEXIS 6

Crystal Blackwell, as Next Friend to Jacob Blackwell, a Minor v. Sky High Sports Nashville Operations, LLC.

No. M2016-00447-COA-R9-CV

COURT OF APPEALS OF TENNESSEE, AT NASHVILLE

2017 Tenn. App. LEXIS 6

November 16, 2016, Session

January 9, 2017, Filed

SUBSEQUENT HISTORY: Appeal denied by Blackwell v. Sky High Sports Nashville Operations, LLC, 2017 Tenn. LEXIS 305 (Tenn., May 18, 2017)

PRIOR HISTORY: Tenn. R. App. P. 9 [*1]  Interlocutory Appeal; Judgment of the Circuit Court Affirmed in Part; Reversed in Part; and Remanded. Appeal from the Circuit Court for Davidson County. No. 14C524 Thomas W. Brothers, Judge.

COUNSEL: David J. Weissman, Nashville, Tennessee, for the appellant, Crystal Blackwell, as next friend of Jacob Blackwell, a minor.

Ben M. Rose and Joshua D. Arters, Brentwood, Tennessee, for the appellee, Sky High Sports Nashville Operations, LLC.

JUDGES: J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which D. MICHAEL SWINEY, C.J., and BRANDON O. GIBSON, J., joined.

OPINION BY: J. STEVEN STAFFORD

OPINION

In this interlocutory appeal, the defendant trampoline park argues that the trial court erred by refusing to enforce a forum selection clause, a choice of law provision, and a waiver of liability and indemnity clause against the minor plaintiff. Additionally, the minor plaintiff argues that the trial court erred in denying his motion to alter or amend his complaint to allow him to claim pre-majority medical expenses. We reverse the trial court’s denial of the minor plaintiff’s motion to amend only to the extent that the minor plaintiff [*2]  may be permitted to assert pre-majority medical expenses that were paid by him or that he is legally obligated to pay. We affirm the trial court in all other respects. Affirmed in part, reversed in part, and remanded.

OPINION

Background

On July 3, 2012, Plaintiff/Appellant Crystal Blackwell (“Mother”) signed a contract entitled “Customer Release of Liability and Assumption of Risk” (“the release”) with Defendant/Appellee Sky High Sports Nashville Operations, LLC (“Sky High”) in order for her son, Jacob Blackwell (“Son,” and, as represented by Mother as next friend in this lawsuit, “Appellants”) to participate in activities at an indoor trampoline park operated by Sky High. The release included a forum selection clause designating California as the proper forum for litigation, a choice of law provision stipulating California as the applicable law governing the contract, and a liability waiver on behalf of both Mother and Son, as discussed in detail infra. The release further provided that it would remain in effect for any future visits to Sky High until Son turned eighteen. Mother and Son returned to Sky High to participate in trampolining activities on multiple occasions after Mother [*3]  signed the contract. On March 26, 2013, Son was allegedly injured at Sky High while participating in a trampoline dodgeball tournament.

On February 5, 2014, Appellants filed a complaint in the Davidson County Circuit Court against “Sky High Sports Nashville, LLC.” The complaint alleged that Son moved in an awkward fashion on a trampoline to dodge the ball and landed “awkwardly,” that another player’s “double bounce” contributed to his awkward landing, and that Son suffered from a torn patellar tendon and broken tibia as a result, necessitating surgery. According to Appellants, Sky High “knew or should have known that playing dodgeball on a trampoline was a very dangerous activity” and therefore was guilty of negligence. The complaint further alleged that any warnings, disclaimers, or waivers of liability signed by Mother were “void, invalid, and/or inadequate.” The complaint sought damages, including past medical expenses, future medical expenses, pain and suffering, emotional injury and suffering, loss of enjoyment of life, lost wages, and loss of consortium in the amount of $500,000.00.

On May 5, 2014, Sky High Sports Nashville, LLC filed an answer denying the material allegations [*4]  contained in the complaint. In addition, Sky High Sports Nashville, LLC raised several affirmative defenses: (1) that Sky High Sports Nashville, LLC was not the proper party; (2) that pursuant to the parties’ contract, California was the proper forum and California law was applicable to the dispute; and (3) that Appellants’ claims were barred by the release signed by Mother individually and on Son’s behalf. On November 3, 2014, Sky High was substituted as the proper defendant by agreement of the parties and an amended complaint was filed reflecting the change.

On March 17, 2015, Sky High filed its motion to enforce the contract between the parties. The motion first argued that any claims on behalf of Mother should be dismissed because the release contained a forum selection clause, a choice of law provision, and a waiver of liability, all of which were enforceable against Mother. Sky High also argued that the forum selection clause, choice of law provision, and liability waiver should be enforced against Son as well, despite “dated Tennessee authority to the contrary” which did “not reflect the current state of the law.” In sum, Sky High offered the following various alternative methods [*5]  for resolving this dispute: (1) that the trial court should dismiss the case based on the forum selection clause; (2) that the trial court retain jurisdiction but apply California law; or (3) that the trial court should enforce the release’s liability waiver and dismiss the case as to both Mother and Son.

Appellants filed a response to the motion to enforce on May 4, 2015. Therein, Appellants argued that the forum selection clause and choice of law provision were invalid because the dispute involved in this case has no connection to California. Appellants also asserted that based upon this Court’s decision in Childress v. Madison County, 777 S.W.2d 1 (Tenn. Ct. App. 1989), a parent may not effectively waive liability on behalf of a minor. The response offered no argument, however, that the release of liability did not apply to any claims on behalf of Mother. Accordingly, on the same day, Mother filed a notice of voluntary dismissal of her claims against Sky High.

In response to Appellants’ contention that the dispute in this case had no connection with California, Sky High filed the affidavit of Rolland Weddell on May 6, 2015. In his affidavit, Mr. Weddell asserted that he helped found Sky High Sports, “a larger national brand” of which Sky High [*6]  was a part. According to Mr. Weddell, the company’s first two stores were founded in California in 2006. Mr. Weddell explained that ten trampoline parks under the Sky High Sports brand currently operate in California. Mr. Weddell, however, resides in Nevada, where he serves as the loss prevention manager for Sky High. There is no dispute that Sky High’s corporate headquarters is also in Nevada.

The trial court held a hearing on Sky High’s motion to enforce on May 8, 2014. On May 22, 2015, the trial court entered an order denying Sky High’s motion to enforce in its entirety. Therein, the trial court ruled that neither the forum selection clause nor the choice of law provision were valid because their enforcement would cause a great hardship for Son to prosecute his action in California and, Tennessee, rather than California, has “a more significant relationship to the facts surrounding this case.” The trial court also noted that Tennessee law included a fundamental public policy regarding the protection of children. Consequently, the trial court denied Sky High’s request to enforce the waiver of liability as to the Son’s claims, noting that such a contract is not permissible in Tennessee [*7]  under the holding in Childress.

On June 22, 2015, Sky High filed a motion to alter or amend the trial court’s judgment, or in the alternative, for an interlocutory appeal of the trial court’s denial of the motion to enforce pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. While this motion was pending, on July 31, 2015, Appellants filed a motion to amend their complaint. Therein, Appellants contended that because the individual claims of Mother had been voluntarily dismissed, an amendment was necessary to ensure the proper parties were named in the complaint and to request medical expenses, both past and future, on behalf of Son, with Mother acting as next friend. Sky High opposed the amendment, arguing that only a parent could bring a claim for past medical expenses for a minor child. Sky High contended that, because Mother’s claims were barred by the release, neither Mother nor Son was entitled to recover these damages.

On February 23, 2016, the trial court entered an order on the pending motions to amend the complaint and to alter or amend, or in the alternative, for an interlocutory appeal. First, the trial court denied Sky High’s motion to alter or amend but granted their request for an interlocutory appeal of the [*8]  denial of the motion to enforce. Additionally, the trial court granted Appellants’ motion to alter or amend, except to the extent that the amendment would allow “recovery of any pre-majority medical expenses.” The trial court, however, also allowed an interlocutory appeal of this ruling. Eventually, this Court also granted the requested interlocutory appeal as to both issues. Accordingly, this appeal followed.

Issues Presented

As we perceive it, this appeal involves four issues:

1. Whether the trial court erred in refusing to enforce the forum selection clause contained in the release?

2. Whether the trial court erred in refusing to enforce the choice of law provision contained in the release?

3. Whether the trial court erred in refusing to enforce the waiver of liability against Son contained in the release signed by Mother?

4. Whether the trial court erred in refusing to allow the amendment to the complaint to allow Son to recover for pre-majority medical expenses.

Standard of Review

In this case, the trial court denied Sky High’s motion to dismiss based upon a forum selection clause, a choice of law provision, and a liability waiver contained in the release.  [HN1] In considering an appeal from [*9]  a trial court’s ruling on a motion to dismiss, we take all allegations of fact in the complaint as true and review the trial court’s legal conclusions de novo with no presumption of correctness. Mid-South Industries, Inc. v. Martin Mach. & Tool, Inc., 342 S.W.3d 19, 27 (Tenn. Ct. App. 2010) (citing Owens v. Truckstops of America, 915 S.W.2d 420, 424 (Tenn. 1996)); see also Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 553 (Tenn. 2013) (citing Graham v. Caples, 325 S.W.3d 578, 581 (Tenn. 2010)) (“The trial court’s denial of [d]efendants’ motions to dismiss involves a question of law, and, therefore, our review is de novo with no presumption of correctness.”).

In addition, the trial court denied Appellants’ motion to amend their complaint.  [HN2] A trial court’s decision to deny a motion to amend a complaint is reviewed under an abuse of discretion standard. Merriman v. Smith, 599 S.W.2d 548, 559 (Tenn. Ct. App. 1979).

Discussion

I.

We begin first by considering whether the trial court erred in refusing to dismiss Appellants’ complaint on the basis of the forum selection clause contained in the release, or in the alternative, in refusing to apply California law to this dispute. The release signed by Mother on behalf of Son contains the following language: “In the event that I file a lawsuit against Sky High [], I agree to do so solely in the state of California and I further agree that the substantive law of California shall apply in that action without regard to the conflict [*10]  of law rules of that state.”

The trial court did not rule that the forum selection and choice of law provisions were unenforceable because the release containing them was signed by Mother on behalf of Son, as is true of the liability waiver discussed in detail infra; instead, the trial court ruled that the forum selection and choice of law provisions were unenforceable based upon the Tennessee framework regarding provisions of this type. Likewise, in their reply brief to this Court, Appellants do not assert that the forum selection and choice of law provisions are unenforceable against Son simply due to the fact that the provisions were included in a contract signed by Mother on behalf of Son. Rather, Appellants assert that the trial court correctly determined that California has so little interest in this case and litigating in California would be substantially less convenient than in Tennessee so as to militate against enforcement of both the forum selection and choice of law provisions. Accordingly, we assume arguendo for purposes of this appeal that both the forum selection clause and choice of law provision are binding against Son unless otherwise rendered unenforceable by Tennessee [*11]  law. We therefore first proceed to address whether Tennessee law renders the forum selection clause unenforceable in this case.

A.

[HN3] Generally, a forum selection clause is enforceable and binding on the parties entering into the contract. Lamb v. MegaFlight, Inc., 26 S.W.3d 627, 631 (Tenn. Ct. App. 2000). A forum selection clause will be upheld if it is fair and reasonable in light of all the circumstances surrounding its origin and application. Id. (citing Dyersburg Mach. Works, Inc. v. Rentenbach Eng’g Co., 650 S.W.2d 378 (Tenn. 1983)). According to the Tennessee Supreme Court, a court must give effect to a forum selection clause and refuse to entertain the action unless:

(1) the plaintiff cannot secure effective relief in the other state, for reasons other than delay in bringing the action; (2) or the other state would be a substantially less convenient place for the trial of the action than this state; (3) or the agreement as to the place of the action was obtained by misrepresentation, duress, abuse of economic power, or other unconscionable means; (4) or it would for some other reason be unfair or unreasonable to enforce the agreement.

Dyersburg, 650 S.W.2d at 380 (quoting The Model Choice Forum Act of 1968). The Dyersburg Court further stated that Tennessee courts should give consideration to the above factors and should enforce a forum selection clause [*12]  unless the party challenging the clause demonstrates that enforcement would be unfair or inequitable. Id. Our research demonstrates that the factors promulgated by the Dyersburg Court have been followed in numerous subsequent cases. E.g., Cohn Law Firm v. YP Se. Advert. & Publ’g, LLC, No. W2014-01871-COA-R3-CV, 2015 Tenn. App. LEXIS 497, 2015 WL 3883242, at *11 (Tenn. Ct. App. June 24, 2015); Sevier Cnty. Bank v. Paymentech Merch. Servs., No. E2005-02420-COA-R3-CV, 2006 Tenn. App. LEXIS 553, 2006 WL 2423547 (Tenn. Ct. App. Aug. 23 2006); Spell v. Labelle, No. W2003-00821-COA-R3-CV, 2004 Tenn. App. LEXIS 255, 2004 WL 892534 (Tenn. Ct. App. Apr. 22, 2004); Signal Capital, No. E2000-00140-COA-R3-CV, 2000 Tenn. App. LEXIS 603, 2000 WL 1281322 (Tenn. Ct. App. Sept. 7, 2000); Tennsonita (Memphis), Inc. v. Cucos, Inc., No. 6, 1991 Tenn. App. LEXIS 297, 1991 WL 66993 (Tenn. Ct. App. May 2, 1991). Tennessee law is clear, however, that the party challenging the enforcement of the forum selection clause “should bear a heavy burden of proof.” Chaffin v. Norwegian Cruise Line Ltd., No. 02A01-9803-CH-00080, 1999 Tenn. App. LEXIS 231, 1999 WL 188295, *4 (Tenn. Ct. App. Apr. 7, 1999).

We first note that there are no allegations in this case that the forum selection clause at issue was “obtained by misrepresentation, duress, abuse of economic power, or other unconscionable means[.]” Dyersburg, 650 S.W.2d at 380. We agree with both Appellants and the trial court, however, that, with respect to the second Dyersburg factor, California is a substantially less convenient place to hold this lawsuit. We recognize that  [HN4] a “party resisting a forum selection clause must show more than inconvenience or annoyance[.]” [*13]  ESI Cos., Inc. v. Ray Bell Constr. Co., No. W2007-00220-COA-R3-CV, 2008 Tenn. App. LEXIS 115, 2008 WL 544563, at *7 (Tenn. Ct. App. Feb. 29, 2008). Accordingly, mere increased litigation expenses will be insufficient to invalidate a forum selection clause. Still, the Tennessee Supreme Court has previously held that where neither company at issue was a resident of the proposed forum and none of the witnesses were residents of the proposed forum, the party resisting a forum selection clause had met its burden to show that the proposed forum was a substantially less convenient forum. See Dyersburg, 650 S.W.2d at 381 (holding that the second factor was met because the chosen forum of Kentucky was “a substantially less convenient place for trial . . . wherein all witnesses are Tennessee residents, the plaintiffs and the defendants, . . . are Tennessee corporations”).

The same is true in this case. Here, Mother and Son are Tennessee residents. Moreover, the alleged injury to Son and his later treatment all occurred in Tennessee. It thus appears that Appellants’ witnesses to both the alleged negligence and later treatment may all be found in Tennessee. On the other hand, Sky High has not presented this Court with any prospective witnesses regarding the events at issue in this case that are California residents. [*14]  While it is true that Sky High is not a Tennessee corporation, as were the corporations in Dyersburg, nothing in the record suggests that Sky High is incorporated or has its principal place of business in California, the forum designated in the release. Rather, the only information in the record indicates that Sky High has its headquarters in Nevada. Instead, from the affidavit of Mr. Weddell, we discern that Sky High’s limited contact with California involves only that the “larger brand” under which Sky High operates was founded in California over a decade ago and now operates several facilities in California. Respectfully, a decades-old contact by a parent company with a state and the operation of several trampoline parks in a state is insufficient to undermine Appellants’ contentions regarding the inconvenience that would be posed by litigating in California. Accordingly, we hold that Appellants have met their burden to show that California presents a substantially less convenient forum than Tennessee.

We also agree that, with respect to the first and fourth Dyersburg factors, California is unlikely to provide Son with effective relief and that forcing Son to litigate in California [*15]  would otherwise be unfair. As discussed in detail infra,  [HN5] Tennessee law and California law differ as to whether waivers of liability signed by parents may be enforced as to their children. Compare Childress v. Madison Cnty., 777 S.W.2d 1 (Tenn. Ct. App. 1989) (refusing to enforce such a waiver), with Hohe v. San Diego Unified Sch. Dist., 224 Cal. App. 3d 1559, 274 Cal. Rptr. 647 (Ct. App. 1990) (enforcing such a waiver). Because we reaffirm Tennessee law that parents cannot effectively sign pre-injury waivers on behalf of their children, as discussed in detail infra, allowing Son to litigate his case in Tennessee provides him with a better opportunity for full relief.

B.

We next consider whether the trial court erred in refusing to enforce the release’s choice of law provision indicating that California law should apply to this case.  [HN6] Generally, absent a choice of law provision in a contract, “Tennessee follows the rule of lex loci contractus. This rule provides that a contract is presumed to be governed by the law of the jurisdiction in which it was executed absent a contrary intent.” Messer Griesheim Indus., Inc. v. Cryotech of Kingsport, Inc., 131 S.W.3d 457, 474-75 (Tenn. Ct. App. 2003) (quoting Vantage Tech., LLC v. Cross, 17 S.W.3d 637, 650 (Tenn. Ct. App. 1999)). As this Court explained:

If the parties manifest an intent to instead apply the laws of another jurisdiction, then that intent will be honored provided certain requirements are met. The [*16]  choice of law provision must be executed in good faith. Goodwin Bros. Leasing, Inc. v. H & B Inc., 597 S.W.2d 303, 306 (Tenn. 1980). The jurisdiction whose law is chosen must bear a material connection to the transaction. Id. The basis for the choice of another jurisdiction’s law must be reasonable and not merely a sham or subterfuge. Id. Finally, the parties’ choice of another jurisdiction’s law must not be “contrary to ‘a fundamental policy’ of a state having [a] ‘materially greater interest’ and whose law would otherwise govern.” Id., n.2 (citing RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 187(2) (1971)).

Messer Griesheim, 131 S.W.3d at 475 (quoting Vantage, 17 S.W.3d at 650).1

1 Sky High asserts that the party seeking to invalidate a choice of law provision bears a “heavy burden,” citing Security Watch, Inc. v. Sentinel Systems, Inc., 176 F.3d 369 (6th Cir. 1999). First, we note that a federal decision, even when interpreting Tennessee law, is not binding on this Court. See Elias v. A & C Distrib. Co., Inc., 588 S.W.2d 768, 771 (Tenn. Ct. App. 1979) (“[D]ecisions of [ f]ederal . . . [c]ourts are not binding authority upon this Court and other State Courts in Tennessee[.]”). Furthermore, the phrase “heavy burden” as quoted by Sky High simply does not appear in the Security Watch Opinion. See Security Watch, 176 F.3d at 375. Finally, we note that the Security Watch Opinion does not concern a choice of law provision, but rather, a forum selection clause. Id.

Here, there is no allegation that the choice of law provision at issue was not executed in good faith. Instead, the choice of law provision fails for largely the same reason that the forum selection clause fails: no material connection exists between the transaction at issue and California. As previously discussed, the contract at issue was signed in Tennessee, between Tennessee residents and a Nevada company, concerning activities taking place in Tennessee. Black’s Law Dictionary  [HN7] defines “material” as “[h]aving some logical connection with the consequential facts.” Black’s Law Dictionary 1066 (9th ed. 2009). The [*17]  simple fact that Sky High’s parent company was founded in California over a decade ago and now operates several facilities there is simply not sufficient to show a logical connection to the transaction at issue in this case.

We do not disagree with Sky High’s assertion that it is reasonable and generally enforceable for a company to “limit where it is subject to suit.”  [HN8] Tennessee law is clear, however, that a company’s choice of law provision will only be honored where the proposed state’s law has a material connection to the transaction at issue. See Messer Griesheim, 131 S.W.3d at 475. Furthermore, the cases that Sky High cites for this proposition do not support their argument in this case. First, in Bright v. Spaghetti Warehouse, Inc., No. 03A01-9708-CV-00377, 1998 Tenn. App. LEXIS 286, 1998 WL 205757 (Tenn. Ct. App. Apr. 29, 1998), the Court of Appeals enforced a choice of law provision designating that Texas law would apply to the contract where the contract was largely negotiated in Texas and the defendant was a Texas corporation. 1998 Tenn. App. LEXIS 286, [WL] at *5. As such, the transaction at issue in Bright had far more contact with the state whose law was named in the contract than is present in this case. Even more puzzling, Thomas v. Costa Cruise Lines N.V., 892 S.W.2d 837 (Tenn. Ct. App. 1994), does not involve either a choice of law provision or the application of Tennessee law to determine its enforceability; rather, Thomas [*18]  involves a forum selection clause, whose enforcement was governed by federal law. Id. at 840. Accordingly, the trial court did not err in denying Sky High’s request to enforce the choice of law provision on this basis. Because the contract’s choice of law provision is unenforceable, the general rule of lex loci contractus applies in this case. See Messer Griesheim, 131 S.W.3d at 474. As such, Tennessee law, as the law of the place where the contract was executed, governs the dispute in this case.

II.

Having determined that this case has been properly brought in a Tennessee court and that Tennessee law applies, we next consider whether the trial court erred in refusing to enforce the waiver of liability and the indemnity language contained in the release pursuant to Tennessee law. Here, the contract at issue contains the following language, in relevant part:

3. I hereby voluntarily release, forever discharge, and agree to defend indemnify and hold harmless [Sky High] from any and all claims, demands, causes of action, which are in any way connected with my participation in this activity or any use of [Sky High’s] equipment or facilities, including any such claims which allege negligent acts or omissions of [Sky High]. [*19]

4. Should [Sky High] or anyone acting on their behalf, be required to incur attorney’s fees and costs to enforce this agreement, I agree to indemnify and hold them harmless for all such fees and costs. This means that I will pay all of those attorney’s fees and costs myself.

5. I certify that I have adequate insurance to cover any injury or damage that I may cause or suffer while participating, or else I agree to bear the costs of such injury or damage myself. I further certify that I am willing to assume the risk of any medical or physical condition that I may have.

* * *

8. If the participant is a minor, I agree that this Release of Liability and Assumption of Risk agreement (“RELEASE”) is made on behalf of that minor participant and that all of the releases, waivers and promises herein are binding on that minor participant. I represent that I have full authority as Parent or Legal Guardian of the minor participant to bind the minor participant to this agreement.

9. If the participant is a minor, I further agree to defend, indemnify and hold harmless SKY HIGH SPORTS from any and all claims or suits for personal injury, property damage or otherwise, which are brought by, or on behalf of [*20]  the minor, and which are in any way connected with such use or participation by the minor, including injuries or damages caused by the negligence of [Sky High], except injuries or damages caused by the sole negligence or willful misconduct of the party seeking indemnity.

(Emphasis added).

In the trial court, Sky High argued that the above language constituted a legal and enforceable waiver of liability and indemnity agreement against both the claims brought by Mother and the claims brought on behalf of Son. There is no dispute in this case that  [HN9] “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.” Moss v. Fortune, 207 Tenn. 426, 429, 340 S.W.2d 902, 903-04 (Tenn. 1960). These types of agreements, however, are subject to some important exceptions, such as waivers involving gross negligence or willful conduct or those involving a public duty. Id. at 904. These types of provisions must also be clear and unambiguous. See Pitt v. Tyree Org. Ltd., 90 S.W.3d 244, 253 (Tenn. Ct. App. 2002) (citing Kroger Co. v. Giem, 215 Tenn. 459, 387 S.W.2d 620 (Tenn. 1964)).

Here, Appellants do not argue, nor did the trial court find, that the liability waiver above was unenforceable on its face against Mother pursuant to the above law. Rather, the trial court found that the waiver of liability [*21]  was ineffective to waive Son’s claims due to Tennessee public policy, as expressed in this Court’s Opinion in Childress v. Madison County, 777 S.W.2d 1 (Tenn. Ct. App. 1989). A brief discussion of the facts and holding in Childress is therefore helpful.

A.

In Childress, the parents of a young man with severe intellectual disabilities brought suit on behalf of their son. According to the parents, the young man, who was twenty years old at the time of the accident, was injured while training for the Special Olympics in connection with his school. Id. at 2. Specifically, while on a trip to a local YMCA supervised by a teacher and aide from the Madison County school district, the young man was found on the floor of the YMCA pool. The young man was successfully resuscitated but sustained injuries and incurred medical expenses as a result of the incident. Id.

The parents, individually and on behalf of their son, sued Madison County and the Madison County Board of Education for negligence in failing to properly supervise the students in the pool. After a bench trial, the trial court ruled in favor of the defendants, finding that they had committed no negligence. The parents thereafter appealed to this Court. Id.

This Court first reversed the trial court’s finding [*22]  that the defendants had not committed negligence in failing to supervise the young man while he was in the pool. Id. at 3. The defendants argued, however, that even if they were guilty of negligence, any liability had been waived by parents when the mother “executed a release of all liability of these defendants.” Id. at 3. In response, the parents argued, inter alia, that the waiver was unenforceable because it was against Tennessee public policy to allow parents or guardians to release the claims of incompetent persons. Id. at 6-7.

The Court of Appeals, in what the concurrence characterized as an “excellent opinion,” agreed that the parents could not release the claims of their incompetent son. Id. at 8 (Tomlin, J., concurring). The Childress Court first noted that the adult son had not personally signed the release but that, instead, his mother had signed the document. Id. at 6. The Court held that had the young man signed the release, it would certainly have been invalid, as the young man was “incompetent, incapable of understanding the nature of his action, [and, thus,] the execution could not be given effect.” Id. (citing 44 C.J.S. Insane Persons § 49 (1945)). The question was therefore whether the mother’s action in signing [*23]  the form, which included an indemnity agreement and an assumption of risk clause that were applicable to the son’s claims, were sufficient to bar the young man’s claims.2

2 In Childress, this Court held that by the contract’s own terms, the waiver of liability only applied to the mother. Id. at 6 (“[T]here is no indication in the language of the form or in the manner in which [the mother] signed that she did in fact . . . release or discharge the Special Olympics on [her son’s] behalf”). The Court of Appeals therefore affirmed the trial court’s dismissal of the mother’s individual claims. The Court held, however, that the contract provided that both the indemnity clause and assumption of risk provision applied to both the mother and the son. Id. (“[The mother] did clearly agree to indemnify the Special Olympics ‘from all liabilities for damage, injury or illness to the entrant or his/her property during his/her participation in or travel to or from any Special Olympics event.’ . . . [A]ccording to the language of the release, [the mother], as his mother and natural parent, acknowledged on [her son’]s behalf that he would be participating at his own risk.”).

In reaching its decision, the Childress Court analogized “the status of guardians of incompetent persons” with “that of guardians of infants” under well-settled Tennessee law. Id. According to the Court:

 [HN10] The general rule is that a guardian may not waive the rights of an infant or an incompetent. 39 Am. Jur. 2d, Guardian & Ward § 102 (1968); 42 Am. Jur. 2d, Infants § 152 (1969). Specifically, the Supreme Court of Tennessee long ago stated that a guardian cannot settle an existing claim apart from court approval or statutory authority. Miles v. Kaigler, 18 Tenn. (10 Yerg.) 10 (1836)[;] Spitzer v. Knoxville Iron, Co., 133 Tenn. 217, 180 S.W. 163 (1915)[;] Tune v. Louisville & Nashville Railroad Co., 223 F. Supp. 928 (M[.]D[.] Tenn. 1963). It has also been held that a guardian may not waive the statutory requirements for service of process on an infant or incompetent by accepting service of process on himself alone. Winchester v. Winchester, 38 Tenn. (1 Head) 460 (1858).3

Childress, 777 S.W.2d at 6.

3 We note that this statement was supported by what appears to be an incorrect citation to authority. See Watterson v. Watterson, 38 Tenn. 1, 2 (1858) (not involving an infant or service of process); Winchester v. Winchester, 23 Tenn. 51, 51 (1843) (same). Regardless, the Childress Court is correct as to this – 11 – proposition of law. See Taylor v. Walker, 48 Tenn. 734, 738 (Tenn. 1870) (“It is a settled law of this State, that a sale without service of process on an infant who has no regular guardian, is void, and that the want of such service can not [sic] be waived by the appearance of a guardian ad litem.”); Robertson v. Robertson, 32 Tenn. 197, 199 (Tenn. 1852) (“‘A guardian ad litem cannot, by his consent, make his ward a party to a suit.’ The infant must be served with process.”); Wheatley’s Lessee v. Harvey, 31 Tenn. 484, 485 (Tenn. 1852) (holding that “the guardian ad litem had no authority to waive the service of process, without which the infant was no party to the suit”).

The Childress Court then considered the decisions of other states that also refused to enforce waivers made on behalf of minors or incompetent persons. See id. at 6-7 (citing Gibson v. Anderson, 265 Ala. 553, 92 So. 2d 692, 695 (1956) (legal guardian’s acts do not estop ward from asserting rights [*24]  in property); Ortman v. Kane, 389 Ill. 613, 60 N.E.2d 93, 98 (1945) (guardian cannot waive tender requirements of land sale contract entered into by ward prior to incompetency); Stockman v. City of South Portland, 147 Me 376, 87 A.2d 679 (1952) (guardian cannot waive ward’s property tax exemption); Sharp v. State, 240 Miss. 629, 127 So.2d 865, 90 A.L.R.2d 284 (1961) (guardian cannot waive statutory requirements for service of process on ward); Jones v. Dressel, 623 P.2d 370 (Colo.1981) (ratification by parent of contract executed by child does not bind child); Whitcomb v. Dancer, 140 Vt. 580, 443 A.2d 458 (1982) (guardian cannot settle personal injury claim for a ward without court approval); Natural Father v. United Methodist Children’s Home, 418 So.2d 807 (Miss. 1982) (infant not bound by evidentiary admissions of parent); Colfer v. Royal Globe Ins. Co., 214 N.J.Super. 374, 519 A.2d 893 (1986) (guardian cannot settle personal injury claim for ward without court approval)). This Court found the decisions of three states particularly helpful. First, the Court noted that the Mississippi Supreme Court had previously “expressed in broad terms” that under Mississippi law: “‘Minors can waive nothing. In the law they are helpless, so much so that their representatives can waive nothing for them.'” Childress, 777 S.W.2d at 7 (quoting Khoury v. Saik, 203 Miss. 155, 33 So.2d 616, 618 (Miss. 1948)). Further, the Court cited with approval the Supreme Court of Connecticut, which held that “an agreement, signed by one of the parents of a minor as a condition to his being allowed to attend a camp, waiving the minor’s claims against a camp for damages in the event of an injury was ineffective to waive the [*25]  rights of the minor against the defendant camp.” Childress, 777 S.W.2d at 7 (citing Fedor v. Mauwehu Council, Boy Scouts of America, Inc., 21 Conn. Sup. 38, 143 A.2d 466, 468 (1958)). Finally, the Childress Court also noted that the Maine Supreme Court came to a similar conclusion, holding that the release in question was ineffective “because a parent cannot release the child’s action.” Childress, 777 S.W.2d at 7 (citing Doyle v. Bowdoin College, 403 A.2d 1206, 1208 n.3 (Me. 1979)).

The Childress Court, however, did not rely solely on the law from other jurisdictions. It also noted the conflict created by such agreements, as well as the fundamental public policy inherent in Tennessee law to protect the financial interests of minors. For example, this Court explained that agreements wherein a parent agrees to indemnify a third party for injuries to his or her child “are invalid as they place the interests of the child or incompetent against those of the parent or guardian.” Childress, 777 S.W.2d at 7 (citing Valdimer v. Mt. Vernon Hebrew Camps, Inc., 9 N.Y.2d 21, 210 N.Y.S.2d 520, 172 N.E.2d 283, 285 (1961)). In addition, the Court noted that refusing to enforce a waiver of the child’s rights by the parent “is in keeping with the protection which Tennessee has afforded to the rights of infants and minors in other situations.” Childress, 777 S.W.2d at 7. The Childress Court noted that arguments to the contrary exist, specifically with regard to the chilling effect of its chosen rule, stating:

We do not deny that there are good and logical reasons [*26]  for giving effect to exculpatory and indemnification clauses executed by parents and guardians on behalf of infants and incompetents. Risk is inherent in many activities that make the lives of children richer. A world without risk would be an impoverished world indeed. As Helen Keller well said, “Security is mostly a superstition. It does not exist in nature, nor do the children of men as a whole experience it. Avoiding danger is no safer in the long run than outright exposure. Life is either a daring adventure or nothing.” Partnow, Quotable Woman, 173 (1977). Ultimately, this case is a determination of who must bear the burden of the risk of injury to infants and minors.

It is not our intention, nor do we feel the result of this case will be, to put a chill on activities such as the Special Olympics. The law is clear that a guardian cannot on behalf of an infant or incompetent, exculpate or indemnify against liability those organizations which sponsor activities for children and the mentally disabled.

Id. at 7-8.

Ultimately, the Court of Appeals agreed with those courts that had held that  [HN11] a parent cannot release a child’s claim against a third party. See id. at 7 (“We, therefore, hold that [the mother] [*27]  could not execute a valid release or exculpatory clause as to the rights of her son against the Special Olympics or anyone else, and to the extent the parties to the release attempted and intended to do so, the release is void.”). The Court likewise held that the indemnity language contained in the contract was invalid. Id. The Childress Court therefore adopted a rule wherein  [HN12] parents or guardians cannot sign indemnity agreements or liability waivers on behalf of minor children or the incompetent. Noting the impact that the rule would have on many organizations, however, this Court specifically invited either the Tennessee Supreme Court or the Tennessee General Assembly to “remedy” this situation if either believed that Tennessee law should be otherwise. Id. at 8 (“If this rule of law is other than as it should be, we feel the remedy is with the Supreme Court or the legislature.”).

An application for permission to appeal to the Tennessee Supreme Court was eventually filed in Childress. The application was denied, however, by order of August 7, 1989. The issue was raised again in the Court of Appeals in 1990 by the case of Rogers v. Donelson-Hermitage Chamber of Commerce, 807 S.W.2d 242 (Tenn. Ct. App. 1990), perm. app. denied (Tenn. 1991), wherein this Court again held that the [*28]  parent’s purported release of the child’s cause of action was unenforceable, even in the context of a wrongful death action. Id. at 246-47. Again, an application for permission to appeal to the Tennessee Supreme Court was filed and rejected by order of March 11, 1991. In addition, no legislative action has been taken to alter the rule established in Childress over twenty-five years ago.

B.

Sky High does not argue that Childress is not controlling or that it was wrongly decided in 1989. See Tenn. R. Sup. Ct. 4(G)(2) (“Opinions reported in the official reporter . . . shall be considered controlling authority for all purposes unless and until such opinion is reversed or modified by a court of competent jurisdiction.”). As such, there is no dispute that if the Childress rule remains the law in Tennessee, Son’s cause of action is not barred by the waiver and indemnity language contained in the release signed by Mother. Instead, Sky High asserts that this Court should revisit the rule set forth in Childress because changes in constitutional law concerning parental rights following the Tennessee Supreme Court’s decision in Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993), and the United States Supreme Court’s decision in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), have resulted in a “strong shift” in the law in this [*29]  area across the country. Accordingly, we begin with a brief discussion of the Hawk decision.

In Hawk, paternal grandparents sought court-ordered visitation with their grandchildren pursuant to the Grandparents’ Visitation Act located in Tennessee Code Annotated section 36-6-301 (1985). Hawk, 855 S.W.2d at 575. The facts showed that grandparents and the children’s married parents had an acrimonious relationship and that, eventually, grandparents had been denied any visitation with the children. Id. Under the version of Section 36-6-301 then in existence, a court could order “‘reasonable visitation’ with grandparents if it is ‘in the best interests of the minor child.'” Id. at 576 (quoting Tenn. Code Ann. § 36-6-301). Although the trial court declined to find that parents were unfit, it nevertheless ordered substantial visitation between grandparents and the children. Id. at 577. The trial court also noted that the grandparents “don’t have to answer to anybody when they have the children.” Id.

The Court of Appeals affirmed the judgment of the trial court, and the Tennessee Supreme Court eventually granted the parents’ application for permission to appeal. Id. at 573, 577. The Tennessee Supreme Court first characterized the trial court’s ruling as “a virtually unprecedented intrusion into a protected sphere of family life.” [*30]  Id. at 577. Because Section 36-6-301 “suggest[ed] that this level of interference is permissible,” the Tennessee Supreme Court determined that it was necessary to examine the constitutionality of the statute “as it applies to married parents whose fitness as parents is unchallenged.” Id.

Ultimately, the Tennessee Supreme Court held that the trial court’s and Section 36-6-301’s intrusion into parental decisions was unconstitutional because it interfered with the fundamental liberty interest allowing parents the “right to rear one’s children.” Id. at 578 (citing Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 626, 67 L. Ed. 1042 (1923)). According to the Tennessee Supreme Court, this right stemmed from the United States Supreme Court’s “larger concern with privacy rights for the family.” Id. at 578 (citing Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 442, 88 L. Ed. 645 (1944)). As such, the Tennessee Supreme Court concluded that the right to privacy inherent in both the United States and Tennessee Constitutions “fully protects the right of parents to care for their children without unwarranted state intervention.” Id. at 579.

The grandparents in Hawk asserted, however, that grandparent visitation was “a ‘compelling state interest’ that warrants use of the state’s parens patriae power to impose visitation in [the] ‘best interests of the children.'” Id. (footnote omitted). The Tennessee Supreme Court rejected this [*31]  argument, however, holding that “without a substantial danger of harm to the child, a court may not constitutionally impose its own subjective notions of the ‘best interests of the child’ when an intact, nuclear family with fit, married parents is involved.” Id. In reaching this decision, the Hawk Court noted that “[i]mplicit in Tennessee case and statutory law has always been the insistence that a child’s welfare must be threatened before the state may intervene in parental decision-making.” Id. at 580 (citing Tenn. Code Ann. § 36-6-101 (allowing court intervention into custody matters in cases of divorce); Tenn. Code Ann. §37-1-113 & -114 (allowing court intervention into custody matters in dependency and neglect)). The Court also noted that its ruling was in line with federal decisions “requir[ing] that some harm threaten a child’s welfare before the state may constitutionally interfere with a parent’s right to rear his or her child.” Hawk, 855 S.W.2d at 580 (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S. Ct. 1526, 1540, 32 L. Ed. 2d 15 (1972) (noting that the children at issue would not be harmed by receiving an Amish education); Pierce v. Society of Sisters, 268 U.S. 510, 534, 45 S. Ct. 571, 573, 69 L. Ed. 1070 (1925) (noting that the parents’ choice of private school was “not inherently harmful”); Meyer v. Nebraska, 262 U.S. 390, 402-03, 43 S.Ct. 625, 628, 67 L. Ed. 1042 (1923) (opining that “proficiency in a foreign language . . . is not injurious to the health, morals or understanding of the ordinary child”)). As the Tennessee [*32]  Supreme Court explained: “The requirement of harm is the sole protection that parents have against pervasive state interference in the parenting process.” Hawk, 855 S.W.2d at 581. As such, the Hawk Court held that “neither the legislature nor a court may properly intervene in parenting decisions absent significant harm to the child from those decisions.” Id. The trial court’s award of grandparent visitation absent a showing of harm was therefore deemed unconstitutional. Id. Only a year later, the Tennessee Supreme Court extended the holding in Hawk to be applicable to all fit parents, not merely those part of “an intact, nuclear family[.]” Nale v. Robertson, 871 S.W.2d 674, 678 & 680 (Tenn. 1994).

A similar situation was at issue in the United States Supreme Court’s decision in Troxel v. Granville. In Troxel, the paternal grandparents of two non-marital children filed a petition for grandparent visitation against the children’s mother. Troxel, 530 U.S. at 61. Under the Washington statute applicable at that time, any person could petition the court for visitation with a child at any time so long as the child’s best interests would be served by the visitation. Id. at 60. The trial court eventually entered an order allowing visitation. Id. at 61. The Washington Court of Appeals reversed the trial court’s [*33]  order, holding that the paternal grandparents lacked standing to seek visitation under the statute where no custody proceeding was pending. Id. at 62. In the meantime, the mother remarried, and her new husband adopted the children. Eventually, the Washington Supreme Court reversed the Washington Court of Appeals on the issue of standing, holding that the statute at issue allowed a visitation petition at any time. The Washington Supreme Court concluded, however, that the trial court nevertheless erred in ordering visitation under the statute, holding that the statute infringed on the fundamental right of parents to rear their children. Id. at 63. The United States Supreme Court eventually granted a writ of certiorari on the constitutional issue. Id.

The United States Supreme Court first recognized that “the interest of parents in the care, custody, and control of their children–is perhaps the oldest of the fundamental liberty interests recognized by this Court.” Id. at 65. Citing decades of United States Supreme Court precedent, similar to the Tennessee Supreme Court in Hawk, the Court opined that “it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, [*34]  custody, and control of their children.” Id. at 66. The Troxel Court therefore held that the Washington statute, as applied to the facts of the case, “unconstitutionally infringes on [] fundamental parental right[s].” Id. at 67. The Court noted that the statute essentially permitted judges, based solely on their personal evaluation of the child’s best interests, to “disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition[.]” Id. The Court noted that none of the courts below had ever found the parents to be unfit, an important omission, as “there is a presumption that fit parents act in the best interests of their children.” Id. at 68. As such, “so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.” Id. at 68-69. Because the trial court failed to honor this presumption, failed to give any weight to the preferences of the parents, and also failed to consider whether the parents had even [*35]  denied visitation, the Troxel Court held that the visitation award was unconstitutional in that case. Id. at 72. The United States Supreme Court declined, however, to rule on “whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation.” Id. at 73. Accordingly, the Court did not “define . . . the precise scope of the parental due process right in the visitation context.” Id.

C.

Although this case does not involve grandparent visitation, Sky High argues that the Hawk Court’s rejection of the state’s parens patriae power to interfere in a parenting decision is also applicable to Mother’s decision to waive Son’s claims against Sky High. Because the Hawk holding has never been applied in the context of an exculpatory clause, Sky High cites several decisions relying on the recognition of fundamental parental rights in upholding liability waivers signed by parents on behalf of children. Indeed, Sky Hall asserts that in the wake of the Troxel decision, the law has seen a “strong shift” in favor of enforceability.

Sky High heavily relies on the Ohio Supreme Court’s decision in Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 1998 Ohio 389, 696 N.E.2d 201 (Ohio 1998). In Zivich, the child was injured [*36]  while participating in a non-profit soccer club. Id. at 202. Prior to the child’s participation, his mother signed a registration form for the activity, which contained a waiver of liability against the soccer club on behalf of the child. Id. When the parents sued the soccer club for the child’s injuries, the soccer club responded that the claim was barred by the waiver. The trial court agreed with the soccer club and granted summary judgment in its favor. Id. The Court of Appeals affirmed the dismissal but held that the child’s cause of action, once he reached the age of majority, had not been waived. See Zivich v. Mentor Soccer Club, Inc., No. 95-L-184, 1997 Ohio App. LEXIS 1577, 1997 WL 203646, at *1 (Ohio Ct. App. Apr. 18, 1997), aff’d on other grounds, 82 Ohio St. 3d 367, 1998 Ohio 389, 696 N.E.2d 201 (hereinafter, “Court of Appeals’s Zivich”). Id. One Judge concurred in the result only, opining that that Ohio public policy favored enforcement of the exculpatory agreement against both parents and the child. Court of Appeals’s Zivich, 1997 Ohio App. LEXIS 1577, 1997 WL 203646, at *23 (Ford, J., concurring in result only).

The Ohio Supreme Court likewise affirmed the trial court’s decision that the claims of both the parents and the child were barred by the exculpatory clause contained in the registration form. Zivich, 696 N.E.2d at 207. In reaching this result, the Ohio Supreme Court first rejected [*37]  the parents’ argument that the agreement should not be enforced on public policy grounds, given that contracts entered into by minors were generally unenforceable in Ohio. Id. at 204. Rather, the Ohio Supreme Court held that Ohio public policy actually favored enforcement of the agreement, citing Ohio statutes enacted to “encourage landowners to open their land to public use for recreational activities without fear of liability.” Id. at 204-05 (citing Ohio Rev. Code Ann. §§ 1533.18 & 1533.181). Indeed, the Ohio Supreme Court noted that, although the statute was not applicable to the case-at-bar, the Ohio General Assembly had recently enacted statutes that “accord qualified immunity to unpaid athletic coaches and sponsors of athletic events.” Id. at 205 (citing Ohio Rev. Code Ann. §§ 2305.381 & 2305.382). The Zivich Court also noted the inherent benefits in allowing children to participate in sporting activities:

Organized recreational activities offer children the opportunity to learn valuable life skills. It is here that many children learn how to work as a team and how to operate within an organizational structure. Children also are given the chance to exercise and develop coordination skills. Due in great part to the assistance of volunteers, nonprofit organizations are able to offer these [*38]  activities at minimal cost. . . . Clearly, without the work of its volunteers, these nonprofit organizations could not exist, and scores of children would be without the benefit and enjoyment of organized sports. Yet the threat of liability strongly deters many individuals from volunteering for nonprofit organizations. Developments in the Law–Nonprofit Corporations–Special Treatment and Tort Law (1992), 105 Harv. L. Rev. 1667, 1682. Insurance for the organizations is not the answer, because individual volunteers may still find themselves potentially liable when an injury occurs. Markoff, Liability Threat Looms: A Volunteer’s Thankless Task (Sept. 19, 1988), 11 Natl. L.J. 1, 40. Thus, although volunteers offer their services without receiving any financial return, they place their personal assets at risk.

Id. Given these risks, the Ohio Supreme Court noted that these organizations “could very well decide that the risks are not worth the effort,” which would reduce the number of low-cost sporting activities available to the youth. Id.

In addition to the Ohio public policy favoring low-cost youth sporting activities, the Zivich Court noted that its decision aligned with “the importance of parental authority.” Id. [*39]  (citing Court of Appeals’s Zivich, 1997 Ohio App. LEXIS 1577, 1997 WL 203646, at *23 (Ford, J., concurring in result only)) (agreeing with the reasoning espoused by Judge Ford in his concurrence to the Court of Appeals’s Zivich). As the Zivich Court explained, parents have a right to raise their children, a fundamental liberty interest in the “the care, custody, and management of their offspring[,]” and “a fundamental, privacy-oriented right of personal choice in family matters,” all of which are protected by due process. Id. at 206 (citing Court of Appeals’s Zivich, 1997 Ohio App. LEXIS 1577, 1997 WL 203646, at *24 (Ford, J., concurring in result only)). In addition, the Ohio Supreme Court provided examples where Ohio statutory law empowers parents to make decisions for their children, including the right to consent or decline medical treatment. Id. (citing Ohio Rev. Code Ann. § 2317.54[C]; Lacey v. Laird, 166 Ohio St. 12, 19, 1 O.O.2d 158, 161, 139 N.E.2d 25, 30 (Ohio 1956) (Hart, J., concurring)). Thus, the Zivich Court concluded that invalidating the release would be “inconsistent with conferring other powers on parents to make important life choices for their children.” Id. at 206 (citing Court of Appeals’s Zivich, 1997 Ohio App. LEXIS 1577, 1997 WL 203646, at *25-26 (Ford, J., concurring in result only)). According to the Ohio Supreme Court, the decision to allow the child to participate in a potentially dangerous activity after having signed a liability waiver on behalf of the child is “an important family decision” in which a parent makes a decision regarding whether “the benefits to her child outweighed the risk of physical injury.” Id. at 207. After concluding that this decision is protected by the fundamental right of parental authority, the Ohio Supreme Court ultimately held that the decision could not be “disturb[ed]” by the courts. Id. Accordingly, the Zivich Court ruled that the waiver was enforceable.

Sky High emphasizes that at least three other states have similarly held that pre-injury waivers of a minor’s claims by parents were enforceable due to the court’s inability to interfere with fit parents’ decisions. See Saccente v. LaFlamme, No. CV0100756730, 2003 Conn. Super. LEXIS 1913, 2003 WL 21716586 (Conn. Super. Ct. July 11, 2003); Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d 738 (Mass. 2002); BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714, 80 A.3d 345 (Md. 2013). First, in Saccente v. LaFlamme, the child’s father signed an indemnity agreement on behalf of his daughter to participate in horseback riding lessons. Saccente, 2003 Conn. Super. LEXIS 1913, 2003 WL 21716586, at *1. When the child was injured and the mother sued on her behalf, the defendant farm raised the indemnity agreement as a defense. Id. The Superior Court of Connecticut ultimately held that the indemnity agreement signed by the child’s parent was enforceable to bar the child’s claim. 2003 Conn. Super. LEXIS 1913, [WL] at 7.4 In reaching this result, the Saccente Court relied, in part, on the fundamental parental rights recognized by the United States Supreme Court in Troxel. 2003 Conn. Super. LEXIS 1913, [WL] at *6 (citing Troxel, 530 U.S. at 65). In the Saccente Court’s view, a parent’s right to make decisions regarding the rearing of children extends to “the right to control their associations,” including the “[t]he decision here by her father to let the minor plaintiff waive her claims [*40]  against the defendants in exchange for horseback riding lessons at their farm[.]” Saccente, 2003 Conn. Super. LEXIS 1913, 2003 WL 21716586, at *6-7 (distinguishing cases where releases have been held invalid by the fact that Connecticut statutory law did not forbid parents from settling the claims of their children).

4 The Superior Court in Saccente comes to the opposite conclusion as the Superior Court previously came to in Fedor v. Mauwehu Council, Boy Scouts of Am., Inc., 21 Conn. Supp. 38, 143 A.2d 466 (Conn. Super. Ct. 1958). The Saccente Court distinguished Fedor on the basis that parents there had “had no choice but to sign the waiver” in order to participate in a Boy Scout camp for low-income families. Saccente, 2003 Conn. Super. LEXIS 1913, 2003 WL 21716586, at *4. The Saccente Court concluded that the same was not true of the child’s horseback riding lessons.

In Sharon v. City of Newtown, a student sued the city for injuries she had incurred while participating in cheerleading practice at a public school. Sharon, 769 N.E.2d at 741. In rejecting the student’s argument that a waiver signed by the student’s father was invalid, the Massachusetts Supreme Judicial Court held that enforcing the waiver “comports with the fundamental liberty interest of parents in the rearing of their children, and is not inconsistent with the purpose behind our public policy permitting minors to void their contracts.” Id. at 747. In addition, the Sharon Court noted that its decision was in line with Massachusetts statutes exempting certain nonprofit organizations, volunteer managers and coaches, and owners of land who permit the public to use their land for recreational purposes without imposing a fee from liability for negligence. Id. (noting that enforcement also comports with a policy of “encouragement of athletic activities [*41]  for minors” and does not conflict with Massachusetts statutory law requiring court approval of minor settlements).

Likewise in BJ’s Wholesale Club, Inc. v. Rosen, the defendant wholesale club sought to dismiss a negligence claim brought on behalf of a minor due to the fact that the parents had signed an exculpatory agreement on behalf of the child. Rosen, 80 A.3d at 346. The Maryland Court of Appeals, Maryland’s high court, held that the exculpatory agreement was valid, rejecting the parents’ argument that the agreement should be invalidated through the States’ parens patrie authority. The Rosen Court noted, however, that such authority was only invoked where a parent is unfit or in the context of juvenile delinquency. Id. at 361. As the Maryland Court of Appeals explained: “We have, thus, never applied parens patriae to invalidate, undermine, or restrict a decision, such as the instant one, made by a parent on behalf of her child in the course of the parenting role.” Id. at 362. Ultimately, the Maryland Court of Appeals upheld the validity of the agreement, relying also on Maryland statutes allowing parents to make financial, medical, mental health, and educational decisions for their children Id. (citing Md. Code Ann., Cts. & Jud. Proc. § 6-405 (allowing parents [*42]  to settle claims on behalf of minors without court approval);5 Md. Code Ann., Educ. § 7-301 (allowing parents the choice to homeschool their children); Md. Code Ann., Health-Gen. § 10-610 (allowing a parent to commit a child to mental health services under limited circumstances); Md. Code Ann., Health-Gen. § 20-102 (giving parents the authority to consent to a minor’s medical treatment)). At least one federal case interpreting state law has also enforced such an agreement. See Kelly v. United States, No. 7:10-CV-172-FL, 2014 U.S. Dist. LEXIS 135289, 2014 WL 4793009, at *5 (E.D. N.C. Sept. 25, 2014) (holding that upholding releases signed by parents on behalf of children “serve[s] the public interest by respecting the realm of parental authority to weigh the risks and costs of physical injury to their children against the benefits of the child’s participation in an activity”).

5 The Rosen Court found this statute particularly instructive, as other jurisdictions where exculpatory agreements signed by parents were unenforceable had often relied upon statutes that required court approval for parents to settle lawsuits on behalf of minors as next friend. Rosen, 80 A.3d at 356-57; see also infra, for additional discussion of this factor.

In addition to these cases, it appears that other jurisdictions have likewise upheld similar exculpatory agreements signed on behalf of children without reliance on the fundamental parental rights doctrine. See Hohe v. San Diego Unified Sch. Dist., 224 Cal. App. 3d 1559, 274 Cal. Rptr. 647 (Ct. App. 1990) (holding, with little analysis regarding the public policy in favor or against such a rule, that “[a] parent may contract on behalf of his or her children” even in the context of a release); Kondrad ex rel. McPhail v. Bismarck Park Dist., 2003 ND 4, ¶ 5, 655 N.W.2d 411, 413 (including no analysis as to the issue of whether [*43]  a parent may waive claims on behalf of a minor); Osborn v. Cascade Mountain, Inc., 2003 WI App 1, ¶ 10, 259 Wis. 2d 481, 655 N.W.2d 546 (same). In still other states, court decisions refusing to enforce such agreements have been legislatively overturned. See Cooper v. Aspen Skiing Co., 48 P.3d 1229 (Colo. 2002), superseded by Colo. Rev. Stat. Ann. § 13-22-107 (declaring it the public policy of Colorado to permit “a parent of a child to release a prospective negligence claim of the child against” organizations that provide “sporting, recreational, educational, and other activities where certain risks may exist”); Kirton v. Fields, 997 So. 2d 349, 358 (Fla. 2008), somewhat superseded by Fla. Stat. Ann. § 744.301 (permitting a parent to waive a child’s future cause of action only as to the inherent risks of an activity against a “commercial activity provider,” not claims resulting from the provider’s own negligence). Sky High therefore argues that this Court should follow the “strong shift” in the law in favor of enforceability based upon Tennessee and federal constitutional law regarding the state’s inability to interfere in the parenting decisions of fit parents.

That is not to say, however, that jurisdictions that enforce exculpatory agreements or liability waivers signed on behalf of children by their parents enjoy a distinct majority in the United States. Indeed, even as recently as 2010, one court [*44]  characterized the state of the law as the opposite–that “a clear majority” of courts have held in favor of finding such agreements unenforceable. Galloway v. State, 790 N.W.2d 252, 258 (Iowa 2010). Compared with the approximately nine jurisdictions wherein courts or legislatures have enforced such agreements, our research has revealed at least fourteen jurisdictions wherein courts have specifically held that exculpatory, release, or indemnification agreements signed by parents on behalf of children are unenforceable. See Chicago, R.I. & P. Ry. Co. v. Lee, 92 F. 318, 321 (8th Cir. 1899); J.T. ex rel. Thode v. Monster Mountain, LLC, 754 F. Supp. 2d 1323, 1328 (M.D. Ala. 2010) (applying Alabama law and “the weight of authority in other jurisdictions”); Fedor v. Mauwehu Council, Boy Scouts of Am., Inc., 21 Conn. Supp. 38, 143 A.2d 466 (Conn. Super. Ct. 1958); Meyer v. Naperville Manner, Inc., 262 Ill. App. 3d 141, 145, 634 N.E.2d 411, 413, 199 Ill. Dec. 572 (Ill. 1994); Galloway v. State, 790 N.W.2d 252, 258 (Iowa 2010); Doyle v. Bowdoin College, 403 A.2d 1206, 1208 n.3 (Me. 1979); Woodman ex rel. Woodman v. Kera LLC, 486 Mich. 228, 785 N.W.2d 1 (Mich. 2010); Khoury v. Saik, 203 Miss. 155, 33 So. 2d 616, 618 (1948) (reaffirmed in Burt v. Burt, 841 So. 2d 108 (Miss. 2001)); Fitzgerald v. Newark Morning Ledger Co., 111 N.J. Super. 104, 108, 267 A.2d 557, 559 (N.J. Law. Div. 1970); Valdimer v. Mount Vernon Hebrew Camps, Inc., 9 N.Y.2d 21, 24, 172 N.E.2d 283, 285, 210 N.Y.S.2d 520 (N.Y. 1961); Ohio Cas. Ins. Co. v. Mallison, 223 Or. 406, 412, 354 P.2d 800, 803 (Or. 1960); Shaner v. State Sys. of Higher Educ., 40 Pa. D. & C.4th 308, 313 (Com. Pl. 1998), aff’d without opinion, 738 A.2d 535 (Pa. Commw. Ct. 1999); Hawkins ex rel. Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062, somewhat superseded by Utah Code Ann. § 78B-4-203 (allowing a release against an “equine or livestock activity sponsor”);6 Munoz v. II Jaz Inc., 863 S.W.2d 207, 210 (Tex. App. 1993); Scott By & Through Scott v. Pac. W. Mountain Resort, 119 Wash. 2d 484, 494, 834 P.2d 6, 11 (Wash. 1992).

6 The Utah Supreme Court has recently announced that Hawkins remains valid law as to whether public policy invalidates an exculpatory agreement “in the absence of statutory language.” See Penunuri v. Sundance Partners, Ltd., 2013 UT 22, ¶ 28, 301 P.3d 984, 992

A few courts refusing to enforce these agreements have expressly considered, and rejected, similar arguments contending that enforcement is necessary to comport with a parent’s fundamental right to control his or her children. For example, the court in Woodman ex rel. Woodman v. Kera LLC rejected this argument on the ground that under such an analysis “a parent would be able to bind the child in any contract, [*45]  no matter how detrimental to the child,” including contracts where the law is well-settled that parents may not consent on behalf of their children. Woodman, 785 N.W.2d at 8 (quoting McKinstry v. Valley Obstetrics-Gynecology Clinic, P.C., 428 Mich. 167, 405 N.W.2d 88 (1987) (noting the general rule that “a parent has no authority to waive, release, or compromise claims by or against a child”). Rather, the Woodman Court noted that if such a massive shift in the law was warranted, the change should originate in the legislature, rather than the courts. Id. at 9-10.

The Iowa Supreme Court likewise considered an argument that the enforcement of pre-injury releases was in line with the “public policy giving deference to parents’ decisions affecting the control of their children and their children’s affairs.” Galloway, 790 N.W.2d at 256. The Galloway Court recognized that parents have a fundamental liberty interest “in the care, custody, and control of [their] children[.]” Id. (quoting Lamberts v. Lillig, 670 N.W.2d 129, 132 (Iowa 2003)). The Court noted, however, that this interest was “restricted to some extent by the public’s interest in the best interests of children.” Id. In support, the Court cited Iowa law preventing parents from waiving child support payments, preventing parents from receiving payments on behalf of a child of more than $25,000.00, and preventing conservators from compromising [*46]  a child’s cause of action absent court approval. Id. at 256-57 (citing Iowa Code § 598.21C(3) (stating that any modification to child support is void unless approved by the court); Iowa Code § 633.574 (limiting a parent’s ability to receive property on behalf of child to an aggregate value of $25,000.00); Iowa Code § 633.647(5) (requiring a child’s conservator to obtain court approval for the settlement of the child’s claim)). The Court further rejected the defendants’ claim that “recreational, cultural, and educational opportunities for youths will cease because organizations sponsoring them will be unable or unwilling to purchase insurance or otherwise endure the risks of civil liability,” finding such fear “speculative and overstated.” Id. at 258-59. The Galloway Court therefore held that inherent in Iowa law was “a well-established public policy that children must be accorded a measure of protection against improvident decisions of their parents.” Id. at 256. The Iowa Supreme Court therefore held that public policy prevented enforcement of the pre-injury release signed by a student’s mother regarding injuries the child sustained while on an educational field trip organized by a state university. Id. at 253.

Although the holding was later superseded by statute, the reasoning of the Colorado [*47]  Supreme Court on this issue is also illuminating. Cooper v. Aspen Skiing Co. involved a child injured in a skiing accident whose mother had signed a pre-injury release on his behalf. Cooper, 48 P.3d at 1230. In invalidating the release, the Colorado Supreme Court specifically held that a parent’s fundamental right to “the care, custody, and control of their children” did not extend to a parent’s decision to disclaim a minor’s potential future recovery for injuries caused by the negligence of a third party. Id. at 1235 n.11 (quoting Troxel, 530 U.S. at 65). As the Cooper Court explained:

 [HN13] A parental release of liability on behalf of his child is not a decision that implicates such fundamental parental rights as the right to “establish a home and bring up children,” Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L. Ed. 1042 (1923), and the right “to direct the upbringing and education of children under their control,” Pierce v. Soc’y of Sisters, 268 U.S. 510, 534-35, 45 S. Ct. 571, 69 L. Ed. 1070 (1925). Moreover, it does not implicate a parent’s “traditional interest . . . with respect to the religious upbringing of their children,” Wisconsin v. Yoder, 406 U.S. 205, 214, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972), or such medical decisions as a parent’s right to “retain a substantial . . . role” in the decision to voluntary commit his child to a mental institution (with the caveat that the child’s rights and the physician’s independent judgment also plays a role), Parham v. J.R., 442 U.S. 584, 604, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979); rather [*48]  a parental release on behalf of a child effectively eliminates a child’s legal right to sue an allegedly negligent party for torts committed against him. It is, thus, not of the same character and quality as those rights recognized as implicating a parents’ fundamental liberty interest in the “care, custody, and control” of their children.

Furthermore, even assuming arguendo, that a parental release on behalf of a minor child implicates a parent’s fundamental right to the care, custody, and control of his child, this right is not absolute. Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 88 L. Ed. 645 (1944); People v. Shepard, 983 P.2d 1, 4 (Colo. 1999). Indeed, “[a]cting to guard the general interest in youth’s well being, the state as parens patriae may restrict the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor and in many other ways.” Prince v. Massachusetts, 321 U.S. [at] 166 . . . (footnotes omitted). In fact, “in order to protect a child’s well-being, the state may restrict parental control.” Shepard, 983 P.2d at 4.

Cooper, 48 P.3d at 1235 n.11.

Appellants argue that this Court should likewise reject any argument that the enforcement of liability waivers against minors is required by the fundamental parental rights doctrine. Based upon this split of authority, we must determine whether Tennessee public [*49]  policy favors a change in the rule established by this Court in Childress.

D.

[HN14] “‘[T]he public policy of Tennessee is to be found in its constitution, statutes, judicial decisions and applicable rules of common law.'” In re Baby, 447 S.W.3d 807, 823 (Tenn. 2014) (quoting Cary v. Cary, 937 S.W.2d 777, 781 (Tenn.1996)). “Primarily, it is for the legislature to determine the public policy of the state, and if there is a statute that addresses the subject in question, the policy reflected therein must prevail.” Hyde v. Hyde, 562 S.W.2d 194, 196 (Tenn. 1978) (citing United States v. Trans-Missouri Freight Ass’n, 166 U.S. 290, 17 S. Ct. 540, 41 L. Ed. 1007 (1897)). In order to determine whether a contract “is inconsistent with public policy, courts may consider the purpose of the contract, whether any violation is inherent in the contract itself, as opposed to merely a collateral consequence, and, finally, whether the enforcement of the contract will have a detrimental effect on the public.” Baby, 447 S.W.3d at 823 (citing Baugh v. Novak, 340 S.W.3d 372, 382 (Tenn. 2011)). “‘The principle that contracts in contravention of public policy are not enforceable should be applied with caution and only in cases plainly within the reasons on which that doctrine rests.'” Home Beneficial Ass’n v. White, 180 Tenn. 585, 589, 177 S.W.2d 545, 546 (1944) (quoting Twin City Pipe Line Co. v. Harding Glass Co., 283 U.S. 353, 356-57, 51 S. Ct. 476, 477, 75 L. Ed. 1112 (1931)).

Here, there can be no doubt that the Tennessee public policy, as evidenced by the Tennessee Supreme Court’s decision in Hawk, does not favor intervention in the parental decisions of fit parents. See Hawk, 855 S.W.2d at 579. As such, where a fit [*50]  parent makes a parental decision, our courts generally will not interfere. Id. Courts in Tennessee have cited Hawk to protect a parent’s right most often in the context of dependency and neglect proceedings, termination of parental rights proceedings, parentage actions, child custody proceedings, and grandparent visitation proceedings. See, e.g., In re Carrington H., 483 S.W.3d 507 (Tenn.), cert. denied sub nom. Vanessa G. v. Tenn. Dep’t of Children’s Servs., 137 S. Ct. 44, 196 L. Ed. 2d 28 (2016) (involving termination of parental rights); Lovlace v. Copley, 418 S.W.3d 1, 26 (Tenn. 2013) (involving grandparent visitation); In re Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007) (involving termination of parental rights); In re Adoption of Female Child, 896 S.W.2d 546, 548 (Tenn. 1995) (involving custody of a child); Broadwell by Broadwell v. Holmes, 871 S.W.2d 471, 476-77 (Tenn. 1994) (limiting parental immunity only “to conduct that constitutes the exercise of parental authority, the performance of parental supervision, and the provision of parental care and custody”); McGarity v. Jerrolds, 429 S.W.3d 562 (Tenn. Ct. App. 2013) (involving grandparent visitation); State v. Cox, No. M1999-01598-COA-R3-CV, 2001 Tenn. App. LEXIS 496, 2001 WL 799732, at *10 (Tenn. Ct. App. July 17, 2001) (involving dependency and neglect); Matter of Hood, 930 S.W.2d 575, 578 (Tenn. Ct. App. 1996) (involving a parentage action). In one case, Hawk was cited as support for a parent’s right to control a child’s access to the telephone and to “consent . . . vicariously to intercepting, recording and disclosing the child’s conversation with [f]ather.” Lawrence v. Lawrence, 360 S.W.3d 416, 421 (Tenn. Ct. App. 2010). In another case, however, this Court held that a parent’s [*51]  fundamental right to rear his or her children was not violated by a Tennessee law allowing physicians to prescribe contraceptives to minors without parental authorization. See Decker v. Carroll Acad., No. 02A01-9709-CV-00242, 1999 Tenn. App. LEXIS 336, 1999 WL 332705, at *13 (Tenn. Ct. App. May 26, 1999).

Additionally, this policy of protecting fundamental parental rights is often reflected in our statutory law. For example, Tennessee Code Annotated section 34-1-102 provides that parents are equally charged with the “care, management and expenditure of [their children’s] estates.” Another statute, Tennessee Code Annotated section 37-1-140, states in relevant part:

A custodian to whom legal custody has been given by the court under this part has the right to the physical custody of the child, the right to determine the nature of the care and treatment of the child, including ordinary medical care and the right and duty to provide for the care, protection, training and education, and the physical, mental and moral welfare of the child, subject to the conditions and limitations of the order and to the remaining rights and duties of the child’s parents or guardian.

Tenn. Code Ann. § 37-1-140(a).7 Other statutes littered throughout the Tennessee Code also reflect this policy. See, e.g., Tenn. Code Ann. § 33-8-303 (giving a parent authority to submit minor child to convulsive therapy, but only if neither the child nor the child’s [*52]  other parent object to the treatment); Tenn. Code Ann. § 36-3-106 (giving a parent authority to consent to a minor’s marriage); Tenn. Code Ann. § 47-25-1105 (giving parents the authority to solicit minor child’s name, photograph, or likeness); Tenn. Code Ann. § 49-2-124 (giving a parent authority to submit their minor child to involuntary mental health or socioemotional screening); Tenn. Code Ann. § 50-5-105 (giving parents the authority to consent to the employment of their minor children aged sixteen or seventeen with certain restrictions set by the state); Tenn. Code Ann. § 62-38-305 (giving a parent the authority to consent to a minor’s body piercing, given certain limitations); Tenn. Code Ann. § 68-1-118 (allowing parents to consent to the release of protected health information of their minor children); Tenn. Code Ann. § 68-117-104 (allowing parents to consent to minor’s use of tanning devices).

7 We note that this Court recently held that under the specific language of the trust agreement at issue, it was “without question the trustee has the right under the Trust Agreement to agree to arbitration binding the Minor beneficiary as to claims or demands once they have arisen.” Gladden v. Cumberland Trust & Inv. Co., No. E2015-00941-COA-R9-CV, 2016 Tenn. App. LEXIS 203, 2016 WL 1166341, at *5 (Tenn. Ct. App. Mar. 24, 2016), perm. app.granted (Aug. 18, 2016). The Court held however that the trustee had no power to agree to arbitration of unknown future claims. 2016 Tenn. App. LEXIS 203, [WL] at *6. The situation is distinguishable from this cause for three reasons: (1) the case involved a question of a trustee’s authority under a specific trust agreement, rather than a question of a parent’s authority based upon the Tennessee and federal constitutions; (2) the Court held that the language of the agreement, rather than public policy considerations, required it to hold that the trustee had no power to agree to arbitrate unknown disputes; (3) the agreement at issue was an agreement to arbitrate, which limits only the forum in which a claim may be raised, rather than limiting liability. See Buraczynski v. Eyring, 919 S.W.2d 314, 319 (Tenn. 1996) (holding that arbitration agreements “do not limit liability, but instead designate a forum that is alternative to and independent of the judicial forum”). As such, the Gladden Opinion is inapposite to the issues raised in this case. Furthermore, because the Tennessee Supreme Court recently granted permission for appeal of the Gladden case, we await final resolution of the issues decided therein. – 26 –

The fundamental parental rights doctrine, however, is not absolute. See Prince, 321 U.S. at 166 (“Acting to guard the general interest in youth’s well[-]being, the state as parens patriae may restrict the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor, and in many other ways.”) (footnotes omitted). Indeed, as recently as 2011, the Tennessee Supreme [*53]  Court recognized the courts’ power to invalidate certain contracts made by parents on behalf of minors. See Wright ex rel. Wright v. Wright, 337 S.W.3d 166 (Tenn. 2011). In Wright, a minor was seriously injured in an automobile accident, and her father retained the services of an attorney to represent him and the child in a lawsuit to recover for her injuries. Id. at 170. In connection with the representation, the father signed a one-third contingency fee with the attorney. The agreement noted, however, that fees on behalf of the minor would require court approval. The father thereafter filed a complaint on behalf of the child as next friend. Because the child’s parents were divorced, the trial court eventually appointed a guardian ad litem for the child. Ultimately, the parties agreed to settle the case for $425,000 on behalf of the child, as well as courts costs, guardian ad litem fees, and other expenses. The document evincing the agreement also indicated that the parties agreed to the “contractual attorney’s fees.” Id. at 171.

A dispute soon arose between the guardian ad litem and the retained attorney over the amount of attorney’s fees owed to the attorney; while the retained attorney contended he was entitled to one-third of [*54]  the settlement amount, the guardian ad litem asserted that the retained attorney was only entitled to a reasonable fee as set by the court. Id. The trial court eventually entered an order awarding the retained attorney his full fee under the contingency contract. Id. at 172. The Court of Appeals reversed and remanded for a recalculation of the fees. Id. The trial court held a hearing and ultimately awarded $131,000.00 in attorney’s fees. Id. at 175 (citing Wright v. Wright, No. M2007-00378-COA-R3-CV, 2007 Tenn. App. LEXIS 764, 2007 WL 4340871, at *1 (Tenn. Ct. App. Dec. 12, 2007) (hereinafter, “Wright I”)). After the fee was affirmed by the Court of Appeals, the Tennessee Supreme Court granted the guardian ad litem’s application for permission to appeal. Id. at 176.

As is relevant to this case, the Tennessee Supreme Court first reaffirmed “the long-standing” principle in Tennessee that “a next friend representing a minor cannot contract with an attorney for the amount of the attorney’s fee so as to bind the minor[.]” Id. at 179 (citing City of Nashville v. Williams, 169 Tenn. 38, 82 S.W.2d 541, 541 (1935)). In reaching this decision, the Wright Court noted two statutes allowing Tennessee courts the power to approve settlements made on behalf of minors. Wright, 337 S.W.3d at 178. First, Tennessee Code Annotated section 34-1-121 provides, in pertinent part:

In any action, claim, or suit in which a minor or person with a disability is a party [*55]  or in any case of personal injury to a minor or person with a disability caused by the alleged wrongful act of another, the court in which the action, claim, or suit is pending, or the court supervising the fiduciary relationship if a fiduciary has been appointed, has the power to approve and confirm a compromise of the matters in controversy on behalf of the minor or person with a disability. If the court deems the compromise to be in the best interest of the minor or person with a disability, any order or decree approving and confirming the compromise shall be binding on the minor or person with a disability.

Tenn. Code Ann. § 34-1-121(b); see also Vannucci v. Memphis Obstetrics & Gynecological Ass’n, P.C., No. W2005-00725-COA-R3-CV, 2006 Tenn. App. LEXIS 464, 2006 WL 1896379, at *11 (Tenn. Ct. App. July 11, 2006) (holding that where a settlement involves a minor, section 34-1-121 “requir[es]” that the trial court “go beyond its normal role” and approve or disapprove of the proposed settlement). Likewise, Section 29-34-105 requires an in-chambers hearing attended by both the minor and his or her guardian in order to approve a settlement totaling more than $10,000.00. From these statutes, the Tennessee Supreme Court concluded that  [HN15] Tennessee public policy allows courts to “assume a special responsibility to protect a minor’s interests.” [*56]  Wright, 337 S.W.3d at 178. The Wright Court therefore affirmed the ruling that the retained attorney was not entitled to the contractual fee, but merely to a reasonable fee as set by the court. Id. Ultimately, the Tennessee Supreme Court affirmed the trial court’s award of $131,000.00 in attorney’s fees. Id. at 188.

From Wright, we can glean that  [HN16] Tennessee’s public policy includes a well-settled principle requiring courts to act as parens patriae to protect a child’s financial interests. Indeed, Tennessee statutory law, the most salient source of Tennessee public policy, includes several statutes that offer protections for a minor’s financial interests, even if that protection interferes with a parent’s decisions. See Tenn. Code Ann. § 29-34-105 (requiring court approval of settlements on behalf of minors of more than $10,000.00); Tenn. Code Ann. § 34-1-102(a) (limiting a parent’s use of child’s income to only “so much . . . as may be necessary . . . (without the necessity of court authorization) for the child’s care, maintenance and education”); Tenn. Code Ann. § 34-1-121(b) (giving the court power to approve settlements on behalf of minors where the settlement is in the minor’s best interest); Tenn. Code Ann. § 34-1-122 (authorizing the court to approve or disapprove of “expenditures of income or principal of the property of [*57]  the minor or person with a disability” and providing limits on the type of “gift program[s]” that may be approved). The Tennessee Supreme Court previously characterized these statutes as “plac[ing] the responsibility and burden upon the court to act for the minor.” Busby v. Massey, 686 S.W.2d 60, 63 (Tenn. 1984). When these statutes are implicated, “the trial court is not bound by desires, interests or recommendations of attorneys, parents, guardians or others.” Id. (citing Rafferty v. Rainey, 292 F. Supp. 152 (E.D. Tenn. 1968)); see also Wright I, 2007 Tenn. App. LEXIS 764, 2007 WL 4340871, at *1 (“By caselaw and by statute the settlement of a case brought by a minor for personal injuries must be approved by the court, and the court must ensure that the settlement itself is in the best interests of the minor.”) (emphasis added).

In addition to statutes on this subject, Tennessee caselaw provides another significant protection for the financial interests of a minor even against his or her parent: a parent may not, by agreement, waive the child’s right to support from the other parent. Huntley v. Huntley, 61 S.W.3d 329, 336 (Tenn. Ct. App. 2001) (citing Norton v. Norton, No. W1999-02176-COA-R3-CV, 2000 Tenn. App. LEXIS 13, 2000 WL 52819, at *4 (Tenn. Ct. App. Jan.10, 2000)). As this Court explained: “It is against public policy to allow the custodial parent to waive the child’s right to support[,]” as the child is the beneficiary of the support, not the parent. [*58]  A.B.C. v. A.H., No. E2004-00916-COA-R3-CV, 2005 Tenn. App. LEXIS 18, 2005 WL 74106, at *7 (Tenn. Ct. App. Jan. 13, 2005) (citing Pera v. Peterson, 1990 Tenn. App. LEXIS 874, 1990 WL 200582 (Tenn. Ct. App. Dec. 14, 1990)); see also Berryhill v. Rhodes, 21 S.W.3d 188, 192, 194 (Tenn. 2000) (holding that private agreements to circumvent child support obligations are against public policy). Such agreements are therefore “void as against public policy as established by the General Assembly.” Witt v. Witt, 929 S.W.2d 360, 363 (Tenn. Ct. App. 1996); see also Galloway, 790 N.W.2d at 256-57 (relying on Iowa law preventing parents from entering into agreements waiving child support as a reason for its rule invalidating waivers of liability signed by parents on behalf of minors). The Tennessee Supreme Court has likewise held that parents engaged in a child custody dispute “cannot bind the court with an agreement affecting the best interest of their children.” Tuetken v. Tuetken, 320 S.W.3d 262, 272 (Tenn. 2010). Finally, we note that Rule 17.03 of the Tennessee Rules of Civil Procedure allows a court to appoint a guardian ad litem for a child “at any time after the filing of the complaint” in two instances: (1) when the child has no duly appointed representative; or (2) when “justice requires” the appointment. Thus, Rule 17.03 allows the appointment of a guardian ad litem even when the child is represented by his or her parent in the capacity of next friend. See Gann v. Burton, 511 S.W.2d 244, 246 (Tenn. 1974) (holding that the court’s decision to appoint a guardian ad litem when “justice requires” is discretionary and is determined on a case-by-case basis). [*59]

Tennessee statutory law also contains other protections that arguably interfere with a parent’s right to the custody and control of his or her children, albeit not in a financial context. See Tenn. Code Ann. § 34-6-307 (granting a parent the right to refuse medical treatment for his or her child, unless the parent’s decision “jeopardize[s] the life, health, or safety of the minor child”); Tenn. Code Ann. § 37-10-303 (granting the parent the right to consent to his or her child’s abortion, but providing that, in the absence of parental consent, consent may be obtained from the court); Tenn. Code Ann. §§ 37-10-401 to -403 (placing on the parent the duty to vaccinate a child, unless certain religious exceptions apply); Tenn. Code Ann. § 49-6-3001 (requiring parents to enroll their school-aged children in school, unless exempted); Tenn. Code Ann. § 49-6-3009 (making it a crime for a parent who has control of a child to allow the child to be truant from a remedial institution); Tenn. Code Ann. § 49-6-3050 (regulating home schooling); Term. Code Ann. § 68-34-107 (allowing a physician to provide a minor with contraceptive if the minor obtains parental consent or simply if the minor “requests and is in need of birth control procedures, supplies or information”). Indeed, one statute specifically invalidates a contract entered into by the biological and adoptive parents if the [*60]  parties agree to visitation post-adoption. See Tenn. Code Ann. § 36-1-121(f) (“Any provision in an order of the court or in any written agreement or contract between the parent or guardian of the child and the adoptive parents requiring visitation or otherwise placing any conditions on the adoption shall be void and of no effect whatsoever[.]”).

Because of the statutory and caselaw in Tennessee providing protection for a minor’s financial and other interests, we first note that Tennessee law is clearly distinguishable from many of the cases in which enforcement of liability waivers was held to be appropriate. For example, the Connecticut Superior Court in Saccente v. LaFlamme specifically noted that its decision did not conflict with Connecticut public policy as evidenced by statutes because there was “no Connecticut law, and the [parties have] cited none, which affords such specific protections for minors.” Saccente, 2003 Conn. Super. LEXIS 1913, 2003 WL 21716586, at *6-7 (citing Conn. Gen. Stat. Ann. § 45a-631 (allowing parents to settle the claims of their children if the amount recovered is less than $10,000.00)). Likewise in BJ’s Wholesale Club, Inc. v. Rosen, the Maryland Court of Appeals noted that rather than having no statute prohibiting the practice of parental consent to minor settlements without [*61]  court approval, such practice was actually authorized by Maryland statutory law. See Rosen, 80 A.3d at 362 (citing Md. Code Ann., Cts. & Jud. Proc. § 6-405 (allowing parents to settle “any” claims on behalf of minors without court approval)). Clearly, the legal framework in Tennessee differs significantly from these other jurisdictions in this regard.

In addition, unlike in Sharon and Zivich, Sky High has cited to no statutes, nor has our research revealed any, that reflect Tennessee public policy in favor of sheltering from liability owners of land opened for recreational uses or unpaid athletic coaches and sponsors. See Sharon, 769 N.E.2d at 747 (citing Mass. Gen. Laws Ann. ch. 21, § 17C; Mass. Gen. Laws Ann. ch. 231, § 85V); Zivich, 696 N.E.2d at 204-05 (citing Ohio Rev. Code Ann. §§ 1533.18; 1533.181; 2305.381; 2305.382); Indeed, in Justice Deborah L. Cook’s concurrence in Zivich, she emphasized that her decision to concur was “firmly grounded in the public policy of the General Assembly, as evinced by the legislative enactments cited by the majority,” rather than any constitutional policy regarding parental rights. Zivich, 696 N.E.2d at 208 (Cook, J., concurring). Tennessee law has no such statutes that evince the Tennessee General Assembly’s desire to shield the operators of for-profit trampoline parks from liability.

Based on the foregoing, we conclude that the Colorado Supreme Court’s analysis on [*62]  this issue best aligns with existing Tennessee law. See Cooper, 48 P.3d at 1235 n.11. First, we note that Sky High has cited no law in which the fundamental right to care for and to control children, as recognized by the Tennessee Supreme Court in Hawk, has ever been utilized to uphold financial contracts entered into by the parent on behalf of the child, especially where the child’s right to recover money may be negated by the parents’ agreement. See id. (holding that “[a] parental release of liability on behalf of his child is not a decision that implicates such fundamental parental rights”). Indeed,  [HN17] where a child’s financial interests are threatened by a parent’s contract, it appears to be this State’s longstanding policy to rule in favor of protecting the minor. See Huntley, 61 S.W.3d at 336 (preventing parent from agreeing to waive child support). Moreover, as previously discussed, our General Assembly has enacted a multitude of statutes evincing a policy of protecting children’s finances from improvident decisions on the part of their parents. See, e.g., Tenn. Code Ann. §§ 34-1-102; 34-1-121(b). This policy of allowing courts to “assume a special responsibility to protect a minor’s interests” was reaffirmed by the Tennessee Supreme Court in [*63]  2011, well after the decisions in both Hawk and Troxel. See Wright, 337 S.W.3d at 178. Accordingly,  [HN18] parents in Tennessee, like parents in Colorado, simply do not have plenary power over the claims of their children, regardless of their fundamental parental rights. C.f. Cooper, 48 P.3d at 1235 n.11 (holding that a parent’s right to the custody, care, and control of his or her children is “not absolute”).8

8 Moreover, unlike the Colorado legislature, which enacted new law to overturn the decision in Cooper a mere year after that decision was filed, see Colo. Rev. Stat. Ann. § 13-22-107 (eff. May 14, 2003), the Tennessee General Assembly has chosen to take no action to overturn the rule adopted in Childress for the last twenty-five years.

We are cognizant that the above statutes as well as the Wright decision concern only the parent’s ability to settle a claim after an injury has occurred. See Wright, 337 S.W.3d at 178. At least two courts have held that similar rules have no application to a pre-injury waiver. See Sharon, 769 N.E.2d at 747 n.10 (citing Mass. Gen. Laws Ann. ch. 231, § 140C1/2) (providing that a court may approve a settlement on behalf of a minor when approval is requested by a party); Zivich, 696 N.E.2d at 201. As the Sharon Court explained:

[T]he policy considerations underlying [a post-injury release] are distinct from those at issue in the preinjury context. A parent asked to sign a preinjury release has no financial motivation to comply and is not subject to the types of conflicts and financial pressures that may arise in the postinjury settlement context, when simultaneously coping with an injured child. Such pressure can create the [*64]  potential for parental action contrary to the child’s ultimate best interests. In short, in the preinjury context, there is little risk that a parent will mismanage or misappropriate his child’s property.

Sharon, 769 N.E.2d at 747 n.10 (citing Zivich, 82 Ohio St. 3d 367, 1998 Ohio 389, 696 N.E.2d 201). This Court previously rejected a similar argument in Childress, stating:

Indemnification agreements executed by a parent or guardian in favor of tort feasors, actual or potential, committing torts against an infant or incompetent, are invalid as they place the interests of the child or incompetent against those of the parent or guardian. . . . Th[e] fact [that] the agreements at issue were executed pre-injury] does not change the rule, and indemnity provisions executed by the parent prior to a cause of action in favor of a child cannot be given effect. Were the rule otherwise, it would circumvent the rule regarding exculpatory clauses and the policy of affording protection in the law to the rights of those who are unable effectively to protect those rights themselves.

Childress, 777 S.W.2d at 7 (citing Valdimer, 172 N.E.2d at 285 (“Clearly, a parent who has placed himself in the position of indemnitor will be a dubious champion of his infant child’s rights.”)).

Nothing in Hawk or otherwise cited to this Court leads us to believe [*65]  that the decision in Childress on this particular issue was in error at the outset or has been changed by the fundamental parental rights doctrine. An agreement to waive all future claims arising out of an incident and to hold a third party harmless even from the third party’s negligence clearly has the potential to place the parent’s interest in conflict with the child’s interest. As the New Jersey Superior Court explained: “If such an agreement could be enforced it would be for the benefit of the [parent] to prevent the bringing of any suit on the claim of the infant no matter how advantageous such suit might be for the infant.” Fitzgerald, 267 A.2d at 559. The Oregon Supreme Court came to a similar conclusion:

As parent-guardian he owes a duty to act for the benefit of his child. That duty is not fully discharged where the parent enters into a bargain which gives rise to conflicting interests. The conflict may arise at the time of settlement when the parent has the opportunity to receive a sum of money in his own right as a part of the settlement in consideration for which he agrees to indemnity the defendant, and it may arise later when it is found advisable that his child bring action against the defendant [*66]  for injuries which had not been known at the settlement date. On either of these occasions there is a real danger that the child’s interest will be put in jeopardy because of the parent’s concern over his or her own economic interests. Certainly a parent who is called upon to decide whether his child should bring an action for injuries not known at the time of settlement is not likely to proceed with such an action in the face of knowledge that any recovery eventually will result in his own liability under an indemnity agreement.

Mallison, 354 P.2d at 802. The parent-child relationship has likewise been described as fiduciary by Tennessee courts in some situations. See Bayliss v. Williams, 46 Tenn. 440, 442 (1869) (“The relation may be of any kind which implies confidence, as trustee and beneficiary, attorney and client, parent and child, guardian and ward, physician and patient, nurse and invalid, confidential friend and adviser, indeed, any relation of confidence between persons which give one dominion or influence over the other[.]”); see also Robinson v. Robinson, 517 S.W.2d 202, 206 (Tenn. Ct. App. 1974) (noting that while the parent-child relationship may give rise to a fiduciary duty, that does not necessarily mean that the relationship is confidential for purposes of [*67]  undue influence or other legal questions). Accordingly, we agree with the courts in New Jersey, New York, and Oregon that  [HN19] the conflict requiring court approval of post-injury settlements involving minors is largely equal to the conflict created by a parent’s decision to sign a preinjury waiver on behalf of a minor.

Furthermore, in our view, a pre-injury waiver is largely analogous to a contract containing a contingency fee. In the context of a pre-injury waiver, the parent must weigh the benefit of the activity with potential injury that may occur, but the injury is merely hypothetical at that time. Likewise, when a parent signs a contingency fee agreement, the parent must weigh the benefits of the representation against the attorney’s fees that will be owed from the child’s recovery. At the time of the signing of the agreement, however, such recovery is merely hypothetical. Accordingly, similar interests and conflicts are inherent in both transactions.  [HN20] Because the Tennessee Supreme Court has held that contingency fee agreements signed by parents are invalid, despite the fact that no statute expressly prohibits such action, see Wright, 337 S.W.3d at 178, we likewise conclude that pre-injury waivers of [*68]  liability and indemnification agreements are unenforceable under Tennessee law.

Finally, we cannot discount the fact that Tennessee’s public policy may also be determined from our case law. See Baby, 447 S.W.3d at 823. As previously discussed, this Court determined in 1989 that contracts such as the one at issue in this case were unenforceable under Tennessee law. See Childress, 777 S.W.2d at 6. This Court has previously grappled with the question of whether our Opinions, published in the official reporter and denied permission to appeal by the Tennessee Supreme Court, are entitled to stare decisis effect. Compare Evans v. Steelman, No. 01-A-01-9511-JV00508, 1996 Tenn. App. LEXIS 625, 1996 WL 557844, at *2 (Tenn. Ct. App. Oct. 2, 1996), aff’d, 970 S.W.2d 431 (Tenn. 1998) (holding that where only one issue was decided by the Court of Appeals, the denial of permission to appeal by the Tennessee Supreme Court should be read as approval of the Court of Appeals’s holding until the Tennessee Supreme Court “change[s] its mind”); with Evans, 1996 Tenn. App. LEXIS 625, 1996 WL 557844, at *8 (Koch, J., dissenting) (citing Swift v. Kirby, 737 S.W.2d 271, 277 (Tenn. 1987)) (“The doctrine of stare decisis does not apply with full force to principles that have not been directly adopted by the Tennessee Supreme Court.”); see also Hardy v. Tournament Players Club at Southwind, Inc., No. W2014-02286-COA-R9-CV, 2015 Tenn. App. LEXIS 524, 2015 WL 4042490, at *16 (Tenn. Ct. App. July 2, 2015) (Gibson, J., dissenting), perm. app. [*69]  granted (Tenn. Dec. 9, 2015) (noting the “the oddity of a Court of Appeals judge asserting that our own opinions may not have stare decisis effect[,]” in the context of an unpublished opinion of the Court of Appeals). If entitled to consideration under the stare decisis doctrine, we are “require[d] . . . to uphold our prior precedents to promote consistency in the law and to promote confidence in this Court’s decisions . . . [unless there is] an error in the precedent, when the precedent is obsolete, when adhering to the precedent would cause greater harm to the community than disregarding stare decisis, or when the prior precedent conflicts with a constitutional provision.” Cooper v. Logistics Insight Corp., 395 S.W.3d 632, 639 (Tenn. 2013).

It appears that the issue was settled, however, by the Tennessee Supreme Court’s 1999 amendment to Rule 4 of the Rules of the Tennessee Supreme Court. See In re Amendment to Supreme Court Rule 4 (Tenn. Nov. 10, 1999), https://www.tncourts.gov/sites/default/files/sc_rule_4_amd_publ_opin.pdf (deleting the prior rule and adopting a new rule). Under Rule 4 of the Rules of the Tennessee Supreme Court, “[o]pinions reported in the official reporter . . . shall be considered controlling authority for all purposes unless and until such opinion is reversed or modified by a court of competent jurisdiction.” Accordingly, regardless of whether stare decisis applies in this case, it remains controlling authority in this case until overturned. As such, we will not [*70]  overrule the Childress decision lightly, especially given the over twenty-five years that it has operated as the law in Tennessee.

A similar issue was raised in Woodman ex rel. Woodman v. Kera LLC, 486 Mich. 228, 785 N.W.2d 1 (Mich. 2010). As previously discussed, the Michigan Supreme Court first recognized the well-settled rule that “a parent has no authority to waive, release, or compromise claims by or against a child[.]” Id. at 8. The Woodman Court therefore framed the issue as whether that well-settled rule should be altered due to changing policy considerations. The Michigan Supreme Court declined the invitation, holding that such a dramatic shift in public policy was best left to the state legislature:

There is no question that, if this Court were inclined to alter the common law, we would be creating public policy for this state. Just as “legislative amendment of the common law is not lightly presumed,” this Court does not lightly exercise its authority to change the common law. Indeed, this Court has acknowledged the prudential principle that we must “exercise caution and . . . defer to the Legislature when called upon to make a new and potentially societally dislocating change to the common law.”

Woodman, 785 N.W.2d at 9 (footnotes omitted) (quoting Wold Architects & Engineers v. Strat, 474 Mich. 223, 233, 713 N.W.2d 750 (Mich. 2006); Henry v. Dow Chem. Co., 473 Mich. 63, 89, 701 N.W.2d 684 (Mich. 2005)) (citing Bott v. Commission of Natural Resources, 415 Mich. 45, 327 N.W.2d 838 (Mich. 1982)).

The same is true in [*71]  this case. As previously discussed, the Childress Opinion was decided over twenty-five years ago. Since that time, both the Tennessee Supreme Court and the Tennessee General Assembly have had ample opportunity to affirmatively act to change the rule established in Childress. See Childress, 777 S.W.2d at 1 (noting that permission to appeal to the Tennessee Supreme Court was denied); Rogers v, 807 S.W.2d at 242 (same). Indeed, the Childress Opinion specifically invited both the Tennessee Supreme Court and the Tennessee General Assembly to scrutinize its holding. See Childress, 777 S.W.2d at 8. Despite this fact, the Childress rule has remained unaltered for more than two decades.

Other courts have questioned the danger presented to recreational activities participated in by minors in refusing to enforce liability waivers or exculpatory agreements. See, e.g., Sharon, 769 N.E.2d at 747 (holding that declining to enforce these waivers would “inevitably [be] destructive to school-sponsored programs”); Zivich, Inc., 696 N.E.2d at 205 (noting the threat that recreational activities will not be available to children without the enforcement of waivers). Indeed, even the Childress Court noted that possible threat posed by its ruling. See Childress, 777 S.W.2d at 7-8 (discussing whether its rule will have a chilling [*72]  effect on recreational activities for children). Given the twenty-five years under which Tennessee has been applying the rule adopted in Childress, however, we need not speculate as to the dire consequences that may result to children’s recreational opportunities. Indeed, Tennessee law is replete with instances of children participating in, and becoming injured by, recreational activities. See, e.g., Neale v. United Way of Greater Kingsport, No. E2014-01334-COA-R3-CV, 2015 Tenn. App. LEXIS 607, 2015 WL 4537119, at *1 (Tenn. Ct. App. July 28, 2015) (involving a child injured in a woodworking shop operated by the Boys and Girls Club); Pruitt v. City of Memphis, No. W2005-02796-COA-R3-CV, 2007 Tenn. App. LEXIS 24, 2007 WL 120040, at *1 (Tenn. Ct. App. Jan. 18, 2007) (involving a child injured at a public swimming pool); Tompkins v. Annie’s Nannies, Inc., 59 S.W.3d 669 (Tenn. Ct. App. 2000) (involving a child injured in a downhill race organized by her day care center); Livingston, as Parent, Next Friend of Livingston v. Upper Cumberland Human Res. Agency, No. 01A01-9609-CV-00391, 1997 Tenn. App. LEXIS 163, 1997 WL 107059, at *1 (Tenn. Ct. App. Mar. 12, 1997) (involving a child injured at a church retreat); Cave v. Davey Crockett Stables, No. 03A01-9504CV00131, 1995 Tenn. App. LEXIS 560, 1995 WL 507760, at *1 (Tenn. Ct. App. Aug. 29, 1995) (involving a child injured at summer camp).9 In fact, Sky High has provided this Court with no evidence that recreational activities open to minors have in any way been hindered by the Childress rule. Accordingly, we can easily dismiss any claim that refusing to enforce waivers of liability against children will in any way limit the recreational opportunities open to children in Tennessee.

9 In Cave, the child’s parent signed “a consent [form] for the child to participate in the activity and . . . a release releasing [one of the defendants] from any liability for personal injuries received by the child.” 1995 Tenn. App. LEXIS 560, [WL] at *1. The Court never reached the issue, however, because of a statute that precluded liability for certain equine activities. Id. (citing Tenn. Code Ann. § 44-20-103).

Based [*73]  on the foregoing, we conclude that there is no basis to depart from this Court’s well-reasoned decision in Childress. Because the law in Tennessee states that parents may not bind their minor children to pre-injury waivers of liability, releases, or indemnity agreements, the trial court did not err in refusing to enforce the waiver of liability and indemnity provisions of the release signed by Mother on behalf of Son.

IV.

Appellants next argue that the trial court erred in denying their request to amend their complaint to include a request for pre-majority medical expenses incurred on behalf of the child. Here, the trial court specifically found that “for a minor’s injuries[,] the claim for medical expenses [is] a separate and distinct claim of the parent[.]” According to the trial court, because Mother waived her right to recover from Sky High, Mother “could not effectively assign them or waive them to her son to allow him to pursue them.” The trial court therefore partially denied Appellants’ motion to amend their complaint.

As previously discussed,  [HN21] a trial court’s decision on a motion to amend a pleading is reviewed under an abuse of discretion standard. Fann v. City of Fairview, 905 S.W.2d 167, 175 (Tenn.Ct.App.1994). Rule 15.01 of the Tennessee Rules of Civil Procedure provides that leave of court [*74]  to amend pleadings “shall be freely given when justice so requires.” The Tennessee Supreme Court has recognized that the language of Rule 15.01 “substantially lessens the exercise of pre-trial discretion on the part of a trial judge.” Branch v. Warren, 527 S.W.2d 89, 91 (Tenn. 1975); see also Hardcastle v. Harris, 170 S.W.3d 67, 80-81 (Tenn. Ct. App. 2004). In considering a motion to amend, a trial court is to consider several factors, including: “undue delay in filing the amendment, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and the futility of the amendment.” Gardiner v. Word, 731 S.W.2d 889, 891-92 (Tenn. 1987).

Although not termed as such by the trial court, it appears to this Court that the trial court denied Appellants’ motion to alter or amend on the basis of futility–that is, because Son could not recover pre-majority medical expenses even if requested in the complaint, the amendment served no purpose.10 Sky High argues that the trial court was correct in its decision, citing the Tennessee Supreme Court’s decision in Dudley v. Phillips, 218 Tenn. 648, 651, 405 S.W.2d 468 (Tenn. 1966).  [HN22] In Dudley, the Tennessee Supreme Court held that when a child is injured, two “separate and distinct causes of action” are created: (1) a cause of action on behalf of the parent for “loss [*75]  of services [and] medical expenses to which [the parent] will be put”; and (2) “another and distinct cause of action arises in favor of the child for the elements of damage to him, such as pain and suffering, disfigurement, etc.” Id. at 469 (quoting 42 A.L.R. 717 (originally published in 1926)). The rule expressed in Dudley has been reaffirmed by Tennessee courts on multiple occasions. See Vandergriff v. ParkRidge E. Hosp., 482 S.W.3d 545, 549 (Tenn. Ct. App. 2015); Neale v. United Way of Greater Kingsport, No. E2014-01334-COA-R3-CV, 2015 Tenn. App. LEXIS 607, 2015 WL 4537119, at *5 (Tenn. Ct. App. July 28, 2015); Luther, Anderson, Cleary & Ruth, P.C. v. State Farm Mut. Auto. Ins. Co., No. 03A01-9601-CV-00015, 1996 Tenn. App. LEXIS 244, 1996 WL 198233, at *3 (Tenn. Ct. App. Apr. 25, 1996); Rogers v. Donelson-Hermitage Chamber of Commerce, 807 S.W.2d 242, 247 (Tenn. Ct. App. 1990)). Indeed, the rule has been codified into Tennessee’s statutory law at Tennessee Code Annotated section 20-1-105, which provides, in relevant part: “The father and mother of a minor child have equal rights to maintain an action for the expenses and the actual loss of service resulting from an injury to a minor child in the parents’ service or living in the family . . . .” Tenn. Code Ann. § 20-1-105(a).

10 We note that this Court has previously held:

The court . . . should not deny a plaintiff’s Tenn. R. Civ. P. 15 Motion to Amend based on an examination of whether it states a claim on which relief can be granted. As the United States Supreme Court explained, “[i]f underlying facts or circumstances relied on by plaintiff may be proper subject of relief, he ought to be afforded opportunity to test his claim on merits and therefore should be permitted to amend [*76]  complaint.” Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962). If the legal sufficiency of the proposed Complaint is at issue–instead of delay, prejudice, bad faith or futility–the better protocol is to grant the motion to amend the pleading, which will afford the adversary the opportunity to test the legal sufficiency of the amended pleading by way of a Tenn. R. Civ. P. 12.02(6) Motion to Dismiss. See McBurney v. Aldrich, 816 S.W.2d 30, 33 (Tenn. Ct. App. 1991).

Conley v. Life Care Centers of Am., Inc., 236 S.W.3d 713, 724 (Tenn. Ct. App. 2007). Here, it does appear that the trial court judged the merits of Son’s claim for pre-majority expenses in denying Appellants’ motion to alter or amend. If we were to remand to the trial court with directions to grant the amendment, it is likely that the trial court would later grant a motion to dismiss this claim on the same basis that it denied the motion to amend. Consequently, we cannot discern how judicial economy would be furthered by requiring the above procedure. Furthermore, this Court in its order granting the interlocutory appeal specifically indicated that the question of “whether the minor child can recover medical expenses on his own behalf” was “appropriate” for interlocutory review. Accordingly, we proceed to consider the merits of this issue.

Sky High argues that because Mother’s claims were extinguished by her valid and undisputed execution of the waiver and indemnification language in the release, any claim for pre-majority medical expenses is likewise barred. Appellants agree that Mother has waived “her individual right to recover medical expenses incurred by her son.” Indeed, all of Mother’s individual claims were voluntarily dismissed in the trial court. Appellants also do not dispute the general rule that  [HN23] children may not claim pre-majority medical expenses as a measure of damages in the child’s lawsuit because those damages are owed solely to the parents. See Dudley, 405 S.W.2d at 469; see also Burke v. Ellis, 105 Tenn. 702, 58 S.W. 855, 857 (Tenn. 1900) (“It is not alleged or shown that the boy incurred any expense for medical services. It is alleged these were incurred by the father. Such an element was not proper in estimating the [*77]  damages in a case brought like this, by next friend, for the minor[.]”). Instead, Appellants argue that because Mother waived her claims by signing the release, the child is permitted to claim the medical expenses on his own behalf, with Mother acting in her capacity as next friend.

In support of their argument, Appellants cite the Tennessee Supreme Court’s decision in Wolfe v. Vaughn, 177 Tenn. 678, 152 S.W.2d 631 (Tenn. 1941). In Wolfe, the minor was injured in an automobile accident. Because her mother was deceased and her father incompetent, the minor filed suit with her grand uncle acting as next friend. Id. at 633. The jury eventually awarded the minor plaintiff damages, including pre-majority medical expenses. Id. at 632. On appeal, the defendants argued that the minor could not recover those expenses “the insistence being that the law confers no cause of action upon an infant for such expenses.” Id. at 633. The Tennessee Supreme Court agreed with the defendant’s contention generally, noting:

 [HN24] “Since the parent is entitled to the services and earnings of the child so long as the latter is legally under his custody or control, ordinarily an infant suing for personal injuries cannot recover for the impairment of his earning capacity during infancy, or for loss of time, [*78]  or for expenses in curing his injuries, when, and only when, he is under the control of his parents; after emancipation he may do so. However, he may recover for his mental or physical pain and sufferings, his permanent injuries, and for the impairment of his power to earn money after arriving at majority.”

Id. at 634 (quoting 31 C. J. 1114, 1115). The Wolfe Court held, however, that an exception to the rule should be present “where a child has no parent who can sue for such expenses that she can sue for and recover the same.” Wolfe, 152 S.W.2d at 634. Accordingly, the Tennessee Supreme Court adopted the following rule:

 [HN25] “A parent may waive or be estopped to assert his right to recover for loss of services, etc., by reason of injury to his minor child, and permit the child to recover the full amount to which both would be entitled, as where the parent as next friend brings an action on behalf of the child for the entire injury, or permits the case to proceed on the theory of the child’s right to recover for loss of services and earning capacity during minority. In such case the parent treats the child as emancipated in so far as recovery for such damages is concerned, and cannot thereafter be permitted to claim that he, [*79]  and not the child, was entitled to recover therefor.”

Id. at 633-34 (quoting 46 C. J. 1301, 1302).

This Court has considered the rule set down in Wolfe on a number of occasions. See Neale v. United Way of Greater Kingsport, No. E2014-01334-COA-R3-CV, 2015 Tenn. App. LEXIS 607, 2015 WL 4537119, at *8 (Tenn. Ct. App. July 28, 2015); Palanki ex rel. Palanki v. Vanderbilt Univ., 215 S.W.3d 380 (Tenn. Ct. App. 2006); Smith v. King, No. CIV.A. 958, 1984 Tenn. App. LEXIS 3174, 1984 WL 586817 (Tenn. Ct. App. Sept. 21, 1984). In Smith, the child, with his parent acting in the capacity of next friend, filed suit to recover for her injuries incurred when she was struck by a car. Smith, 1984 Tenn. App. LEXIS 3174, 1984 WL 586817, at *1. Because the parent’s claim was barred by the applicable statute of limitations, the child sought to recover not only the damages owed to him, but also for pre-majority medical expenses. Id. In Smith, we held that based upon a theory of waiver, as set down in Wolfe, “under circumstances where the parent has acted as next friend,” the child “may maintain an action for his medical expenses provided that he has paid them, as suggested in Burke, or is legally obligated to pay them.” Smith, 1984 Tenn. App. LEXIS 3174, 1984 WL 586817, at *2 (citing Burke, 58 S.W. at 857 (holding that it was error for the trial court to allow evidence of pre-majority medical expenses that were paid by the child’s parent)). The Smith court therefore remanded to determine “whether the child could bring herself within the exception to the general rule[.]” Id. The Smith Court, however, was not abundantly [*80]  clear as to who was actually required to have paid the expenses, the child or the parent, in order for the child to recover those damages in his or her suit.

The question was answered by this Court in Palanki ex rel. Palanki v. Vanderbilt Univ., 215 S.W.3d 380 (Tenn. Ct. App. 2006), no perm. app. filed. Like the child in Smith, the child in Palanki filed suit through his next friend. Although the parents’ claim was not barred by the statute of limitations, the child in Palanki nevertheless requested medical expenses incurred while he was a minor. Id. at 384. This Court held that the child “could properly maintain his own action for pre-majority medical expenses incurred or likely to be incurred by [the child’s mother] on his behalf[.]” Id. at 394. In reaching this result, this Court in Palanki characterized the rule “adopted” in Smith as allowing “a child under circumstances where the parent has acted as next friend [to] maintain an action for his medical expenses provided that [the parent] has paid for them . . . or is legally obligated to pay them.” Id. (alteration in original) (quoting Smith, 1984 Tenn. App. LEXIS 3174, 1984 WL 586817, at *2).11 This Court therefore held that evidence regarding the child’s pre-majority medical expenses was properly admitted and considered by the jury. Id. at 394.

11 The Palanki Court inexplicably states that this rule was adopted in Smith with no citation of any kind to the Tennessee Supreme Court’s seminal decision in Wolfe, upon which the Smith Court bases its analysis.

Recently, the United States District [*81]  Court for the Eastern District of Tennessee called into question the holding in Palanki. See Grant v. Kia Motors Corp., No. 4:14-CV-79, 2016 Tenn. LEXIS 816, 2016 WL 6247319 (E.D. Tenn. May 10, 2016).12 In Grant, the minor children were injured in an automobile accident, and the children’s mother filed suit in her capacity as next friend. 2016 Tenn. LEXIS 816, [WL] at *1. The district court, relying on Dudley, first ruled that any claims brought by the mother individually were not tolled due to the children’s minority. 2016 Tenn. LEXIS 816, [WL] at *8 (citing Tenn. Code Ann. § 29-28-103(a)) (containing an express tolling provision applicable to minors). Because the mother filed her action after the expiration of the statute of repose, her claims were barred. Grant, 2016 Tenn. LEXIS 816, 2016 WL 6247319, at *9.

12 Although federal interpretations of Tennessee law are not controlling on this Court, we may consider their analysis helpful in appropriate circumstances. See State v. Hunt, 302 S.W.3d 859, 863-64 (Tenn. Crim. App. 2009) (“[A] federal court’s interpretation of Tennessee law is not binding on the courts of this state.”).

The mother argued, however, that given that her individual claims were barred, her children were able to pursue pre-majority medical expenses under the theory of waiver espoused in Palanki. Id. The district court noted that under the interpretation of the waiver rule adopted in Palanki, Tennessee’s intermediate courts “would likely permit the minor Plaintiffs in this action to bring claims for their pre-majority medical expenses through their mother . . . as next friend.” Id. Under well-settled rules regarding federal courts sitting in diversity, the Grant court noted [*82]  that it “must follow state law as announced by the Supreme Court of Tennessee[,]” and “[w]here, as here, ‘a state appellate court has resolved an issue to which the high court has not spoken, we will normally treat [those] decisions . . . as authoritative absent a strong showing that the state’s highest court would decide the issue differently.'” Id. (quoting Kirk v. Hanes Corp. of North Carolina, 16 F.3d 705, 707 (6th Cir. 1994) (emphasis in original)). Based upon its reading of Wolfe and Smith, however, the district court stated that it was “convinced that the Supreme Court of Tennessee would not apply the waiver rule as announced in Palanki to the case at bar.” Grant, 2016 Tenn. LEXIS 816, 2016 WL 6247319, at *9. Specifically, the Grant court concluded that the Palanki Court wrongly interpreted the ambiguous language in Smith to allow a child to sue for expenses paid by the child’s parent when the opposite rule was intended by the Smith Court. 2016 Tenn. LEXIS 816, [WL] at *10 (citing Palanki, 215 S.W.3d at 394 (citing Smith, 1984 Tenn. App. LEXIS 3174, 1984 WL 586817, at *2)).

In reaching this conclusion, the district court first referenced the Tennessee Supreme Court’s ruling in Wolfe, noting that “the Wolfe court clearly addressed a situation in which the parents neither paid for nor were legally responsible for the child’s medical expenses.” Grant, 2016 Tenn. LEXIS 816, 2016 WL 6247319, at *10. The court in Grant likewise concluded that the Court of Appeals in Smith was concerned [*83]  only with those expenses paid by the minor himself. 2016 Tenn. LEXIS 816, [WL] at 11. In support, the district court noted that the proviso in the Smith Court’s holding that a claim for pre-majority medical expenses may stand “provided he has paid them,” cites the Tennessee Supreme Court’s decision in Burke v. Ellis. Grant, 2016 Tenn. LEXIS 816, 2016 WL 6247319, at *11 (citing Smith, 1984 Tenn. App. LEXIS 3174, 1984 WL 586817 at *2 (citing Burke, 58 S.W. at 857)). In Burke, the Tennessee Supreme Court ruled that the trial court erred in allowing evidence of pre-majority medical expenses in a case brought by the minor through his next friend. Burke, 58 S.W. at 857. Indeed, the Burke Court mentioned that there was no proof that the child was required to pay his own medical expenses. Id. (“[W]hile there is no proof that the child paid any expenses for medical treatment, there is a statement that such expenses were incurred and paid by the father[.]”). As such, the Grant court concluded that:

 [HN26] Burke unmistakably stands for the proposition that it is improper for a jury to consider medical expenses as relevant to damages where, as here, a minor brings claims by next friend. Moreover, by explicitly mentioning twice that there is no proof that the child paid any expenses for medical treatment, the court implies that the outcome may be different if such proof were presented. Accordingly, where [*84]  the Smith court says that the waiver rule applies to permit a child to recover medical expenses “provided that he has paid them, as suggested in Burke,” Smith, 1984 Tenn. App. LEXIS 3174, 1984 WL 586817 at *2, it is clear that the “he” to which the Smith court referred was intended to be “the child.”

Grant, 2016 Tenn. LEXIS 816, 2016 WL 6247319, at *11.

The Grant court also noted other portions of the ruling in Smith that supported its interpretation. For example, the Smith court cited two cases regarding the question of when a child is liable for necessaries furnished to him. Id. (citing Smith, 1984 Tenn. App. LEXIS 3174, 1984 WL 586817 at *2 (citing Gardner v. Flowers, 529 S.W.2d 708 (Tenn. 1975); Foster v. Adcock, 161 Tenn. 217, 30 S.W.2d 239 (Tenn. 1930)). In both of these cases, however, the dispute involved whether a child, not the child’s parent, was liable on a debt. See Grant, 2016 Tenn. LEXIS 816, 2016 WL 6247319, at *11 (citing Gardner, 529 S.W.2d at 711; Foster, 30 S.W.2d at 240). Additionally, the Grant court noted that the remand order in Smith indicates that the only pre-majority medical expenses that may be raised by the child are those that were paid by him or her. See Grant, 2016 Tenn. LEXIS 816, 2016 WL 6247319, at *12 (“It is clear . . . that the court remanded the case so that the minor plaintiff could present evidence that she, the child, had paid the medical expenses or was legally obligated to pay same.”). Indeed, the Smith Court remanded to the trial court to determine “whether the child could bring herself within the exception to the general rule[,]” despite the [*85]  fact that the record contained evidence that the father was billed for the child’s medical expenses. Smith, 1984 Tenn. App. LEXIS 3174, 1984 WL 586817 at *2. Were the rule in Smith that the child could bring a claim for pre-majority medical expenses paid by him or his parent, a remand would not have been necessary to ascertain whether the child could “bring herself within the [waiver] rule.” See id.

Finally, the Grant court noted two other considerations that required it to depart from this Court’s holding in Palanki: (1) the purpose of the waiver rule was allow a claim where there was no threat of double recovery; and (2) accepting the Palanki interpretation of the waiver rule would “allow a parent to collect as damages his/her child’s pre-majority medical expenses notwithstanding the fact that the parent’s individual claims are barred.” Grant, 2016 Tenn. LEXIS 816, 2016 WL 6247319, at *12. The Grant court concluded that such a result was untenable because it blurred the demarcation between the parent’s claims and the child’s claims and permitted the parent to evade the fact that his or her own claim was barred. Id.

Although it is certainly unusual for this Court to depart from the most recent reported Tennessee case on this subject in favor of an interpretation offered by a federal district [*86]  court, we must agree with the Court in Grant that the child in this case should not be able to claim pre-majority expenses paid by his parents in an effort to circumvent Mother’s execution of the release, including its waiver and indemnity provision. First, we note that although the Palanki decision is reported in the official reporter and therefore “controlling for all purposes,” Tenn. R. Sup. Ct. 4(G)(2), Palanki was published pursuant to Rule 11 of the Rules of the Tennessee Court of Appeals, where no application for permission to appeal to the Tennessee Supreme Court was filed. See Palanki, 215 S.W.3d at 380; see also Tenn. R. Ct. App. 11. As previously discussed, there is some question as to whether opinions of the Tennessee Court of Appeals which have been denied permission to appeal by the Tennessee Supreme Court are entitled to stare decisis effect. See generally Evans v. Steelman, No. 01-A-01-9511-JV00508, 1996 Tenn. App. LEXIS 625, 1996 WL 557844, at *2, *8 (Tenn. Ct. App. Oct. 2, 1996). But see Tenn. R. Sup. Ct 4(G)(2). Regardless, the Tennessee Supreme Court has specifically held that:R3-CV, 2009 Tenn. App. LEXIS 874, 2009 WL 4931324, at *4 (Tenn. Ct. App. Dec. 22, 2009) (quoting Davis v. Davis, No. M2003-02312-COA-R3-CV, 2004 Tenn. App. LEXIS 664, 2004 WL 2296507, at *6 (Tenn. Ct. App. Oct. 12, 2004) (“Once the Tennessee Supreme Court has addressed an issue, its decision regarding that issue is binding on the lower courts.”)); Thompson v. State, 958 S.W.2d 156, 173 (Tenn. Crim. App. 1997) (quoting State v. Irick, 906 S.W.2d 440, 443 (Tenn. 1995) (“[I]t is a controlling principle that inferior courts [*87]  must abide the orders, decrees and precedents of higher courts. The slightest deviation from this rigid rule would disrupt and destroy the sanctity of the judicial process.”)); Levitan v. Banniza, 34 Tenn. App. 176, 185, 236 S.W.2d 90, 95 (Tenn. Ct. App. 1950) (“This court is bound by the decisions of the Supreme Court.”). Accordingly, to the extent that the decision in Palanki conflicts with either Wolfe or Burke, we are required to disregard it.

 [HN27] [W]hen no application for review of an opinion of the intermediate courts is sought, it has no stare decisis effect, and such an opinion cannot serve to modify or change existing law. The doctrine of sta[r]e decisis, especially as respects rules of property, does not apply with full force until the question has been determined by a court of last resort.

Swift v. Kirby, 737 S.W.2d 271, 277 (Tenn. 1987). As such, the decision in Palanki simply cannot serve to alter or change the decisions by the Tennessee Supreme Court in Wolfe and Burke. See also Bloodworth v. Stuart, 221 Tenn. 567, 572, 428 S.W.2d 786, 789 (Tenn. 1968) (citing City of Memphis v. Overton, 54 Tenn. App., 419, 392 S.W.2d 86 (Tenn.1964) (“The Court of Appeals has no authority to overrule or modify [the Tennessee] Supreme Court’s opinions.”)). Morris v. Grusin, No. W2009-00033-COA-R3-CV, 2009 Tenn. App. LEXIS 874

Furthermore, we agree with the Grant court’s comment that in both Smith and Wolfe, the Court was concerned with the situation wherein the child himself paid the medical [*88]  expenses. See Grant, 2016 Tenn. LEXIS 816, 2016 WL 6247319, at *11-12 (citing Wolfe, 152 S.W.2d at 634; Smith, 1984 Tenn. App. LEXIS 3174, 1984 WL 586817 at *2). Indeed, in Wolfe, the child’s parents were not at all involved in her life. Wolfe, 152 S.W.2d at 634. Accordingly to deprive her of the pre-majority medical expenses which she herself paid simply due to a legal fiction that all parents must pay for the pre-majority medical expenses of their children would have been fundamentally unfair. The Smith Court, likewise, indicated that the child, rather than the parent, must have paid the medical expenses and specifically cited the Tennessee Supreme Court’s decision in Burke in announcing its rule. Smith, 1984 Tenn. App. LEXIS 3174, 1984 WL 586817 at *2. Again, Burke unequivocally held that the child could not present proof of pre-majority medical expenses paid by his parent. Burke, 58 S.W. at 857.

Interpreting the Wolfe waiver rule in this fashion best comports with Tennessee law. First, allowing the minor child to recover those expenses he himself has paid harmonizes with Tennessee’s public policy of protecting the financial interests of minors. See discussion, supra. To hold otherwise would prevent the child from being fully compensated for the damages that he actually incurred based upon an arbitrary determination that those expenses were paid by the child’s parent, even in the face of proof to the contrary. [*89]  Furthermore, to allow the child in this case to claim Mother’s damages despite the fact that she executed a valid release and indemnity agreement would be to frustrate this state’s public policy of enforcing clear and unambiguous exculpatory agreements entered into freely by adults. See Moss v. Fortune, 207 Tenn. 426, 429, 340 S.W.2d 902, 903-04 (Tenn. 1960). Indeed, the Smith Court specifically confined the rule to only those claims that the parent “might have[.]” Smith, 1984 Tenn. App. LEXIS 3174, 1984 WL 586817 at *2. In this case, however, Mother’s claims have been extinguished by her execution of the release. Accordingly, she has no claim that she may waive in favor of the child.

A recent Tennessee Supreme Court case supports our analysis. In Calaway ex rel. Calaway v. Schucker, 193 S.W.3d 509 (Tenn. 2005), as amended on reh’g in part (Feb. 21, 2006), the child’s mother filed a medical malpractice action in federal district court as next friend of her minor child. Id. at 512. There was no dispute that the mother’s claims were barred by the applicable statute of repose. The dispute in the case concerned whether the child’s claim was likewise barred by the statute of repose or whether the statutory time limit was tolled during the child’s minority. Id. Because the dispute involved Tennessee law, the Tennessee Supreme Court accepted four certified questions from [*90]  the federal court. Id. The Tennessee Supreme Court ultimately concluded that the medical malpractice statute of repose was not tolled by a child’s minority but held that the rule would only be applied prospectively. Id. at 517-18. The Calaway Court thereafter answered the following certified question:

Question 1: Does a minor child have a personal claim for medical expenses arising from an injury caused by the fault of another when the claim of the child’s parent for such medical expenses is barred by a statute of limitation or repose?

Answer: No.

Id. at 519. We acknowledge that this rule is offered with no elaboration and only expressly addresses the situation wherein a parent’s claim is barred by a statute of limitation or repose. Id. Regardless, we find it highly persuasive that  [HN28] the Tennessee Supreme Court does not intend to allow a child to raise claims belonging to his parent simply because the parent cannot maintain his or her action, either because of the expiration of a statute of limitation or repose or the waiver of that claim through an exculpatory agreement.

Based on the foregoing, we conclude that Son cannot maintain an action for pre-majority medical expenses that were paid or will be paid by his [*91]  parents. Rather, under the rule in Wolfe and Smith, Son may only maintain an action for those medical expenses that he paid or is obligated to pay. Here, the motion to amend Appellants’ complaint does not conclusively illustrate whether the requested damages constitute medical expenses paid by Son’s parents or medical expenses paid by Son. Like the Smith Court, we are reluctant to hinder Son’s ability to fully recover for his injuries. Accordingly, we reverse the trial court’s ruling denying the motion to amend the complaint only so as to allow Appellants to raise a claim for those pre-majority medical expenses paid by Son or for which Son is obligated to pay. With regard to any pre-majority medical expenses paid by Son’s parents, we affirm the trial court’s order denying the motion to amend the complaint.

Conclusion

The judgment of the Davidson County Circuit Court is reversed as to the motion to amend the complaint only to the extent of allowing Son to raise a claim for those pre-majority medical expenses paid by Son or for which Son is obligated to pay. The judgment of the trial court is affirmed in all other respects. Costs of this appeal are taxed one-half to Appellants Crystal [*92]  Blackwell as next friend to Jacob Blackwell, and their surety, and one-half to Appellee Sky High Sports Nashville Operations, LLC, for all of which execution may issue if necessary.

J. STEVEN STAFFORD, JUDGE

 


Childress v. Madison County, 777 S.W.2d 1 (Tenn. Ct. App. 1989)

Childress v. Madison County, 777 S.W.2d 1 (Tenn. Ct. App. 1989)

William Todd Childress, By and Through his parents, Ira Childress and Joyce Childress, and Ira Childress and Joyce Childress, individually, Plaintiffs-Appellants, v. Madison County, Tennessee, The Madison County Board of Education, and the Young Men’s Christian Association, Jackson, Tennessee, a/k/a Y.M.C.A., Defendants-Appellees

[NO NUMBER IN ORIGINAL]

Court of Appeals of Tennessee, Western Section

777 S.W.2d 1; 1989 Tenn. App. LEXIS 48

January 24, 1989, Filed

SUBSEQUENT HISTORY: Application for Permission to Appeal Denied August 7, 1989.

PRIOR HISTORY:  [**1]  From the Circuit Court of Madison County, Tennessee, MADISON LAW NO. 5, The Honorable Andrew T. Taylor, Judge

DISPOSITION: AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

COUNSEL: David Hardee, Linda L. Moore, Jackson, Attorneys for Plaintiffs-Appellants.

J. Tim Edwards, Memphis, Glassman, Jeter & Edwards, Attorney for Defendants-Appellees.

JUDGES: Highers, J.  Nearn, Sp. J., concurs.  Tomlin, P.J., W.S., concurs separately.

OPINION BY: HIGHERS

OPINION

[*2]  The plaintiffs, Ira Childress and Joyce Childress, brought this action individually and on behalf of their son, William Todd Childress, against Madison County and the Madison County Board of Education, alleging negligence which proximately caused personal injury to their son, a mentally handicapped student in Special Education at South Side High School. After a bench trial, the court found that the evidence did not preponderate in favor of the contentions of the plaintiffs. Plaintiffs are appealing from a judgment for the defendants.

At the time of the accident, William Todd Childress was a twenty-year old, nonverbal, severely retarded student. He traveled regularly with his class to the Y.M.C.A. to use recreational facilities, including a swimming pool. 1  [**2]  The trips were supervised by a teacher and an aide, both employees of Madison County, and while at the pool, by a lifeguard employed by the Y.M.C.A.

1 The Y.M.C.A. was originally a party defendant, but was dismissed before trial and is not involved in this appeal.

Some of the trips were to allow students to train for the Special Olympics. Childress’ event consisted of walking the width of the shallow end of the swimming pool and handing a floating ball to an attendant.

On April 11, 1984, near the end of one of these training excursions to the Y.M.C.A., Childress was found on the floor of the pool at the point where the pool slopes from the shallow to the deep end. He was retrieved by the lifeguard and, after resuscitation began to breathe. He expelled water, vomited, and coughed, but otherwise appeared normal. An ambulance was called and Childress was taken to the hospital and admitted. Childress sustained injuries and incurred medical expenses as a result of this incident.

[*3]  The teacher testified that there were three people who were responsible for observing the class — the teacher, the aide, and the lifeguard. The teacher testified that she was at the shallow end of the [**3]  pool, the aide was on the other side of the pool, and the lifeguard was in and out of the pool at various points while offering instruction to students.

On this occasion the teacher stated that she was working with Childress. She described the events leading to the accident as follows:

Q. And toward the end of that hour what specifically were you doing with the children?

A. Well, the last thing that I did before I got out of the pool was work with Todd going back and forth across the pool.

Q. He would be walking back and forth across the pool?

A. Yes.

Q. And when you ceased that activity, what did you do?

A. I told Todd to get out of the water and told all of the other children to get out of the water.

Q. Did Todd get out of the water?

A. I did not see Todd get out of the water. As the children were exiting the pool another student jumped in at the shallow end, who was a swimmer, to swim a lap and I walked along the edge of the pool as he swam to the deep end.

Q. Did you ever again see Todd after you told him to get out of the pool until he was found underwater?

A. No.

* * * *

Q. Do you know who was watching Todd?

A. No.

Q. Do you know if anybody was watching [**4]  Todd?

A. We all had joint responsibility for watching the students.

Q. Do you know if anyone was watching Todd as he was getting out of the pool?

A. I would have no way of knowing.

In light of the testimony, we are of the opinion that the evidence preponderates against a finding of no negligence.  [HN1] In non-jury matters the findings of fact of the trial court come to this court with a presumption of correctness and are reviewed de novo. Unless the evidence preponderates against the findings, we must affirm. T.R.A.P. 13(d). The trial court’s judgment in this case indicates that he found no negligence on the part of Madison County or the Madison County Board of Education. The proof shows, however, that the teacher and the aide were responsible for watching the students; that the teacher ordered students out of the pool, but did not actually see Childress exit; that she became involved in observing another student, and did not know whether Childress left the pool; and that she did not know whether anyone was watching Childress during the crucial period when he apparently went into water that was over his head, thereby sustaining the injuries and damages which gave rise to the complaint.  [**5]  It further appears that each of the attendants was involved in small group instruction and that no one actually scanned the pool in order to see whether the group as a whole had obeyed the instructions to leave the area. But for the fact that no one watched the pool without the distractions of other instruction, Childress would not have been injured.

Under these circumstances, we cannot say that plaintiffs have failed to make out a case by the greater weight or preponderance of the evidence.

The defendants have raised a further issue in this case, however, that the mother executed a release of all liability of these defendants. It is their contention that even if they were guilty of negligence the action is barred by the release of claims executed by the mother individually and on behalf of her son.

[HN2] 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.  Moss v. Fortune, 207 Tenn. 426, 340 S.W.2d 902 (1960). This  [*4]  rule is subject to exception. A party cannot contract away his liability for willful or gross negligence.  [**6]  Memphis & Charleston Railroad Co. v. Jones, 39 Tenn. (2 Head) 517 (1859). Neither can a party contract away liability if the duty under which he acts is a public one.  Cincinnati, New Orleans & Texas Pacific Railway Co. v. Saulsbury, 115 Tenn. 402, 90 S.W. 624, 626 (1905); Carolina, Clinchfield & Ohio Railway Co. v. Unaka Springs Lumber Co., 130 Tenn. 354, 170 S.W. 591, 594 (1914); Hartford Fire Insurance Co. v. Chicago, Milwaukee & St. Paul Railway Co., 175 U.S. 91, 20 S. Ct. 33, 44 L. Ed. 84 (1899).

[HN3] The existence of a public duty which would disallow giving effect to an exculpatory provision is determined by looking at several factors. If the service provided is the type which may generally be subject to public regulation then the duty probably exists.  Smith v. Southern Bell, 364 S.W.2d at 958. Other factors include the degree to which the service is of practical necessity for some members of the public, whether the service is offered to any member of the public who seeks it or qualifies for it, whether one party has greater bargaining power than [**7]  members of the general public, whether in exercising that bargaining power, the party presents a standardized “adhesion” contract making no provision whereby protection against negligence may be obtained, or whether the person or property of one party is placed under the control of the other.  Olson v. Molzen, 558 S.W.2d 429, 431 (Tenn. 1977) (adopting the rule of Tunkl v. Regents of University of California, 60 Cal.2d 92, 32 Cal. Rptr. 33, 383 P.2d 441 (1963)).  [HN4] Particularly offensive in Tennessee are exculpation contracts executed by persons in professional vocations.  Olson, 558 S.W.2d at 432.

[HN5] Persons and businesses which normally operate under a public duty are not bound by the exception and can execute valid exculpation contracts when the transaction in question is not under that public duty. Thus it has been held that a telephone company can execute such a contract as to its advertising services, Smith v. Southern Bell, 51 Tenn. App. 146, 364 S.W.2d 952, 957-958, citing Mitchell v. Southwestern Bell Telephone Co., 298 S.W.2d 520 (Mo. App. 1957), and a common carrier may contract  [**8]  against liability when executing a lease agreement, Cincinnati, N.O. & T.P.R.Co. v. Saulsbury, 90 S.W. at 626.

Analyzing the facts of this case under the foregoing rules, we find that the Special Olympics generally, and the services provided in this case specifically, are governed by the general rule and do not fall under the exception prohibiting exculpatory clauses. Although there are a number of circumstances which would otherwise bring the Special Olympics under the exceptions related to professional or public services, our analysis of all the cases cited reveals that the rule was intended to operate primarily in the marketplace. The Olson opinion in analyzing the public duty exception refers to “business,” “bargaining strength” in “economic settings,” “purchasers,” and payment of “additional fees to obtain protection against negligence” implying that there were fees in the first place. We are not here saying that the touchstone of the analysis is the existence or absence of business motivations, or pecuniary exchange. But when those considerations which are tied to economic factors are eliminated from the analysis, in this case by the absence [**9]  of any business motivations, the remaining factors are insufficient to bring this case under the exception. Having determined that the  [HN6] exculpatory clauses are generally valid as to the Special Olympics, we look now to the provisions of the clause used in this case.

The exculpatory language in this case is a part of a form document entitled “Tennessee Special Olympics Parental/Medical Release Form.” It is printed on an 8 1/2″ X 11″ sheet divided into three sections, the right half of the page being a medical release to be completed by a physician or registered nurse. The left half of the page is divided into two sections, the top being for completion by parents or teachers requiring statistical date such as age, clothing sizes, and addresses of the participant.  [*5]  The bottom section is entitled “Parent/Guardian Release.” As completed in the case at bar, the release is as follows:

Parent/Guardian Release

Participation:

I hereby give permission for the entrant named above to participate in the Special Olympics program — a sports-training, recreation, and competitive athletic program for mentally retarded children and adults.

Medical:

I represent and warrant to you that  [**10]  the entrant is physically and mentally able to participate in Special Olympics, and I submit herewith a subscribed medical certificate.

Consent to Treatment:

You are authorized on my behalf and at my account to take such measures and arrange for such medical and hospital treatment as you may deem advisable for the health and well-being of the entrant without the need for further consent or permission.

Release of Claim:

I, the undersigned, individually and on behalf of the above-named entrant, acknowledge that the entrant will be using facilities at his/her own risk. I, on my own behalf, hereby release, discharge and indemnify Special Olympics, its directors, officers, employees, physicians, agents, and all volunteer personnel from all liabilities for damage, injury or illness to the entrant or his/her property during his/her participation in or travel to or from any Special Olympics event. (Emphasis Supplied)

Permission to Publish:

Permission is hereby granted to use the name, likeness, voice and words of the entrant in television, radio, films, newspapers, magazines and other media, and in any form not heretofore described for the purposes and activities of Special Olympics [**11]  and in appealing for funds to support such activities.

Parent/Guardian/Adult Entrant

Mrs. Ira Childress (subscribed)

Signature

Mother (Handwritten)

Relationship to Entrant

12-18-86 (Handwritten)

Date

The emphasized language is at issue. The trial judge was of the opinion that Mrs. Childress “had executed a document releasing these defendants from liabilities as a result of any injuries that might occur in connection with the Special Olympics program.” This conclusion is in part correct.

[HN7] Exculpatory clauses purporting to contract against liability for intentional conduct, recklessness or gross negligence are unenforceable. See Adams v. Roark, 686 S.W.2d 73 (Tenn. 1985) Memphis & Charleston Railroad Co., supra. We find that the defendants in this case have not exceeded the bounds of simple negligence, even in light of the higher standard of care under which they operate due to the students’ mental disability. See 65A C.J.S. Negligence § 141 (1966).

The parties in this case are the plaintiffs, Todd Childress, by his parents, and his mother, Joyce Childress, and his father, Ira Childress, individually; and the defendants, Madison [**12]  County, and the Madison County Board of Education. The defendants were at the time of the incident in question acting through the teacher and her aide as agents or volunteers of the Special Olympics. The incident occurred during a Special Olympics training session, which the evidence shows was a “Special Olympics event” within the meaning of that phrase as used in the release form. While the evidence did show that there had been trips to the Y.M.C.A. pool which were independent of Special Olympics training, it is clear that the objective of this particular trip was to train for the Special Olympics and during this trip the teachers acted within the purview of duties they assumed as agents and/or volunteers of Special Olympics. Therefore, any liability for any actions taken must be analyzed as the actions of agents or volunteers of the Special Olympics as governed by the release form.

[*6]  The plaintiffs assert on appeal that the evidence established that Mrs. Childress had signed a number of “permission slips” and that in executing the release form, Mrs. Childress thought that she was merely signing another permission slip. We find this assertion unsupportable by the evidence.  [**13]  The evidence shows that the permission slips which Mrs. Childress signed were mimeographed copies of a handwritten form. The release form was not mimeographed and was copied from a printed document not handwritten, not even typed. Besides the difference facially, the content of the release is very different from the content of the permission slips. Mrs. Childress signed the document, and cannot, under these circumstances assert she thought she was signing a permission slip and not a release. Even if that were a valid assertion, it would make no difference in the outcome of the case.  [HN8] Although notice of an exculpatory clause is a prerequisite to its validity, Dodge v. Nashville Chattanooga & St. Louis Railway Co., 142 Tenn. 20, 215 S.W. 274 (1919), a party’s failure to read does not constitute a lack of notice to that party, Dixon v. Manier, 545 S.W.2d 948, 949 (Tenn. App. 1976).

Of the plaintiffs, only Mrs. Childress, Todd’s mother signed the release form. The language, quoted above, is clear and unambiguous. Mrs. Childress acknowledged that Todd would be participating at his own risk. She further agreed to “release, discharge and  [**14]  indemnify Special Olympics, its . . . agents, and all volunteer personnel.” Therefore, the trial judge was correct in dismissing this case as to Mrs. Childress individually.

Mr. Childress did not himself sign the release form and there is no indication in the language of the form or in the manner in which Mrs. Childress signed that she did in fact, or was even authorized to, release or discharge the Special Olympics on Mr. Childress’ behalf. However, Mrs. Childress did clearly agree to indemnify the Special Olympics “from all liabilities for damage, injury or illness to the entrant or his/her property during his/her participation in or travel to or from any Special Olympics event.” Therefore, to the extent the defendants are liable to Mr. Childress, Mrs. Childress, as indemnitor, must compensate him.

Neither did the remaining plaintiff, Todd Childress, sign the release form himself. Had he done so, being an incompetent, incapable of understanding the nature of his action, the execution could not be given effect. See 44 C.J.S. Insane Persons § 49 (1945). But, according to the language of the release, Mrs. Childress, as his mother and natural parent, acknowledged on Todd’s behalf [**15]  that he would be participating at his own risk.

[HN9] The status of guardians of incompetent persons is similar to that of guardians of infants, especially in view of courts of equity. Id. The general rule is that a guardian may not waive the rights of an infant or an incompetent. 39 Am. Jur.2d, Guardian & Ward § 102 (1968); 42 Am. Jur.2d, Infants § 152 (1969). Specifically,  [HN10] the Supreme Court of Tennessee long ago stated that a guardian cannot settle an existing claim apart from court approval or statutory authority.  Miles v. Kaigler, 18 Tenn. (10 Yerg.) 10 (1836). Spitzer v. Knoxville Iron, Co., 133 Tenn. 217, 180 S.W. 163 (1915). Tune v. Louisville & Nashville Railroad Co., 223 F. Supp. 928 (MD Tenn. 1963). It has also been held that  [HN11] a guardian may not waive the statutory requirements for service of process on an infant or incompetent by accepting service of process on himself alone.  Winchester v. Winchester, 38 Tenn. (1 Head) 460 (1858).

The courts of other states have recognized this general rule in a number of circumstances including those cited above. See e.g.  Gibson v. Anderson, 265 Ala. 553, 92 So.2d 692, 695 (1956) [**16]  (legal guardian’s acts do not estop ward from asserting rights in property); Ortman v. Kane, 389 Ill. 613, 60 N.E.2d 93, 98 (1945) (guardian cannot waive tender requirements of land sale contract entered into by ward prior to incompetency); Stockman v. City of South Portland, 147 Me 376, 87 A.2d 679 (1952) (guardian cannot waive ward’s property tax exemption); Sharp v. State, 240 Miss. 629, 127 So.2d 865, 90 A.L.R.2d 284 (1961)  [*7]  (guardian cannot waive statutory requirements for service of process on ward); Jones v. Dressel, 623 P.2d 370 (Colo. 1981) (ratification by parent of contract executed by child does not bind child); Whitcomb v. Dancer, 140 Vt. 580, 443 A.2d 458 (1982) (guardian cannot settle personal injury claim for ward without court approval); Natural Father v. United Methodist Children’s Home, 418 So.2d 807 (Miss. 1982) (infant not bound by evidentiary admissions of parent); Colfer v. Royal Globe Ins. Co., 214 N.J. Super. 374, 519 A.2d 893 (1986) (guardian [**17]  cannot settle personal injury claim for ward without court approval).

In Mississippi, the rule was expressed in broad terms by the Supreme Court in Khoury v. Saik, 203 Miss. 155, 33 So.2d 616, 618 (1948): “Minors can waive nothing. In the law they are helpless, so much so that their representatives can waive nothing for them.” See also Parker v. Smith, 150 Miss. 849, 117 So. 249, 250 (1928).

The Supreme Court of Connecticut has specifically held that  [HN12] an agreement, signed by one of the parents of a minor as a condition to his being allowed to attend a camp, waiving the minor’s claims against a camp for damages in the event of an injury was ineffective to waive the rights of the minor against the defendant camp. Fedor v. Mauwehu Council, Boy Scouts of America, Inc., 21 Conn. Sup. 38, 143 A.2d 466, 468 (1958). The Supreme Court of Maine reached the same conclusion in Doyle v. Bowdoin College, 403 A.2d 1206, 1208 n.3 (Me. 1979). In Doyle, the court held that if the agreement in question were a release, it would be ineffective because a parent cannot release the child’s [**18]  action.

We believe the rule stated above is in keeping with the protection which Tennessee has afforded to the rights of infants and minors in other situations. We, therefore, hold that Mrs. Childress could not execute a valid release or exculpatory clause as to the rights of her son against the Special Olympics or anyone else, and to the extent the parties to the release attempted and intended to do so, the release is void.

The indemnity provisions of the release are on a similar footing.  [HN13] Indemnification agreements executed by a parent or guardian in favor of tort feasors, actual or potential, committing torts against an infant or incompetent, are invalid as they place the interests of the child or incompetent against those of the parent or guardian. See Valdimer v. Mt. Vernon Hebrew Camps, Inc., 9 N.Y.2d 21, 210 N.Y.S.2d 520, 172 N.E.2d 283, 285 (1961). “Clearly, a parent who has placed himself in the position of indemnitor will be a dubious champion of his infant child’s rights.” Id. See also Ohio Casualty Insurance Co. v. Mallison, 223 Or 406, 354 P.2d 800, 802-803 (1960). We are aware that the indemnity [**19]  agreements in the two cases just cited were executed after the cause of action had arisen. This fact does not change the rule, and  [HN14] indemnity provisions executed by the parent prior to a cause of action in favor of a child cannot be given effect. Were the rule otherwise, it would circumvent the rule regarding exculpatory clauses and the policy of affording protection in the law to the rights of those who are unable effectively to protect those rights themselves.

We do not deny that there are good and logical reasons for giving effect to exculpatory and indemnification clauses executed by parents and guardians on behalf of infants and incompetents. Risk is inherent in many activities that make the lives of children richer. A world without risk would be an impoverished world indeed. As Helen Keller well said, “Security is mostly a superstition. It does not exist in nature, nor do the children of men as a whole experience it. Avoiding danger is no safer in the long run than outright exposure. Life is either a daring adventure or nothing.” Partnow, Quotable Woman, 173 (1977). Ultimately, this case is a determination of who must bear the burden of the risk of injury to infants and minors.

[**20]  It is not our intention, nor do we feel the result of this case will be, to put a chill on activities such as the Special Olympics.  [HN15] The law is clear that a guardian cannot on behalf of an infant or incompetent, exculpate or indemnify against liability those  [*8]  organizations which sponsor activities for children and the mentally disabled. If this rule of law is other than as it should be, we feel the remedy is with the Supreme Court or the legislature.

The judgment of the trial court is affirmed as to Joyce Childress individually, and her case is dismissed. As to Ira Childress individually, and William Todd, by and through his parents, Ira Childress and Joyce Childress, this case is reversed and remanded for such further proceedings as may be required. Costs on appeal are assessed against appellees.

CONCUR BY: TOMLIN

CONCUR

SEPARATE CONCURRING OPINION

TOMLIN, P.J., W.S.

I readily concur in the excellent opinion written by my colleague. In addition, I would hold that even if the law in this state was to the effect that Mrs.  [**21]  Childress could execute a valid release as to the rights of her son, the release, as executed, as I interpret it, attempts to release only the mother’s rights and not those of her son. For instance, the first sentence, acknowledging that young Childress was using the facilities at his own risk, begins with the language: “I, the undersigned, individually and on behalf of the above-named entrant . . . .” [emphasis added] However, the language purporting to release the Special Olympics and others reads as follows: “I, on my own behalf, hereby release, discharge and indemnify . . . .” [emphasis added] It is obvious that the language last used purports only to release the rights of the “undersigned,” i.e., Mrs. Childress, and not those of her handicapped son.

 


Barillari v. Ski Shawnee, Inc., 986 F. Supp. 2d 555; 2013 U.S. Dist. LEXIS 161029

Barillari v. Ski Shawnee, Inc., 986 F. Supp. 2d 555; 2013 U.S. Dist. LEXIS 161029

Colleen Barillari and William Barillari, Plaintiffs, v. Ski Shawnee, Inc., Defendant.

Civ. No. 3:12-CV-00034

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

986 F. Supp. 2d 555; 2013 U.S. Dist. LEXIS 161029

November 12, 2013, Decided

November 12, 2013, Filed

PRIOR HISTORY: Barillari v. Ski Shawnee, Inc., 2012 U.S. Dist. LEXIS 4998 (M.D. Pa., Jan. 17, 2012)

CORE TERMS: skiing, sport, downhill, skier, spectator, no-duty, summary judgment, ski, hit, ball, SKIER’S RESPONSIBILITY ACT DOES, risk doctrine, foul ball, amusement, matter of law, inherent risks, slope, baseball game, baseball, genuine, snow, ski lift, collision, mountain, ski resorts, risks inherent, nonmoving party, frequent, sporting, player

COUNSEL: [**1] For Colleen Barillari, William Barillari, h/w, Plaintiffs: Edward Shensky, Jeffrey A. Krawitz, Stark & Stark, Newtown, PA.

JUDGES: Matthew W. Brann, United States District Judge.

OPINION BY: Matthew W. Brann

OPINION

[*557] MEMORANDUM

Before the Court is Ski Shawnee, Inc.’s (“Defendant”) motion for summary judgment in the negligence action filed by Colleen Barillari and William Barillari (“Plaintiffs”). The complaint alleges Colleen Barillari suffered an injury and William Barillari suffered a corresponding loss of consortium, both caused by the Defendant’s alleged negligence. See Pls.’ Compl. 9-13, Jan. 6, 2012, ECF No. 1.

The Defendant moves for summary judgment in its favor on two related, but alternative theories relying on the assumption of the risk doctrine: first, that the Plaintiffs’ claims are barred by the Pennsylvania Skier’s Responsibility Act, 42 Pa. C.S.A. § 7102(c); or, alternatively, that the claims are barred by the traditional common law assumption of the risk doctrine. See Def.’s Br. Supp. Mot. Summ. J. 5-9, Dec. 3, 2012, ECF No. 17 [hereinafter Def.’s Br.]. The Court hereby denies the Defendant’s motion for summary judgment on both theories for the reasons that follow.

I. BACKGROUND

This case arises from [**2] an accident Mrs. Barillari suffered at the Shawnee Mountain Ski Area, Monroe County, Pennsylvania, on January 10, 2010. Def.’s Statement Material Facts ¶ 1, Dec. 3, 2012, ECF No. 18 [hereinafter Def.’s SOF]. Although Mrs. Barillari had skied previously, she was not a ticketed skier that day. Def.’s SOF ¶¶ 3-4; Pls.’ Answer Statement Facts ¶ 3, Dec. 19, 2012, ECF No. 19 [hereinafter Pls.’ SOF]. On that particular occasion, she came to the ski area to watch her husband and her children take ski lessons. Def.’s SOF ¶¶ 6-13.

The accident occurred while Mrs. Barillari was standing on the snow of the slope close to tape that divided a ski run from the instruction area where Mr. Barillari was taking a lesson. See Def.’s SOF ¶¶ 12-13; Pls.’ SOF ¶¶ 10-11. There was a sign that read: “ATTENTION A Ticket or a Pass is Required to be on the Snow.” Def.’s SOF ¶ 19. Nevertheless, Ski Shawnee, Inc. employees admitted that the sign may be ambiguous and that its stated policy was not routinely enforced. Pls.’ SOF ¶ 19.

Mrs. Barillari was generally aware of the risks of collision between skiers. [*558] Def.’s SOF ¶ 7. At the time, however, she was not worried about skiers colliding with her because she believed [**3] that she was close enough to the dividing tape and there were other spectators in the area. Def.’s SOF ¶¶ 15-17; Pls.’ SOF ¶¶ 15-17. Unfortunately for Mrs. Barillari, a skier did collide with her and caused an injury to her left leg. Pls.’ SOF, at 2. The Court considers the legal arguments in light of these facts.

II. DISCUSSION

A. LEGAL STANDARDS

1. Summary Judgment

Summary judgment is appropriate when the court is satisfied that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). A genuine issue of material fact exists if “the evidence is such that a reasonable jury could find for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). When the court considers the evidence on summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor.” Id. at 255.

The party moving for summary judgment bears the burden of establishing the nonexistence of a “genuine issue” of material fact. In re Bressman, 327 F.3d 229, 237 (3d Cir. 2003) (internal quotations and [**4] citations omitted). The moving party may satisfy this burden by either submitting evidence that negates an essential element of the nonmoving party’s claim, or demonstrating the other party’s evidence is insufficient to establish an essential element of its claim. Id. at 231.

Once the moving party satisfies this initial burden, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). To do so, the nonmoving party must “do more than simply show that there is some metaphysical doubt as to material facts.” Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Rather, to survive summary judgment, the nonmoving party must “make a showing sufficient to establish the existence of [every] element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. Moreover, “[w]hen opposing summary judgment, the non-movant may not rest upon mere allegations, but rather must identify those facts of record which would contradict the facts identified by the movant.” Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2003) (internal [**5] quotations and citation omitted).

In deciding the merits of a party’s motion for summary judgment, the court’s role is to determine whether there is a genuine issue for trial, not to evaluate the evidence and decide the truth of the matter. Anderson, 477 U.S. at 249. Credibility determinations are the province of the factfinder, not the district court. BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Consequently, summary judgment may be granted only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 54(a).

2. Pennsylvania Law Must Be Applied In This Case

This case is before the Court as a diversity of citizenship action under 28 U.S.C. § 1332. The Plaintiffs are citizens of New [*559] Jersey, the Defendant is a Pennsylvania corporation with a principal place of business in Pennsylvania, and the amount in controversy is alleged to be over $75,000–consequently, diversity jurisdiction is proper. See 28 U.S.C. § 1332; Pls.’ Compl., ¶¶ 1, 2, 46.

As this is a diversity action and Pennsylvania was the situs of the injury, this Court “must apply Pennsylvania law to the facts of [**6] this case.” Berrier v. Simplicity Mfg., Inc., 563 F.3d 38, 46 n. 11 (3d Cir. 2009) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938)).

B. THE PENNSYLVANIA SKIER’S RESPONSIBILITY ACT DOES NOT APPLY TO THIS CASE

The Defendant asserts that the Plaintiffs’ claims are barred by the assumption of the risk doctrine. Def.’s Br., at 6. The Pennsylvania General Assembly expressly provided this doctrine as a defense in downhill skiing cases in the Comparative Negligence Statute. See 42 Pa. C.S.A. § 7102(c). The pertinent portion of the statute, commonly known as the Skier’s Responsibility Act, reads:

(c) Downhill skiing.–

(1) The General Assembly finds that the sport of downhill skiing is practiced by a large number of citizens of this Commonwealth and also attracts to this Commonwealth large numbers of nonresidents significantly contributing to the economy of this Commonwealth. It is recognized that as in some other sports, there are inherent risks in the sport of downhill skiing.

(2) The doctrine of voluntary assumption of risk as it applies to downhill skiing injuries and damages is not modified by subsections (a) and (a.1). 1

42 Pa. C.S.A. § 7102(c).

1 As a general rule, subsections (a) and (a.1) [**7] supplant the assumption of the risk doctrine with a system of comparative fault in most negligence cases. Nevertheless, assumption of the risk was expressly preserved for injuries arising from downhill skiing, as noted. See 42 Pa. C.S.A. § 7102; Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 341 (2000).

The Restatement (Second) of Torts, § 496A, summarizes the essence of the assumption of the risk doctrine: “[a] plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm.” As the Supreme Court of Pennsylvania elucidated, “[t]he assumption of the risk defense, as applied to sports and places of amusement, has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1186 (2010) (citing Restatement (Second) of Torts, § 496A, cmt. C, 2).

Applying those principles to the Skier’s Responsibility Act, that same court “made clear that this ‘no-duty’ rule applies to the operators of ski resorts, so that [**8] ski resorts have no duty to protect skiers from risks that are ‘common, frequent, and expected,’ and thus ‘inherent’ to the sport of downhill skiing.” Chepkevich, 2 A.3d at 1186 (citing Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 343-44 (2000)). Consequently, “[w]here there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant–the Comparative Negligence Act is inapplicable–and there can be no recovery based on allegations of negligence.” Id.

[*560] The Supreme Court of Pennsylvania established a two-part analysis to determine whether a plaintiff was subject to the assumption of the risk doctrine adopted in the Skier’s Responsibility Act. See Huges v. Seven Springs Farm, Inc. 762 A.2d at 343-44. “First, this Court must determine whether [the Plaintiff] was engaged in the sport of downhill skiing at the time of her injury. If that answer is affirmative, we must then determine whether the risk of being hit . . . by another skier . . . is one of the ‘inherent risks’ of downhill skiing . . . .” Id. at 344. If both of these prerequisites are met, then summary judgment is appropriate because, as a matter of law, [**9] the Defendant would have had no duty to Mrs. Barillari. See id.

First, the Court considers whether Mrs. Barillari was “engaged in the sport of downhill skiing at the time of her injury.” Id. As the court noted in Hughes v. Seven Springs Farm, Inc.:

the sport of downhill skiing encompasses more than merely skiing down a hill. It includes those other activities directly and necessarily incident to the act of downhill skiing. Such activities include boarding the ski lift, riding the lift up the mountain, alighting from the lift, skiing from the lift to the trail and, after a run is completed, skiing towards the ski lift to start another run or skiing toward the base lodge or other facility at the end of the day.

Hughes, 762 A.2d at 344.

In that case, the court held that a plaintiff who was skiing towards the chair lift through an area at the base of the mountain where several trails converged when she was struck from behind by another skier could not recover because the assumption of risk doctrine applied. Hughes, 762 A.2d at 340, 345. Although the plaintiff “was not in the process of skiing downhill, but rather was propelling herself towards the ski lift at the base of the mountain,” the [**10] court found this action was within the scope of engaging “in the sport of downhill skiing.” Id. at 344-45. The court noted that to decide otherwise would “interpret the Act, as well as the sport of downhill skiing, in an extremely narrow, hypertechnical and unrealistic manner.” Id. at 344.

In Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174 (2010), the Supreme Court of Pennsylvania held that a skier’s negligence action based on her fall from a ski lift was barred by the doctrine of assumption of the risk because she was engaged in the sport of downhill skiing and the fall was an inherent risk of that sport. Chepkevich, 2 A.3d at 1194-95. The court noted that “the clear legislative intent to preserve the assumption of the risk doctrine in this particular area, as well as the broad wording of the Act itself, dictates a practical and logical interpretation of what risks are inherent to the sport.” Id. at 1187-88.

A number of other courts have addressed the scope of the Skier’s Responsibility Act as well. See, e.g., Bjorgung v. Whitetail Resort, LP, 550 F.3d 263 (3d Cir. 2008) (finding that a skier’s claim based on the lack of safety netting, improper course plotting, or [**11] soft loose snow was barred because those were risks inherent in skiing); Burke v. Ski America, Inc., 940 F.2d 95 (4th Cir. 1991) (interpreting Pennsylvania law to find ski resort had no duty of care to injured skier because a “double black diamond” slope with rocks and trees was an obvious inherent danger of skiing); Smith v. Seven Springs Farm, Inc., 716 F.2d 1002 (3d Cir. 1983) (Aldisert, J.) (finding that a skier’s claim was barred by assumption of the risk when he chose to ski a steep, icy expert slope with unpadded poles for snowmaking equipment); Lin v. Spring Mountain Adventures, Inc., CIV. [*561] A. 10-333, 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648 (E.D. Pa. Dec. 23, 2010) (holding that the Act barred a skier’s claim because colliding with snow making equipment was an inherent risk); Savarese v. Camelback Ski Corp., 417 F. Supp. 2d 663, (M.D. Pa. 2005) (Caputo, J.) (holding that a skier was barred from recovery where the injury occurred when he attempted to board the ski lift when the bottom of the chair was not folded down for seating); Bell v. Dean, 2010 PA Super 151, 5 A.3d 266 (Pa. Super. Ct. 2010) (finding that a skier assumed the risk of collision with a snowboarder such that the snowboarder could not be found negligent); [**12] Crews v. Seven Springs Mountain Resort, 2005 PA Super 138, 874 A.2d 100 (Pa. Super. Ct. 2005) (holding that the risk of colliding with a drunk underage snowboarder was not a risk inherent in the sport of downhill skiing).

The case before the Court, however, is distinguishable from all of these cases–Mrs. Barillari was not “engaged in the sport of downhill skiing” at the time of her collision, as required by the statute. 2 Hughes, 762 A.2d at 344. Although someone wearing skis and standing in the area of Mrs. Barillari and the other spectators on a momentary pause in their run may well have been “engaged in the sport,” that is an entirely different matter from someone who is purely a spectator. See id. Even though a collision with a skier is a prominent injury considered to be inherent in the sport of skiing as contemplated by the statute and the courts, the fact remains that Mrs. Barillari was merely a spectator not engaged in the sport. See id.

2 The Court recognizes that “engaged” may be defined as “greatly interested,” which could suggest that spectators are “engaged in the sport of downhill skiing.” Merriam-Webster’s New International Dictionary (3d ed. 2013). As is apparent from the context of the [**13] relevant Supreme Court of Pennsylvania decisions, however, this is not the manner in which the court used the term “engaged.” See, e.g., Hughes, 762 A.2d at 344. Rather, the context surrounding the court’s usage of the term indicates a meaning closer to “occupied” or “employed” when using the phrase “engaged in the sport of downhill skiing.” See id.; Merriam-Webster’s New International Dictionary (3d ed. 2013).

If this Court were to include Mrs. Barillari as a person subject to the Skier’s Responsibility Act, it would necessarily extend the confines of Pennsylvania’s law beyond the scope of its current applicability. That is not this Court’s place, and the Court declines to do so. Instead, the Court must apply the law as Pennsylvania’s own Supreme Court has instructed. See, e.g., Hughes, 762 A.2d at 344-45. Consequently, the Court finds that the assumption of the risk doctrine, as articulated in the statue and interpreted by courts, does not apply to bar Mrs. Barillari’s claim, because she was not “engaged in the sport of downhill skiing” at the time of her accident. See Hughes, 762 A.2d at 344-45.

C. TRADITIONAL ASSUMPTION OF THE RISK DOES NOT BAR THE PLAINTIFFS’ CLAIMS

The Defendant [**14] asserts that, in the alternative, the traditional common law defense of assumption of the risk should bar the claim. Def.’s Br., at 6. Although Pennsylvania has severely limited the traditional assumption of the risk doctrine and some courts have questioned its ongoing viability, the fact remains that Pennsylvania courts continue to apply assumption of the risk in a variety of cases outside the context of downhill skiing. See, e.g., Zinn v. Gichner Systems Grp., 880 F. Supp. 311 (M.D. Pa. 1995) (Caldwell, J.) (holding assumption of the risk barred plaintiff’s claim when he continued to work after landowner refused to cover opening in which he was injured); Howell v. Clyde, [*562] 533 Pa. 151, 620 A.2d 1107 (1993) (finding that the plaintiff guest who helped secure gunpowder for a firework cannon and participate in lighting it assumed the risk of his injury); see also Rutter v. Ne. Beaver Cnty. Sch. Dist., 496 Pa. 590, 437 A.2d 1198, 1212 (1981) (Nix, C.J., dissenting) (“[T]his doctrine constitutes a necessary and viable component of tort law.”).

Borrowing Justice Antonin Scalia’s memorable phrase concerning a similarly limited but resurgent doctrine in another area of law, assumption of the [**15] risk survives “[l]ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.” Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398, 113 S. Ct. 2141, 124 L. Ed. 2d 352 (1993). Nevertheless, the doctrine remains viable in certain circumstances, a monstrous hydra though it may be.

There are four different theoretical species of assumption of the risk–two of which are at issue in this case. See Hughes, 762 A.2d at 341-42; Restatement (Second) of Torts, § 496A, cmt. c. One form of this polymorphic doctrine is a voluntary assumption of the risk, where the plaintiff makes a conscious, voluntary decision to encounter a risk of which he is aware. See Hughes, 762 A.2d at 342; Restatement (Second) of Torts, § 496A, cmt. c, 3.

A second related corollary of the assumption of risk doctrine 3 is sometimes titled the “no-duty rule.” It applies when a plaintiff tacitly agrees to relieve the defendant of a duty by entering a certain relationship with the defendant, when the plaintiff is then injured by an inherent risk of that activity, such as a spectator at a sporting event. See Hughes, 762 A.2d at 342; Restatement (Second) of Torts, § 496A, cmt. c, 3 [**16] . As both of these manifestations of that intractable doctrine are at issue here, the Court addresses them in turn, first analyzing voluntary assumption of the risk. 4

3 See Berman v. Radnor Rolls, Inc., 374 Pa. Super. 118, 542 A.2d 525, 531 (1988) (discussing the discrete conceptual differences between voluntary assumption of the risk as an affirmative defense to a breached duty and the “no-duty” theory with its inherent absence of a duty).

4 The two remaining forms of assumption of the risk do not apply to this case. These are i) express assumption of the risk; and, ii) situations in which the plaintiff’s conduct in voluntarily encountering a known risk is itself unreasonable. See Hughes, 762 A.2d at 341-42; Restatement (Second) of Torts, § 496A, cmt. c, 1, 4.

1. Voluntary Assumption of the Risk Does Not Bar Plaintiff’s Claim in this Case

As Judge A. Richard Caputo articulated when considering a case involving voluntary assumption of the risk: “[t]o grant summary judgement on [that basis] the court must conclude, as a matter of law: (1) the party consciously appreciated the risk that attended a certain endeavor; (2) assumed the risk of injury by engaging in the endeavor despite [**17] the appreciation of the risk involved; and (3) that injury sustained was, in fact, the same risk of injury that was appreciated and assumed.” Bolyard v. Wallenpaupack Lake Estates, Inc., 3:10-CV-87, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *5 (M.D. Pa. Feb. 27, 2012) (Caputo, J.). This assumption of risk defense is established as a matter of law “only where it is beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition.” Barrett v. Fredavid Builders, Inc., 454 Pa. Super. 162, 685 A.2d 129, 131 (1996). Moreover, “[t]he mere fact one engages in activity that has some inherent [*563] danger does not mean that one cannot recover from a negligent party when injury is subsequently sustained.” Bullman v. Giuntoli, 2000 PA Super 284, 761 A.2d 566, 573 (Pa. Super. Ct. 2000).

The dispositive analytical point in the case before this Court is determining what constitutes a plaintiff’s conscious appreciation of the risk. It is not enough that the plaintiff was generally aware that the activity in which he was engaged had accompanying risks. See Bolyard, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at * 6 (citing Handschuh v. Albert Dev., 393 Pa. Super. 444, 574 A.2d 693 (1990)). Rather, the plaintiff must be [**18] aware of “the particular danger” from which he is subsequently injured in order to voluntarily assume that risk as a matter of law. Id.

For example, in Bolyard v. Wallenpaupack Law Estates, Inc., 3:10-CV-87, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *5-6 (M.D. Pa. Feb. 27, 2012), Judge Caputo held, inter alia, that assumption of the risk did not apply to a plaintiff who went snow-tubing on an old ski slope, hit a rut, and crashed into a tree. Judge Caputo recognized that, while the plaintiff “was generally aware that snow tubing on a tree-lined trail was dangerous, there [was] no evidence in the record that she had any knowledge of the specific hazards of that particular slope.” Bolyard, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *6. This was a material distinction, such that the elements of voluntary assumption of the risk remained unsatisfied–therefore, as a matter of law, the plaintiff did not assume the risk. Id.

Similarly, in Handschuh v. Albert Dev., 393 Pa. Super. 444, 574 A.2d 693, 696 (1990), the court held that assumption of the risk did not apply when a plumbing contractor sustained injuries and died because a trench in which he was laying pipe collapsed. The court noted that the plaintiff was aware of the general [**19] risk of ditch collapses and that the particular job would be delicate. Handschuh, 574 A.2d at 694. Nevertheless, that awareness of the general risks was not sufficient “to compel a finding of a waiver of an individual’s right to complain about a breach of duty of care to the risk taker.” Id. at 696 (original punctuation altered).

In the case before the Court, Mrs. Barillari did not voluntarily assume the risk of her injury under this doctrine because there are no facts demonstrating she was specifically aware of the risk of the type of harm she suffered–namely, a skier crashing into a spectator. See Bolyard, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *5-6; Handschuh, 574 A.2d at 694, 696; Pls.’ SOF ¶ 5. It is undisputed that Mrs. Barillari was aware of the general risks and dangers inherent in the sport of skiing. She was aware collisions between skiers occurred and she “was worried about [her] children with that.” Def.’s SOF, Oral Dep. Mrs. Barillari 23, Dec. 03, 2012, ECF No. 18, Exh. 5. There is not, however, anything in the record that indicates Mrs. Barillari was specifically aware of the danger that later befell her.

Rather, Mrs. Barillari stated she was not worried about a skier crashing into her, “because [**20] [she] was close enough to the ribbon and [she] was with other people that were just watching. [She] wasn’t standing with a bunch of skiers. [She] was standing with spectators.” Id. at 63-64. Like the plaintiffs in Bolyard and Handschu, Mrs. Barillari did not possess the requisite conscious appreciation of the specific risk of harm that caused her injury. Bolyard, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *5-6; Handschuh, 574 A.2d at 694, 696. Therefore, the doctrine of voluntary assumption of the risk is inapplicable to this case. See id.

2. The “No-Duty” Rule Does Not Apply

The “no-duty” theory, a corollary species of assumption of the risk discussed [*564] previously in the context of the Skier’s Responsibility Act, applies at common law when: “the plaintiff has entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances.” Hughes, 762 A.2d at 341 (citing Restatement (Second) of Torts, §496A, cmt. c, 2). “Again the legal result is that the defendant is relieved of his duty to the plaintiff.” Id.

The no-duty rule applies most prominently in the context of a spectator [**21] at a sporting event, such as a fan hit by a foul ball at a baseball game. See, e.g., Schentzel v. Philadelphia Nat’l League Club, 173 Pa. Super. 179, 96 A.2d 181 (1953). As the Restatement observes, “a spectator entering a baseball park may be regarded as consenting that the players may proceed with the game without precautions to protect him from being hit by the ball.” Restatement (Second) of Torts, §496A, cmt. c, 2.

“In Pennsylvania, the law imposes ‘no duty’ to protect spectators from risks that are common, frequent, and expected [in the sport].” Petrongola v. Comcast-Spectacor, L.P., 2001 PA Super 338, 789 A.2d 204, 210 (2001). “However, a facility may be held liable if the design of the facility deviates from the established custom in some relevant way.” Id. “The central question, then, is whether [a plaintiff’s] case is governed by the ‘no-duty’ rule applicable to common, frequent and expected risks of [the sport] or by the ordinary rules applicable to all other risks which may be present [at a sporting facility].” Jones v. Three Rivers Mgmt. Corp., 483 Pa. 75, 394 A.2d 546, 551 (1978).

For example, in Schentzel v. Philadelphia National League Club, 173 Pa. Super. 179, 186-92, 96 A.2d 181 (1953), [**22] the no-duty rule barred the claim of a plaintiff hit by a foul ball in the stands at a baseball game. The court noted that, even though there was scant evidence the plaintiff knew about the prevalence of foul balls, the defendant owed her no duty because foul balls are an inherent risk of attending a baseball game. Schentzel,173 Pa. Super. at 186-92.

In Loughran v. The Phillies, 2005 PA Super 396, 888 A.2d 872, 876-77 (Pa. Super. Ct. 2005), a majority of the court held that the no-duty rule barred a spectator’s claim for injuries suffered in the stands at a baseball game. There, the center-fielder threw the ball into the stands after catching it for the final out of the inning–as is customarily done to provide souvenirs for fans–when the unsuspecting plaintiff was hit and injured by the ball. Loughran, 888 A.2d at 874. Although this was not the typical foul ball hit into the stands, the majority considered this custom to be inherent in the sport. Id. at 877. They noted that the plaintiff failed to establish the defendants “deviated from the common and expected practices of the game of baseball.” 5 Id.

5 Judge John T. Bender dissented from this majority opinion, writing:

since the act of tossing a ball to fans [**23] as a souvenir is extraneous to the game and not necessary to the playing of the game, a spectator does not “assume the risk” of being struck by a ball entering the stands for this purpose, nor is there any valid reason in law or policy to extend the immunity of the “no duty” rule to this practice. Rather, if a baseball player wants to go beyond the confines of the game . . . he should be charged with the obligation of doing it in a reasonably safe and prudent manner.

Loughran, 888 A.2d at 882.

By contrast, in Jones v. Three Rivers Management Corporation, 483 Pa. 75, 394 A.2d 546, 548, 552-553 (1978), the court held that the no-duty rule did not apply because the patron was hit by a ball while using an interior walkway to the concessions [*565] area, rather than while seated in the stands. The court noted that “in a ‘place of amusement’ not every risk is reasonably expected.” Jones, 394 A.2d at 551. That particular injury was due to a failure in the ballpark’s design such that the no-duty rule should not apply. Id. at 551-52.

The Jones court also drew a distinction between risks that are merely inherent in the activity, and those risks that are not only inherent but also necessary to the activity. See id.; [**24] see also Loughran, 888 A.2d at 880 (Bender, J., dissenting) (“A careful reading of Jones, reveals that the no-duty rule applies not just when one’s injury is caused by a risk inherent to the activity, but also when the risk in question is necessary to the activity.”). For example, while foul balls in the stands are an inherent and necessary part of any baseball game, a bat flying into the stands is an inherent risk of baseball but not a necessary component of the game. Jones, 394 A.2d at 551; see also Schentzel, 96 A.2d at 182 (“There is a million foul balls, maybe three or four or five an inning, goes into the stand [sic].”).

The court further illuminated this distinction with analogies, writing that: “[m]ovies must be seen in a darkened room, roller coasters must accelerate and decelerate rapidly and players will bat balls into the grandstand.” Id. at 550-51. As Judge John T. Bender poignantly extrapolated in his Loughran dissent:

if movie houses are made to lighten the theatres so that no one trips, the movie-going experience would be greatly diminished if not destroyed. If amusement parks are made to design roller coasters so as to eliminate all jerkiness and smooth out all changes [**25] in direction they would no longer be capable of being classified as “thrill rides” and the word “amusement” might be deleted from the term “amusement parks.” But if baseball players and their employers, are charged with exercising reasonable care in the practice of providing souvenir balls to patrons, the “Fall Classic” will remain a classic sporting contest and all those regular season and playoff games preceding it would still be played in a manner consistent with Abner Doubleday’s original intent.

Loughran, 888 A.2d at 881.

According to the principles discussed in Jones and Loughran, the no-duty rule can be said to apply when, to avoid injury, a “place of amusement” must alter conditions at the facility in such a way that would change the very essence of the activity for which it is made. See Loughran, 888 A.2d at 881; Jones, 394 A.2d at 550-52. This does not affect the duty of sports facilities and places of amusement to protect patrons against foreseeable risks not inherent and necessary such that they are “common, frequent, and expected” in the very essence of that central activity. Jones, 394 A.2d at 551

Applying these principles to the case before the Court, the no-duty rule cannot [**26] protect the Defendant and bar Mrs. Barillari’s claim. The Defendant asserts that this case is directly analogous to the example of a spectator at a baseball game being hit by a foul ball–Mrs. Barillari was a spectator by a ski slope that was hit by a skier. See Def.’s Br., at 8-10. Although a skier crashing into spectators may be a foreseeable risk inherent in the sport of skiing, it is not a necessary and inherent element of that sport. See Jones, 394 A.2d at 551-52.

A majority of fans attend a baseball game expecting to see a number of foul balls hit into the stands. See Schentzel, 96 A.2d at 182. The Court is not aware of a similar majority that assumes they will see [*566] a number of skiers crash violently into spectators on a day trip to the mountain.

Furthermore, charging ski facilities with the ordinary duty of care to protect spectators from ski crashes, rather than shielding them with “no-duty,” will not in any way affect the essence of skiing. See Loughran, 888 A.2d at 881. The ski resort may erect mesh fences, snow walls, ropes, and other sorts of precautions around the sides and at the base of the slopes without impeding the rhythmic descent of countless alpine enthusiasts.

Therefore, [**27] the issues in this case do not present an instance where the “no-duty” rule applies. Rather, the existence of any negligence by either or both parties should be submitted to a jury.

III. CONCLUSION

For the foregoing reasons, Ski Shawnee Inc.’s motion for summary judgment is denied.

An appropriate Order follows.

BY THE COURT:

/s/ Matthew W. Brann

Matthew W. Brann

United States District Judge

ORDER

AND NOW, this 12th day of November, 2013, it is hereby ORDERED, in accordance with a Memorandum of this same date, that the Defendant, Ski Shawnee, Inc.’s motion for summary judgment is hereby DENIED.

BY THE COURT:

/s/ Matthew W. Brann

Matthew W. Brann

United States District Judge


Indemnification agreements? What are you signing?

Suddenly, indemnification agreements are flying around the outdoor industry. Make sure you know what you are signing.

Indemnification agreements, either as part of another document or individually are being tossed around the outdoor industry. So far, they have all been written by non-attorneys. By that I mean they are written badly or by someone who does not understand what they are and how they work. Before you sign an indemnification agreement, you need to understand what you are signing and the ramifications of signing it.

An indemnification agreement is similar, not like, but similar, to an insurance policy. Most times an indemnification agreement says you will pay us (indemnify) for any money we spend because of your actions that have cost us money, including our costs and attorney’s fees.

An insurance policy is slightly different than indemnification policy for two reasons.

1.   An insurance policy is very specific on what if covers. If it is not written in the policy as something that is insured, then you will not get money.

2.   You pay for a policy. The amount of money you pay is based on the risk; the greater the risk, the more money you pay for the policy.

Indemnification agreements in the past have been narrow and focused on specific issues that the parties negotiate. The indemnification agreement said if something you did brings us into a lawsuit, you have to reimburse us for our costs if we are sued because of what you did. Indemnification agreements were written into contracts as part of the overall deal.

An Example would be:

A manufacturer makes a product with a defect, and the retailer is sued because of the defect by the consumer who purchased the product. The liability issues are set forth because the agreement says the retailer must be sued or there must be liability or a claim.

First Problem: Consideration

For a contract to be valid there must be consideration. Consideration is a benefit flowing from one party to the other party. Normally, consideration is money. If a contract and a course of dealing exist between two parties, if one party now wants an indemnification agreement signed, there must be new consideration. You have to pay for the new agreement to be a contract and to be binding. No consideration, no contract.

Second Problem: Overly Broad

The indemnification agreements I am seeing recently have been very broad and cover everything. There are major issues with a document this broad because it is impossible to comply with. By that I mean there are realistic limits to what can be indemnified. The major item controlling indemnification agreements is money. If you don’t have a bank account with enough cash in the account to cover the indemnification bill when it comes due, why sign the agreement to begin with?

1.   You can only sign what you can pay for.

Unless you are dealing with broken products (replacement) or fixed amounts (breach of contract), you can only sign an indemnification agreement that has limits that you can afford. If you sign an indemnification agreement knowing there are no way you can pay for it, you are creating additional problems; misrepresentation and fraud (see below). If you can’t pay the bill when it comes due, you will either file bankruptcy and or go out of business.

Make sure you know how much indemnification will cost you and whether or not you can deal with the bill. If you don’t have the cash, then you better have an insurance policy.

2.   You can only sign what your insurance policy says it will cover.

99% of the time, an indemnification agreement is really based on your insurance company stepping up and writing a check. The insurance company does that because:

A.   There is a legitimate claim covered by the policy.

B.   The claim is within the limits of the policy.

C.  The insurance company knew about the indemnification and agreed to it in advance! (Oh?)

If your policy is not broad enough, does not cover everything covered in the indemnification, you are again on the hook yourself. Your commercial policy is very different from your homeowner’s policy. Your commercial policy says it covers everything on the list of covered items in the policy. If the claim is not on the list, you have no insurance coverage.

Your insurance policy is written to pay claims, not necessarily contracts. If the indemnification is not based on a claim or legal liability, your insurance policy may just ignore the issue. The insurance company is not contractually required to pay what is not covered in the policy.

3.   If your insurance company does not know about the indemnification and agree to it, you still may not have coverage. You are back to writing a check.

Your insurance company in many cases can cover indemnification; however, many policies require knowledge in advance or in some cases need to approve indemnification. Sending an indemnification claim to an insurance company based on a contract you signed without the insurance company knowing about the indemnification agreement in advance is an easy way to get the claim denied or the policy non-renewed the next time it comes up for renewal.

4.   Signing an indemnification agreement without the ability to back it up is a misrepresentation in some states.

Misrepresentation pierces the corporate veil making you personally liable for the claims. (The sole exception to this MAYBE if you are an LLC; however several states have not ruled that an LLC can be pierced for misrepresentation and fraud.) Simply put, you sign a contract knowing you cannot complete the contract that is called misrepresentation and maybe fraud. Misrepresentation and fraud on the part of the owner of a corporation, when dealing with monetary issues, is a way to pierce the corporate veil. Piercing the corporate veil is one way of making your personal assets liable for the claims against your business.

This might be a stretch in some cases, but it is clearly within the realm of possibilities, especially if you have a lot of personal assets. Attorneys and insurance companies work harder if they know there is a payoff.

If you can’t fulfill the indemnification agreement, and you have no insurance to cover it, you better not sign it.

5.   You should not indemnify someone for something that you are not liable for.

This is simple. If you don’t owe the money, why would you say you owe the money? Many of these agreements are asking for indemnification for issues that you have no legal liability for. It is hard to be liable for how a product is used if they do not read the instructions. An example would be an employee of a retailer store is demonstrating your product without reading the instructions, attending the tech clinic or understanding the product. During the demonstration to the consumer, he injures the consumer.

Why would that be your fault and why should you pay for it? Yet a few indemnification agreements I’ve read lately would require the manufacture to pay for the injuries.

As a manufacturer you are not legally liable for that claim. It is not your fault; you were not negligent. However, the indemnification agreement you signed said you would pay for any claim based on your product. The consumer has a claim against the retailer, because of the product, but not because the product was defective. The retailer is solely liable for the claim, and you should not be.

A.  You should only indemnify someone for what you are responsible for.

Conversely, you should agree to indemnify someone for what you are liable for. If it is your fault, you should pay. Many indemnification agreements are being written because the cost of getting a manufacturer or liable party to pay up exceeds the amount owed. I understand that reasoning, and it is sound and smart.

A good example of these is: you are running an event on property owned by a third party. You accept the money for the event, set up the course, review the entrants and totally control the event. The landowner’s sole responsibility in the event was providing the land and pointing out any known or reasonably foreseeable dangers on the land.

If someone is hurt in the event and sues the landowner, the event promoter should protect the landowner.

B.  You should not indemnify someone for what you do not have control over.

If the landowner is told by the event promoter that he cannot tell the event promoter how to run the event, the landowner should not be liable. The landowner has no control over the event. Therefore, the landowner should not be liable.

The manufacturer can only be liable for the product. If the sales person working for the retailer tells the consumer that this product will save their lives and prevent all injuries contrary to the manufacturer’s warnings, manual, instructions and marketing, then the manufacturer should not pick up the tab for the injured consumer. The manufacturer had no control over the salesperson, did not even know the salesperson existed, and therefore, should not be liable for someone they have no control over.

A manufacture could be liable if they have not disclaimed the warranty of merchantability or the warranty of fitness for a particular purpose, but that is for another article.

C.  You should only indemnify someone for what your insurance company agrees to indemnify someone for.

That means you should only indemnify someone for:

a.   What you can control.

b.   What you are liable for.

c.   What insurance policy says it will cover?

But they are my friends; they would never sue me based on the agreement!

They might not, but your friend may not always be in control of that agreement. Anyone who becomes a beneficiary or an owner of the contract can use the indemnification to sue you. The two best examples of this are:

A Bankruptcy Trustee: A bankruptcy trustee is an attorney whose job is to find every dime that may be owed to the bankrupt business. Any contract that has not been fulfilled, any invoice that has not been paid, and any indemnification agreement that may have money tied available, will be fair game. If the Bankruptcy Trustee can determine if the business that signed the indemnification agreement owes the bankrupt business money, the Trustee by law, must get the money back.

The Bankruptcy Trustee will sue in the name of the Bankrupt Company claiming indemnification for an earlier claim. You will think you are free and clear because the company you signed the indemnification agreement with filed bankruptcy. However, the Bankruptcy Trustee will come rowing back to the courtroom and hold you liable to the point of forcing you to file bankruptcy.

The Insurance Company under the Subrogation clause of an insurance policy believing the indemnification agreement allows them to collect from you. Every insurance policy has a subrogation clause. That means that the insurance company has the right to recover from anyone who caused the claim that the insurance company wrote a check for. Insurance companies will spend days looking for anyone who they can recover money from, and an indemnification agreement is a perfect opportunity. I would guess that 30% or more of the lawsuits in the US are insurance company subrogation claims.

Subrogation claims can be filed by worker’s comp accidents, car accidents, general liability or health insurance claims.

Again, the lawsuit will be in the name of the company you signed the indemnification agreement with, and that company has no choice. If the company does not cooperate with the insurance company, the original claim may not get paid. Insurance companies will finance the lawsuit, so there are no legal games to be played; they know what they want, and they understand the cost of getting it.

If you want Indemnification Agreements…. And you should then get them in a way that works for everyone.

Spending time money legal fees on an agreement that won’t be used or cannot be collected on is a waste of time.

1.   Be realistic.

a.   With you asking to indemnify for what

b.   What they can pay or what insurance they can purchase and afford.

c.   With what you need indemnified, with what someone other than you is legally liable for.

2.   Be prepared to offer one in return. Why should I sign yours if you are going to leave me out in the cold for any claim or liability you cause? Besides mutual indemnification, agreements take out the consideration issue if written correctly.

3.   Make sure it is signed by the right person. A corporation has officers. The board of directors of the corporation authorizes the officers to sign agreements for the corporation. An indemnification agreement is a big deal so make sure the person signing it has the authority to sign the agreement. Having a sales person or sales manager sign the agreement is a waste of trees.

4.   An indemnification agreement without a Certificate of Insurance or an Additional Insured document that is tied to the Indemnification Agreement, not just with it, is worthless.

The certificate of insurance must be legally tied to the indemnification agreement or both are worthless. There is no insurance to cover the indemnification and not money to indemnify the problem.

5.   Have an attorney write your indemnification agreement so it works.

One last point

Signing indemnification agreements may increase your insurance rates. Basically, instead of insuring you, your policy is not insuring dozens of other businesses and their employees. Your insurance company, if they continue to renew your policy, may increase your premium because the risk has increased.

(Insurance companies also do this based on the number of Additional Insured’s you issue and the coverage you make available to the Additional insured’s. Again, that is another article for another day.)

Indemnification agreements work, but only if written correctly and written with knowledge of how and why they work.

What do you think? Leave a comment.

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By Recreation Law          Rec-law@recreation-law.com   James H. Moss                  Jim Moss

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