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TRANSCRIPT
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IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE
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CRYSTAL BLACKWELL, as next friend to JACOB BLACKWELL, a minor,
Plaintiff/ Appellant,
v.
SKY HIGH SPORTS NASHVILLE -OPERATIONS, LLC,
Defendant/ Appellee.
) ) ) ) ) ) ) ) ) ) ) ) ) )
ZOHM\R 27 PM 3: 13
AFFtLlJ,,·;: COUFff CILFt\ Nh3HVlllE Tennessee Supreme Court
Case No. ---------
Tennessee Court of Appeals Case No. M2016-00447-COA-R9-CV
Circuit Court for Davidson County Tennessee
RULE 11 APPLICATION FOR PERMISSION TO APPEAL TO THE TENNESSEE SUPREME COURT
Ben M. Rose ( #21254) Joshua D. Arters (#31340) The Law Offices of Ben M. Rose, PLLC Post Office Box 1108 Brentwood, Tennessee 37024 615-942-8295
Attorneys for the Defendant/ Appellee, Sky High Nashville Sports Operations, LLC
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IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE
CRYSTAL BLACKWELL, )
as next friend to JACOB BLACKWELL, ) Tennessee Supreme Court a minor,
) Case No. )
Plaintiff/ Appellant, ) ) ) Tennessee Court of Appeals
v. ) Case No. M2016-00447-COA-R9-CV ) ) SKY HIGH SPORTS NASHVILLE )
OPERATIONS, LLC, ) Circuit Court for Davidson County ) Tennessee
Defendant/ Appellee. )
RULE 11 APPLICATION FOR PERMISSION TO APPEAL TO THE TENNESSEE SUPREME COURT
Ben M. Rose (#21254) Joshua D. Arters (#31340) The Law Offices of Ben M. Rose, PLLC Post Office Box 1108 Brentwood, Tennessee 37024 615-942-8295
Attorneys for the Defendant/ Appellee, Sky High Nashville Sports Operations, LLC
APPLICATION FOR PERMISSION TO APPEAL
This is an Application for Permission to Appeal to the Tennessee Supreme Court
("Application"), filed pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure of a
final decision ("Opinion") of the Tennessee Court of Appeals, at Nashville, a copy of which is
included herein as Exhibit A. A Petition for Rehearing was filed on January 19, 2017, which
was denied by Order entered on January 24, 2017. (Order Denying Pet. for Reh'g.)
Accordingly, this Application is timely pursuant to Tenn. R. App. P. 1 l(b).
The Defendant/ Appellee, Sky High Sports Nashville Operations, LLC, will be referred to
as "Sky High Nashville." The Plaintiff/Appellant, Crystal Blackwell, will be referred to as "Ms.
Blackwell." Ms. Blackwell filed this lawsuit with the trial court as next friend to her minor son,
Jacob Blackwell, who will be referred to as "Mr. Blackwell." The record on appeal consists of
six (6) volumes comprising the Technical Record and two (2) volumes comprising the DVD/CD
ROM Recordings of Proceedings before the trial court on May 8, 2015, and December 18, 2015.
References herein to the Technical Record will be by volume and page ("T.R. Vol._ at_").
References herein to the DVD/CD-ROM Recordings of Proceedings, if any, will be referred to
by DVD/CD-ROM volume and time ("Disc _ at_").
It is respectfully submitted that this Application presents important unsettled questions of
Tennessee law, all of which are matters of public interest and issues of first impression for this
Court. Such questions ultimately derive from the efficacy of a contract Ms. Blackwell executed
individually, and on Mr. Blackwell' s behalf, prior to Mr. Blackwell' s alleged injury while
playing dodgeball at the Sky High Nashville trampoline facility.
In that regard, this Application raises, first, whether the contract's choice of law and/or
forum selection provisions are enforceable against Mr. Blackwell. Sky High Nashville submits
1
that the Court of Appeals erred by refusing to enforce such provisions, as there are no facts in the
record supporting a finding that Mr. Blackwell would be effectively deprived of his day in court
should he be required to litigate in the selected forum, and, regardless, the state whose law was
selected by the parties to apply to this case bears a material connection to the transaction between
the parties.
Second, this Application raises the crucial question of whether Tennessee law affords Ms.
Blackwell, as Mr. Blackwell's parent, the legal authority to execute an enforceable pre-injury
liability release1 on Mr. Blackwell's behalf. The Court of Appeals' Opinion affirming the trial
court's refusal to enforce the relevant parental liability release in this case is based solely on a
single Tennessee case that has directly addressed this question: Childress v. Madison County,
777 S.W.2d 1 (Tenn. Ct. App. 1989). In the nearly thirty years since Childress was rendered,
however, this Court, the United States Supreme Court, and courts in other jurisdictions have
expressly recognized a fundamental parental privacy right guaranteed by the Tennessee and
United States Constitutions. Based on such pivotal constitutional precedent, Sky High Nashville
submits that there, in fact, has now been a strong shift favoring enforcement of such parental
liability releases in courts of other jurisdictions. Stated simply, the State of Tennessee now
recognizes that a parent is better suited to make decisions on behalf of their children in this
regard than is the government. Respectfully, the question of whether parental liability releases
are enforceable in Tennessee is a question that is ripe for this Court's review.2
Such pre-injury liability releases executed by a parent on her child's behalf are referred to herein generally as "parental liability releases."
Based upon Sky High Nashville' s research, there are ten states where the highest appellate courts have addressed the issue of whether parental liability releases are enforceable since Childress was rendered in 1989. See BJ's Wholesale Club, Inc. v. Rosen, 80 A.3d 345 (Md. 2013); Woodman v. Kera LLC, 785 N.W.2d 1 (Mich. 2010); Galloway v. State, 790 N.W.2d 252 (Iowa 2010); Kirton v. Fields, 997 So.2d 349 (Fla. 2008); Hojnowski v.
ii
Accordingly, Sky High Nashville respectfully requests that the Court grant its request to
appeal to the Tennessee Supreme Court because this Application presents important questions of
law which raise issues of first impression for this Court. Tenn. R. App. P. ll(a). Further, the
questions presented in this Application significantly implicate the public' s concern, and
particularly that of Tennessee parents and their children, and the businesses and organizations
that provide athletic-activities geared toward minors in Tennessee. Id. Additionally, Sky High
Nashville respectfully submits that the Court of Appeals' Opinion as to the each of the foregoing
conflicts with other Tennessee authority and authorities in other jurisdictions. Id. Indeed, such
crucial questions require a uniform decision rendered by this Court, and Sky High Nashville
submits that this Court should exercise its inherent supervisory authority to do so. Id.
Vans Skate Park, 901A.2d38 (N.J. 2006); Kondradv. Bismarck Park Dist., 655 N.W.2d 411 (N.D. 2003); Sharon v. City of Newton, 769 N.E.2d 738 (Mass. 2002); Cooper v. Aspen Skiing Co., 48 P.2d 1229, 1235 n. 11 (Colo. 2002), superseded by statute, Colo. Rev. Stat. Ann. § 13-22-107; Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201 (Ohio 1998); Scott v. Pacific West Mountain Resort, 834 P.2d 6, 12 (Wash. 1992). See also, Joshua Arters & Ben Rose, Kindly Remove My Child From the "Bubble Wrap" - Analyzing Childress v. Madison County and Why Tennessee Courts Should Enforce Parental Pre-Injury Liability Waivers, 11 TENN. J. L. POL'Y 8 (Fall 2016), available at https://~pers . ssrn.com/so13/papers .cfm?abstract id=29244 76.
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TABLE OF CONTENTS
Application for Permission to Appeal. .......... ......... .. ................. .... ...... ... ·· .. ... ··· ·· ····· ···· ·············· ···· ··· 1
Table of Contents .................................................... .............................................. ................ ········· iv
Table of Authorities .......... ... .... .. .......... ... ...... ... .... ......... ... .............. ....... .. ...... ........ ..... ..... ..... .... ...... Vl
Issues Presented for Review .......... ........................ .. ... .................................. · · .... .... · · · · .. · ...... · · · · · · · · xvi
Statement of the Case ... ....... .... ....... ..... .. .. ...... ..... ....... ...... .. ..... .. ...... ......... ..... .................. ..... ............ 1
Statement of the Facts .... .... ........................ .... ... ......... .. .. ......................... ......... ..... .. ....... ................. 6
I. General Factual Allegations ........................ ............... ..... ..... .. ... ..... .. ...... ....... ...... ........ 6
II. Sky High Nashville's Motion to Enforce the Contract Between the Parties ............... 6
III. Order on Sky High Nashville ' s Motion to Enforce the Contract.. ... ......................... 10
IV. Motion to Alter/Amend or, in the Alternative, for Interlocutory Appeal.. ...... .......... 11
V. Ms. Blackwell' s Motion to Amend Complaint ......................................................... 12
VI. Trial Court's Order on Pending Motions and Grant oflnterlocutory Appeal.. ......... 13
VIL Sky High Nashville ' s Argument on Appeal.. ............................................................ 16
VIII. Court of Appeals' Opinion .... .... ...... .. .. ..... ................................................ .. .... .. .... ... 18
IX. Petition for Rehearing ........... .. .... .... ...... ............. ...... ..... .... .... ... ......................... ..... ... 20
Legal Standard .... ........... ................... .................. ...... ... .... ............... ..... ............................ ... ... ....... 22
Reasons Supporting Appeal to The Tennessee Supreme Court .................................................... 23
I. Uniformity of Decision as to the Enforceability of Forum Selection Provision ....... 23
II. Uniformity of Decision as to the Enforceability of Choice of Law Provision .......... 3 3
III. This Court Should Decide Whether a Parental Liability Release is Enforceable in Tennessee ......................................................................... 37
A. Developments Since Childress Pose Questions Not Raised in 1989 Which Require this Court's Review ............................................ .... .... 37
B. Split of Authority Since Childress with a Strong Shift Favoring Enforcement of Parental Liability Releases ...................................... 40
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C. Tennessee Law is Similar to the Law in States Enforcing Parental Liability Releases ..... ....... ... ................. ....... ...... .. .... .... .... ..... ... ..... ... .... 44
D. Enforcing Parental Liability Releases Comports With Other Protections Afforded Minors in Tennessee .... .... .. ....... ..... .... ... .. .... 46
IV. This Case Merits an Appeal to this Court ................. ...... ...... ......... .. ... .. ............ ........ 53
V. Remand was Inappropriate and Appeal to this Court is Appropriate ............ ....... ..... 57
Conclusion ..................................................................... ................................ .. .... ......................... 61
Certificate of Service .......... ......... ............. ................ ..... ............ ... ... ... .......................................... 62
v
TABLE OF AUTHORITIES
United States Supreme Court Cases
MIS Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972) .. .. ....................................... ......... ...... .. 24
Meyer v. Nebraska, 262 U.S. 390 (1923) .. ... .. ..... .. ............. .......... .. ..... ..... .. ..... .. .... ..... ...... ............ 39
Payne v. Tennessee , 501 U.S. 808(1999) ..... ............. .. ............... ..... ..... ........ .... .. .... ....... ........ ........ 46
Pierce v. Society of Sisters, 268 U.S. 510 (1925) .... ................ ........................ .. ........ .. ........... 38, 39
Roe v. Wade, 410 U.S. 113 (1973) ... .. .. ..... ........ ...... ..... ........ ......... .. ...... ............. .......................... . 38
Stanley v. Illinois, 405 U.S. 645 (1972) ................................ ................. ... ..... ..... .... ... .... ... ... ......... 39
Troxel v. Granville, 530 U.S . 57 (2000) ........ ..... ..... ..... .................... ..... ........ ... .. ....... .......... .. passim
United States v. Int'!. Boxing Club, 348 U.S. 236 (1955) ................. ........ .. .... ...... ............. .......... 46
Wisconsin v. Yoder, 406 U.S. 205 (1972) ............... .... .............. .... ..... .... .... .. ...... ........ ......... .... 38, 39
United States Circuit Court of Appeals Cases
A.fram Carriers, Inc. v. Moeykens, 145 F.3d 298 (5th Cir. 1998) ................... .. ... .... ..... ...... .. ... ... .. 27
,--.. Baker v. LeBoeuf, Lamb, Leiby & Macrae, 105 F.3d 1102 (6th Cir. 1997) .... ... .. .. ... ... .. .......... .... 22
Calavo Growers of California v. Generali Belgium, 632 F.2d 963 (2d Cir. 1980) ..... ........... 26, 33
,,..._ Calix-Chacon v. Global Intern. Marine, Inc., 493 F.3d 507 (5th Cir. 2007) ......... ... ......... .... .... .. 27
Chicago, R.l & P. Ry. Co. v. Lee, 92 F. 318 (8th Cir. 1899) .......... ..... ........... ... ........... ........ .. .... . 41
Connection Distrib. Co. v. Reno, 154 F.3d 281 (6th Cir. 1988) .... .... ........ .. ... .... .. .................... .... 55
In re Segal, 2011WL158251 7 (11th Cir. 2011) ...................... ..... ... .... .. .... ... .............. .. ..... .. ... ..... 27
Interamerican Trade Corp. v. Companhia Fabricadora de Pecas, 973 F.2d 487 (6th Cir. 1992) .. .......... .. ...... .. .......... ... ..... ............. .... .. ............... ..... ............. 30
Kepas v. eBay, 412 Fed. Appx. 40 (10th Cir. 2010) ...... .. ........ .... .. .... ....... ..................... .... ..... ...... 27
Krenger v. Pennsylvania R. Co., 174 F.2d 556 (2d Cir. 1949) ... .. ..... ... .... ... ................ ........ ... ... ... 24
Kunda v. C.R. Bard, Inc. , 671 F.3d 464 (4th Cir. 2011) .... .... ........ .......... ..... ..... .. ........ .......... ..... .. 37
Liberty Coins, LLC v. Goodman, 748 F.3d 682 (6th Cir. 2014) .................................... ........ .. ..... 55
Vl
MB. Restaurants, Inc. v. CKE Restaurants, Inc., 183 F.3d 750 (8th Cir. 1999) ........ .................. 27
Muller & Co. v. Swedish Am. Line Limited, 224 F.2d 806 (2d Cir. 1955) ................................ ... 24
Phillips v. Audio Active Ltd., 494 F.3d 378 (2d Cir. 2007) ....... ......... ......... ............ ..................... 27
Roby v. Corporation of Lloyd's, 996 F.2d 1353 (2d Cir. 1993) .............................. ........... ........ .. . 36
Sec. Watch, Inc. v. Sentinel Sys., Inc., 176 F.3d 369 (6th Cir. 1999) .. ............... .......................... 22
Security Watch, Inc. v. Sentinel Systems, Inc., 176 F.3d 369 (6th Cir. 1999) ...... ............ .......... .. . 36
Shell v. R. W Sturge, Ltd., 55 F.3d 1227 (6th Cir. 1995) ...... ........ ..... ............ ..... ......................... . 22
Sun World Lines, Ltd. v. March Shipping Corp. , 801F.2d1066 (8th Cir. 1986) ......... ..... ........ .. 27
Union Elec. Co. v. Energy Ins. Mut. Ltd., 689 F.3d 968 (8th Cir. 2012) ... ........... ... .. .... .. ........... .. 26
United States District Court Cases
Anchor Seafood, Inc. v. CMA- CGB (Caribbean), Inc., 2005 WL 4674292 (S.D. Fla. May 4, 2005) ... ... .. ........... ... ................... ......... ..... .... ..... .. ..... .... ......................... 36
Applied Waterproofing Technology, Inc. v. American Safety Indem. Co., 2009 WL 2448272 (S.D. Cal. 2009) .................................. ..... ...... ......... ......... ........ .......... 27
r-- Automotive Consultants Div., Progressive Marketing Group, Inc. v. Faris, 2003 WL 21318320 (N.D. Tex. 2003) ... ..... ..... ......... ............. ......................... .................. 28
Caputo v. Holland America Line, Inc., 2009 WL 2258326 (E.D.N.Y.
2009) ·· ··· ···· ········ ·· ······ ··· ···················· ··· ··· ······ ······ ·· ············· ·· ···· ······ ··· ······ ·· ··· ······················ 28
Carefree Vacations, Inc. v. Brunner, 615 F. Supp. 211 (W.D. Tenn. 1985) ....... ...... ... .... ............ 35
Deep Sea Fin., LLC v. British Marine Luxembourg, S A., 2010 WL 3603794 (S.D. Ga. May 13, 2010) ..... ..... .... ... ... .. ... ................ .... ... .. ........ .... ... ..... .... .......... 36
Grant v. Kia Motors Corp., 185 F.Supp.3d 1033 (E.D. Tenn. 2016) ... .................................. 13, 17
Great Lakes Reinsurance (UK), PLC v. Sea Cat L LLC, 653 F. Supp. 2d 1193 (W.D. Okla. 2009) ..... .. ......... ... .. .... .. ...... ..... ........... ....... .... ......... ...... ....... ... ... .. ......... 37
Igneri v. Carnival Corp., 1996 WL 68536 (E.D.N.Y. Feb. 1, 1996) .. ..... ...... ..... ..... .. .. ...... .... ....... 26
In re Enron Corp. Sec., Derivative & "Erisa" Litig., 391 F. Supp. 2d 541 (S.D. Tex. 2005) ..... . 36
Long v. Dart International, Inc., 173 F.Supp.2d 774 (W.D. Tenn. 2001) .............. ................. ... .. 33
McNair v. Monsanto Co., 279 F. Supp. 2d 1290 (M.D. Ga. 2003) .......... .......... ... .... .... ... ... ......... 28
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Mercer v. Raildreams, Inc., 702 F. Supp. 2d 176 (E.D.N.Y. 2010) ........ .... ......... ............ ............ 27
National Biodiesel Bd. v. FutureFuel Chemical Co., 647 F. Supp. 2d 1074 (S.D. Iowa 2009) ................................. .. ..... .. .......... ..... ......... .. ................. ........... ....... ........ 28
RGC International Investors, LDC v. ARI Network Services, Inc. , 2003 WL 21843637 (D. Del. 2003) ................ .. .... .. ........ .. ................................................ .. ....... 26
Sarmiento v. BMG Entertainment, 326 F. Supp. 2d 1108 (C.D. Cal. 2003) ............................ ..... 26
The Hipage Co. , Inc. v. Access2Go, Inc. , 589 F. Supp. 2d 602 (E.D. Va. 2008) ......................... 28
Van Zyl v. Aviatour, Inc. , 2009 WL 2025159 (M.D. Fla. 2009) ... .... ........ .. ............ ...................... 28
Weiss v. La Suisse , 154 F. Supp. 2d 734 (S.D.N.Y. 2001) .. .. .............. ... .................. ......... .... ...... . 36
Zak/it v. Glob. Linguist Sols. , LLC, 2014 WL 3109804 (E.D. Va. July 8, 2014) ..... ....... .... ... .. .... 36
Tennessee Cases
Blackwell v. Sky High Sports Nashville Operations, LLC, 2017 WL 83182 (Tenn. Ct. App. Jan. 1, 2017) .. .... .............................. .......... ....... .. .. passim
Bright v. Spaghetti Warehouse, Inc. , 1998 WL 205757 (Tenn. Ct. App. Apr. 29, 1998) ... .... ..... ... .. ....... .... .. .. ... .. .... ...... ... ............. ..... ............ ......... ............ ..... .. ... .. .. 34
Busby v. Massey, 686 S.W.2d 60 (Tenn. 1984) ... ............... ............................. ........... ........... ....... 47
Calaway v. Schucker, 193 S.W.3d 509 (Tenn. 2005) ....... ... ............ ...... ......... ....... ..... ..... _. ....... ..... 13
Cave v. Davey Crockett Stables, 1995 WL 507760 (Tenn. Ct. App. Aug. 29, 1995) .... .... ........... ............. .......... ... ... ... ..... ..... ............... .... ..................... .... .. ............. ... 54
Cavender v. Hewitt, 239 S.W. 767 (Tenn. 1921) ... .......... ...... .. ...................... .. .. ........... .. .. ....... ..... 56
Chaffin v. Norwegian Cruise Line Ltd. , 1999 WL 188295 (Tenn. Ct. App. Apr. 7, 1999) .. ........... ...... ............ .... .... ... .. .... ....... ..... ........ ..... ............. .... ..... ....... ............ ... 24
Childress v. Madison County, 777 S.W.2d 1 (Tenn. Ct. App. 1989) ..... ......... .. ........... ........ . passim
Cohn Law Firm v. YP Se. Advert. & Publ 'g, LLC, 2015 WL 3883242 (Tenn. Ct. App. June 24, 2015) ... ... ........... ... ...... ......... ...... ..... ..... .. ........ ... ......................... 24
Conley v. Life Care Centers of Am. , Inc. , 236 S.W.3d 713 (Tenn. Ct. App. 2007) ......... ....... 21 , 57
Cooper v. Logistics Insight Corp. , 395 S.W .3d 632 (Tenn. 2013) ..... ............... ................... ........ 45
Cummings, Inc. v. HI Mayaguez, Inc., 1993 WL 398475 (Tenn. Ct. App. Oct. 1, 1993) ............ .. ......... .. ....... ......................... .. ........................ ........... ... ....... ............. 26
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Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992) ....... ......... .. .. ... .... ..... .. ....... .................. .. ....... ...... ... 38
Dodson by Dodson v. Shrader, 824 S.W.2d 545 (Tenn. 1992) ...... ... ............ .... ......... ... ..... ....... ... 50
Dudley v. Phillips, 405 S.W.2d 468 (Tenn. 1966) ........... .... ..... ........ ..... ...... ........... .... .... .... .. .... ... . 13
Dupuis v. Hand, 814 S.W.2d 340 (Tenn. 1991) .. ....... ........... ..... ...... ... .... ...... ... ......... ..... ...... .... .... 56
Dyersburg Mach. Works, Inc. v. Rentenbach Eng 'g Co., 650 S.W.2d 378 (Tenn. 1983) .. .. .. 24, 25
Eldridge v. Eldridge, 42 S.W.3d 82 (Tenn. 2001) .... ...... ...... .... .... ... .. ..... ..... .... ... ........ .... ... ......... .. 22
ES! Cos. , Inc. v. Ray Bell Constr. Co., 2008 WL 544563 (Tenn. Ct. App. Feb. 29, 2008) .. .... .... 25
Evans v. Steelman, 1996 WL 557844 (Tenn. Ct. App. Oct. 2, 1996) .. ........ ..... .. .... ...... .. ..... .... .. ... 45
Evans v. Steelman, 970 S.W.2d 431 (Tenn. 1998) .. .................... ......... .... .. ......... ........ ... ..... .... ... .. 45
Foster v. Adcock, 30 S.W.2d 239 (Tenn. 1930) ........ ........... .............. .. ... ..... .. ...... ....... ........ .. ...... .. 59
Frady v. Smith, 519 S.W.2d 584 (Tenn. 1974) .... ......... .. .......... ..... .... ............. ........ ..... ... ....... ... .... 13
Gardner v. Flowers, 529 S.W.2d 708 (Tenn. 1975) ......... ....... ... ....... .... ...... .... .......... ... .... .... ... .... . 58
Guiliano v. Cleo, Inc., 995 S. W.2d 88 (Tenn. 1999) .. .... ....... ... ..... .... .... .... .. ....... ... ..... ........ ...... .... 22
Hanover v. Ruch, 809 S.W.2d 893 (Tenn. 1991) ...... ................. ....... ....... ... .... ..... ........ ....... ..... ..... 56
Hardy v. Tournament Players Club at Southwind, Inc. , 2015 WL 4042490 (Tenn. Ct. App. July 2, 2015) ........ ............ ........... ... .... ... .......... ......... .. ....... ......... ...... ....... 45
Hawkv. Hawk, 855 S.W.2d 573 (Tenn. 1993) .... ... .. ... ............ ........ ........ ...... ............. .... ... ... . passim
High v. High, 1999 WL 1336088 (Tenn. Ct. App. Dec. 28, 1999) ..... ...... .. .... .... ....... ........ ........... 58
In re Hamilton , 658 S.W.2d 425 (Tenn. Ct. App. 1983) ... ......... ..... ....... ....... ..... ..... ... .... .... .... ...... 39
,,.... Jordan v. Baptist Three Rivers Hospial, 984 S.W.2d 593 (Tenn. 1999) ..... ............. ............... ..... 56
Livingston, as Parent, Next Friend of Livingston v. Upper Cumberland Human Res. Agency, 1997 WL 107059 (Tenn. Ct. App. Mar. 12, 1997) .. ... .. .. ............. .... .... ..... ... 54
Lovelace v. Copley, 418 S.W.3d 1 (Tenn. 2013) ... ... .. .. ... ........ ....... .... .. .... .. ...... .. .. .. ..... ...... ... ... .... . 39
Messer Griesheim Indus., Inc. v. Cryotech of Kingsport, Inc., 131 S.W.3d 457 (Tenn. Ct. App. 2003) .... ......... .... .............. ......... ..... ...... .. .... .... .... ... .... .. .. ...... ....... .. ... .. 34
Neale v. United Way of Greater Kingsport, 2015 WL 453 7119 (Tenn. Ct. App. July 28, 2015) .. ........... .... ... ...... ......... .............. ..... ... ....... .... .... ..... .. .. ..... .. ......... ........ .. 54
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Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625 (Tenn. 1999) ........ ................... .................. ......... 22
Olson v. Molzen, 558 S.W.2d 429, 431(Tenn.1977) ......................... .. ............ .. .............. ............ 35
Page v. Wilkinson, 657 S.W.2d 422 (Tenn. Ct. App. 1983) .............. .. ............................... .......... 13
Parent v. State, 991 S.W.2d 240 (Tenn. 1999) ............. ........ ............. .. ....... .. ...... .... ................. .... . 45
Pruitt v. City of Memphis, 2007 WL 120040 (Tenn. Ct. App. Jan. 18,
2007) ···· ······ ····························· ··· ········· ···· ···· ········ ········· ······· ···················· ························· · 54
Riley v. Whybrew, 185 S.W3d 383 (Tenn. Ct. App. 2005) ..................... .. ...... ....... .. ..................... 22
Safeco Ins. Co. of Am. v. Shaver, 1994 WL 481402 (Tenn. Ct. App. Sept. 7, 1994) ............ ....... ..... ................... .... ....... .... ................... ..... .............. .. ....... ........ ... .. . 26, 30
Sanders v. Traver, 109 S.W.3d 282 (Tenn. 2003) .. ....... .. ......... ............................ .. ............ ... ....... 22
Sevier Cnty. Bank v. Paymentech Merch. Servs., 2006 WL 2423547 (Tenn. Ct. App. Aug. 23, 2006) .. ... ... ...... ............... .......... .. .......................... ....... .. 24, 26, 30
Signal Capital Corp. v. Signal One, LLC, 2000 WL 1281322 (Tenn. Ct. App. Sept. 7, 2000) ............ ... .. ...... ....... ... ........................... ... ... ............... .. . 24, 26
Simmons v. Simmons, 900 S.W.2d 682 (Tenn. 1995) .. .... ....... .. ........ .. ................................... ... .... 39
Smith v. Gore, 728 S.W.2d 738 (Tenn. 1987) ........... .. ............. ....................... .......................... .... 56
Smith v. King, 1984 WL 586817 (Tenn. Ct. App. Sept. 21, 1984) ............................. 20, 21 , 57, 59
Spell v. Labelle, 2004 WL 892534 (Tenn. Ct. App. Apr. 22, 2004) ........ ...................... .... ......... .. 24
State v. Goodman, 90 S.W.3d 557 (Tenn. 2002) ...... ..... ... .................... .......... ............................ .. 52
~ State v. Shirley, 6 S.W.3d 243 (Tenn. 1999) ...... ..... .............. .............. .......................................... 22
Swift v. Kirby, 737 S.W.2d 271 (Tenn. 1987) ... .............. ... .. .... ....... ...... ...... .... ......................... ..... 45 /'
Taylor v. Beard, 104 S.W.3d 507 (Tenn. 2003) ............................ ..................... ...... ... ........... 43 , 46
Taylor v. Beard, 2001 WL 1381355 (Tenn. Ct. App. Nov. 5, 2001) ... ................................... 43 , 46
Tennessee Farmers' Mut. Ins. Co. v. Rader, 410 S.W.2d 171(Tenn.1966) ....... ... ..... .. .... .... ....... 13
Tennsonita (Memphis), Inc. v. Cucos, Inc., 1991WL66993 (Tenn. Ct. App. May 2, 1991)) ......... .. ........... ...... .... ................. ..................... .. ........................ ........... 24
Thomas v. Costa Cruise Lines NV., 892 S.W.2d 837 (Tenn. Ct. App. 1994) ..... .................. ....... 23
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Thompson v. Terminix Intern. Co., L.P., 2006 WL 2380598 (Tenn. Ct. App. 2006) ................... 24
Tompkins v. Annie's Nannies, Inc., 59 S.W.3d 669 (Tenn. Ct. App. 2000) ........ ..................... ..... 54
Vantage Technology, LLC v. Cross, 17 S.W.3d 637 (Tenn. Ct. App. 1999) ................................ 34
Wade v. Baybarz, 660 S.W.2d 493 (Tenn. Ct. App. 1983) ........................................................... 47
Wadkins v. Wadkins, 2012 WL 6571044 (Tenn. Ct. App. Dec. 14, 2012) ........................ .. ... 17, 40
White v. Turnberry Homes, LLC, 2015 WL 3429764 (Tenn. Ct. App. May 28, 2015) ................ 22
Wolfe v. Vaughn, 152 S.W.2d 631 (Tenn. 1941) ......................... ........... ................................ 17, 20
Woodruff v. Anastasia Intern., Inc., 2007 WL 4439677 (Tenn. Ct. App. Dec. 19, 2007) ... .. ....... 25
Wright v. Wright, 337 S.W.3d 166 (Tenn. 2011) ... ... ....... ..... ............... .. ..................... .......... .. 19, 47
Other State Cases
Bellew v. Byers, 396 N.E.2d 335, 337 (Ind. 1979) ... ........... ..... ... ........ .................... ........... .......... 43
Betz v. Farm Bureau Mut. Ins. Agency of Kansas, Inc. , 8 P.3d 758 (Kan. 2000) ................... 17, 41
BJ's Wholesale Club, Inc. v. Rosen, 80 A.3d 345 (Md. 2013) ............................................ ii, 42, 57
Calanea v. D & S Mfg. Co., 510 N.E.2d 21 (Ill App. Ct. 1982) ....... ... ... ....... ......... ....... ...... .. ....... 30
Cooney v. Osgood Mach. , Inc., 612 N.E.2d 277 (N.Y. 1993) ......... ....... ...... ................................ 36
Cooper v. Aspen Skiing Co., 48 P .2d 1229 (Colo. 2002) .. ..... ... ....... ..... ....... ... ........ .... ..... .... .... iii, 19
Davis v. Sun Valley Ski Education Foundation, Inc. , 941P.2d1301 (Id. 1997) .............. ............ 43
DeKalb County School System v. White, 260 S.E.2d 853 (Ga. 1979) ........ ... .. ... .......... ......... ....... 43
Doe v. Cedars Academy,_LLC, 2010 WL 5825343 (Del. Sup. Ct. Oct. 27, 2010) ... ... ............ ..... ........ ......... ... ............ ..... ... ......... .. 29, 30, 31, 50
Doyle v. Bowdoin College, 403 A.2d 1206 (Me. 1979) ........... .... ...... ................................ ...... ..... 41
Fedor v. Mauwehu Council, Boy Scouts of Am., Inc., 143 A.2d 466 (Conn. Super. Ct. 1958) .................. ........... ..... .. .. .... .......................... .... ....... ....... .. .... ........ 41
Finucane v. Interior Construction Corp., 264 A.D.2d 618 (N.Y. 1st Dept. 1999) ...... ... ... .... ..... ........... ... ............... ........ ... ........... ......................................................... 36
Fischer v. Rivest, 33 Conn. L. Rptr. 119 (Super Ct. 2002) ..... ........ ... ..................................... 41 , 56
Xl
Fitzgeraldv. Newark Morning Ledger Co., 267 A.2d 557 (N.J. Law. Div. 1970) ........................................................................ .. ............. ........... ..................... .. ........ 41
Frye v. Yasi , 101N.E.2d128 (Mass. 1951) .... ..................... ......................................................... 53
Galloway v. State , 790 N.W.2d 252 (Iowa 2010) .............. .. ..... .. ....................... .. ....... ......... ........... ii
Gavin W v. YMCA of Metropolitan Los Angeles, 106 Cal. App. 4th 662 (2d Dist. 2003) ..................................... ........... ......... .... ... ....... .. ....... .................................. 31
Halbman v. Lemke, 298 N.W.2d 562 (Wis. 1980) ................................... ............ .. ....................... 50
Harford Mut. v. Bruchey, 238 A.2d 115 (Md. 1968) ....... .... ...... .......... ......................................... 37
Hohe v. San Diego Unified Sch. Dist. , 244 Cal. App. 3d 1559, 274 Cal. Rptr. 64 7 (Cal. App. 1990) ................. ............. .. .. .... ...... ................... ... .. ............... 30, 42, 57
Hojnowski v. Vans Skate Park, 901 A.2d 38 (N.J. 2006) .. .. .... ... ......... .............. ... ......................... iii
Khoury v. Saik, 33 So. 2d 616 (Miss. 1948) ............... .. ........................................ ........................ 41
Kirton v. Fields, 997 So.2d 349 (Fla. 2008) .... ....... ..... .......... .... ... ... .. .. .. ......... ............................... . ii
Kondrad v. Bismarck Park Dist. , 655 N.W.2d 411 (N.D. 2003) ..... .. .. .. .. .......................... iii, 42, 57
Meyer v. Naperville Manner, Inc. , 634 N.E.2d 411(Ill.1994) .......... ... ... ..... ... .. .. .. .... ... ...... .. ....... 41
Moore v. Minnesota Baseball Instructional Sch. , 2009 WL 818738 (Minn. Ct. App. Mar. 31 , 2009) ........................ ........ ... ............... ..... ..... .... ..... ... .......... 42, 57
Ohio Cas. Ins. Co. v. Mallison , 354 P.2d 800 (Or. 1960) ...... ... .............. ..... .. .... ...... ..................... 41
Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546 (Wis. Ct. App. 2002) ................................ 42
Quinn v. Mississippi State University, 720 So.2d 843 (Miss. 1998) ... .. ...... ... .............. ... ............ . 43
Saccente v. LaFlamme, 2003 WL 21716586 (Conn. Super. Ct. July 11 , 2003) ... ........ .... 41 , 44, 56
Scott v. Pacific West Mountain Resort, 834 P.2d 6, 12 (Wash. 1992) .............. .................... ... ...... iii
Sharon v. City of Newton, 769 N.E.2d 738 (Mass. 2002) .... ..................... .... .. .. .. ... ..... .. ........ . passim
Tunkl v. Regents of Univ. of California, 383 P.2d 441 (Cal. 1963) .. .... .......... .. .... .. ...... ..... .... .. ... .. 35
Va/dimer v. Mount Vernon Hebrew Camps, Inc. , 172 N.E.2d 283 (N.Y. 1961) .......................... 41
Woodman v. Kera LLC, 785 N.W.2d 1 (Mich. 2010) ........ .. ................ .......... .. ... ... ... .. .. ..... ..... .. ..... . ii
Woodman v. Kera, LLC, 785 N.W.2d 1 (Mich. 2010) ...... ............... ..... ......... .............. ........... 55, 56
Xll
Zivich v. Mentor Soccer Club, Inc., 696 N .E.2d 201 (Ohio 1998) ........................................ passim
United States Constitional Provisions
U.S. CONST. amend XIV .............. .... .................................. ......... ....... ...... ..................................... 39
Tennessee Constitutional Provisions
.- TENN. CONST. art I,§ 8 .......................... ................................................................................. ...... 38
Tennessee Rules and Statutes
Tenn. Code Ann. § 20-1-105 ... ......... ....... ....... ..... ... ...................... ........ ....... .... ...... ... ..... ... ............ 13
Tenn. Code Ann.§ 29-34-105 .......... .......................................... ............. ... ...................... 44, 47, 49
Tenn. Code Ann.§ 33-8-303 ........................... .. .................. .... .............................................. ... .... 51
Tenn. Code Ann. § 34-6-307 ....................... ... .. ............................. ... ............................................ 51
Tenn. Code Ann.§ 36-3-106 ..................... ...... .... ........ .............................................................. ... 51
Tenn. Code Ann.§ 36-6-101 ................................ ...... .. ....... ... .. .............................. ......... ........ .. ... 39
Tenn. Code Ann.§ 36-6-304 ................ ... .. .............................. .... .. .... ..... .... .................................. 52
Tenn. Code Ann. § 37-10-303 ......................................... ......................... .. .. ... ............. ..... ... .. .. .. .. 51
Tenn. Code Ann. § 38-1-302 ..... ......... .......... ...... ..... ............... ....... ... .. ................... ..... .............. .... 52
Tenn. Code Ann. § 47-25-1105 .......... .... ........ .. ............... ..... ............. ....... .... .......... ... ................... 52
Tenn. Code Ann.§ 49-2-124 ... ... ...................... ... ..... ... ..................... .............................. ...... .. ...... 51
Tenn. Code Ann.§ 49-7-1103 ........ .............. ...................... ...... ... ... ... ........... ....................... ......... 52
Tenn. Code Ann. § 50-5-105 ......... ............. ....... ... .......................... .... ... .... ... .. ..... ....................... .. 52
Tenn. Code Ann. § 62-38-305 .. ........ ........ ..... ...... ................... ........ ...... ........ ... .... .............. ......... .. 52
Tenn. Code Ann.§ 68-1-118 ........................................................................................................ 52
Tenn. Code Ann. § 68-117-104 .............. .. ..... ..... ... ... .......... ............... ... ................ ............... .... ..... 52 ~
,--.... Tenn. Code Ann.§ 68-32-101 ....... .... .................................... ... ....... .. ............. .. ............. ............... 52
Tenn. Code Ann. § 68-34-107 .......... .. ................. .... ........ .... ...... ........ ........................................... 52
Tenn. Code Ann.§ 70-7-101 ................................................. .... .............. ............ ...... ..... .. .......... .. 45
Xlll
·-
Tenn. R. App. p. 11 .......... .. ..... ..... ....... ... ..... .. .... ... ..... .... ...... .............. ........ .. ......... ........ .......... passim
Tenn. R. Civ. P. 12.02 ..... .. ..... ... ....... ..... .... .... ... ...... ....... ....... ...... ............... ..... ........ .. ........ ....... 21 , 57
Tenn. R. Sup. Ct. 4 .... .......... ...... .... ....... ........ .......... ........ .... ..... ......... .... ............ ... .......... .... ..... .... ... 45
Tenn. Sup. Ct. R. 4 ... ...... .. .... .......... ....... ...... .......... ........ ........ .......... ... ..... .... ...... ... ............ ............. 19
Other State Statutes
Alaska Stat.§ 09.65.292 ....... .......... ................. .. ...... .......... .. ... ......... ......... ... ..... ............................ 42
Ariz. Rev. Stat. § 12-533 .. .......... ... ...... ........ ... .... ... .......... ... .... ....... ... .... ......... ..... ... .. .. ...... ...... ....... 42
Colo. Rev. Stat. Ann. § 13-22-107 .. ............. ..... ..... .. ... ...... ......... ... ....... ........... ... ........... .... . iii, 19, 42
Conn. Gen. Stat. Ann. § 45a-631 ... ......... .... ........ .... .......... .. .. ........ ........... ..... ...... ..... ... ........ ... ... .. .. 44
Fla. Stat. Ann. § 744.301 ...... .......... ....... ....... ..... ... .. ............ .......... .... ... .. ......... ..... .... ........ ..... ........ 42
Haw. Rev. Stat. Ann. § 663-10.95 ... .. ...... ... ...... ... .... ......... .. ... .......... ...... ................... ............ ..... ... 42
---.. Mass. Gen. Laws. Ann. 21 , § 17C .... .......... ................................................. ..... .... .. ......... ....... .. .... 44
Md. Code Ann., Education§ 7-301(a)(l) ................... .... ....... ... ......... ...... ... .............. ...... ........... ... 51
Md. Code Ann., Education§ 7-305 ...... ...... .. ... .... .... ... .......... .... ..... .......... .... ...... .. .... ..... ........... ..... 51
Md. Code Ann., Family Law§ 10-314 ... .. .. ...... .... .... ... ... ........ ....... ..................... ...... .... ......... ... .... 51
Md. Code Ann. , Family Law§ 2-301 ........ ..... .... ....... ........ .. .. .. .. ... ..... ................... .. ...... ......... .... ... 51
Md. Code Ann. , Family Law§ 4-501 .. ................ ......... ...... .. ......... ..... ......... ........ .. .. .... ... ... ........... 51
Md. Code Ann., Family Law § 4-522 ... ...... .... ... ......... .... ..... ..... ....... .... ..... ..................... ........... .... 51
Md. Code Ann., Health-Gen.§ 10-610 .... ..... ...... ..... ....... ...... ........ ...... ... ... ... ..... ......... .... ........... .... 51
Md. Code Ann., Health-Gen. § 10-923 .... ..... ................... ..... .... ...... ....... ... .... ....... .... ... .................. 51
Md. Code Ann., Health-Gen. § 18-4A-02 ... ... ..... ........... .. ... ... .. ..... ........... ................. ..... ...... .... .... 51
Md. Code Ann., Health-Gen.§ 20-101 ... .... ... ........ ..... .... ... .... .... ... ...... ... .... ... ... ..... ........ .. .............. 51
Md. Code Ann., Health-Gen.§ 20-106 .... .. .............. ............ ....... ... ...... ..... .. .. .... ............................ 51
Md. Code Ann., Health-Gen. § 102 ............. ..... ..... .. ..... ... ....... ... ... ............ ......... ......... ... ...... ... ... ... . 51
Md. Code Ann., Labor and Employment§ 3-211 ......... ...... ....... ...... .. ..... ...................... ........ ... .... 51
XlV
Md. Code Ann., Labor and Employment § 3-403 ........... ..... ................. ... .......... ... ................ ....... 51
Md. Code Ann., Natural Resources§ 10-301 ... ...... ......... .......... ... ...... ............................ .............. 51
Ohio Rev. Code Ann.§ 153.18 ... ... .. .... ........ .... ... ... ............... ............. ...................... ...... ... ..... .... ... 44
Utah Code Ann. § 78B-4-203 .... ............. ......... .......... ..... .... ....... ..... ............. ..................... ...... .... .. 42
Secondary Authorities
Black' s Law Dictionary, 1144 (8th ed. 2004) ............ .. ..... .... .... ......... .. ... .. ............ ..... ...... ........ .. ... 17
Elisa Lintemuth, Parental Rights v. Parens Patriae: Determining the Correct Limitations on the Validity of Pre-Injury Waivers Effectuated by Parents on Behalf of Minor Children, 2010 Mr CH. ST. L. REV. 169 (2010) ..... ... ....................... .. ............................. .. ........... ................. .. .... .. .. 53
Frank H. Easterbrook, Stability and Reliability in Judicial Decision, 73 CORNELL L. REV. 422 (1988) ................. ........ ..... ... .......................... .... ............................. 46
Gilbert, Choice of Forum Clauses and International Interstate Contracts, 65 KY. LAW JOURNAL 1(1976) ........ ................ .......... .. .. .... .. .... ..... ................ ... ....... ... ....... 24
Jordan A. Desnick, The Minefield of Liability for Minors: Running Afoul of Corporate Risk Management in Florida, 64 U. MIAMI L. REv. 1031 (2010) .... ... .. .. ...... .. ...... ... .......................... ....... ... .... ...... ..... ....................... ... .... ...... .... 54
Joseph H. King, Jr. , Exculpatory Agreements for Volunteers in Youth Activities--The Alternative to "Nerf (register) " Tiddlywinks, 53 OHIO ST. L.J. 683 (1992) ............. ... .. .......... ............... .. ... .......... .. ..... .... ............. ..... ..... ....... 51
Joshua Arters & Ben Rose, Kindly Remove My Child From the "Bubble Wrap" -Analyzing Childress v. Madison County and Why Tennessee Courts Should Enforce Parental Pre-Injury Liability Waivers, 11 TENN. J. L. PoL'Y 8 (Fall 2016) .. ... ................... ... .... ... ... ... ... .. ........... ..... .. iii, 42
Restatement (Second) of Conflict ofLaws § 187 ... .... ..... ... ................................. ......... ......... . 34, 35
Roscoe Pound, Interpretations of Legal History 1 (1923) .... ............... .. ..... ...... ...... ...... .... ............ 46
The Model Choice of Forum Act of 1968 ................ .... ... .... ...... ................ ... .... .... .. ..... ......... .... .. .. 24
Thomas R. Lee, Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court, 52 VAND. L. REv. 647 (1999) ...................... .......... ........ ....... ....... .... ... ................ ..... ... ..................... .... .... .. ....... ..... 46
xv
ISSUES PRESENTED FOR REVIEW
Sky High Nashville respectfully submits that the issues presented for review in this
appeal are as follows:
1. Whether the Court of Appeals erred by affirming the trial court's denial of Sky
High Nashville's Motion to Enforce the Contract Between the Parties; and,
2. Whether the Court of Appeals erred by reversing, in part, the trial court's denial
of Ms. Blackwell's Motion to Amend the Complaint, and remanding this case to allow Ms.
Blackwell to raise a claim, on Mr. Blackwell's behalf, limited to the pre-majority medical
expenses Mr. Blackwell paid or for which Mr. Blackwell is obligated to pay.
XVI
,-
STATEMENT OF THE CASE
Sky High Nashville respectfully submits that the relevant procedural history of this case
is as follows:
On February 5, 2014, Ms. Blackwell filed a Complaint against Sky High Sports
Nashville, LLC, asserting individual claims, and claims on behalf of her minor son, Mr.
Blackwell. (T.R. Vol. 1 at 1-7.)
On May 5, 2014, Sky High Sports Nashville, LLC, filed an Answer denying all material
allegations, and raising several affirmative defenses. (T.R. Vol. 1 at 8-14.)
On November 3, 2014, the trial court entered an Agreed Order and Stipulation
Substituting Sky High Sports Nashville Operations, LLC, as Proper Defendant, and instructing
Ms. Blackwell to file an amended complaint naming the correct corporate entity, Sky High
Nashville. (T.R. Vol. 1 at 23-24.)
On January 7, 2015, Ms. Blackwell filed an Amended Complaint, individually and on
behalf of Mr. Blackwell, against Sky High Nashville, again asserting individual claims, and
claims on Mr. Blackwell ' s behalf. (T.R. Vol. 1 at 25-31.)
On March 17, 2015, Sky High Nashville filed its Motion to Enforce the Contract
Between the Parties. (T.R. Vol. 1 at 35-40.) Sky High Nashville's motion sought an Order
enforcing the provisions contained in the "Customer Release of Liability and Assumption of
Risk" contract ("Contract") signed by Ms. Blackwell, individually, and on Mr. Blackwell's
behalf.3 (Id.)
Specifically, Sky High Nashville requested that the trial court enforce the Contract's California forum selection provision, California choice of law provision, and/or liability release. (T.R. Vol. 1 at 40.) See Blackwell v. Sky High Sports Nashville Operations, LLC, 2017 WL 83182, at * 1 (Tenn. Ct. App. Jan. 1, 2017).
1
On May 4, 2015, Ms. Blackwell filed a Response to Sky High Nashville's Motion to
Enforce the Contract Between the Parties. (T.R. Vol. 5 at 672-88.) On the same day, Ms.
Blackwell filed a Notice of Voluntary Dismissal of her individual capacity claims.4 (T.R. Vol. 5
at 689-90.)
On May 6, 2015, Sky High Nashville filed a Reply to Ms. Blackwell's Response to its
Motion to Enforce the Contract Between the Parties. (T.R. Vol. 5 at 695-704.)
On May 8, 2015, the trial court held a hearing on Sky High Nashville' s Motion to
Enforce the Contract Between the Parties. 5 (T.R. Vol. 5 at 712.)
On May 22, 2015, the trial court entered an Order denying Sky High Nashville ' s Motion
to Enforce the Contract Between the Parties. (T.R. Vol. 5 at 712-14.)
On June 22, 2015, Sky High Nashville filed a Motion to Alter/Amend or, m the
Alternative, for Interlocutory Appeal. (T.R. Vol. 5 at 717-22.) In addition, Sky High Nashville
filed the Second Affidavit of Rolland Weddell in support of the motion. (T.R. Vol. 5 at 720-21.)
On July 31 , 2015, Ms. Blackwell filed a Motion to Amend Complaint, which requested
leave to add a claim, on Mr. Blackwell ' s behalf, for reimbursement of pre-majority medical
expenses related to Mr. Blackwell' s alleged injury. (T.R. Vol. 5 at 739-49.)
On December 11 , 2015, Ms. Blackwell, as next friend to Mr. Blackwell, filed a Response
to Sky High Nashville' s Motion to Alter/Amend or, in the Alternative, for Interlocutory Appeal.
(T.R. Vol. 6 at 754-56.)
4 In response, Sky High Nashville filed a separate Motion to Strike Ms. Blackwell 's Notice, asserting that Ms. Blackwell should not be permitted to voluntarily dismiss her individual claims while Sky High Nashville' s Motion to Enforce the Contract Between the Parties was pending. (T.R. Vol. 5 at 691-94). The trial court denied Sky High Nashville's Motion to Strike Ms. Blackwell' s Notice and entered Ms. Blackwell's Order of Voluntary Dismissal of her individual claims. (T.R. Vol. 5 at 710, 712-14.) The trial court's decision in this regard was not appealed.
The relevant Order incorrectly states that the hearing was held on May 8, 2014. (T.R. Vol. 5 at 712.)
2
On December 14, 2015, Sky High Nashville filed a Response to Plaintiffs Motion to
Amend Complaint. (T.R. Vol. 6 at 757-67.)
On December 18, 2015, the trial court held a hearing on both Sky High Nashville's
Motion to Alter/Amend or, in the Alternative, for Interlocutory Appeal, and Ms. Blackwell's
Motion to Amend Complaint. (T.R. Vol. 6 at 770.)
On February 23 , 2016, the trial court entered an Order on the pending motions. (T.R.
Vol. 6 at 770-94.) The trial court denied Sky High Nashville ' s request to alter/amend its
previous Order, inasmuch as it denied the Motion to Enforce the Contract Between the Parties.
(Id.) However, the trial court granted Sky High Nashville ' s request for permission to seek an
interlocutory appeal with the Court of Appeals. (Id.) In addition, the trial court denied Ms.
Blackwell' s Motion to Amend Complaint to the extent she sought leave to add a claim, on Mr.
Blackwell ' s behalf, for reimbursement of any pre-majority medical expenses related to Mr.
Blackwell' s alleged injury. (Id.) The trial court sua sponte granted permission to also request an
interlocutory appeal of its ruling on the Motion to Amend Complaint. (Id.)
On March 4, 2016, Sky High Nashville timely filed a Rule 9 Application for Permission
to Appeal with Court of Appeals, requesting interlocutory review of the trial court' s denial of
Sky High Nashville ' s Motion to Enforce the Contract Between the Parties. (Rule 9 App.)
On March 14, 2016, Ms. Blackwell filed a Response to Sky High Nashville ' s Rule 9
Application. (Answer to Rule 9 App.) In her Response, Ms. Blackwell requested that the Court
of Appeals also review the trial court' s denial of her Motion to Amend Complaint.6 (Id.)
On March 18, 2016, the Court of Appeals entered an Order granting Sky High
Nashville ' s request for permission to appeal the trial court' s denial of the Motion to Enforce the
6 Ms. Blackwell did not file a Rule 9 Application in this regard. (Briefofthe Appellee at fn. 3.)
3
Contract Between the Parties. (Order Granting Rule 9 Appeal.) Further, the Court of Appeals
granted Ms. Blackwell's request for review of the trial court's ruling on her Motion to Amend
Complaint.7 (Id.)
On April 4, 2016, Sky High Nashville filed its Designation of Record on Appeal,
designating additional documents to be included in the record on appeal. (T.R. Vol. 6 at 796.)
On April 11 , 2016, Ms. Blackwell filed her Designation of Record, designating additional
documents to be included in the record on appeal. (T.R. Vol. 6 at 798.)
On January 9, 2017, the Court of Appeals issued its Opinion affirming the trial court in
part, and reversing in part, and remanded this case for further proceedings. (Opinion.) See
Blackwell v. Sky High Sports Nashville Operations, LLC, 2017 WL 83182 (Tenn. Ct. App. Jan.
9, 2017). Specifically, the Court of Appeals (1) affirmed the trial court' s denial of Sky High
Nash ville' s Motion to Enforce the Contract Between the Parties, (Blackwell, 2017 WL 83182, at
*4-*24); (2) affirmed the trial court' s denial of Ms. Blackwell ' s Motion to Amend Complaint
inasmuch as it denied recovery of any pre-majority medical expenses paid by Mr. Blackwell ' s
parents, (Id. at *24-29); and, (3) reversed the trial court' s denial of Ms. Blackwell ' s Motion to
Amend Complaint and remanded "only so as to allow Appellant[] to raise a claim for those pre-
majority medical expenses paid by [Mr. Blackwell] or for which [Mr. Blackwell] is obligated to
pay." Id. at *29.
On January 19, 2017, Sky High Nashville filed a Petitfon for Rehearing as to the Court of
Appeals ' decision to reverse the trial court, in part, and remand this case to the trial court. (Pet.
for Reh'g.) The bases for Sky High Nashville ' s Petition was ultimately that the technical record
Accordingly, this case was a cross-appeal before the Court of Appeals with each party appealing separate rulings of the trial court. (Order Granting Rule 9 Appeal.) The court designated Ms. Blackwell as the "Appellant" and Sky High Nashville as the "Appellee." (Id.)
4
in this case was clear that there are no pre-majority medical expenses for which Mr. Blackwell
has paid and/or is legally obligated to pay - something that Ms. Blackwell did not even dispute -
and Mr. Blackwell did not intend to show that he paid or was legally obligated to pay any
medical expenses. (See id. n. 3.)
On January 24, 2017, the Court of Appeals entered an Order denying Sky High
Nashville' s Petition for Rehearing. (Order Denying Pet. for Reh' g.)
5
STATEMENT OF THE FACTS
Sky High Nashville respectfully submits that the relevant factual history of this case is as
follows:
I. General Factual Allegations.
In the Amended Complaint, Ms. Blackwell alleged that on March 26, 2013, her minor
son, Mr. Blackwell, participated in a trampoline dodgeball game at Sky High Nashville. 8 (T.R.
Vol. 1 at 26, 'if 5.) While playing in the game, Mr. Blackwell allegedly "awkward[ly]" landed on
some "padding between trampolines." (T.R. Vol. 1 at 26-27, 'i['i[ 5, 8.) When Mr. Blackwell
landed, another participant allegedly "double bounced" Mr. Blackwell thereby contributing to his
"awkward landing." (T.R. Vol. 1 at 27, 'if 9.) As a result, Mr. Blackwell allegedly tore a tendon
in his knee and broke his tibia. (T.R. Vol. 1 at 27, 'if 11.) Ms. Blackwell alleged that Mr.
Blackwell' s injury was the result of Sky High Nashville ' s negligence and that they were entitled
to relief because, inter alia, "[a ]ny warning, disclaimers, or waivers of liability which Defendant
may have given to Jacob Blackwell and to which he or his mother may have agreed were void,
invalid, and/or inadequate." (T.R. Vol. 1 at 29, 'if 23.)
II. Sky High Nashville's Motion to Enforce the Contract Between the Parties.
In response to the Amended Complaint, Sky High Nashville filed its Motion to Enforce
the Contract Between the Parties.9 (T.R. Vol. 1 at 35.) There, Sky High Nashville sought to
enforce several provisions contained in the Contract Ms. Blackwell executed on her own behalf
Sky High Nashville is a recreational facility based on the emerging " indoor trampoline park" concept. (See T.R. Vol. 5 at 707.) It is a part of a larger national brand, Sky High Sports, which began in California. (Id.) At the time the lawsuit was originally filed, Sky High facilities were located in seven different states, including ten facilities in California; two facilities in Illinois; and one facility in Tennessee, North Carolina, Oregon, Texas, and Washington, respectively. (Id.)
9 The trial court's denial of the Motion to Enforce the Contract Between the Parties is the subject of Sky High Nashville's appeal. See infra.
6
and on behalf of Mr. Blackwell. 10 (T.R. Vol. 1 at 40.) Specifically, Sky High Nashville sought
to enforce the following combined forum selection, choice of law, and severability provision:
In the event that I file a lawsuit against SKY HIGH SPORTS, I agree to do so solely in the state of Cali{ornia and If urther agree that the substantive law of Cali{ornia shall apply in that action without regard to the conflict of the law rules of that state. I agree that if any portion of this agreement is found to be void or unenforceable, the remaining portions shall remain in full force and effect.
(T.R. Vol. 1 at 40, if 6) (emphasis added).
In addition, Sky High Nashville sought to enforce Ms. Blackwell ' s agreement that she
understood and voluntarily assumed all of the risks associated with Mr. Blackwell ' s participation
in Sky High Nashville's activities and agreed to release Sky High Nashville from any and all
liability arising therefrom:
[P]articipation in SKY HIGH SPORTS trampoline games entail known and unknown risks that could result in physical or emotional injury, paralysis, death, or damage to myself, to property or to third parties. I understand that such risks simply cannot be eliminated without jeopardizing the essential qualities of the activity.
The risks include, among other things .. . the usual risk of cuts and bruises. Other more serious risks exist as well. Participants often fall off equipment, sprain or break wrists and ankles, and can suffer more serious injuries as well. Traveling to and from trampoline location raises the possibility of any manner of transportation accidents. Double bouncing. more than one person per trampoline, can create a rebound effect causing serious imurv. Flipping and running and bouncing off the walls is dangerous and can cause serious injury and must be done at the participants own risk. Similar risks are also inherent in using the Foam Pit. In any event, if you or your child is injured, you or your child may require medical assistance, at your own expense.
10 Ms. Blackwell executed the Contract on July 3, 2012, and it applied to all future visits to Sky High Nashville. (T.R. Vol. I at 40, ii 10.) It is undisputed that Mr. Blackwell had visited Sky High Nashville on numerous occasions prior to the one at issue in this case. (T.R. Vol. I at 691.)
7
Furthermore, SKY HIGH SPORTS employees have difficult jobs to perform. They seek safety, but they are not infallible. They might be unaware of a participant's fitness or abilities. They may give incomplete warnings or instructions, and the equipment being used might become loose, out of adjustment, or malfunction. There is also a risk that SKY HIGH SPORTS employees may be negligent in, among other things, monitoring and supervising use of its equipment and facilities and in the maintenance and repair of its equipment and facilities.
I expressly agree and promise to accept and assume all of the risks existing in this activity. My participation in this activity is purely voluntary, and I elect to participate in spite of the risks.
I hereby voluntarily release, forever discharge, and agree to defend, indemnify and hold harmless RELEASED PARTIES 11
from any and all claims, demands, or causes of action, which are in any way connected with my participation in this activity or my use of SKY HIGH SPORTS equipment or facilities, including any such claims which allege negligent acts or omissions of RELEASED PARTIES.
Should SKY HIGH SPORTS 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.
I certify that I have adequate insurance to cover any mJury 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.
(T.R. Vol. 1 at 40, ~~ 1-5) (plain bold emphasis in original, numbering omitted, additional
emphasis and footnote added).
II "Released Parties" is defined as "SKY HIGH SPORTS, its agents, owners, shareholders, directors, partners, employees, volunteers, manufacturers, participants, lessors, affiliates, its subsidiaries, related and affiliated entities, successors and assigns." (T.R. Vol. l at 40.)
8
Finally, Sky High Nashville sought to enforce Ms. Blackwell's agreement to all of the
terms contained in the Contract on behalf of Mr. Blackwell. In pertinent part, the Contract
provided as follows:
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.
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 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 RELEASED PARTIES, except injuries or damages caused by the sole negligence or willful misconduct of the party seeking indemnity.
* * * By signing this document, I acknowledge that if anyone is hurt or property damaged during my participation in this activity, I may be found by a court of law to have waived my or the minor participant' s right to maintain a lawsuit against SKY HIGH SPORTS or any RELEASED PARTIES on the basis of any claim from which I have released them herein.
(T.R. Vol. 1 at 40, if 8, 9) (plain bold and underlining in original, numbering omitted).
Ms. Blackwell filed a response on Mr. Blackwell' s behalf in opposition to the motion. 12
(T.R. Vol. 5 at 672.) Sky High Nashville timely filed a Reply to the Response, along with the
Affidavit of Rolland Weddell as further support. (T.R. Vol. 5 at 695, 707.) In pertinent part, Mr.
Weddell stated in his affidavit as follows:
12 Instead of directly responding on her own behalf, Ms. Blackwell summarily nonsuited her individual claims in this case. (See T.R. Vol. 5 at 689, 710.)
9
The "Customer Release of Liability and Assumption of Risk" contract (the "Contract"), which is attached to Sky High Nashville's Memorandum in Support of its Motion as Exhibit A, including the choice of law and forum selection provision stipulating California law as the applicable law and California courts as the appropriate forum for any disputes between the parties contracting thereto ("California Choice of Law and Forum Selection Provision"), is an agreement and stipulation that all Sky High Sports brand facilities use throughout the United States in their business operations. 13
The California Choice of Law and Forum Selection Provision was intentionally included in the Contract. All Sky High Sports brand facilities use the same type of contract throughout the United States in their business operations, including Sky High Nashville. The use of this provision by the stores is not merely a matter of form. This was done so the stores, like Sky High Nashville, may reasonably determine the state in which they might be subject to suit in court and the laws that will apply to the same.
(T.R. Vol. 5 at 708, i!i! 4-5) (footnote added).
III. Order on Sky High Nashville's Motion to Enforce the Contract.
Following the hearing on Sky High Nashville' s Motion to Enforce the Contract Between
the Parties, the trial court entered an Order denying Sky High Nashville's motion. (T.R. Vol. 5 at
712-14.) In its Order, the trial court made the following findings: (1) "[I]t would be a great
hardship for Jacob Blackwell, a minor, to travel to California to bring this action;" (2)
"Tennessee has the most reasonable relationship to the facts surrounding this case;" (3) "Simply
running a business in California does not establish a more significant relationship than that which
exists in Tennessee;" (4) "[T]he parties reside in Tennessee;" (4) "the conduct out of which the
injury arose occurred in Tennessee;" (5) "the injury occurred in Tennessee;" and, (6) "Tennessee
also has a fundamental policy in favor of the protection of children." (T .R. Vol. 5 at 713.)
13 Mr. Weddell later clarified that this was a reference to corporate stores, not stores owned by independent franchisees. See infra.
10
Based on the foregoing findings of fact, the Trial Court made the following conclusions
oflaw: (1) Tennessee courts are appropriate forum for this case; (2) Tennessee law applies to this
case; and, (3) because an adult cannot waive a minor's claims under Childress, Ms. Blackwell's
signature on the liability release contained in the contract Sky High Nashville sought to enforce
"does not dismiss Jacob Blackwell's claims against the Defendant." (Id.)
IV. Motion to Alter/Amend or, in the Alternative, for Interlocutory Appeal.
Sky High Nashville filed its Motion to Alter/Amend or, in the Alternative, for
Interlocutory Appeal, contending that the trial court applied a clearly erroneous legal standard in
its determination of: (1) whether the Contract's forum selection provision is enforceable; (2)
whether the Contract's choice of law provision is enforceable; and, (3) whether the Contract's
pre-injury liability release is enforceable. (T.R. Vol. 5 at 717-18.)
Further, Sky High Nashville submitted that there was new evidence not previously before
the trial court. (T.R. Vol. 5 at 718.) Specifically, contemporaneous with its Motion to
Alter/Amend, Sky High Nashville filed the Second Affidavit of Rolland Weddell, which
provided as follows:
I have reviewed [the form releases from the Internet the attorney for the Plaintiffs produced at the hearing on Sky High Nashville's Motion to Enforce Contract Between the Parties], and they all relate to franchise stores using the Sky High Sports brand. My reference to the "Customer Release of Liability and Assumption of Risk" contract (the "Contract") including the choice of law and forum selection provision stipulating California law as the applicable law and California courts as the appropriate forum for any disputes between the parties contracting thereto ("California Choice of Law and Forum Selection Provision"), was with regard to our corporate stores. This is an agreement and stipulation that all Sky High Sports brand facilities use throughout the United States in their business operations for corporate stores. Sky High Nashville is a corporate store. The individual franchisees use their own prov1s1ons.
11
To the extent I was unclear in my previous affidavit in this regard, I hope this affidavit resolves the confusion.
(T.R. Vol. 5 at 720-21 , ifif 3-4.)
Ms. Blackwell filed a Response to Sky High Nashville' s Motion to Alter/Amend or, in
the Alternative, for Interlocutory Appeal, opposing Sky High Nashville's request to alter or
amend. (T.R. Vol. 6 at 754.) However, Ms. Blackwell did not oppose Sky High Nashville' s
request for interlocutory appeal. (T.R. Vol. 6 at 756.)
v. Ms. Blackwell's Motion to Amend Complaint.
Prior to filing her Response to Sky High Nashville' s Motion to Alter/Amend or, in the
Alternative, for Interlocutory Appeal, Ms. Blackwell filed a Motion to Amend Complaint. 14
(T.R. Vol. 5 at 739-49.) Specifically, Ms. Blackwell sought leave to file a Second Amended
Complaint with the following amendments:
a. Naming the correct Plaintiff as Crystal Blackwell, as next friend to Jacob Blackwell, a minor,
b. Removing any claims Crystal Blackwell, individually was seeking; and,
c. Asking for Crystal Blackwell, as next friend to Jacob Blackwell, a minor, to recover the medical expenses, both past and future, incurred by Jacob as a result of this incident.
(T.R. Vol. 5 at 740, ifif 6, 9.)
Sky High Nashville filed a Response to Plaintiffs Motion to Amend Complaint opposing
Ms. Blackwell' s motion, to the extent she requested to add a claim, on Mr. Blackwell's behalf,
for reimbursement of pre-majority medical expenses related to Mr. Blackwell's alleged injury.
(T.R. Vol. 6 at 760-65.) Specifically, Sky High Nashville' s opposition was based on the
14 Over the objections of Sky High Nashville, Ms. Blackwell had previously voluntarily dismissed the claims she asserted on her own behalf. (T.R. Vol. 5 at 689, 710, 712.) Therefore, Ms. Blackwell sought to file a Second Amended Complaint on Mr. Blackwell ' s behalf.
12
following: (1) Ms. Blackwell's claim to recover medical expenses is her own separate and
independent claim15 (T.R. Vol. 6 at 760-61); (2) the Contract is enforceable against Ms.
Blackwell'6 (T.R. Vol. 6 at 761-63); and, (3) therefore, because Ms. Blackwell's claim for
medical expenses was barred pursuant to the Contract, Mr. Blackwell cannot assert such a
claim. 17 (T.R. Vol. 6 at 763-65.)
VI. Trial Court's Order on Pending Motions and Grant of Interlocutory Appeal.
Following a hearing, the trial court entered an Order denying Sky High Nashville ' s
request to alter/amend, but granted its request for permission to seek interlocutory appeal. (T.R.
Vol. 6 at 770-71.) The trial court held that an immediate appeal in this regard would avoid
protracted and expensive litigation, pursuant to Rule 9(a)(2) of the Tennessee Rules of Appellate
Procedure. (Id.)
In addition, the trial court endeavored to clarify its previous ruling as to the enforceability
of the choice of law and forum selection provisions contained in the Contract:
I do not, however, think [an interlocutory appeal is] needed for the purposes of clarifying the law. And I want to reiterate. Apparently there was some misunderstanding in my ruling before.
With regard to the forum selection clause, the Court did consider the facts set forth in Dyersburg Machine Works v. Rentenbach Engineering in allowing the Court to find forum selection clause[ s]
15 See Tenn. Code Ann. § 20-1-105 ("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 . .. "); Page v. Wilkinson, 657 S.W.2d 422 (Tenn. Ct. App. 1983); Frady v. Smith, 519 S.W.2d 584 (Tenn. 1974); Dudley v. Phillips, 405 S.W.2d 468, 469 (Tenn. 1966) (Although considered as a "derivative" of the child' s claim, "[w]hen a tort is committed against a child there arises two separate and distinct causes of action.") (emphasis added).
16 See Childress , 777 S .W.2d at 6 .
17 See Calaway v. Schucker, 193 S.W.3d 509, 513 (Tenn. 2005) (where a parent's claim for medical expenses is barred, then her minor child does not have a claim for those same medical expenses); Tennessee Farmers ' Mut. Ins. Co. v. Rader, 410 S. W .2d 171 , 173 (Tenn. 1966) (subrogation contract entered into by the parent that assigned right to collect medical expenses to insurance company barred any claim for medical expenses, including the minor child's claim). See also Grant v. Kia Motors Corp. , 185 F.Supp.3d 1033 (E.D. Tenn. 2016).
13
invalid where the plaintiff cannot secure effective relief in the other state for reasons other than delay in bringing the action, or the other state would be a substantially less convenient place for the trial of the action in this state, or that the agreement as to the place of the action was obtained by misrepresentation, duress, abuse of economic power, or other unconscionable means, or it would for some other reason be unfair or unreasonable to enforce the agreement.
The Court found at the time I made my ruling that the second factor and the fourth factor are applicable here. It would be a great hardship for Mr. Blackwell, a minor, to travel to California to bring this action as a result of injuries that occurred in Tennessee based upon a forum selection clause agreement signed by his mother.
And I find also that factor four applies to that as well.
In regards to the choice of law provisions, the lex loci contractus rule is interpreted by the Court of Appeals in Messer Griesheim Industry, Inc. v. Cryotech of Kingsport, stated that if the parties manifest intent to instead apply the laws of another jurisdiction, then the intent will be honored provided certain requirements are met.
One, the choice of law provisions must be execut[ ed] in good faith. Two, the jurisdiction whose law is chosen must bear a material connection to the transaction. Three, the basis for the choice of another jurisdiction's law must be reasonable and not merely a sham or a subterfuge. And four, the parties choice of another jurisdiction' s law must not [be] contrary to a fundamental policy of the state having a materially greater interest in whose law would otherwise govern.
The Court finds that California does not bear a material connection for this accident. As stated in the May 22, 2015 Order, Tennessee has the most reasonable relationship to the facts surrounding this case. Simply running a business in California does not establish a more significant relationship than that which exists in Tennessee, the conduct out of which the injury arose occurred in Tennessee, and the injury occurred in Tennessee.
So I do find that my ruling is an accurate - I believe to be an accurate statement of the current law in Tennessee.
(T.R. Vol. 6 at 777-79.)
14
Further, the trial court denied Ms. Blackwell's Motion to Amend Complaint to the extent
she sought leave to add a claim, on Mr. Blackwell's behalf, for reimbursement of any pre-
majority medical expenses related to Mr. Blackwell's alleged injury. 18 (T.R. Vol. 6 at 788-89.)
In pertinent part, the trial court held as follows:
[T]he law in Tennessee as pointed out in cases and recognized in Palanki and others, is that for a minor' s injuries claim for medical expenses are [sic] a separate and distinct claim of the parent because [of] the parental responsibility of providing care for their children. That can be waived under some circumstances. But here, I see this as more of [sic] akin to an assignment, frankly. Where essentially, Ms. Blackwell is assigning her rights to recover to her son and not choosing to pursue them.
The problem is, Ms. Blackwell didn' t really have anything to assign because she had already waived all her right to recover by a contractual agreement under which she had agreed not to hold them responsible for anything.
For those reasons, I am going to grant the motion to amend the complaint in all respects except pre-majority medical expenses.
(Id.) The trial court sua sponte granted permission to seek appellate review of its ruling on the
Motion to Amend Complaint. (T.R. Vol. 6 at 790.) Sky High Nashville did not request review
of the trial court' s ruling in this regard. (See Rule 9 App.)
Sky High Nashville timely filed its Rule 9 Application for Permission to Appeal to the
Court of Appeals requesting interlocutory review of only the trial court' s denial of its Motion to
Enforce the Contract Between the Parties. (Id.) In her Answer, Ms. Blackwell requested
interlocutory appeal of the trial court' s denial of her Motion to Amend Complaint. (Answer to
Rule 9 App.) The Court of Appeals ultimately granted both parties an interlocutory appeal on
18 The trial court's denial of the Motion to Amend Complaint in this regard was the subject of Ms. Blackwell' s interlocutory appeal at the Court of Appeals. See infra.
15
each of their respective issues. (Order Granting Rule 9 App.) Ms. Blackwell was designated
"Appellant" and Sky High Nashville was designated "Appellee." (Id)
VII. Sky High Nashville's Argument on Appeal.
At the Court of Appeals, Sky High Nashville asserted the trial court erred in three
separate ways. (See Brief of Appellee pp. 17-18.) First, the trial court erred by refusing to
enforce the Contract's California forum selection provision under the second and fourth
Dyersburg factors, and the Appellant failed to satisfy the heavy burden required to avoid the
provision. (Id pp. 18-21.) Sky High Nashville's position in this regard was rooted in its
argument that the record in this case was entirely devoid of any evidence of a specific hardship
to support a holding that requiring Mr. Blackwell to litigate this case in California would
effectively deprive him of his day in court, or that it would be unfair or unreasonable. (Id pp.
20-21.)
Second, Sky High Nashville asserted that the trial court erred by failing to enforce the
Contract's California choice of law provision under its determination that Tennessee had "the
most reasonable relationship to the facts surrounding this case." (Id. pp. 21-22.) In that regard,
Sky High Nashville asserted that the correct analysis requires only a showing that California bore
a material connection between the parties, and that evidence in the record satisfied such a
requirement. (Id. pp. 22-23.)
Third, the trial court erred by not enforcing the Contract's liability release against Mr.
Blackwell. (Id pp. 28-55.) Sky High Nashville's position in this regard was rooted in the
argument that Childress was ultimately founded on the principle that the state must protect those
16
unable to care for themselves. 19 However, Childress was decided well-before this Court, the
United States Supreme Court, and courts in other jurisdictions expressly recognized a
fundamental parental privacy right guaranteed by the Tennessee and United States Constitutions.
See Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993); Troxel v. Granville, 530 U.S. 57 (2000).
Sky High Nashville's position emphasized the strong shift towards favoring the
enforcement of parental liability releases in other jurisdictions based on principles promulgated
in Hawk and Troxel. Ultimately, Sky High Nashville asserted that cases from other jurisdictions
accurately illustrate the robust authority parents are now afforded in the decisions they make
while raising a family. In other words, a parent's decision to allow her child to participate in an
athletic activity, in exchange for a release of liability for negligence, can no longer be per se
invalid under a new constitutional framework that recognizes a parent's authority to make
parenting decisions deemed to be in her child's best interests. See, e.g., Wadkins v. Wadkins,
2012 WL 6571044, at *5 (Tenn. Ct. App. Dec. 14, 2012).
In addition to the foregoing assignments of error, Sky High Nashville asserted that the
trial court's Order denying Ms. Blackwell's Motion to Amend Complaint was unequivocally
correct. See Wolfe v. Vaughn, 152 S.W.2d 631 (Tenn. 1941); Grant v. Kia Motors Corp., 185
F.Supp.3d 1033 (E.D. Tenn. 2016). See also Betz v. Farm Bureau Mut. Ins. Agency of Kansas,
Inc., 8 P.3d 758, 762 (Kan. 2000) (After the parent of a minor executed a settlement and release,
the minor is not allowed to bring a claim for medical expenses based on the argument that the
parent "waived" her right to recover: "Betz may not now seek medical expenses because he no
19 This principle is formally known as "parens patriae" which is Latin for "parent of his or her country" and describes ''the state in its capacity as provider of protection to those unable to care for themselves." See Black's Law Dictionary, 1144 (8th ed. 2004).
17
longer holds a cause of action for medical expenses, which was extinguished upon settlement of
his daughter's case.")
VIII. Court of Appeals' Opinion.
On January 9, 2017, the Tennessee Court of Appeals rendered its Opinion affirming, in
part, and reversing, in part, the trial court. See Blackwell, 201 7 WL 83182. First, the court
affirmed the trial court' s denial of Sky High Nashville' s Motion to Enforce the Contract Between
the Parties. Id. at *4-*24. As to the enforceability of the California forum selection and choice
of law provisions, the court held that ( 1) California was a substantially less convenient place to
bring this lawsuit, placing particular emphasis on the fact that the parties are not California
residents; (2) requiring this case be litigated in California would be unfair based on the view that
California law would not provide Mr. Blackwell effective relief; and, (3) there was no material
connection between the transaction at issue and California. Id. at *4-*5.
Having concluded that this case should be litigated in Tennessee courts and Tennessee
law should apply, the Court of Appeals next held that the Contract' s liability release was
unenforceable. Id. at *6-*24. In that regard, the Court of Appeals discussed its holding almost
thirty years ago in Childress, and the pivotal recognition that the Tennessee and United States
Constitutions protect parental privacy after Childress. Id. *7-* 11. Further, the Court of Appeals
evaluated decisions rendered in other jurisdictions, and what it expressly considered to be a
"split of authoritv" on this issue. Id. at * 15 (emphasis added). Based on the "split" found in
other jurisdictions, and ultimately the lack of Tennessee law directly on-point, the court
determined it was appropriate to tum to whether Tennessee public policy provided any guidance.
Id.
18
Following a multi-jurisdictional analysis, and review of Tennessee laws and public
policies, the court ultimately concluded that Tennessee law indicated no clear need to depart
from the rule it promulgated in Childress. In summary, the court concluded as follows: (1) this
Court's holding in Wright v. Wright, 337 S.W.3d 166 (Tenn. 2011), and several other Tennessee
statutes, indicate that Tennessee's public policy includes the principle that courts must act as
parens patriae to protect a child's financial interests, (Id. at *18); (2) "Tennessee law is clearly
distinguishable from many of the cases in which enforcement of liability waivers was held to be
appropriate" 20 (Id. at * 19); (3) the Colorado Supreme Court' s analysis in Cooper v. Aspen Skiing
Co. , 48 P.2d 1229, 1235 n. 11 (Colo. 2002), superseded by statute, Colo. Rev. Stat. Ann. § 13-
22-107 "best aligns with existing Tennessee law" (Id. at *20); and, (4) while struggling with the
question of whether Court of Appeals opinions are entitled to stare decisis, Childress is
nevertheless controlling under Tenn. Sup. Ct. R. 4, and the Court of Appeals "will not overrule
the Childress decision lightly[.]" Id. at *22.
Finally, the Court of Appeals addressed whether Ms. Blackwell may be allowed to amend
the Complaint to assert a claim for pre-majority medical expenses on behalf of Mr. Blackwell.
Id. at *24. First, the Court of Appeals affirmed the trial court' s denial of Ms. Blackwell ' s
Motion to Amend Complaint inasmuch as it denied recovery of any pre-majority medical
expenses paid by Mr. Blackwell' s parents. Id. at *28. In that regard, the court held that Mr.
Blackwell "should not be able to claim pre-majority expenses paid by his parents in an effort to
circumvent [Ms. Blackwell ' s] execution of the release, including its waiver and indemnity
provision" pursuant to the rule outlined by this Court in Wolfe v. Vaughn , 152 S.W.2d 631
20 Respectfully, Sky High Nashville submits that the majority of laws referenced by the other courts the Court of Appeals referenced are actually more similar to Tennessee law than they are different. See infra.
19
(Tenn. 1941 ), and later evaluated in Smith v. King, 1984 WL 586817 (Tenn. Ct. App. Sept. 21,
1984). Id.
However, the Court of Appeals reversed the trial court' s denial of Ms. Blackwell's
Motion to Amend Complaint and remanded "only so as to allow Appellant[] to raise a claim for
those pre-majority medical expenses paid by [Mr. Blackwell] or for which [Mr. Blackwell] is
obligated to pay" because, in the court' s view, "the motion to amend Appellants' complaint does
not conclusively illustrate whether the requested damages constitute medical expenses paid by
[Mr. Blackwell ' s] parents or medical expenses paid by [Mr. Blackwell] ." Id.
IX. Petition for Rehearing.
Sky High Nashville timely filed a Petition for Rehearing as to the Court of Appeals '
decision to reverse the trial court, in part, and remand this case to the trial court. (Pet. for
Reh'g.) In that regard, Sky High Nashville asserted that the technical record in this case was
clear that there are no pre-majority medical expenses for which Mr. Blackwell has paid and/or is
legally obligated to pay. (Id.) This was not even disputed by the Appellant. (See Oral
Argument Audio at 2:13-2:21 ("The suit was brought individually [by Ms. Blackwell] to recover
pre-majority medical expenses, on her behalf, for which she had paid, and for which she was
responsible."); Transcript, T.R. Vol. 6 at pp. 11-12 ("I've got a situation where Mr. Blackwell ..
. is going to be subject, no matter how you recover [reimbursement for pre-majority medical
expenses] potentially, to a subrogation claim. Even if medical bills are not recovered based on
the judgment, I'm going to be dealing with a subrogation lien on this matter.") See also Pet. for
Reh' g. n. 2.)
Sky High Nashville ultimately emphasized the Motion to Amend referenced in the
Opinion conclusively provides, in pertinent part:
20
As indicated above, Crystal Blackwell filed a voluntary dismissal of her individual claims against the Defendant which included a recovery for medical expenses. She has waived her right to recover any damages from the Defendant. Further, as Jacob Blackwell's mother, she is legally obligated to pay for the medical expenses he has incurred.
(Id.) (citing T.R. Vol.Vat 741 (emphasis added); Amend. Compl., T.R. Vol. 1 at 25, 30 ("At the
time of the incident giving rise to this Complaint, [Mother] was obligated for the medical bills
incurred by Jacob Blackwell." . . . "[Ms. Blackwell] is legally obligated for [Mr. Blackwell's]
bills."); Proposed Second Amend. Compl., T.R. Vol. 5 at 744 ("[Ms. Blackwell] is the natural
and custodial mother of [Mr. Blackwell], who resides at the same address.")).
Accordingly, Sky High Nashville asserted that, unlike the record in Smith, the technical
record in this case is clear and undisputed that Mr. Blackwell has not paid and is not legally
obligated to pay his pre-majority medical expenses.2 1 (Id.)
However, the Court of Appeals denied Sky High Nashville ' s Petition for Rehearing,
holding, in pertinent part, as follows:
"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."
(Order Denying Pet. for Reh'g.) (quoting Blackwell, 2017 WL 83182, at *24 n. 10; Conley v.
Life Care Centers of Am. , Inc., 236 S.W.3d 713 , 724 (Tenn. Ct. App. 2007)).
2 1 In Smith, the record was not clear "whether the child could bring herself within the exception to the rule [that she may only assert a claim for pre-majority medical expenses for which she paid or was legally obligated to pay.)" Smith, 1984 WL 58617, at *2. In that regard, the only proof in the record as to who paid or was legally obligated to pay the child's medical expenses was a doctor' s deposition submitted in support of a motion in limine before trial which "showed that the father was billed for the treatment." Id. Thus, based on this ambiguity, the Court remanded to the trial court for a hearing on whether facts existed to show that the child paid or was legally obligated to pay her pre-majority medical expenses. Id. Here, even the Appellant has ostensibly conceded that Mr. Blackwell's pre-majority medical expenses have been paid by his mother and/or her insurance provider.
21
,,..--..
LEGAL STANDARD
Rule 11 of the Tennessee Rules of Appellate Procedure provides that an appeal may be
taken to this Court, in this Court's discretion and in consideration of the following factors: "(1)
the need to secure uniformity of decision, (2) the need to secure settlement of important
questions of law, (3) the need to secure settlement of questions of public interest, and (4) the
need for the exercise of the Supreme Court' s supervisory authority." Tenn. R. App. P. 1 l(a).
Should the Court grant this Application, the standard of review is de nova without any
presumption of correctness given to the legal conclusions of the courts below. Sanders v.
Traver, 109 S.W.3d 282, 284 (Tenn. 2003) (citations omitted). The interpretation of a contract is
a question of law, which is reviewed de nova with no presumption of correctness. White v.
Turnberry Homes, LLC, 2015 WL 3429764, at *1 (Tenn. Ct. App. May 28, 2015) (citing
Guiliano v. Cleo, Inc. , 995 S.W.2d 88, 95 (Tenn. 1999); Nelson v. Wal-Mart Stores, Inc., 8
S.W.3d 625, 628 (Tenn. 1999)). The enforceability of a forum selection provision is a question
of law that is reviewed de nova. Sec. Watch, Inc. v. Sentinel Sys., Inc., 176 F.3d 369, 371 (6th
Cir. 1999) (citing Baker v. LeBoeuf Lamb, Leiby & Macrae, 105 F.3d 1102, 1104 (6th Cir.
1997); Shell v. R. W Sturge, Ltd. , 55 F.3d 1227, 1229 (6th Cir. 1995)).
Further, a trial court' s ruling on a motion for leave to file an amended complaint is
reviewed under an abuse of discretion standard. Riley v. Whybrew, 185 S.W3d 383, 398 (Tenn.
Ct. App. 2005). "An abuse of discretion occurs when the trial court reaches a decision against
logic that causes a harm to the complaining party or when the trial court applies an incorrect
legal standard." Id. (citing Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001); State v. Shirley,
6 S.W.3d 243, 247 (Tenn. 1999)).
22
REASONS SUPPORTING APPEAL TO THE TENNESSEE SUPREME COURT
This Court should grant Sky High Nashville's Application because it presents important
questions, which significantly implicate the public interest, and ultimately require a uniformity of
decision announced by this Court.
First, there is a need to secure a uniformity of decision as to each of the questions
presented in this Application. Second, this Court should grant Sky High Nashville permission to
appeal because the crucial question of whether Tennessee law affords Ms. Blackwell, as Mr.
Blackwell's parent, the authority to execute a parental liability release is ripe for this Court's
review. Indeed, Sky High Nashville submits that this case presents important legal questions,
which even the Tennessee Court of Appeals recognized, that have developed a split of authority
in cases from other states, which significantly affect the public interest and, in particular, the
interests of Tennessee parents and their children, not to mention businesses and organizations
that provide athletic-activities geared toward minors in Tennessee.
With all due respect to the Tennessee Court of Appeals, Sky High Nashville submits that
there has been a recent strong shift towards favoring enforcement of parental liability releases
since its decision in Childress almost thirty years ago.
I. Uniformity of Decision as to the Enforceability of Forum Selection Provision.
There is a need to develop a uniformity of decision with regard to the enforceability of
forum selection provisions in Tennessee. Indeed, Tennessee courts favor and routinely enforce
forum selection provisions.22 Dyersburg Mach. Works, Inc. v. Rentenbach Eng 'g Co., 650
22 Forum selection provisions are either mandatory or permissive. See Thomas v. Costa Cruise Lines N. V., 892 S.W.2d 837 (Tenn. Ct. App. 1994). If the agreement has clear language that jurisdiction is appropriate only in the designated forum, the clause is mandatory and it bars subject matter jurisdiction of all forums not designated in the clause. Id. A permissive forum selection provision, on the other hand, does not prohibit litigation
23
S.W.2d 378 (Tenn. 1983); Thompson v. Terminix Intern. Co. , L.P., 2006 WL 2380598 (Tenn. Ct.
App. 2006). See also Blackwell, 2017 WL 83182, at *4 (citing Cohn Law Firm v. YP Se. Advert.
& Publ 'g, LLC, 2015 WL 3883242, at *11 (Tenn. Ct. App. June 24, 2015); Sevier Cnty. Bank v.
Paymentech Merch. Servs., 2006 WL 2423547 (Tenn. Ct. App. Aug. 23, 2006); Spell v. Labelle,
2004 WL 892534 (Tenn. Ct. App. Apr. 22, 2004); Signal Capital Corp. v. Signal One, LLC,
2000 WL 1281322 (Tenn. Ct. App. Sept. 7, 2000); Tennsonita (Memphis), Inc. v. Cucos, Inc.,
1991WL66993 (Tenn. Ct. App. May 2, 1991)).
A forum selection clause will be upheld in Tennessee if it is "fair and reasonable in light
of all the surrounding circumstances attending their origin and application." Dyersburg, 650
S.W.2d at 380 (citing MIS Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972); Krenger v.
Pennsylvania R. Co., 174 F.2d 556 (2d Cir. 1949); Muller & Co. v. Swedish Am. Line Limited,
224 F.2d 806 (2d Cir. 1955); Gilbert, Choice of Forum Clauses and International Interstate
Contracts, 65 KY. LAW JOURNAL 1 (1976)). Accordingly, a forum selection clause will be
enforced unless the party opposing the forum selection clause can show the following:
(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.
Id. (citing The Model Choice of Forum Act of 1968). Notwithstanding, the party seeking to
avoid a forum selection provision "should bear a heavy burden of proof." Chaffin v. Norwegian
Cruise Line Ltd., 1999 WL 188295, at *4 (Tenn. Ct. App. Apr. 7, 1999) (Zapata, 407 U.S. at 17).
elsewhere. Id. The Contract 's forum selection provision in this case is a mandatory forum selection provision. (T.R. Vol. 1 at 40, ~ 6 (" . .. I agree to [file suit] solelv in the state of California") (emphasis added)).
24
,,-.
Here, the Court of Appeals held that the Contract's forum selection provision violated the
second and fourth Dyersburg factors. Blackwell, 2017 WL 83182, at *4 (citing Dyersburg, 650
S.W.2d at 380). As to the second factor- substantial inconvenience - while the cburt recognized
that Ms. Blackwell must show more than "inconvenience or annoyance," (id. (citing ES! Cos. ,
Inc. v. Ray Bell Constr. Co., 2008 WL 544563, at *7 (Tenn. Ct. App. Feb. 29, 2008)), it
ultimately held Dyersburg stands for the proposition that a mere showing indicating neither party
is a resident of the proposed forum will always satisfy the "heavy burden" to demonstrate the .
selected forum is so substantially less convenient that avoidance of the forum selection clause is
appropriate. Id. (citing Dyersburg, 650 S.W.2d at 381 (Kentucky was a "substantially less
convenient place for trial . .. wherein all witnesses are Tennessee residents, the plaintiffs and the
defendants, ... are Tennessee corporations.")
However, Sky High Nashville respectfully submits such a holding misconstrues this
Court's holding in Dyersburg by placing far too much emphasis on where the parties reside, and
not on what proof Ms. Blackwell has submitted showing such substantial inconvenience, and on
Ms. Blackwell's presumed inconvenience regarding travel to California alone. Indeed, such a
construction of Dyersburg ultimately creates a lack of uniformity in Tennessee law. Compare id.
with Woodruff v. Anastasia Intern., Inc., 2007 WL 4439677, at *5 (Tenn. Ct. App. Dec. 19,
2007) ("The fact that a resident of Tennessee or any other state other than Kentucky or Maine
would prefer to sue in his home state rather than in Kentucky or Maine does not, by itself, make
the forum selection clauses oppressive or unconscionable. Our acceptance of Plaintiffs position
would be to hold that every forum selection clause between a corporation and a Tennessee
resident would be unenforceable, at the sole option of the Tennessee resident, if the forum
selected is one other than Tennessee. Such is not the law in this state."); Cummings, Inc. v. HI
25
Mayaguez, Inc., 1993 WL 398475, at *6 (Tenn. Ct. App. Oct. 1, 1993) ("This record does not
support a finding that there is a strong likelihood that defendants will be done an injustice if
forced to trial in the forum [selected in the agreement]."); Safeco Ins. Co. of Am. v. Shaver, 1994
WL 481402 (Tenn. Ct. App. Sept. 7, 1994) ("First the record contains no evidence concerning
the expenses [party seeking to avoid forum selection provision] expected to incur in defending
Safeco's suit in the State of Washington or the difference between these expenses and the
expenses he would have incurred defending the suit in Tennessee."); Paymentech, 2006 WL
2423547, at *6-*7 ("we must look to the convenience of all the parties, not just the plaintiff(s) or
the defendant(s)."); Signal Capital Corp. v. Signal One, LLC, 2000 WL 1281322, at *4, 2000
WL 1281322, at *4 (Tenn. Ct. App. Sept. 7, 2000) (same).
See also RGC International Investors, LDC v. ARI Network Services, Inc., 2003 WL
21843637, at *2 (D. Del. 2003) (The resisting party had offered no evidence that the forum
selection clause was the result of fraud or overreaching, that there was a strong public policy
against the enforcement of the forum selection clause, or that enforcement would have forced
litigation in an inconvenient jurisdiction); Sarmiento v. BMG Entertainment, 326 F. Supp. 2d
1108, 1111 (C.D. Cal. 2003) (If the party challenging the forum selection clause fails to come
forward with anything beyond general and conclusory allegations of inconvenience, the court
must uphold the agreement); See, e.g. , Calavo Growers of California v. Generali Belgium, 632
F.2d 963, 969 (2d Cir. 1980) ("A forum is not necessarily inconvenient because of its distance
(rom pertinent parties or places if it is readily accessible in a few hours of air travel."
(emphasis added)); Igneri v. Carnival Corp., 1996 WL 68536, at *3 (E.D.N.Y. Feb. 1, 1996)
(same); Union Elec. Co. v. Energy Ins. Mut. Ltd. , 689 F.3d 968, 974 (8th Cir. 2012)
("[I]nconvenience to a party is an insufficient basis to defeat an otherwise enforceable forum
26
selection clause."); In re Segal, 2011 WL 1582517, *2 (11th Cir. 2011) ("any financial difficulty
or inconvenience did not outweigh the venue mandated by the forum-selection clause of the
parties' participation agreement."); Kepas v. eBay, 412 Fed. Appx. 40, 45 (10th Cir. 2010)
(Plaintiffs challenge to a forum selection clause and the increased witness travel expenses
associated with that forum was not "compelling."); Phillips v. Audio Active Ltd. , 494 F.3d 378,
393 (2d Cir. 2007) (requiring a plaintiff to litigate a case in England pursuant to a forum
selection clause was not so inconvenient as to deny her of her day in court because travel
overseas was not "impossible."); Calix-Chacon v. Global Intern. Marine, Inc. , 493 F.3d 507, 515
(5th Cir. 2007) (the modem conveniences of electronic filing and videoconferencing eliminated
the necessity of being physically present in Honduras); MB. Restaurants, Inc. v. CKE
Restaurants, Inc. , 183 F.3d 750, 753 (8th Cir. 1999) (forum selection clause was enforced over
plaintiffs objection that he could not afford to litigate in Utah); Afram Carriers, Inc. v.
Moeykens, 145 F.3d 298, 303-304 (5th Cir. 1998) (forum selection clause for Peru was enforced
against financially destitute family of deceased security guard); Sun World Lines, Ltd. v. March
Shipping Corp. , 801 F .2d 1066, 1068 (8th Cir. 1986) (enforcing clause requiring Missouri
plaintiff to sue in Germany, because "alternative of using depositions of key witnesses provides
adequate opportunity for [plaintiffs] to have their fair day in court."); Mercer v. Raildreams, Inc. ,
702 F. Supp. 2d 176, 181 (E.D.N.Y. 2010) ("Moreover, although Mercer's letter claims in the
most general of terms that the Michigan forum is inconvenient, he does not explain how
enforcing the forum selection clause would work a gravely inconvenient or unfair result.");
Applied Waterproofing Technology, Inc. v. American Safety Indem. Co., 2009 WL 2448272, *5
(S.D. Cal. 2009) ("Generally, even when a forum selection clause requires a litigant seek relief in
a foreign court, courts have held such requirement does not deprive the litigant of his day in
27
court so as to render the clause unenforceable."); Caputo v. Holland America Line, Inc. , 2009
WL 2258326 (E.D.N.Y. 2009) (Although an otherwise valid forum selection clause could be
deemed unreasonable in a situation in which a plaintiff is unable to travel to the selected venue
due to a physical disability, in a situation in which such travel would merely be inconvenient and
the plaintiff refuses to take pain medication to make such travel easier, the clause will be
enforced); Van Zyl v. Aviatour, Inc., 2009 WL 2025159, *4 (M.D. Fla. 2009) (The fact that all
witnesses, with the exclusion of the plaintiff, would have to be called from outside the selected
forum state to testify, and that almost all depositions in the case would take place outside of the
state, did not constitute such "grave" inconvenience so as to deprive the defendants of their day
in court); National Biodiesel Bd. v. FutureFuel Chemical Co. , 647 F. Supp. 2d 1074, 1080 (S.D.
Iowa 2009) ("[A] forum selection clause cannot be set aside simply because a party is
inconvenienced, unless the inconvenience is so severe that trying the case in the selected forum
would deprive the party of its fair day in court."); The Hipage Co., Inc. v. Access2Go, Inc., 589
F. Supp. 2d 602, 612-613 (E.D. Va. 2008) (the difficulty and expense of transporting witnesses
is not recognized as such grave inconvenience to preclude enforcement of a valid forum selection
clause); McNair v. Monsanto Co., 279 F. Supp. 2d 1290, 1302 (M.D. Ga. 2003) (litigants are not
deprived of a day in court merely because litigation in the contract forum might require the use
of deposition testimony rather than live testimony); Automotive Consultants Div. , Progressive
Marketing Group, Inc. v. Faris , 2003 WL 21318320, *5 (N.D. Tex. 2003) (nothing unreasonable
or unjust about requiring the defendant to litigate in Texas; although the defendant would be
"somewhat inconvenienced" by having to litigate in Texas, and most if not all of the material
witnesses were located in Pennsylvania, retaining the case in Texas would not pose such a
difficulty as to deprive the defendant of his day in court).
28
In a nearly identical case to the one at bar, a Delaware Court upheld a California forum
selection and choice of law provision against a minor's personal injury claims in Delaware.23
Doe v. Cedars Academy, 2010 WL 5825343 (Del. Sup. Ct. Oct. 27, 2010). In Cedars Academy,
a mother entered into a contract with a private boarding school in Delaware to enroll her minor
son as a student. Id. at * 1. The mother executed the contract individually and on behalf of her
minor son, which included a pre-injury liability waiver, a mandatory California forum selection
provision, and a California choice oflaw provision.24 Id. at *2.
After the minor was allegedly sexually assaulted on campus, the mother sued the private
school individually and on behalf of her minor son. Id. The court first held that both the mother
and her minor son were generally bound by the contract because the son would have not been
able to go to that specific school without his mother contracting for such services. Id. The court
held that to conclude the contract did not apply to the minor would be inconsistent with
fundamental parental rights and practically unworkable:
[Not enforcing the contract against the minor would be] tantamount to concluding that a parent can never contract with a private school or any other service provider on behalf and for the benefit of her child. As a practical matter, no service provider would ever agree to a contract with a parent if a child could ignore the provisions of the contract that pertain to him without recourse. Such a result is inconsistent with the law's concept of the family which ' rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life' s difficult decisions.'
Id. at *4 (citations omitted).
23 The Court of Appeals did not attempt to distinguish Cedars Academy. [n fact, it failed to reference that case entirely. Blackwell, 2017 WL 83182.
24 The contract also contained an arbitration provision, but that was ultimately a non-issue as the court dismissed the case in favor of either California courts or an arbitral forum in the State of California applying California law. Doe v. Cedars Academy, 2010 WL 5825343 (Del. Sup. Ct. Oct. 27, 2010).
29
/""'"
.-.
Because the choice of law and forum selection provisions did not "seriously impair[]" the
plaintiff or the minor son's ability to pursue the cause of action, the court enforced the forum
selection and choice of law provisions and dismissed the entire case in favor of California
jurisdiction.25 Id. ("Mere inconvenience or additional expense is not sufficient evidence of
unreasonableness.") (emphasis added); see also Sevier Cnty. Bank, 2006 WL 2423547, at *6
("[a] party resisting a forum selection clause must show more than inconvenience or annoyance
such as increased litigation expenses.'') (emphasis in original) (citations omitted).
Moreover, Sky High Nashville submits that the Court of Appeals effectively placed the
burden on Sky High Nashville by ultimately deciding that the proof Sky High Nashville placed
in the record of "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 [Ms. Blackwell's] contentions
regarding the inconvenience that would be posed by litigating in California." Id. at *5.
Respectfully, such a holding renders this Court' s decision in Dyersburg unclear, at best, and
even departs from the Court of Appeals ' previous decisions, where the burden was squarely
placed on the party seeking to avoid the {orum selection provision to show evidence of
inconvenience that was not reasonably foreseeable when the contract was signed. See, e.g. ,
Shaver, 1994 WL 481402, at *4 ("Parties challenging a forum selection clause cannot rely on
facts and circumstances that were present or reasonably foreseen when they signed the
contract.") (citing Interamerican Trade Corp. v. Companhia Fabricadora de Pecas, 973 F.2d
487, 489 (6th Cir. 1992); Calanea v. D & S Mfg. Co., 510 N.E.2d 21 , 23 (Ill App. Ct. 1982)).
25 The court' s ruling applied regardless of whether California law could ostensibly be more favorable to the Cedars Academy. See Hohe v. San Diego Unified School Dist., 224 Cal. App. 3d 1559 (Cal. Ct. App. 1990). The court also emphasized that the forum selection clause was valid and enforceable because the clause was not ambiguous and the parties " intended to consent to the exclusive jurisdiction of California courts or arbitration panels to litigate their claims." Cedars Academy, 2010 WL 5825343 at *7. The court did not rule on the validity of the liability waiver because the dispositive issue to dismissal was the choice of law and forum selection provision.
30
In addition, as to the fourth Dyersburg factor - it would for some other reason be unfair
or unreasonable to enforce the agreement - the Court of Appeals held that "California is unlikely
to provide [Mr. Blackwell] with effective relief[.]" Blackwell, 2017 WL 83182, at *5. The
court's decision in this regard hinged on its opinion that California law would somehow
automatically render Mr. Blackwell' s claims nonexistent, pursuant to Ho he v. San Diego Unified
Sch. Dist., 244 Cal. App. 3d 1559, 274 Cal. Rptr. 647 (Cal. App. 1990) (enforcing a parental
liability release). Id.
This is not correct. See, e. g., Gavin W. v. YMCA of Metropolitan Los Angeles, 106 Cal.
App. 4th 662 (2d Dist. 2003) (where a prospective exculpatory agreement executed by a parent
on behalf of a minor child was invalid because it violated public policy in the specific context of
that case); Cedars Academy, 2010 WL 5825343 (Enforcing a California forum selection
provision contained in a parental pre-injury liability waiver because "[t]o conclude that John Doe
is not bound by the Agreement's otherwise enforceable terms, as Plaintiffs contend, simply
because he is a minor would be tantamount to concluding that a parent can never contract with a
private school (or any other service provider) on behalf and for the benefit of her child. As a
practical matter, no service provider would ever agree to a contract with a parent if a child could
ignore the provisions of the contract that pertain to him without recourse. Such a result is
inconsistent with the law' s concept of the family which "rests on a presumption that parents
possess what a child lacks in maturity, experience, and capacity for judgment required for
making life 's difficult decisions .... This Court need not weigh in on behalf of Delaware,
however, because even if the pre-injury release is invalid, the presence of the provision would
not render the entire Agreement unenforceable.")
31
Moreover, even if enforcing the California forum selection provision would extinguish
Mr. Blackwell's claims, the Court of Appeals ' Opinion nevertheless conflicts with its previous
decisions. In that regard, in Williams v. Smith, 465 S.W.3d 150 (Tenn. Ct. App. 2014), the
Tennessee Court of Appeals appeared to enforce a choice of law provision which effectively
extinguished a minor's claim. Williams, 465 S.WJd at 157. There, the plaintiffs-a minor child
and her parents-were involved in a car accident in Tennessee while driving from North
Carolina to Missouri in a vehicle owned by North Carolina residents. Id. at 151-52. The vehicle
was insured by a Missouri insurance policy and provided coverage of $25,000.00 per person and
$50,000.00 per accident. Id. at 152. In addition, the relevant policy included a Missouri choice
of law provision and provided $50,000.00 per person and $100,000.00 per accident in uninsured
motorist coverage. Id. However, the policy did not provide underinsured motorist coverage, and
such coverage was not required under Missouri law. Id. Conversely, North Carolina law
required minimum automobile insurance liability limits of $30,000.00 per person and $60,000.00
per accident. Id. (citing N.C. Gen. Stat. Ann. § 20-279.21(b)(2)). Further, under North Carolina
law, a driver carrying less than the minimum limits is considered an "uninsured motorist." Id.
(citing citing N.C. Gen. Stat. Ann. § 20-279.21(b)(3)). Accordingly, if the insurance policy's
choice of law provision were not enforced, North Carolina law would apply, and the plaintiffs
would be permitted to assert a claim for underinsured motorist coverage. Id.
The trial court held that the Missouri choice of law provision was enforceable against the
plaintiffs, including the minor, and dismissed their claim for underinsured motorist coverage on
the basis of the choice of law provision. 26 Id. The Tennessee Court of Appeals affirmed the trial
26 If Missouri law controlled, there was no underinsured motorist coverage; while if North Carolina law controlled, there was such coverage.
32
..........
court, ostensibly sanctioning the notion that a minor may be bound as a non-signatory to a choice
of law and/or forum selection provision. Indeed, if the minor in that case was not so bound, the
applicable coverage would have been determined under North Carolina law, or arguably through
a conflicts oflaw analysis based on Tennessee common law. See generally id. at 153.
Finally, at the very least, the Court of Appeals ' holding that "allowing [Mr. Blackwell] to
litigate his case in Tennessee provides him with a better opportunity for full relief' (see
Blackwell, 2017 WL 2017 WL 83182, at *5 (emphasis added)), creates a lack of uniformity
when compared to other decisions regarding what qualifies as "inconvenience" which makes the
avoidance of a forum selection provision appropriate. See, e.g. , Long v. Dart International, Inc. ,
173 F.Supp.2d 774, 776-77 (W.D. Tenn. 2001) (the selected forum must be "so seriously
inconvenient that to require the plaintiff to bring suit there would effectively deprive him of his
day in court."); Calavo Growers of California v. Generali Belgium, 632 F.2d 963, 969 (2d Cir.
1980) (the possibility of having to travel to the selected forum does not rise to the level of "so
seriously inconvenient" that it effectively deprives the Appellant of an opportunity to be heard).
Accordingly, Sky High Nashville respectfully submits that appeal to this Court regarding
this issue is appropriate.
II. Uniformity of Decision as to the Enforceability of Choice of Law Provision .
It is well-settled in Tennessee that where parties express an intent for the laws of another
jurisdiction to apply to a contract between them, such intent will be recognized:
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 choice of law provision must be executed in good faith. The jurisdiction whose law is chosen must bear a material connection to the transaction. The basis for the choice of another jurisdiction' s law must be reasonable and not merely a sham or subterfuge. Finally, the parties' choice of another jurisdiction' s law must not be "contrary to ' a fundamental
33
policy' of a state having [a] 'materially greater interest' and whose law would otherwise govern."
Messer Griesheim Indus., Inc. v. Cryotech of Kingsport, Inc., 131 S.W.3d 457, 475 (Tenn. Ct.
App. 2003) (emphasis added) (citing Restatement (Second) of Conflict of Laws § 187(2);
Vantage Technology, LLC v. Cross, 17 S.W.3d 637 (Tenn. Ct. App. 1999) (internal citations
omitted)) See also Wright v. Rains, 106 S.W.3d 678, 681 (Tenn. Ct. App. 2003) ("'Tennessee
will honor a choice of law clause if the state whose law is chosen bears a reasonable relation to
the transaction and absent a violation of the forum state's public policy."') (quoting Bright v.
Spaghetti Warehouse, Inc., 1998 WL 205757, at *5 (Tenn. Ct. App. Apr. 29, 1998)).
Here, the Court of Appeals ultimately determined that California bears no material
connection to the transaction between the parties under Cryotech, because the Contract was
executed in Tennessee between a Tennessee resident and a Nevada company, which was founded
in California. Blackwell, 2017 WL 83182, at *6. The court's decision in this regard requires a
uniformity of decision for several reasons. However, the most basic reason is that, even if
Cali(ornia's relationship to the Contract is relatively minimal compared to Tennessee, such a
forum selection provision should be enforceable under the rule announced in Cryotech.
Indeed, Cryotech adopted the rule outlined in the Restatement (Second) of Conflict of Laws §
187. Cryotech of, 131 S.W.3d at 475 (citing Restatement (Second) of Conflict of Laws §
187(2)).
Importantly, the Restatement (Second) of Conflict of Laws expressly considers a choice
of a forum that has no substantial relationship in the context of a multistate contract, as is the
case here:
The parties to a multistate contract may have a reasonable basis for choosing a state with which the contract has no substantial relationship. For example, when contracting in countries whose
34
legal systems are strange to them as well as relatively immature, the parties should be able to choose a law on the ground that they know it well and that it is sufficiently developed. For only in this way can they be sure of knowing accurately the extent of their rights and duties under the contract. So parties to a contract for the transportation of goods by sea between two countries with relatively undeveloped legal systems should be permitted to submit their contract to some well-known and highly elaborated commercial law.
Restatement (Second) of Conflict of Laws § 187(2) cmt. f (emphasis added). Just one example
of when parties might demonstrate such a reasonable basis is when parties from other states
select California as their choice of law because it is more developed in a particular specialized
area, such as trade secrets or technology. The same rationale should apply in the context of
parental liability releases. Indeed, the Court of Appeals in Childress borrowed heavily from
existing California law when it announced its ruling almost thirty years ago, (Childress, 777
S.W.2d at 4.), and this Court adopted California law when analyzing liability releases, generally,
in Olson v. Molzen, 558 S.W.2d 429, 431 (Tenn. 1977) (adopting Tunkl v. Regents of Univ. of
California, 383 P.2d 441 (Cal. 1963)).
Moreover, the Court of Appeals' holding with regard to which party bears the burden of
proof in the context of a challenge to a choice of law provision requires a uniformity of decision.
Sky High Nashville submits that a choice of law provision is presumptively valid and the party
seeking to avoid it bears the burden of proof with regard to the Cryotech factors . See, e.g.,
Carefree Vacations, Inc. v. Brunner, 615 F. Supp. 211, 215 (W.D. Tenn. 1985) ("the contracting
parties' choice-of-law provision is valid absent contravention of public policy of the forum state
or a showing that the selected forum does not bear a reasonable relationship to the transaction.)
(emphasis added).
35
However, the Court of Appeals expressly cast doubt on Sky High Nashville's contention
in this regard. See Blackwell, 2017 WL 83182, at *5 n. 1. While Sky High Nashville certainly
concedes that its cited authority, Security Watch, Inc. v. Sentinel Systems, Inc., 176 F.3d 369 (6th
Cir. 1999), dealt with a forum selection provision, there is also ample authority interpreting a
party's burden when seeking to avoid a choice of law provision as identical to the burden
imposed in the context of a forum selection provision. See Weiss v. La Suisse, 154 F. Supp. 2d
734, 736 (S.D.N.Y. 2001) ("The burden of demonstrating that Swiss law does not govern rests
with plaintiffs (who challenge the choice of law clause) and it is a heavy burden.") (emphasis
added) (citing Finucane v. Interior Construction Corp., 264 A.D.2d 618, 620 (N.Y. 1st Dept.
1999)); Zaklit v. Glob. Linguist Sols., LLC, 2014 WL 3109804, at *8 (E.D. Va. July 8, 2014)
("Finally, Plaintiffs have presented no evidence to support their claim that the choice-of-law
provision is invalid. Under the modern trend, which the Court finds applicable here, the partv
challenging the clause must satisfv 'a heavy burden' of proof.'') (emphasis added) (citing
Anchor Seafood, Inc. v. CMA- CGB (Caribbean), Inc., 2005 WL 4674292, at *3 (S.D. Fla. May
4, 2005)); Cooney v. Osgood Mach. , Inc., 612 N.E.2d 277, 285 (N.Y. 1993) ("Osgood has not
sustained its ' heavy. burden' of proving that the Missouri statute is offensive to our public
policy"); In re Enron Corp. Sec., Derivative & "Erisa" Litig. , 391 F. Supp. 2d 541 , 584 n. 52
(S.D. Tex. 2005) (same); Weiss v. La Suisse, 154 F. Supp. 2d 734, 736 (S.D.N.Y. 2001) ("a
choice of law clause in a contract is presumed valid and enforceable in a case where, as here, the
underlying transaction is international in character.") (citing Roby v. Corporation of Lloyd's, 996
F.2d 1353, 1362 (2d Cir. 1993); Deep Sea Fin., LLC v. British Marine Luxembourg, S.A. , 2010
WL 3603794, at *6 (S.D. Ga. May 13, 2010) ("Deep Sea has not satisfied its 'heavy burden' of
proving that enforcement of the Mexican choice-of-law clause would be unreasonable under the
36
circumstances."); Kunda v. C.R. Bard, Inc., 671 F.3d 464, 467-68 (4th Cir. 2011) ("Moreover,
'there is a heavy burden on [the party] who urges rejection of foreign law on the ground of public
policy."') (quoting Hartford Mut. v. Bruchey, 23 8 A.2d 115, 117-18 (Md. 1968) ); Great Lakes
Reinsurance (UK), PLC v. Sea Cat I, LLC, 653 F. Supp. 2d 1193, 1198 (W.D. Okla. 2009) ("the
policy's choice-of-law provision is 'prima facie valid' and a party resisting enforcement carries a
heavy burden of showing that the provision itself is invalid due to fraud or overreaching or that
enforcement would be unreasonable and unjust under the circumstances.") (citations omitted).
Stated simply, the clear authority in this regard was indelicately overlooked by the Court of
Appeals.
As a result, Sky High Nashville respectfully submits that appeal to this Court regarding
this issue is appropriate.
III. This Court Should Decide Whether a Parental Liability Release is Enforceable in Tennessee.
Further, the question of whether Tennessee law affords Ms. Blackwell, as Mr.
Blackwell's parent, the authority to execute an enforceable parental liability release is ripe for
this Court's review, as it is an important question, which requires a uniformity of decision, and
significantly implicates the public interest. Moreover, as discussed, infra, the Court of Appeals'
Opinion highlights this fact and emphasizes the need for an appeal to this Court.
A. Developments Since Childress Pose Questions Not Raised in 1989 Which Require this Court's Review.
The Court of Appeals ultimately determined that there was no reason to depart from its
nearly thirty year old decision in Childress, or, at the very least, it would not do so "lightly."
Blackwell, 2017 WL 83182, at *22. However, Sky High Nashville respectfully submits that the
even the Court of Appeals recognized the possibility that the issues raised in this Application
37
involve constitutional questions not posed in Childress. Indeed, in its analysis of recent cases
from both the Tennessee and United States Supreme Courts, the Court of Appeals recognized the
recent express recognition of a parent's fundamental constitutional right to make important
decisions for her child.
Importantly, four years after Childress, this Court expressly recognized that a parent has
a right to make important decisions for her children, and that such a right is a fundamental liberty
interest protected by both the Tennessee and United States Constitutions.27 Hawk, 855 S.W.2d
573 ; TENN. CONST. art I, § 8. Ultimately, Hawk makes one thing abundantly clear: the right of
privacy guaranteed by the Tennessee Constitution "fully protects the right of parents to care for
their children without unwarranted state intervention." Id. at 579 (emphasis added); see TENN.
CONST. art I, § 8; Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992).
Therefore, after Hawk, a party must now show more than the "best interests of the child"
to overcome a parent's fundamental right to make parenting decisions. 28 Id. (emphasis added).
Indeed, the state may intrude upon parenting decisions onlv where such intrusion is "necessary
27 At the time of the Hawk decision, the United States Supreme Court had not yet expressly recognized the specific character of a parent's fundamental liberty interest protected by the U.S. Constitution - a decision that would come seven years later in Troxel v. Granville, 530 U.S. 57 (2000). However, this Court thoughtfully recognized that a parent's authority to make important family decisions is firmly rooted in United States jurisprudence: "The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition." Wisconsin v. Yoder, 406 U.S. 205, 232 (1972). Moreover, " [f]or centuries it has been a canon of the common law that parents speak for their minor children. So deeply imbedded in our traditions is this principle that the Constitution itself may compel a State to respect it." Parham, 442 U.S. at 621 (Stewart, J., concurring) (citations omitted). Accordingly, "the child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare for additional obligations." Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925). In that way, this Court was arguably ahead of its time and accurately predicted the outcome of Troxel v. Granville recognizing the continuing shift toward strengthening parental privacy.
28 This Court affirmed the application of the strict-scrutiny test for the fundamental right to make parenting decisions: '"[w]here certain fundamental rights are involved ... , regulations limiting these rights may be justified only by a ' compelling state interest,' . . . and ... legislative enactments must be narrowly drawn to express only the legitimate state interests at stake."' Hawk, 855 S.W.2d at 579 fn. 8 (quoting Roe v. Wade , 410 U.S. 113, 155 (1973)).
38
to prevent serious harm to a child. 'fl.9 Id. (emphasis added) (citing Pierce v. Society of Sisters,
268 U.S. 510, 534 (1925); Meyer v. Nebraska, 262 U.S. 390, 402-03 (1923)). This Court
considered a finding of "serious harm to a child" as "an individualized finding of parental
neglect." Id. (citing Stanley v. Illinois, 405 U.S. 645 (1972)).
Further, seven years after this Court' s decision in Hawk - and eleven years after
Childress - the United States Supreme Court issued its landmark ruling in Troxel v. Granville ,
530 U.S. 57 (2000). Echoing this Court, Troxel officially recognized that a parent's right to
make important decisions for her child free from unwarranted state intrusion is a fundamental
liberty interest guaranteed by the Due Process Clause of the Fourteenth Amendment:
"lilt 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, custody, and control of their children."
Id. at 66 (emphasis added); CONST. amend XIV. See also Lovelace v. Copley , 418 S.W.3d 1
(Tenn. 2013) (affirming the principles of Hawk as supplemented by Troxel).
Indeed, it is now clear that after Troxel, a court is constitutionally prohibited from
overturning a parental decision based on its subjective notion of a child's best interests, even if
the court believes that a "better" decision could have been made:
29 Requiring a court to make an initial finding of harm to the child before intervening in a parental decision and evaluating the "best interest of the child" works to "prevent judicial second-guessing of parental decisions." Hawk, 855 S. W.2d at 581. See also Simmons v. Simmons, 900 S. W.2d 682 (Tenn. 1995). Indeed, the Tennessee Supreme Court recognized that "[i]mplicit in Tennessee case and statutory law has always been the insistence that a child's welfare must be threatened be(ore the state may intervene in parental decision-making." (emphasis added). See, e.g., Tenn. Code Ann. § 36-6-101 (In a divorce case, the harm from the discontinuity of the parents ' relationship compels the court to determine child custody "as the welfare and interest of the child or children may demand"); In re Hamilton, 658 S.W.2d 425 (Tenn. Ct. App. 1983) (child was declared "dependent and neglected" when her father refused cancer treatment for her on religious grounds, and such neglect exposed the child to serious harm). See also Yoder, 406 U.S. at 230 (where the fact that Amish children would not be harmed by receiving an Amish education rather than a public education); Pierce, 268 U.S. at 534 (parents ' decisions to send their children to private schools were "not inherently harmful," as there was "nothing in the .. . records to indicate that [the private schools] have failed to discharge their obligations to patrons, students, or the state"); Stanley v. Illinois, 405 U.S. 645 (1972).
39
The problem here is not that the Superior Court intervened, but that when it did so, it gave no special weight to Granville's determination of her daughters' best interests. More importantly, that court appears to have applied the opposite presumption, favoring grandparent visitation.
* * * IT/he Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a "better" decision could be made.
Id. at 58, 72-73 (emphasis added).
The foregoing limitation on state intrusion is now firmly rooted in a presumption that "fit
parents act in the best interests of their children." Id. at 68, 70. Indeed, the Court of Appeals has
recognized and even applied this presumption. See Wadkins v. Wadkins, 2012 WL 6571044, at
*5 (Tenn. Ct. App. Dec. 14, 2012). Simply stated, Sky High Nashville's position is that these
very same principles should also be applied to parental liability waivers.
Accordingly, Sky High Nashville respectfully submits that after Hawk and Troxel, the
Childress rule no longer accurately reflects the relevant body of constitutional law that has
developed over the last three decades. Respectfully, this Court should allow an appeal to render
a uniform decision on this issue.
B. Split of Authority Since Childress with a Strong Shift Favoring Enforcement of Parental Liability Releases.
Further, the split of authority in other jurisdictions emphasizes the need for this Court to
review Tennessee law on the issue of parental liability releases. Indeed, after analyzing the
foregoing constitutional framework, even the Court of Appeals recognized that other
jurisdictions analyzing parental liability releases yield a "split of authority" on this issue.
Blackwell, 2017 WL 83182, at *15 (emphasis added). In fact, the lower court referenced
"approximately nine jurisdictions wherein courts or legislatures have enforced such agreements .
40
. . [and] at least fourteen jurisdictions wherein courts have [held that parental liability releases
are not enforceable.]" Id. at *14.
However, it is critical to note that of the fourteen jurisdictions the Court of Appeals
referenced as part of its legal research, ten are cases be{ore Troxel, including one case from
1899 - and even one case from a state in which courts have subsequently enforced parental
liability releases. See Chicago, R.I & P. Ry. Co. v. Lee, 92 F. 318, 321 (8th Cir. 1899); Fedor v.
Mauwehu Council, Boy Scouts of Am. , Inc., 143 A.2d 466 (Conn. Super. Ct. 1958); Meyer v.
Naperville Manner, Inc. , 634 N.E.2d 411 , 413 (Ill. 1994); Doyle v. Bowdoin College, 403 A.2d
1206, 1208 n.3 (Me. 1979); Khoury v. Saik, 33 So. 2d 616, 618 (Miss. 1948); Fitzgerald v.
Newark Morning Ledger Co., 267 A.2d 557, 559 (N.J. Law. Div. 1970); Valdimer v. Mount
Vernon Hebrew Camps, Inc. , 172 N.E.2d 283 , 285 (N.Y. 1961); Ohio Cas. Ins. Co. v. Mallison,
354 P.2d 800, 803 (Or. 1960).
In fact, courts in Connecticut now enforce parental liability releases. See Fischer v.
Rivest, 33 Conn. L. Rptr. 119 (Super Ct. 2002) (enforcing a parental liability release in the
context of a youth hockey league); Saccente v. LaFlamme, 2003 WL 21716586 (Conn. Super.
Ct. July 11 , 2003) (enforcing a parental liability release in the context of a youth hockey league).
Moreover, the Eighth Circuit case from 1889 the Court of Appeals referenced involves Kansas
law, which now has authority which strongly suggests that Kansas law provides parents the
authority to execute en{orceable parental liability releases. See Betz v, 8 P.3d at 762 (Kan.
2000) (After the parent of a minor executed a settlement and release, the minor is not allowed to
bring a claim for medical expenses based on the argument that the parent "waived" her right to
recover: "Betz may not now seek medical expenses because he no longer holds a cause of action
for medical expenses, which was extinguished upon settlement of his daughter' s case.")
41
A review of the legal landscape in this regard by Sky High Nashville reveals that, in fact,
there has been a recent strong shift towards favoring enforcement since Childress and/or Troxel.
In fact, fourteen jurisdictions en(orce parental liability releases in some or all contexts, six of
which are statutory-based, (see Alaska Stat. § 09.65.292; Ariz. Rev. Stat. § 12-533(A)(2); Colo.
Rev. Stat. Ann.§ 13-22-107; Fla. Stat. Ann. § 744.301(3); Haw. Rev. Stat. Ann.§ 663-10.95(a);
Utah Code Ann. § 78B-4-203), and eight are judicial decisions. See Hohe v. San Diego Unified
Sch. Dist. , 244 Cal. App. 3d 1559, 274 Cal. Rptr. 647 (Cal. App. 1990); Fischer, 33 Conn. L.
Rptr. 119; Sharon, 769 N.E.2d at 746-47; Rosen, 80 A.3d at 362; Moore v. Minnesota Baseball
Instructional Sch., 2009 WL 818738 (Minn. Ct. App. Mar. 31, 2009); Kondrad, 655 N.W.2d at
414; Zivich, 696 N.E.2d at 205-07; Osborn v. Cascade Mountain, Inc. , 655 N.W.2d 546 (Wis.
Ct. App. 2002). See also Kelly v. United States, 809 F. Supp. 2d 429, 437 (E.D.N.C. 2011)
("The court is persuaded by the analysis of those courts that have upheld such waivers in the
context of litigation filed against schools, municipalities, or clubs providing activities for
children, and concludes that, if faced with the issue, the North Carolina Supreme Court would
similarly uphold a preinjury release executed by a parent on behalf of a minor child in this
context.")
All of these decisions were rendered after Childress. See also Joshua Arters & Ben
Rose, Kindly Remove My Child From the "Bubble Wrap " - Analyzing Childress v. Madison
County and Why Tennessee Courts Should Enforce Parental Pre-Injury Liability Waivers, 11
TENN. J. L. POL'Y 8, 65-82 (Fall 2016), available at
https://papers.ssrn.com/sol3/papers.cfm?abst:ract id=2924476 (for a state-by-state analysis on the
enforceability of parental liability releases). Presumably then, the trend to be observed in
jurisdictions which have not yet considered this question will favor parental decision making
42
over governmental intrusion in accordance with the rationales announced in Troxel. Cf DeKalb
County School System v. White, 260 S.E.2d 853 (Ga. 1979) (enforcing an athletic eligibility
release executed by a parent against the parent's minor child); Davis v. Sun Valley Ski Education
Foundation, Inc., 941 P.2d 1301 (Id. 1997) (a parental pre-injury liability waiver invalidated
because it was not drafted properly); Bellew v. Byers, 396 N.E.2d 335, 337 (Ind. 1979) (claims
brought by children were barred where their parent signed a settlement release stating that the
parent children "[did] hereby release and forever discharge [one alleged joint tortfeasor and wife]
. . . from any and all claims, demands, damages, actions, or causes of action of every kind or
character" arising out of an automobile accident."); Quinn v. Mississippi State University, 720
So.2d 843 (Miss. 1998) (Mississippi Supreme Court held that reasonable minds could differ as to
the risks that the plaintiffs were assuming and did not suggest that parental pre-injury liability
waivers violate public policy).
As a result, Sky High Nashville submits that while there may be a split of authority in
other jurisdictions, the trend is certainly in favor of enforcement of parental liability releases and
there is certainly a very real question as to whether Tennessee law has developed accordingly
during the last thirty years since the Court of Appeals' decision in Childress. 30 Sky High
Nashville respectfully submits that this is a question which requires an appeal to this Court to
secure a uniform decision in Tennessee.
30 Childress was also an outlier opinion because, prior to Childress, not a single court in the United
States had held a parental liability release to be enforceable. See Arters, Rose, supra n. 2 at 65-82. Thus, the Court of Appeals' reference to the legislature in Childress was only applicable in the context of the underdeveloped law on this issue as of 1989. Childress , 777 S.W.2d at 8. See Taylor v. Beard, 2001 WL 1381355, at *2 (Tenn. Ct. App. Nov. 5, 2001), aff'd, 104 S.W.3d 507 (Tenn. 2003) (remedy for the legislature where litigant seeks "the judicial creation of new law through a declaration of public policy not yet asserted by our General Assembly.") However, as discussed in more depth in Section IV, infra, the Court of Appeals has already decided the question without giving deference to the legislature, and moreover, the matters raised in this Application do not involve a declaration of new Tennessee public policy and are appropriate for a judicial determination.
43
C. Tennessee Law is Similar to the Law in States Enforcing Parental Liability Releases.
Further, Sky High Nashville submits that there is, at the very least, a question of whether
Tennessee law supports a departure from Childress that merits this Court's review. In that
regard, the Court of Appeals ultimately held that "Tennessee law is clearly distinguishable from
many of the cases in which enforcement of liability waivers was held to be appropriate."
Blackwell, 2017 WL 83182, at *19. Respectfully, Sky High Nashville submits such a conclusion
is incorrect. For example, the Court of Appeals referenced the Connecticut Superior Court' s
decision in Saccente v. LaFlamme, which enforced a parental liability release in a case involving
a contract for a child's horseback riding lessons, as a state which has laws that are different from
Tennessee Id. (citing Saccente, 2003 WL 21716586). Saccente referenced a statute under which
parents may settle the claims of their children if the amount recovered is less than $10,000.00.
See Conn. Gen. Stat. Ann. § 45a-63 l. However, Tennessee's comparable statute is not entirely
dissimilar. See Tenn. Code Ann. § 29-34-105 (a minor settlement that is less than $10,000.00
can be approved by a court without a hearing, relying solely on affidavits from legal guardians,
while settlements over $10,000.00 require a greater judicial oversight and a hearing before the
court).
Further, the Court of Appeals referenced the decisions of the Massachusetts and Ohio
Supreme Courts in Sharon v. City of Newton, 769 N.E.2d 738 (Mass. 2002) and Zivich v. Mentor
Soccer Club, Inc., 696 N.E.2d 201 (Ohio 1998), enforcing parental liability releases executed in
cheerleading and youth soccer contexts, each referencing so-called "recreational-use statutes",
which shelter liability owners of land opened for recreational uses. See Mass. Gen. Laws. Ann.
21, § 17C; Ohio Rev. Code Ann.§ 153 .18. The Court o[Appeals reflected that "Tennessee law
has no such statutes that evince the General Assembly's desire to shield the operators of for-
44
profit trampoline parks from liability." Blackwell, 2017 WL 83182, at *20. (emphasis added)
In fact, Tennessee has a nearly identical "recreational-use" statute to the ones cited in Sharon
and Zivich. See Tenn. Code Ann. § 70-7-101 , et seq. Moreover, even this Court has held that
such a Tennessee statute applied in the context of claims brought by a minor relating to a bicycle
injury. Parent v. State, 991 S.W.2d 240 (Tenn. 1999).
The Court of Appeals ultimately concluded that Childress rejected the argument that
parental liability releases are distinguishable because they involve a release of a future injury. Id.
(citing Childress, 777 S.W.2d at 7). However, because Sky High Nashville submits the law that
has developed since Childress requires a departure therefrom, reliance on Childress ultimately
begs the primary question: whether enforcing a parental liability release conflicts with other
Tennessee laws affording minors protection.
Ostensibly, the Court of Appeals recognized this flawed logic by basing its Opinion, and
its decision not to "lightly" consider departing from Childress, on the doctrine of stare decisis
and Rule 4 of the Rules of the Tennessee Supreme Court. Id. (citing Tenn. R. Sup. Ct. 4). As
the Court of Appeals reflected, however, there remains a question as to whether the Court of
Appeals ' decisions are entitled to stare decisis. Evans v. Steelman, 1996 WL 557844, at *2
(Tenn. Ct. App. Oct. 2, 1996), aff'd, 970 S.W.2d 431 (Tenn. 1998); 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."); Hardy v. Tournament
Players Club at Southwind, Inc., 2015 WL 4042490, at *16 (Tenn. Ct. App. July 2, 2015);
Cooper v. Logistics Insight Corp., 395 S.W.3d 632, 639 (Tenn. 2013).
Notwithstanding the application of stare decisis, "a blind following of arcane principles
of common law simply because of stare decisis should not be considered the mission of this
45
,-.
Court." Taylor v. Beard, 2001 WL 1381355, at *2 (Tenn. Ct. App. Nov. 5, 2001), aff'd, 104
S.W.3d 507 (Tenn. 2003); see also Thomas R. Lee, Stare Decisis in Historical Perspective:
From the Founding Era to the Rehnquist Court, 52 VAND. L. REv. 647, 653-54 (1999) ("Blind
adherence to precedent in all cases, however, threatens to undermine the principal policy on the
other side of the stare decisis ledger: assuring accurate judicial decisions that faithfully apply
correct principles of law. Judges are fallible and an ironclad requirement of adherence to
precedent in all cases would transform the doctrine of stare decisis into an ' imprisonment of
reason,' requiring the perpetuation of an error in future cases for the sole reason that it was once
enshrined as case law by the votes of five Justices. Thus, the countervailing interest in
accurate legal judgments must be weighed against the above policies of stabilitv and
legitimacy. The result is a fragile doctrine under which the Court "must seek principles of
change no less than principles of stabilify. "~ (emphasis added) (citing United States v. Int 'l.
Boxing Club, 348 U.S. 236, 249 (1955) (Frankfurter, J., dissenting); Payne v. Tennessee, 501
U.S. 808, 834 (1999) (Scalia, J. , concurring); Roscoe Pound, Interpretations of Legal History 1
(1923); Frank H. Easterbrook, Stability and Reliability in Judicial Decision, 73 CORNELL L. REv.
422, 422 (1988)).
Accordingly, notwithstanding the application of stare decisis and Rule 4 of the Rules of
the Tennessee Supreme Court, Tennessee law has developed significantly since Childress and
this Court should allow an appeal to correct the lower court ' s failure to seek the principles of
change Tennessee law demands.
D. Enforcing Parental Liability Releases Comports With Other Protections Afforded Minors in Tennessee.
Additionally, the fact that enforcing a parental liability release comports with other
Tennessee laws which afford minors protections highlights the fact that departure from Childress
46
today is appropriate. Indeed, as this Court is keenly aware, Tennessee has long-required court
approval for minor settlements. See Tenn. Code Ann. § 29-34-105; Busby v. Massey, 686
S.W.2d 60, 63 (Tenn. 1984); Wade v. Baybarz, 660 S.W.2d 493 (Tenn. Ct. App. 1983).
The Court of Appeals recognized this rule by its reliance on this Court's holding in
Wright v. Wright, 337 S.W.3d 166 (Tenn. 2011), as a basis for its Opinion. Blackwell, 2017 WL
83182, at *18. However, even the Court of Appeals recognized that Wright is distinguishable,
because it involved a parent attempting to execute a contract which affected a minor's recovery
on a tort claim that already existed. Id.
Indeed, as the Court of Appeals referenced:
"[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 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."
Id. at *20-*21 (quoting Sharon, 769 N.E.2d at 747 n.10; Zivich, 696 N.E.2d 201).
Moreover, the Court of Appeals concluded that "a pre-injury waiver is largely analogous
to a contract containing a contingency fee[,]" as was the case in Wright. Id. at *22. In that
regard, the court held:
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.
47
Id. (citing Wright, 337 S.W.3d at 178).
However, simply stated, Wright is distinguishable and the policy for disallowing parents
from settling their children' s existing tort claims is rooted in concern that the parent might place
her own financial motivations over her child' s interests. However, laws which permit state
intrusion into a parent' s decision to settle her minor's existing tort claim fit precisely within the
framework which presumes a parent's decision to execute a parental liability release was made in
her child' s best interests and should be enforced. This is how Wright is different and how,
respectfully, the Court of Appeals failed to fully appreciate a parent's newly recognized
fundamental decision making authority post-Childress.
Certainly, a parent's decision to settle her child' s existing tort claim - or a parent's
decision to hire a lawyer at a specific contingency fee rate - involves a myriad of interests which
conflict with those of her child - most significantly, a financial interest. These interests
naturally rebut the presumption that a parent acts in her child' s best interests. Zivich, 696 N.E.2d
at 206 ("A parent dealing with an existing claim is simultaneously coping with an injured child;
such a situation creates a potential for parental action contrary to that child' s ultimate best
interests.") (quoting Angeline Purdy, Scott v. Pacific West Mountain Resort: Erroneously
Invalidating Parental Releases of A Minor's Future Claim, 68 WASH. L. REv. 457, 474 (1993)
(see T.R. Vol. 5 at 626)). In other words, Hawk and Troxel certainly still permit judicial
oversight in a minor settlement based on the conflict of interest created by a parent's potential
48
financial motivations to settle her child' s lawsuit - which rebut the presumption that her decision
to settle a claim serves her child's best interests. 31
However, when a parent signs a pre-injury liability waiver on her child's behalf, her
interests do not conflict with her child's - in fact, they fall squarely in-line with her child's
interest. This is precisely the point. Therefore, the constitutional presumption that she acts in
her child's best interest remains. As the court in Zivich reflected:
"The concerns underlying the judiciary' s reluctance to allow parents to dispose of a child's existing claim do not arise in the situation where a parent waives a child's future claim.
* * * A parent who signs a release before her child participates in a recreational activity .. . faces an entirely different situation. First, such a parent has no financial motivation to sign the release. To the contrary, because a parent must pay for medical care, she risks her financial interests by signing away the right to recover damages. Thus, the parent would better serve her financial interests by refusing to sign the release.
A parent who dishonestly or maliciously signs a preinjury release in deliberate derogation of his child' s best interests also seems unlikely. Presumably parents sign future releases to enable their children to participate in activities that the parents and children believe will be fun or educational. Common sense suggests that while a parent might misjudge or act carelessly in signing a release, he would have no reason to sign with malice aforethought.
Moreover, parents are less vulnerable to coercion and fraud in a preinjury setting. A parent who contemplates signing a release as a prerequisite to her child' s participation in some activity faces none of the emotional trauma and financial pressures that may arise with an existing claim. That parent has time to examine the release, consider its terms, and explore possible alternatives. A parent
31 lndeed, even Tennessee' s minor settlement statute reflects these concerns. See Tenn. Code Ann. § 29-34-105 (requiring more thorough judicial oversight for larger settlements - a minor settlement that is less than $10,000.00 can be approved by a court without a hearing, relying solely on affidavits from legal guardians, while settlements over $10,000.00 require a greater judicial oversight and a hearing before the court).
49
signing a future release is thus more able to reasonably assess the possible consequences of waiving the right to sue."
Zivich, 696 N.E.2d at 206 (emphasis added) (quoting Purdy, supra at 474 (see T.R. Vol. 5 at
626)).
Accordingly, laws prohibiting Ms. Blackwell from settling Mr. Blackwell's existing tort
claim without court approval do not conflict with her constitutionally protected right to make the
decision to execute the Contract's liability waiver on Mr. Blackwell' s behalf. Further, departing
from Childress does not conflict with a minor' s right to avoid and/or disaffirm contracts. See,
e.g., Dodson by Dodson v. Shrader, 824 S.W.2d 545, 547 (Tenn. 1992). That is because such a
right is "based upon the underlying purpose of the ' infancy doctrine' which is to protect minors
from their lack of judgment." Id. at 547. In that regard, the state has an interest in protecting
minors "from foolishly squandering their wealth through improvident contracts with crafty adults
who would take advantage of them in the marketplace." Id. (quoting Halbman v. Lemke, 298
N.W.2d 562, 564 (Wis. 1980)).
However, parenting decisions are unique because "the concept of the family rests on a
presumption that parents possess what a child lacks in maturity, experience, and capacity for
judgment required for making life's difficult decisions." Parham. , 442 U.S. at 602. Indeed,
disallowing a parent from exercising her fundamental right to make a decision to execute an
enforceable contract on her child's behalf could be as harmful to her child as it would be
practically unworkable. See, e.g., Cedars Academy, 2010 WL 5825343, * 4 ("As a practical
matter, no service provider would ever agree to a contract with a parent if a child could ignore
the provisions of the contract that pertain to him without recourse.") The same is true for any
provider of services for children, including recreational activities.
50
As Professor King presciently theorized in his seminal article: "judicial attitudes toward
{invalidating/ exculpatory agreements signed by parents on behalf of their minor children
seem inconsistent with the powers conferred on parents respecting other important life
choices." Joseph H. King, Jr., Exculpatory Agreements for Volunteers in Youth Activities--The
Alternative to "Nerf (register) " Tiddlywinks, 53 OHIO ST. L.J. 683, 716 (1992) (see T.R. Vol. 2
at 285) (emphasis added). Perhaps truer words have never been spoken. In fact, the public
policy for allowing a parent to make the decision to execute an enforceable pre-injury liability
waiver on her child's behalf is reflected in a vast number of Tennessee laws giving a parent the
right to make difficult decisions which significantly affect her child. 32
See, e.g., Tenn. Code Ann. § 34-6-307 (a parental authority to refuse medical treatment
for minor child); Tenn. Code Ann. § 37-10-303 (parental authority to consent to an abortion
procedure); Tenn. Code Ann. § 49-2-124 (parental authority to submit minor child to involuntary
mental health or socioemotional screening); Tenn. Code Ann. § 33-8-303 (parental authority to
submit minor child to convulsive therapy); Tenn. Code Ann. § 36-3-106 (parental authority to
32 The Rosen court found this position persuasive. Rosen, 80 A.3d at 353-54. There, the court upheld a parental pre-injury liability waiver and recognized that such a broad parental authority is reflected by all of the Maryland laws enacted that are rooted in the "societal expectation that parents should make significant decisions pertaining to a child's welfare" and enable parents to "exercise their authority on behalf of their minor child in the most important aspects of a child's life," like important health decisions, (citing Md. Code Ann., Health-Gen. § 20-101 (b ), Md. Code Ann., Health-Gen. § 102 (parental consent to having their children give blood); Md. Code Ann., Health-Gen. § 20-106(b) (parental consent to the use of a tanning bed); Md. Code Ann., Health-Gen. § 18-4A-02(a) (familial consent to immunization of minor family member); Md. Code Ann., Health-Gen. § 10-610 (parental authority to commit child for mental treatment); Md. Code Ann., Health-Gen. § 10-923 (parental consent for therapeutic group home services)), important educational and emplovment decisions, (citing Md. Code Ann., Education § 7-30 l(a)(l) (parental choice to home school children); Id. § 7-30l(a)(2) (parental decision to defer compulsory schooling for one year if parent determines child is not mature enough); Md. Code Ann., Education§ 7-305(c) (parent may meet with school superintendent if child is suspended for more than ten days or is expelled from school); Md. Code Ann., Labor and Employment § 3-2 ll(b)(l) (child may not work more than is statutorily permitted without a parent giving written consent); Md. Code Ann., Labor and Employment § 3-403(a)(7) (wage and hour restrictions do not apply when child works for parent)), and important familial and societal decisions. (citing Md. Code Ann., Family Law§ 2-301 (parental permission for child to marry); Md. Code Ann., Family Law§ 4-50l(b)(2) (parental decision to use corporal punishment to discipline children); Md. Code Ann., Family Law§ 4-522(a)(2) (parental authority to apply on behalf of minor to address confidentiality program); Md. Code Ann., Family Law§ 10-314 (authority to bring action on behalfofminor child for unpaid child support); Md. Code Ann., Natural Resources § 10-301 (h) (consent to a child obtaining a hunting license)).
51
.-
allow her minor child to be legally married); Tenn. Code Ann. § 68-1-118 (parental authority to
release protected health information); Tenn. Code Ann. § 49-7-1103 (parental authority to
release confidential education records); Tenn. Code Ann. § 38-1-302 (parental consent required
for a physician to report a pregnancy believed to be the result of statutory rape); Tenn. Code
Ann. § 68-32-101 (parental authority to allow minor child to donate blood); Tenn. Code Ann. §
68-34-107 (parental authority to have physicians furnish information regarding contraceptive
supplies to minor child); Tenn. Code Ann.§ 50-5-105 (parental authority to allow minor child to
be employed); Tenn. Code Ann. § 47-25-1105 (parental authority to solicit minor child's name,
photograph, or likeness); Tenn. Code Ann. § 62-38-305 (parental authority to allow minor child
to get a body piercing); Tenn. Code Ann. § 68-117-104 (parental authority to allow minor child
to use a tanning device); Tenn. Code Ann. § 36-6-304 (parental consent to expose minor child to
clothing optional beaches). See also State v. Goodman, 90 S.W.3d 557 (Tenn. 2002) (a minor
child may be removed and/or confined against her will, absent force, threat, or fraud, and such
removal/confinement would not constitute kidnapping given parental consent). Simply stated,
the State of Tennessee generally acknowledges that parents know what types of activities or risks
are appropriate for their children better than their government does.
In the nearly thirty years since Childress, courts have routinely recognized that the public
policy permitting minors to avoid and/or disaffirm their contracts is congruent with allowing a
parent to exercise his or her parental authority to execute a pre-injury liability waiver on behalf
of her minor child:
{A minor's right to avoid a contract is founded on a policy/ to afford protection to minors from their own improvidence and want of sound judgment {and such a purpose/ comports with common sense and experience and is not defeated bv permitting parents to exercise their own providence and sound judgment on behalf of their minor children.
52
Sharon, 769 N.E.2d at 746 (emphasis added) (upholding parental pre-injury liability waiver)
(citing Parham, 442 U.S. 584; Frye v. Yasi , 101 N.E.2d 128 (Mass. 1951)). See also Elisa
Lintemuth, Parental Rights v. Parens Patriae: Determining the Correct Limitations on the
Validity of Pre-Injury Waivers Effectuated by Parents on Behalf of Minor Children, 2010 MICH.
ST. L. R.Ev. 169 (2010) (see T.R. Vol. 4 at 533). (Parents have the fundamental right to make
decisions for their child and do so every day .... There is a presumption that in doing so, parents
act in their child' s best interests .. .. " [And when executing a liability waiver on behalf of their
child] , in the circumstance of a voluntary, nonessential activity, [courts] will not disturb this
parental judgment.") (citing Parham, 422 U.S. at 602; Sharon, 769 N.E.2d at 747); Allison M.
Foley, We, the Parents and Participant, Promise not to Sue . . . Until There is an Accident. The
Ability of High School Students and their Parents to Waive Liability for Participation in Schoo/
Sponsored Athletics, 37 SUFFOLK U. L. REV. 439 (2004) (T.R. Vol. 5 at 607).
Thus, this Court should allow an appeal to secure a uniform decision on the important
questions decided in Wright and how those decisions apply when they may appear to conflict
with a parent's fundamental decision-making authority in the context of a parental liability
release.
IV. This Case Merits an Appeal to this Court.
Sky High Nashville respectfully requests that the Court grant its request to appeal to the
Tennessee Supreme Court because this Application presents important questions of law which
raise issues of first impression in this Court. Tenn. R. App. P. 1 l(a). Further, the questions
presented in this Application significantly implicate the public' s concern, and particularly that of
Tennessee parents and their children, not to mention the businesses and organizations that
provide athletic-activities geared toward minors in Tennessee:
53
.-
[W]here parents are no longer able to sign premJury waivers allowing their minor children to participate in commercial activities, businesses across (that/ state have become weary of exposure to total liability. Even businesses whose customer base is comprised mostly of adults have wheezed at the potential legal implications affecting their patrons. These companies also cater to the children accompanying their parents. . . . [Rulings that invalidate parental pre-injury liability waivers/ have several longlasting impacts on the manner in which corporations, both in and out of the state, anticipate risks that were previously immunized by exculpatory agreements. First, corporate risk management offices must undertake a careful analysis of the consequences exposed by the invalidation of parental waivers. Second, corporations will likely need to carry additional insurance to cover lawsuits by minors, which are now unleashed by the blanket of voidance of certain preinjury waivers. This will lead to the eventual rise in prices charged to customers, as businesses receive the bills from the insurance contracts. In the end, the consumer will face a higher cost to engage in certain activities as a result of the delicate balance between the state's role as parens patriae and the parent's right to assess the perils awaiting her child. 33
Jordan A. Desnick, The Minefield of Liability for Minors: Running Afoul of Corporate Risk
Management in Florida, 64 U. MIAMI L. REv. 1031 (2010) (see T.R. Vol. 4 at 563) (emphasis
and footnote added). See also Fischer, 2002 WL 31126288, * 14 (enforcing a liability waiver
33 Ironically, the Court of Appeals criticized any suggestion that the constant threat of litigation that
would result from refusing to enforce parental liability releases would lead to reduced activities available to children by noting that Tennessee law is "replete with instances of children participating in, and becoming injured by, recreational activities[,)" and then filing a lawsuit against the activity provider. Blackwell, 2017 WL 83182, at *23 (citing Neale v. United Way of Greater Kingsport, 2015 WL 4537119, at *l (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, 2007 WL 120040, at *l (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, 1997 WL 107059, at *l (Tenn. Ct. App. Mar. 12, 1997) (involving a child injured at a church retreat); Cave v. Davey Crockett Stables, 1995 WL 507760, at *l (Tenn. Ct. App. Aug. 29, 1995)). First, it is difficult to imagine how anyone, let alone the Court of Appeals, could arrive at an objectively correct determination of whether Childress has limited recreational activities for children in Tennessee, because it is impossible to know what number of youth-activities would have been available if the Court of Appeals reached a different conclusion thirty years ago in Childress. Second, it is respectfully even more difficult to understand how the purportedly large number of lawsuits against youth-activity providers could cause one to "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." Id
54
signed by a parent against his child in conjunction with his participation in a hockey league
because a contrary holding would deprive "thousands of children ... of the valuable opportunity
to play organized sports"). Moreover, this Application raises questions implicating Tennessee
parents' constitutional rights, and "'it is always in the public interest to prevent a violation of a
party's constitutional rights."' Liberty Coins, LLC v. Goodman, 748 F.3d 682, 690 (6th Cir.
2014) (emphasis added) (quoting Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.
1988)).
Finally, Sky High Nashville respectfully submits that the Court of Appeals' Opinion
conflicts with other Tennessee authority and authorities in other jurisdictions. Id. Indeed, such
crucial questions require a uniform decision rendered by this Court, and Sky High Nash ville
respectfully submits that this Court should exercise its inherent supervisory authority to do so.
Id. To be clear, the Court of Appeals considered the question of whether to depart from
Childress as similar to the public policy question raised in Woodman v. Kera, LLC, 785 N.W.2d
1 (Mich. 2010). Blackwell, 2017 WL 83182, at *23 (citing Woodman , 785 N.S.2d at 8-9). In
that regard, the Court of Appeals ultimately characterized a decision to depart from Childress as
changing a "well-settled" rule enshrined by previous decisions, which should be left to the
legislature. Id.
First, this case is far different than Woodman because no Michigan court prior to
Woodman had ever addressed whether a parental liability release should be enforceable.
Woodman, 785 N.W.2d at 28 (Markman, J. , concurring) ("The justices in the majority assert that
under existing Michigan common law, a preinjury release signed by a parent waiving a child's
negligence claim in order to enable that child to participate in a sporting or recreational activity
is unenforceable. However, they do not cite a single Michigan case holding that a preinjury
55
parental waiver is unenforceable. Instead, they only cite cases involving parental waivers of
existing claims. Until today, Michigan's common-law rule against parental waivers has only
been applied to the latter claims. I would not, as do the justices comprising the majority, extend
our common-law rule against postinjury parental waivers to preinjury parental waivers. These
waivers are very different.") Clearly, Childress characterizes the Tennessee judiciary' s previous
conclusion on precisely that which is now raised in this case.
Second, if this Court were to allow an appeal and adopt a rule which departs from
Childress, such a ruling would not be a "dramatic shift in public policy" that must be left to the
legislature. Indeed, this is not a case where Sky High Nashville seeks a decision which
"positively declar[es] the public policy of the state." Smith v. Gore, 728 S.W.2d 738, 747 (Tenn.
1987); see also Cavender v. Hewitt, 239 S.W. 767, 768 (Tenn. 1921). Rather, this case involves
exactly that which Tennessee courts aim to resolve: the removal of what increasingly appears to
be obsolete law from Tennessee precedent, refinement of existing principles of Tennessee law,
and expansion and/or application of existing Tennessee common law and statutes to the
enforcement of a parental liability release. See, e.g. Hanover v. Ruch, 809 S. W.2d 893 (Tenn.
1991); Dupuis v. Hand, 814 S.W.2d 340 (Tenn. 1991); Jordan v. Baptist Three Rivers Hospial,
984 S.W.2d 593 (Tenn. 1999).
Indeed, if this Court were to review and refine Tennessee law as to the enforceability of
parental liability releases, it would join Connecticut, as the second state to revisit and refine the
law as to the enforceability of parental liability releases, and nine other states (including North
Carolina) - that have ruled similarly following Childress and/or Troxel. Fedor, 143 A.2d 466
(parental liability release not enforceable); Fischer, 33 Conn. L. Rptr. 119 (enforcing a parental
liability release in the context of a youth hockey league); Saccente, 2003 WL 21716586
56
(enforcing a parental liability release in the context of a youth hockey league); Hohe, 244 Cal.
App. 3d 1559; Sharon, 769 N.E.2d at 746-47; Rosen, 80 A.3d at 362; Moore, 2009 WL 818738;
Kondrad, 655 N.W.2d at 414; Zivich, 696 N.E.2d at 205-07; Osborn, 655 N.W.2d 546; Kelly,
809 F. Supp. 2d at 437.
Accordingly, Sky High Nashville respectfully submits that this Application raises
questions which this Court should decide.
V. Remand was Inappropriate and Appeal to this Court is Appropriate.
In addition to the foregoing, Sky High Nashville respectfully submits that it is appropriate
for this Court to review the Court of Appeals' decision to remand this case to allow Mr.
Blackwell to amend the Complaint to assert a claim for medical expenses he paid or was
obligated to pay. First, to be clear, Sky High Nashville submits that the Court of Appeals was
categorically correct in its decision to affirm the trial court's decision that Mr. Blackwell could
not assert a claim for medical expenses paid by his parent. Blackwell, 2017 WL 83182, at *29.
However, this Court should allow an appeal of the Court of Appeals' decision to remand
this case to allow Mr. Blackwell to raise a claim for those pre-majority medical expenses he paid
or was obligated to pay. Id. (citing Smith v. King, 1984 WL 586817 (Tenn. Ct. App. Sept. 21,
1984)). The Court of Appeals denied Sky High Nashville's Petition for Rehearing of its decision
because, in its view, "[i]f 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." (Order Denying
Pet. for Reh'g.) (quoting Blackwell, 2017 WL 83182, at *24 n. 10; Conley, 236 S.W.3d at 724).
57
_,-..
The fact remains, however, that the Court of Appeals' "scope of review on appeal is
limited to those facts established by the evidence in the trial court and set forth in the record and
any additional facts that may be judicially noticed or considered under Rule 14 T.R.A.P." High
v. High, 1999 WL 1336088, at *6 (Tenn. Ct. App. Dec. 28, 1999). Indeed, the technical record
in this case is clear that there are no pre-majority medical expenses for which Mr. Blackwell has
paid and/or is legally obligated to pay, and further reveals that the Appellant does not dispute this
fact. 34 (T.R. Vol.Vat 741 ("As indicated above, Crystal Blackwell filed a voluntary dismissal of
her individual claims against the Defendant which included a recovery (or medical expenses.
She has waived her right to recover any damages from the Defendant. Further, as Jacob.
Blackwell's mother, she is legally obligated to pay for the medical expenses he has incurred.")
(emphasis added); T.R. Vol. 1 at 25, 30 ("At the time of the incident giving rise to this
Complaint, [Mother] was obligated for the medical bills incurred by Jacob Blackwell." ... "[Ms.
Blackwell] is legally obligated for Jacob's bills."); T.R. Vol. 5 at 744 ("[Ms. Blackwell] is the
natural and custodial mother of Jacob Blackwell, who resides at the same address."); Oral
Argument Audio at 2:13-2:21 ("The suit was brought individually [by Ms. Blackwell] to recover
pre-majority medical expenses, on her behalf, for which she had paid, and for which she was
responsible."); T.R. Vol. 6 at pp. 11-12 ("I've got a situation where Mr. Blackwell ... is going to
be subject, no matter how you recover [reimbursement for pre-majority medical expenses]
potentially, to a subrogation claim. Even if medical bills are not recovered based on the
judgment, I'm going to be dealing with a subrogation lien on this matter.")). See also Gardner v.
Flowers , 529 S.W.2d 708, 711 (Tenn. 1975) ("[T]he inability of parents to pay for essential
34 Even if such an ambiguity existed and the Appellant disputed this issue, which she has not, nothing would prevent her from filing a Motion to Amend in this regard clarifying the same.
58
~--
medical treatment for an infant renders such treatment a necessary for which the infant is
liable."); Foster v. Adcock, 30 S.W.2d 239, 240 (Tenn. 1930) ("We are of [the] opinion that the
obligation here was that of the parent, not that of the child ... The acceptance by the father of the
physician's services to this infant, and his subsequent recognition of obligation therefor, by
partial payment, coupled with the legal duty resting on the father to provide such necessary
services, are circumstances sufficient to support a finding of a contractual obligation on the part
of the father. It being the father's debt, the child may not be held thereon.")
Accordingly, unlike the record in Smith, the technical record in this case is clear and
undisputed that Jacob Blackwell has not paid and is not legally obligated to pay his pre-majority
medical expenses. Indeed, in Smith, the record was not clear "whether the child could bring
herself within the exception to the rule [that she may only assert a claim for pre-majority medical
expenses for which she paid or was legally obligated to pay.]" Smith, 1984 WL 58617, at *2.
The only proof in the record as to who paid or was legally obligated to pay the child's medical
expenses was a doctor's deposition submitted in support of a motion in limine before trial which
"showed that the father was billed for the treatment." Id Thus, based on this ambiguity, the
court remanded to the trial court for a hearing on whether facts existed to show that the child
paid or was legally obligated to pay her pre-majority medical expenses. Id. Here, even Ms.
Blackwell has ostensibly conceded that Mr. Blackwell's pre-majority medical expenses have
been paid by his mother and/or her insurance provider. (See Pet. for Reh'g. n. 2.)
Notwithstanding, a trial court's ruling on a motion for leave to file an amended complaint
is reviewed under an abuse of discretion standard, which occurs when "the trial court reaches a
decision against logic that causes a harm to the complaining party or when the trial court applies
an incorrect legal standard." Riley, 185 S.W3d at 398 (citing Eldridge, 42 S.W.3d at 85; Shirley,
59
--
6 S.W.3d at 247). Accordingly, even if it would have been "the better protocol" for the trial
court to grant the proposed amendment to allow Mr. Blackwell to assert a claim for pre-majority
medical expenses he paid, which his counsel has conceded were not, in fact, paid, it was not
illogical or an application of an incorrect legal standard for the trial court to deny Mr. Blackwell
an opportunity to present any claim for medical expenses.
60
CONCLUSION
For all of the foregoing reasons, Sky High Nashville respectfully requests that this Court
grant its Rule 11 Application for Permission to Appeal to the Tennessee Supreme Court.
61
Respectfully submitted,
Ben . Rose (#21254) ua D. Arters (#31340)
e Law Offices of Ben M. Rose, P Post Office Box 1108 Brentwood, Tennessee 37024 615-942-8295
Attorneys for the Defendant/ Appellee, Sky High Sports Nashville Operations, LLC
CERTIFICATE OF SERVICE
I do hereby certify that a true and exact copy of the foregoing has been sent by U.S . Mail, postage pre-paid, to the following on this 27th day of March, 2017:
David J. Weissman Hollins, Raybin & Weissman, P.C. Fifth Third Center, Suite 2200 424 Church Street Nashville, Tennessee 37219
62
EXHIBIT A
- ~
'
,-
Blackwell v. Sky High Sports Nashville Operations, LLC., Slip Copy (2017)
2017 WL 83182 Only the Westlaw citation is currently available.
SEE COURT OF APPEALS RULES 11 AND 12
Court of Appeals of Tennessee, AT NASHVILLE.
Crystal Blackwell, as Next Friend To Jacob Blackwell, A Minor
V.
Sky High Sports Nashville Operations, LLC.
No. M2016-00447-COA-R9-CV I
November 16, 2016 Session I
Filed 01/09/2017
Appeal from the Circuit Court for Davidson County, No. 14C524 Thomas W. Brothers, Judge
Attorneys and Law Firms
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.
Opinion
J. Steven Stafford, P.J., W.S. , delivered the opinion of the court, in which D. Michael Swiney, C.J., and Brandon 0 . Gibson, J. , joined.
OPINION
J. Steven Stafford, P.J.
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 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.
Background
*1 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 Nash ville 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 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 tom 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 contained in
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Blackwell v. Sky High Sports Nashville Operations, LLC., Slip Copy (2017)
the complaint. In addition, Sky High Sports Nashville, LLC raised several affrrmative defenses: (I) 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 for resolving this dispute: (I) 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.
*2 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 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 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 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
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Blackwell v. Sky High Sports Nashville Operations, LLC., Slip Copy (2017)
*3 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. In considering an appeal from 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 /11d11stries, 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. 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 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 law. We therefore first proceed to address whether Tennessee law renders the forum selection clause unenforceable in this case.
A.
*4 Generally, a forum selection clause is enforceable and binding on the parties entering into the contract. lamb v. MegaFliglzt, Inc., 26 S.W.3d 627, 63 l (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:
(l) the plaintiff cannot secure effective relief in the other state, for reasons other than delay in bringing the action; (2) or the
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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 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. W20 14-0187 1-COA- R3- CV, 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 WL 2423547 (Tenn. Ct. App. Aug. 23 2006); Spell v. Labelle, No. W2003- 0082 1- COA- R3- CV, 2004 WL 892534 (Tenn. Ct. App. Apr. 22, 2004); Signal Capital, No. E2000- 00140-COA- R3- CV, 2000 WL 1281322 (Tenn. Ct. App. Sept. 7, 2000); Tennsonita (Memphis), lite. v. Cucos, Inc. , No. 36, 1991 WL 66993 (Tenn. Ct. App. May 2, 199 1). Tennessee law is· clear, however, that the party challenging the enforcement of the forum selection clause "should bear a heavy burden of proof." Cilnffin v. Norwegian Cruise Line Ltd. , No. 02A01 - 9803- CH--00080, 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 a ''party resisting a forum selection clause must show more than inconvenience or annoyance [.]" ES/ Cos., Inc. v. Ray Bell Co11str. Co. , No. W2007--00220-COA- R3- CV, 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 38 l (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").
*5 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 . 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 the ir 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 would otherwise be unfair. As discussed in detail infra, 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 l (Tenn . Ct. App. 1989) (refusing to enforce such a waiver), with Holle v. San Diego Unified Seit. Dist. , 224 Cal. App. 3d 1559, 274 Cal. Rpt.r. 647 (Ct. App. 1990) (enforcing such a waiver). Because we reaffirm Tennessee law that parents cannot
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effectively sign pre-mJury 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. 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." 1"11esser Griesheim Indus., Inc. v. Cryotec/1 of Kingsport, Inc., 131S.W.3d457, 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 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 CONFLJCT OF LAWS § 187(2) (1971)).
Messer Griesheim, J 31 S.W.3d at 475 (quoting Vantage, 17 S.W.3d at 650). 1
*6 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 defines "material" as "[h]aving some logical connection with the consequential facts." Black's Law Dictionary 1066 (9th ed. 2009). 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.
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." 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 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. Id. 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 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
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High's] equipment or facilities, including any such claims which allege negligent acts or omissions of [Sky High] .
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.
*7 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 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 "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, 21 5 Tenn. 459, 387 S.W.2d620 (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 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 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
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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 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
*8 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:
The general rule is that a guardian may not waive the rights of an infant or an incompetent. 39 Am. Jw·. 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.) IO (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. Wi11cltester, 38 Tenn. (I Head) 460 (1858).)
Childress, 777 S.W.2d at 6.
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 in property); Ortman v. Kane, 389 lll.
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 (196 1) (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 NJ.Super. 374, 519 A.2d 893 (I 986) (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 rights of the minor against the defendant camp." Childress, 777 S.W.2d at 7 (citing Fedor v. Mauwehu Council, Boy Scouts ofAmerica; lnc. , 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)).
*9 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 Va/dimer v. Mt. Vernon Hebrew Camps, l11c., 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
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rights by the parent "is in keeping with the protection which Tennessee has afforded to the rights of infants and minors in other situations." Cltildress, 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 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 a parent cannot release a child's claim against a third party. See id. at 7 ("We, therefore, hold that [the mother] 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 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 parent' s purported release of the child's cause of action was unenforceable, even in the context of a wrongful death action. Id. at 246-4 7. 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.
*10 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 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- 6-30 l then in existence, a court could order" 'reasonable visitation' with grandparents if it is 'in the best interests of the minor child.'" /ti. 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
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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. Ill. 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." 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. Nehrllska, 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. Mt1ssac/1usetts, 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 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." ld. 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. I 526, I 540, 32 L. Ed. 2d l 5 (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 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).
*11 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. ld. at 61. The Washington Court of Appeals reversed the trial court' s 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
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''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, 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 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., 696 N.E.2d 201 (Ohio 1998). In Zivich, the child was injured 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 Zivicll v. Mentor Soccer Club, Inc., No. 95-L-184, 1997 WL 203646. at * l (Ohio Ct. App. Apr. 18, 1997), aff'd on other grounds, 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 Ziviclz, 1997 WL 203646, at *23 (Ford, J., concurring in result only).
*12 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 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 & 2305.3825). 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
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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 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 oflow-cost sporting activities available to the youth. Id.
In addition to the Ohio public policy favoring low-cost youth sporting activities, the Zivic/1 Court noted that its decision aligned with "the importance of parental authority." Id. (citing Court of Appeals's Zivich, 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 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, I 0.0.2d 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 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.
*13 Sky High emphasizes that at least three other states have similarly held that preinjury 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. CVO I 00756730, 2003 WL 21716586 (Conn. Super. Ct. July 11, 2003); Sharon v. City of Newton, 769 N.E.2d 738 (Mass. 2002); BJ's Wholesale Club, Inc. v. Rosen, 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 WL 21716586, at *l. 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. Id. at 7.' In reaching this result, the Saccente Court relied, in part, on the fundamental parental rights recognized by the United States Supreme Court in Troxel. Id. 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 against the defendants in exchange for horseback riding lessons at their farm[ .]" Saccente, 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).
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In Sharon v. City of Newtown, a student sued the city for tnjunes she had incurred while participating in cheerleading practice at a public school. Sharo11 , 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." It/. 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 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 to settle claims on behalf of minors without court approval); 5 Md. Code Ann., Educ. § 7-30 I (allowing parents the choice to homeschool their children); Md. Code Ann., Health- Gen. § I 0-610 (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 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").
*14 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 Holle v. Sa11 Diego U11ifie<l 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); Kontlrad ex rel McPhail v. Bismarck Park Disl , 2003 ND 4, ~ 5, 655 N.W.2d 411, 413 (including no analysis as to the issue of whether a parent may waive claims on behalf of a minor); Osbom v. Cascade Mountain, Inc., 2003 WI App I , ~ 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 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 20 l0). 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 Cllicago, R.J. & P. Ry. Co. v. Lee, 92 F. 318, 321 (8th Cir. 1899); J. T. ex rel Tllode v. Monster Mountain,
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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 .Man1ter, Inc. , 262 Ill. App. 3d 141, 145, 634 N.E.2d 411, 4 13 (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 l (M ich. 2010); Kllo11ry v. Saik, 203 Miss. 155, 33 So. 2d616, 618 (1948) (reaffirmed in Burt v. Burt, 841So.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); Va/dimer v. Mount Vernon Hebrew Camps, blc. , 9 N.Y.2d 21 , 24, 172 N.E.2d 283, 285 (N.Y. 1961); Ollio Cas. Ins. Co. 11. Mal/iso11 , 223 Or. 406, 412, 354 P.2d 800, 803 (Or. l 960); Shaner v. State Sys. of Higller Etluc., 40 Pa. D. & C.4th 308, 313 (Com. Pl. 1998), aff' d without opinion, 738 A.2d 535 (Pa. Comrnw. Ct. 1999); Hawkins ex rel. Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062, somewhat superseded by Utah Code Ann . § 788-4-203 (allowing a release against an "equine or livestock activity sponsor");6 Mu11oz v. JI Jaz Inc. , 863 S.W.2d 207, 2 10 (Tex. App. 1993); Scott By & Through Scott v. Pac. W. Mountain Resort, 119 Wash. 2d 484, 494, 834 P.2d 6, 11 (Wash. 1992).
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, 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 McKi11stry 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 Jaw was warranted, the change should originate in the legislature, rather than the courts. Id. at 9- lO.
*15 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 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 Jaw 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 universit}-. Id. at 253.
Although the holding was later superseded by statute, the reasoning of the Colorado Supreme Court on this issue is also illuminating. Cooper v. Aspe11 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:
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. l 042 ( 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
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religious upbringing of their children," Wisconsin v. Yoder, 406 U.S. 205, 21 4, 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 I 01 (1979); rather 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 policy favors a change in the rule established by this Court in Cllildress.
D.
*16 " ' [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. 20 14) (quoting Cary v. Cary , 937 S. W.2d 777, 78 1 (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. Hytle, 562 S. W.2d 194, l 96 (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. Nol'ak, 340 S.W.3d 372, 382 (Tenn. 201 l)). " '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, J 80 Tenn. 585, 589, 177 S.W.2d 545 , 546 (1944) (quoting Twin City Pipe line Co. v. Hartling Glass Co., 283 U.S. 353, 356- 57, 51 S. Ct. 476, 477, 75 L. Ed. 111 2 (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 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 (201 6) (involving termination of parental rights) ; Lovlace v. Copley, 418 S. W.3d 1, 26 (Tenn. 2013) (involving grandparent visitation); Ill 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 Broatbvefl v. Holmes, 87 1 S.W.2d 47 1, 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 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 [fJather." Lawrence v. Lawrence, 360 S.W.3d 416, 42 1 (Tenn. Ct. App. 2010). In another case, however, this Court held that
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a parent's 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. 02AOl- 9709- CV-00242, 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 Almotated 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:
* 17 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). ' 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 ifneither the child nor the child's 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. § 4 7-25-1 105 (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- 11 8 (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).
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 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 !item 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 !item fees , and other expenses. The document evincing the agreement also indicated that the parties agreed to the "contractual attorney 's fees ." Id. at 171.
*18 A dispute soon arose between the guardian ad !item 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 the settlement amount, the guardian ad !item 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 $13 1,000.00 in attorney's fees. It/. at 175 (citing Wright v. Wright, No. M2007--00378-COA- R3-CV, 2007 WL 4340871, at * 1 (Tenn. Ct. App. Dec. 12. 2007) (hereinafter, "Wright f')). After the fee was affirmed by the Court of Appeals, the Tennessee Supreme Court granted the guardian ad !item'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
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(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.3 d at 178. First, Tennessee Code Annotated section 34- 1- 12 1 provides, in pertinent part:
In any action, claim, or suit in which a minor or person with a disability is a party 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- 12l(b); see also Va1111ucci v. Memphis Obstetrics & Gynecological Ass'n, P. C., No. W2005- 00725- COA- R3- CV. 2006 WL 1896379, at *11 (Tenn. Ct. App. Ju ly 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 Tennessee public policy allows courts to "assume a special responsibility to protect a minor' s interests." 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 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- 12 l(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 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 WL 4340871, at* I ("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).
*19 In addition to statutes on this subject, Tennessee caselaw provides another significant protection for the financ ial 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. 200 I) (citing Norton v. Norton, No. Wl999- 02176-COA- R3-CV. 2000 WL 528 19, at *4 (Tenn. Ct. App. Jan. IO, 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. A.B.C. v. A.H., No. E2004-00916-COA-R3-CV, 2005 WL 74 106, at *7 (Tenn. Ct. App. Jan. 13, 2005) (citing PeTtt v. Peterson, 1990 WL 200582 (Tenn. Ct. App. Dec. 14, 1990)); see also Berryhillv.Rhodes,21S.W.3d188, 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
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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 !item 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 Ga1111 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).
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. § 49-6-300 1 (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---0- 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 parties agree to visitation post-adoption. See Tenn. Code Ann. § 36- J- 12 l(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 WL 217 16586, at *6-7 (citing Conn. Gen. Stat. Ann. § 45a- 63 l (allowing parents to settle the claims of their children ifthe 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 court approval, such practice was actually authorized by Maryland statutory law. See Rosen, 80 A.3 d 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.
*20 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 Slraron , 769 N.E.2d at 747 (citing Mass. Gen. Laws Ann. ch. 2 l , § l 7C; 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 .3825); 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 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 behalfof his child is not a decision that implicates such fundamental parental rights"). Indeed, where a child's financial interests are
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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- 12l(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 2011 , well after the decisions in both Hawk and Troxel. See Wright, 337 S.W.3d at 178. Accordingly, 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
We are cognizant that that 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, § 140C l/2) (providing that a court may approve a settlement on behalf of a minor when approval is requested by a party); Zivic/1, 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 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.
*21 Sharoll , 769 N.E.2d at 747 n.10 (citing Zivicll , 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 Jaw to the rights of those who are unable effectively to protect those rights themselves.
Childress, 777 S.W.2d at 7 (citing Va/dimer, 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 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." Fitzgemld, 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
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the opportunity to receive a sum of money in his own right as a part of the settlement m 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 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.
Malli.•wn , 354 P.2d at 802. The parent-child relationship has likewise been described as fiduciary by Tennessee courts in some situations. See Bayli5s 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 undue influence or other legal questions). Accordingly, we agree with the courts in New Jersey, New York, and Oregon that 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 pre-injury waiver on behalf of a minor.
*22 Furthermore, in our view, a pre-mJury 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. 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 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. Ol- A- 01 - 9511 - JV00508, 1996 WL 557844, at *2 (Tenn. Ct. App. Oct 2, 1996), aff'd, 970 S.W.2d 43 1 (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 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. W20 l 4- 02286- COA- R9- CV, 2015 WL 4042490, at * 16 (Tenn. Ct. App. July 2, 2015) (Gibson, J., dissenting), perm. app. 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 (Tetm. 20 13 ).
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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_am d_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 overrule the Childress decision lightly, especially given the over twenty-five years that it has operated as the law in Tennessee.
*23 A similar issue was raised in Woodman ex rel. Woodman v. Kera LLC, 486 Mich. 228, 785 N.W.2d 1 (Mich. 201 0). 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 [.]" I d. 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, 71 3 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 Nt1tural Resources, 415 Mich. 45, 327 N.W.2d 838 (Mich. 1982)).
The same is true in 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 l
(noting that perm1ss1on 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"); Zivic/1, 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 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 •'· United Way of Greater Kingsport, No. E2014-01334-COA- R3- CV, 2015 WL 45371 19, at *l (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 WL 120040, at *I (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. Ol AOl- 9609- CV-00391 , 1997 WL 107059, at * l (Tenn. Ct. App. Mar. 12, 1997) (involving a child injured at a church retreat); Cave v. Davey Crockett Stables, No. 03AOl - 9504CVOOI 31 , 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.
*24 Based on the foregoing, we conclude that there is no
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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, 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 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. "' Sky High argues that the trial court was correct in its decision, citing the Tennessee Supreme Court's decision in Dudley v. Phillip!>', 218 Tenn. 648, 651 , 405 S.W.2d 468 (Tenn. 1966). 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 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, 20 15 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 WL 198233 , at *3 (Tenn. Ct. App. Apr. 25, 1996); Rogers v. Donelso11-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).
*25 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 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, I 05 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 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
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her mother was deceased and her father incompetent, the minor filed suit with her grand uncle acting as next friend. ld. at 63 3. 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:
"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, 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:
"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, 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 WL 4537 119, at *8 (Tenn. Ct. App. July 28, 20 15); Palanki ex rel. Palanki v. Vanderbilt Univ. , 215 S.W.J d 380 (Tenn. Ct. App. 2006); Smith v. King, No. CLY.A. 958, 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 WL 5868 17, 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 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 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.
*26 The question was answered by this Court in Palanki ex rel. Palanki v. Vanderbilt Univ. , 2 15 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 [.]" ld. 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
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obligated to pay them." Id. (alteration in original) (quoting Smith , 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.
Recently, the United States District Court for the Eastern District of Tennessee called into question the holding in Palanki. See Grant v. Kia Motors Corp., No. 4:!4-CV-79, 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. Id. 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. Id. 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 WL 6247319, at *9.
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 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 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. Id. at *10 (citing Palanki, 215 S.W.3d at 394 (citing Smith , 1984 WL 586817, at *2)).
*27 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 WL 6247319, at *10. The court in Grant likewise concluded that the Court of Appeals in Smith was concerned only with those expenses paid by the minor himself. Id. 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 WL 6247319, at *11 (citing Smith, 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:
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 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 WL 586817 at *2, it is clear that the "he" to which the Smith court referred was intended to be "the child."
Grant, 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 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 WL 6247319, at *11 (citing Gartlner, 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, 20 J 6 WL 624 73 19,
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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 fact that the record contained evidence that the father was billed for the child' s medical expenses. Smith , 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 WL 62473 19, 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.
*28 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 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, 2 15 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. Ol- A-01- 9511 - JV00508, 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:
[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 27 1, 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, 22 1 Tenn. 567, 572, 428 S.W.2d 786, 789 (Tenn. 1968) (citing City of Memphis v. Overton , 54 Tenn. App., 41 9, 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. Grusi11 , No. W2009-00033-COA-R3-CV, 2009 WL 4931324, at *4 (Tenn. Ct. App. Dec. 22, 2009) (quoting Davis v. Davis, No. M2003-02312- COA- R3- CV, 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. Trick, 906 S.W.2d 440, 443 (Tenn. 1995) ("[I]t is a controlling principle that inferior courts 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.
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 expenses. See Grant, 2016 WL 6247319, at *11- 12 (citing Wolfe, 152 S.W.2d at 634; Smith , 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
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paid the medical expenses and specifically cited the Tennessee Supreme Court' s decision in Burke in announcing its rule. Smith , 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. 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 WL 586817 at *2. ln 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.
*29 A recent Tennessee Supreme Court case supports our analysis. In Calawily ex rel. Cillaway 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 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 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 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 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 . .
All Citations
Slip Copy, 2017 WL 83182
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Footnotes
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.
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.").
3
4
5
6
7
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 proposition of law. See Taylor v. Walker, 48 Tenn . 734, 378 (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 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 WL 21716586, at *4. The Saccente Court concluded that the same was not true of the child's horseback riding lessons.
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.
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 , i-f 28 , 301 P.3d 984, 992
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 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. Id. 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 un.known disputes; (3) the agreement at issue was an agreement to arbitrate, which limits only the forum in which a claim m~y be raised'. rat~er than limiting liability. See Buraczynski v. Eyring, 919 S.W.2d 314, 319 (Tenn. 199~) (holding that arb~tra.t1c;>n agreements "do not limit liability, but instead designate a forum that is alternative to and independent of the JUd1c1al forum"). As such , the Gladden Opinion is inapposite to the issues raised in this case. Further~ore , becaus.e the Tennessee Supreme Court recently granted permission for appeal of the Gladden case, we await final resolution of the issues decided therein.
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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.
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 ." Id. 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).
10
11
12
We note that this Court has previously held: The court ... should not deny a plaintiffs 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 fo test his claim on merits and therefore should be permitted to amend 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.
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.
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.").
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