IN THE CIRCUIT COURT FOR DAVIDSON COUNTY, TENNESSEE
AT NASHVILLE
CRYSTAL BLACKWELL, individually
and as next friend to
JACOB BLACKWELL, a minor,
Plaintiffs,
v.
SKY HIGH SPORTS NASHVILLE
OPERATIONS, LLC,
Defendant.
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Case No. 14C524
JURY DEMAND
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S
MOTION TO ENFORCE THE CONTRACT BETWEEN THE PARTIES
Ben M. Rose (#21254)
Joshua D. Arters (#31340)
The Law Offices of Ben M. Rose, PLLC
Post Office Box 1108
Brentwood, Tennessee 37024
ben@bmrfirm.com
josh@bmrfirm.com
615-942-8295
Attorneys for the Defendant, Sky High
Sports Nashville Operations, LLC
TABLE OF CONTENTS
I. BRIEF OVERVIEW ................................................................................................................. 1
II. FACTS .................................................................................................................................... 3
1.
Plaintiffs' General Factual Allegations ............................................................................ 3
2.
The Customer Release of Liability and Assumption of Risk Contract.. .......................... 3
III. LEGAL ARGUMENT .......................................... ........ .......... ........................ ....................... 6
1.
The Contract's choice of law and forum selection provisions are valid and
enforceable ...................... ...... ................................................... ............... .. .................... .6
A. The Contract's choice oflaw and forum selection provisions are valid and
otherwise enforceable as a general matter. ...................... ...... ............... ..................... 6
B. The Contract's choice oflaw and forum selection provisions are enforceable
against Ms. Blackwell ............................................................................................... 8
C. The Contract's choice of law and forum selection provisions are enforceable
against Mr. Blackwell .............................................................................................. l 0
i.
Courts routinely enforce arbitration provisions against minors because they
merely "select the forum" for resolving the child's claims .......................... 10
11.
Courts routinely enforce more general forum selection and choice of
law provisions against minors ....................................................................... 12
iii. This Court should enforce the Contract's choice oflaw and forum
selection provisions against Mr. Blackwell in this case ....................... ........ 14
2.
The Contract's release of liability provision is valid and enforceable ........................... 16
A. The liability waiver is valid and otherwise enforceable as a general matter. .......... 16
B. Ms. Blackwell's claims are subject to and barred by the liability waiver .............. .19
C. Mr. Blackwell's claims are subject to and barred by the liability waiver .............. .20
i. Tennessee Authority: Childress and its Progeny ........................................... 21
11
IL
Since Childress, the fundamental parental right has been substantively
analyzed and solidified .... .............. ................ ....... ........... ...... ....................... 23
a. The Tennessee Supreme Court solidified fundamental
parental rights in Hawk v. Hawk ............... ................................. 24
b. The United States Supreme Court emphasized a broad
parental right for the first time in Troxel v. Granville ................ 26
111.
Since Childress, courts have enforced liability waivers signed by a
parent against her children, including California - the state which
constructed Tennessee' s general architecture regarding a liability
waiver' s validity .................................................................................. .......... 27
iv. The Contract's liability waiver should be enforced against Mr.
Blackwell .................................... .................................................................. 29
a. Ms. Blackwell' s rights as the parent of Mr. Blackwell are
broadly defined fundamental rights and encompass the
authority to bind Mr. Blackwell to the liability waiver .............. 30
b. Enforcement does not conflict with the public policy
behind Mr. Blackwell' s general right to avoid contracts ............ 34
c. Enforcement does not conflict with the public policy behind
Ms. Blackwell' s inability to settle Mr. Blackwell' s existing
tort claims ... ..... .. .. ....... ...................... ................... ........................ 35
d. Enforcement in this case promotes the availability of
opportunities to expose children to valuable life skills ............... 38
IV. CONCLUSION ........ .... ........................................ ................................................................ 40
V. CERTIFICATE OF SERVICE ............................................................................................. 41
lll
TABLE OF AUTHORITIES
United States Constitutional Provisions
U.S. CONST. amend. XIV ............................................................................................................ 26
Tennessee Constitutional Provisions
TENN. CONST. art I, § 8 ....................... ........................................................................................ 24
Tennessee Rules and Statutes
Tenn. Code Ann.§ 36-6-101 .... .................................................................................................. 25
Tenn. Code Ann. § 20-1-105 .................................................................................................. 8, 20
United States Supreme Court Cases
Parham v. J.R., 442 U.S. 584 (1979) ............................................................ ............ 14, 23, 32, 34
Pierce v. Society of Sisters, 268 U.S. 510 (1925) ........................................................... 23, 24, 25
Stanley v. Illinois, 405 U.S. 645 (1972) ................................................................ ..................... 25
Troxel v. Granville, 530 U.S. 57 (2000) ............................................................................. passim
Wisconsin v. Yoder, 406 U.S. 205 (1972) ..................................................................... .23, 24, 25
United States Circuit Court of Appeals Cases
Brooks v. Timberline Tours, Inc., 127 F.3d 1273 (10th Cir. 1997) ............................................ 19
Security Watch, Inc. v. Sentinel Systems, Inc., 176 F.3d 369 (6th Cir. 1999) ............................. 7
Wilson v. Massengill, 124 F.2d 666 (6th Cir. 1942) ............................................ ........ .............. 19
United States District Court Cases
Albert v. Ober Gatlinburg, Inc., 2006 WL 208580 (E.D. Tenn. Jan. 25, 2006) ........................ .23
Bonne v. Premier Athletics, LLC, 2006 WL 3030776 (E.D. Tenn. Oct. 23, 2006) ................... 23
In re Complaint of Royal Caribbean Cruises, Ltd., 403 F. Supp. 2d 1168 (S.D. Fla. 2005) ...... 19
Kelly v. U.S., 809 F. Supp. 2d 429 (E.D. N.C. 2011) ................................................................. 28
lV
Long v. Dart Intern., Inc., 173 F. Supp. 2d 774 (W.D. Tenn. 2001) ............................................ 7
Simmons v. Parkette Natl. Gymnastic Training Ctr., 670 F. Supp. 140 (E.D. Pa. 1987) ........... 19
Tate v. Trialco Scrap, Inc., 745 F. Supp. 458 (M.D. Tenn. 1989)
affirmed, 908 F.2d 974 (6th Cir. 1990) .......................................................................... .17
Tennessee Cases
Adams v. Roark, 686 S.W.2d 73 (Tenn. 1985) ........................................................................... 17
Benton v. Vanderbilt University, 137 S.W.3d 614 (Tenn. 2004) ............................................... 15
Bright v. Spaghetti Warehouse, Inc., 1998 WL 205757 (Tenn. Ct. App. April 29, 1998) ....... 6, 8
Burks v. Belz-Wilson Properties, 958 S.W.2d 773 (Tenn. Ct. App. 1997) ................................ 17
Butler v. Eureka Sec. Fire & Marine Ins. Co., 105 S.W.2d 523 (Tenn. Ct. App. 1937) ............ 15
Chazen v. Trailmobile, Inc., 384 S.W.2d 1 (Tenn. 1964) .... ................................................. 16, 17
Childress v. Madison County, 777 S.W.2d 1 (Tenn. Ct. App. 1989) ................................. passim
Cincinnati, N. 0. & T. P. Ry. Co. v. Saulsbury, 90 S.W. 624 (Tenn. 1905) ................ ..... ......... 16
Cortez v. Alutech, Inc., 941 S.W.2d 891 (Tenn. Ct. App. 1996) ................................................ 15
Crawford v. Buckner, 839 S.W.2d 754 (Tenn. 1992) ................................................................. 16
Doe v. HCA Health Services, Inc., 46 S.W.3d 191 (Tenn. 2001) ................................................ 9
Dudley v. Phillips, 405 S.W.2d 468 (Tenn. 1966) .................................................................. 8, 20
Dyersburg Mach. Works, Inc. v. Rentenbach Eng'g Co., 650 S.W.2d 378 (Tenn. 1983) ........ 6, 7
Empress Health and Beauty Spa, Inc. v. Turner, 503 S.W.2d 188 (Tenn. 1973) ....................... 16
Evco Corp. v. Ross. 528 S.W.2d 20 (Tenn. 1975) ...................................................................... 16
Frady v. Smith, 519 S.W.2d 584 (Tenn. 1974) ....................................................................... 8, 20
Hance v. Haun, 391 S.W.2d 691(Tenn.1965) ........................................................................... 19
Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993) ......................................... ................. ......... passim
Health & Beauty Spa, Inc. v. Turner. 503 S.W.2d 188 (Tenn. 1973) ...................... ................... 16
v
Houghland v. Security Alarms & Services, Inc., 755 S.W.2d 769 (Tenn. 1988) ....................... 16
In re Hamilton, 658 S.W.2d 425 (Tenn. Ct. App. 1983) ............................................................ 25
In re Justin A.H., 2014 WL 3058439 (Tenn. Ct. App. June 7, 2014) ......................................... 15
Kellogg Co. v. Sanitors, Inc., 496 S.W.2d 472 (Tenn. 1973) ..................................................... 16
Lopez v. Taylor, 195 S.W.3d 627 (Tenn. Ct. App. 2005) .......................................................... 15
Lovelace v. Copley, 418 S.W.3d 1 (Tenn. 2013) ....................................................................... 26
Memphis & Charleston Railroad Co. v. Jones, 39 Tenn. (2 Head) 517 (Tenn. 1859) ............... 17
Miller v. Hembree, 1998 WL 209016 (Tenn. Ct. App. Apr. 30, 1998) ...................................... 17
Moody Realty Co., Inc. v. Huestis, 237 S.W.3d 666 (Tenn. Ct. App. 2007)
appeal den., (Tenn. 2007) ..................................... ............................................................ 9
Moss v. Fortune, 340 S.W.2d 902 (Tenn. 1960) ........................................................................ 16
Olson v. Molzen, 558 S.W.2d429 (Tenn. 1977) ...................................................... 17, 18, 20, 21
Page v. Wilkinson, 657 S.W.2d 422 (Tenn. Ct. App. 1983) ................................................... 8, 20
Petry v. Cosmopolitan Spa Intern., Inc., 641 S. W.2d 202 (Tenn. Ct. App. 1982) .................... .17
Planters Gin Co. v. Fed. Compress & Warehouse Co., 78 S.W.3d 885 (Tenn. 2002) ......... 16, 17
Rogers v. Donelson-Hermitage Chamber of Commerce,
807 S.W.2d 242 (Tenn. Ct. App. 1990) .... ....... .... ... ................................................ passim
Sevier Cnty. Bank v. Paymentech Merch. Servs., Inc.,
2006 WL 2423547 (Tenn. Ct. App. Aug. 23, 2006) ............................... 19, 20, 22, 23, 25
Sharp v. Cincinnati, N.O. & T.P. Ry. Co., 179 S.W. 375 (Tenn. 1915) ..................................... 19
Simmons v. Simmons, 900 S.W.2d 682 (Tenn. 1995) ............................................................... 25
Solomon v. Flo Warr Management, Inc., 777 S.W.2d 701 (Tenn. Ct. App. 1989) ....................... 6
Thomas v. Costa Cruise Lines N.V., 892 S.W.2d 837 (Tenn. Ct. App. 1994) ............... 6, 7, 8, 15
Thompson v. Terminix Intern. Co., L.P., 2006 WL 2380598 (Tenn. Ct. App. 2006) .................. 6
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T.R. Mills Contractors, Inc. v. WRH Enterprises, LLC,
93 S.W.3d 861 (Tenn. Ct. App. 2002) ............................................................................. 9
Webster v. Psychemedics Corp., 2011WL2520157 (Tenn. Ct. App. 2011) ............................. 16
Williams v. Smith, 2014 WL 6065818 (Tenn. Ct. App. Nov. 6, 2014) ........... ....................... 9, 12
Wadkins v. Wadkins, 2012 WL 6571044 (Tenn. Ct. App. Dec. 14, 2012) .............. 14, 24, 34, 35
Other State Cases
Aaris v. Las Virgenes Unified School Dist., 64 Cal. App. 4th 1112 (Cal Ct. App. 1998) ..... ... .27
BJ's Wholesale Club, Inc. v. Rosen, 80 A.3d 345 (Md. Ct. App. 2013) .................. 28, 31, 32, 39
Cross v. Carnes, 724 N.E.2d 828 (Ohio 1998) ......................................................... 10, 11, 12, 14
Davis v. Sun Valley Ski Education Foundation, Inc., 941P.2d1301(Id.1997) ....................... 29
DeKalb County School System v. White, 260 S.E.2d 853 (Ga. 1979) ....................................... 28
Doe v. Cedars Academy, LLC,
2010 WL 5825343 (Del. Sup. Ct. Oct. 27, 2010) ..................................... 9, 12, 13, 14, 15
Doyle v. Guiliucci, 401P.2d1 (Cal. 1965) .............................................................. 10, 11, 29, 33
Fischerv. Rivest, 2002 WL 31126288 (Conn. Super. Ct. 2002) ............................. .27, 30, 31, 38
Gavin W. v. YMCA of Metro. L.A., 106 Cal. App. 4th 662 (2d Dist. 2003) ............................. 15
Give Kids the World, Inc. v. Sanislo, 98 So. 3d 759 (Fla. Dist. Ct. App. 2012) ........................ 19
Global Travel Marketing, Inc. v. Shea, 908 So. 2d 392 (Fla. 2005) .................. .10, 11, 12, 14, 15
Hohe v. San Diego Unified School Dist., 224 Cal. App. 3d 1559 (Cal. Ct. App. 1990) .... passim
Hojnowski v. Vans Skate Park, 868 A.2d 1087 (N.J. Sup. Ct. 2005) ............................ .10, 11, 15
Kondrad v. Bismarck Park Dist., 655 N.W.2d 411 (N.D. 2003) ................................................ 28
Lehmann v. Har-Con Corp., 76 S.W.3d 555 (Tex. App. 2002) ........................................... .27, 31
Leong v. Kaiser Found. Hosps., 788 P.2d 164 (Haw. 1990) ...................................................... 10
Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546 (Wi. Ct. App. 2002) ................................ 27
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Pulford v. County of Los Angeles, 2004 WL 2106545 (Cal. Ct. App. Sept. 22, 2004) ... ..... ..... 27
Quinn v. Mississippi State University, 720 So.2d 843 (Miss. 1998)) ....................................... .29
Quirk v. Walker's Gymnastics & Dance,
2003 WL 21781387, at *2 (Mass. Super. July 25, 2003) .................................. .27, 30, 31
Saccente v. Laflamme, 2003 WL 21716586 (Conn. Super. Ct. July 11, 2003) .................. .27, 31
Scott v. Pac. W. Mountain Resort, 834 P.2d 6 (Wash. 1992) ............................... .................. .... 19
Sharon v. City ofNewton, 769 N.E.2d 738 (Mass. 2002) ............................. 9, 27, 30, 31, 33, 34
Smoky, Inc. v. McCray, 396 S.E.2d 794 (Ga. Ct. App. 1990) ................................................... 28
Tunkl v. Regents of University of California, 383 P.2d 441 (Cal. 1963) ........... 17, 18, 20, 26, 27
Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201(Ohio1998) .................................... passim
Periodicals
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 School-Sponsored
Athletics, 37 SUFFOLK U. L. REV. 439 (2004) ............................................................... .28
Angeline Purdy, Scott v. Pacific West Mountain Resort: Erroneously Invalidating
Parental Releases of A Minor's Future Claim, 68 WASH. L. REV. 457
(1993) ............................................................................................................ 28, 35, 36, 37
Blake D. Morant, Contracts Limiting Liability: A Paradox with Tacit Solutions,
69 TuL. L.REv. 715 (1995) ............................................................................................. 16
Doyice J. Cotten, Sport Risk Consulting & Sarah J. Young, Effectiveness of
Parental Waivers, Parental Indemnification Agreements, and Parental
Arbitration Agreements as Risk Management Tools, 17 J. LEGAL ASPECTS
OF SPORT 53 (2007) .................................................................................................. 28, 30
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. REv. 169 (2010) ................................ 28
Emily Neisloss Roisman & Michael Hobbs, The Legal Enforceability of Parental
Waivers; Does A Waiver from Veruca Salt's Father Save the Chocolate
Factory?, ACC Docket, July/August 2012 .................... ................ ................ ........ ......... 16
Vlll
Jordan A. Desnick, The Minefield of Liability for Minors: Running Afoul of
Corporate Risk Management in Florida, 64 U. MIAMI L. REV. 1031 (2010) ................. .28
Joseph H. King, Jr., Exculpatory Agreements for Volunteers in Youth Activitiesthe Alternative to "Nerf (r)" Tiddlywinks, 53 Ohio St. L.J. 683 (1992) ..... ....... .16, 28, 35
Robert S. Nelson, The Theory of the Waiver Scale: An Argument Why Parents
Should be Able to Waive their Children' s Tort Liability Claims, 36 U.S.F.
L. Rev. 535 (2002) ............................................................................... ........................... 28
Other Secondary Sources
Restatement (Second) of Torts§ 4968 ........................................................................ ...... ........... 9
Restatement (Second) of Conflicts of Law ............... ...................... ............................ .................. 7
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IN THE CIRCUIT COURT FOR DAVIDSON COUNTY, TENNESSEE
AT NASHVILLE
CRYSTAL BLACKWELL, individually
and as next friend to
JACOB BLACKWELL, a minor,
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)
)
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)
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Plaintiffs,
v.
SKY HIGH SPORTS NASHVILLE
OPERATIONS, LLC,
Defendant.
Case No. 14C524
JURY DEMAND
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S
MOTION TO ENFORCE THE CONTRACT BETWEEN THE PARTIES
Comes now, the Defendant, Sky High Sports Nashville Operations, LLC ("Sky High
Nashville"), by and through counsel, and submits this Memorandum of Law in Support of its
Motion to Enforce the Contract Between the Parties in response to the Amended Complaint filed
by the Plaintiffs, Crystal Blackwell ("Ms. Blackwell") and her minor son, Jacob Blackwell ("Mr.
Blackwell") Gointly referred to herein as "Plaintiffs").
I.
BRIEF OVERVIEW
This is a personal injury lawsuit arising from an injury allegedly sustained by Mr.
Blackwell while he was playing a game of dodgeball at an indoor trampoline park facility
operated by Sky High Nashville. Prior to Mr. Blackwell' s participation in the dodgeball game,
his mother, Ms. Blackwell, signed a contract individually and on behalf of Mr. Blackwell that
contains California choice of law and forum selection provisions and, in addition, a liability
waiver.
In filing this motion, Sky High Nashville moves this Court to enforce the parties' contract
on the following grounds:
1
1.
The choice of law and forum selection provisions are valid and enforceable
against Ms. Blackwell because her claims are separate and distinct from Mr. Blackwell's claims.
She had the capacity to contract, and a reasonable person would conclude that she objectively
manifested her assent to be bound by the contract by allowing Mr. Blackwell to participate in
trampoline activities at Sky High Nashville, as contemplated by the contract;
2.
The choice of law and forum selection provisions are valid and enforceable
against Mr. Blackwell because Tennessee courts routinely apply choice of law and forum
selection provisions against non-signatory minors, Tennessee recognizes a parent's broad right to
raise her children free from state intervention, and a minor is no different than any other nonsignatory third-party beneficiary who is bound by the obligations of a contract under which the
minor received a benefit;
3.
Notwithstanding the foregoing, the liability waiver is valid and enforceable
against Ms. Blackwell because it is well-settled that when a parent signs a waiver prior to his or
her child' s participation in a certain activity, such release is unquestionably effective to waive
the parent's individual claims; and,
4.
The liability waiver is valid and enforceable against Mr. Blackwell because,
respectfully, Tennessee authority to the contrary does not reflect the current state of the law.
Rather, Ms. Blackwell has a broad parental authority to bind Mr. Blackwell to the liability
waiver and that decision does not conflict with other public policy. Instead, it furthers the public
interest.
As a result, Sky High Nashville's motion should be granted in all respects.
2
II.
1.
FACTS
Plaintiffs' General Factual Allegations.
Plaintiffs allege that on March 26, 2013 , Mr. Blackwell participated in a trampoline
dodgeball game at Sky High Nashville. 1 (Amend. Compl.
ii 5.) While playing in the game,
Plaintiffs allege that Mr. Blackwell "awkward[ly]" landed on some "padding between
trampolines." (Id.
iii! 5, 8.) When Mr. Blackwell landed, another participant allegedly "double
bounced" Mr. Blackwell thereby contributing to his "awkward landing." (Id.
ii 9.) Plaintiffs
allege that as a result, Mr. Blackwell tore a tendon in his knee and broke his tibia. (Id.
ii
11.)
Plaintiffs allege that Mr. Blackwell's injury was the result of Sky High Nashville's negligence
and that they are 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." (Id. ii 23.)
2.
The Customer Release of Liability and Assumption of Risk Contract.
Prior to Mr. Blackwell' s participation in the activities at Sky High Nashville, Ms.
Blackwell executed the Customer Release of Liability and Assumption of Risk contract, a true
and correct copy of which is attached hereto as Exhibit A ("Contract").2 The Contract contains
the following combined forum selection, choice of law, and severability provisions:
In the event that I file a lawsuit against SKY HIGH SPORTS, 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 the law rules
Sky High Nashville is a recreational facility based on the emerging "indoor trampoline park"
concept. It is a part of a larger national brand, Sky High Sports, which began in California. Sky High facilities are
now 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.
2
Ms. Blackwell executed the Contract on July 3, 2012, and it applied to all future visits to Sky High
Nashville. (Exh. A, if 10.) It is undisputed that Mr. Blackwell had visited Sky High Nashville on numerous
occasions prior to the one at issue in this lawsuit.
3
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.
(Exh.
A, ~
6.)
Further, Ms. Blackwell agreed 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 injury. 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.
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.
(Id. , ~
1 (plain bold emphasis in original, additional emphasis added).)
While understanding and acknowledging the foregoing risks, Ms. Blackwell agreed to
release and indemnify Sky High Nashville as follows:
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.
4
I hereby voluntarily release, forever discharge, and agree to defend,
indemnify and hold harmless RELEASED PARTIES3 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 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.
(Id.,~~
2-5 (emphasis in original, numbering omitted and footnote added).)
By executing the Contract, Ms. Blackwell agreed to all of the terms contained therein
on her own behalf. and on behalf of Mr. Blackwell In pertinent part, the Contract provides 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.
***
"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." (Exh. A.)
5
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 oflaw
to have waived my or the minor participant's right to maintain a lawsuit against
SKY HIGH SPORTS or any RELEASED PARTIES 4 on the basis of any claim
from which I have released them herein.
(Id., ir 8, 9 (plain bold and underlining in original, numbering omitted).)
III.
1.
LEGAL ARGUMENT
The Contract's choice of law and forum selection provisions are valid and
enforceable.
A.
The Contract's choice of law and forum selection provisions are valid and
otherwise enforceable as a general matter.
Contracting parties have the authority to select the applicable law governing disputes
between them through a contractual choice of law provision. Solomon v. Flo Warr Management,
Inc., 777 S.W.2d 701 (Tenn. Ct. App. 1989). "Tennessee will honor a choice oflaw clause ifthe
state whose law is chosen bears a reasonable relation to the transaction and absent a violation of
the forum state's public policy." Bright v. Spaghetti Warehouse, Inc., 1998 WL 205757, at *5
(Tenn. Ct. App. April 29, 1998) (App. 1). 5
Further, Tennessee courts favor and routinely enforce forum selection provisions. 6
Dyersburg Mach. Works, Inc. v. Rentenbach Eng' g Co., 650 S.W.2d 378 (Tenn. 1983);
Thompson v. Terminix Intern. Co., L.P., 2006 WL 2380598 (Tenn. Ct. App. 2006) (App. 5). If a
4
See fn. 3 supra.
5
Sky High Nashville has filed contemporaneously herewith an Appendix which contains copies of
unreported decisions, cases from other jurisdictions, and secondary sources that are cited to herein. Sky High
Nashville refers to the relevant authority in the Appendix herein as "(App. [#])."
6
Forum selection provisions are either mandatory or permissive. See. e.g. , 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 elsewhere. Id. The Contract' s forum selection provision in this case is a mandatory forum selection
provision. (See Exh. A, ~ 6 (" . .. I agree to [file suit] solely in the state of California . .. ")).
6
party brings an action in an unselected court and the other party resists jurisdiction citing the
forum selection clause, a court will enforce the clause consistent with the elements of
fundamental fairness. Long v. Dart Intern., Inc., 173 F. Supp. 2d 774 (W.D. Tenn. 2001).
A forum selection clause is prima facie valid, and the party seeking to avoid the clause
has a heavy burden to show it is unfair or unreasonable. 7 Id. See also Security Watch, Inc. v.
Sentinel Systems, Inc., 176 F.3d 369 (6th Cir. 1999); Dyersburg, supra, 650 S.W.2d 378. "A
party resisting a forum selection clause must show more than inconvenience or annoyance such
as increased litigation expenses." Sevier Cnty. Bank v. Paymentech Merch. Servs., Inc., 2006
WL 2423547, at *6 (Tenn. Ct. App. Aug. 23 , 2006) (App. 10) (emphasis in original) (citations
omitted). Tennessee courts have long recognized it is reasonable to expect that a business would
limit where it is subject to suit, and Tennessee courts will clearly allow it to do so. See. e.g.
Thomas v. Costa Cruise Lines N.V., 892 S.W.2d 837, 841 (Tenn. Ct. App. 1994).
Here, the Contract' s California choice oflaw provision and a mandatory California forum
selection provision are prima facie valid and, therefore, any party to which they are otherwise
generally enforceable 8 bears the "heavy burden" of showing why such provisions are unfair or
unreasonable. See Security Watch, supra, 176 F.3d 369. California law bears a reasonable
7
In analyzing the "elements of fundamental fairness," Tennessee courts apply the Restatement
(Second) of Conflicts of Law, § 80, which provides enforcement of a forum selection provision unless it is unfair or
unreasonable. Dyersburg Mach. Works. Inc. v. Rentenbach Eng'g Co., 650 S.W.2d 378 (Tenn. 1983). In that
regard, an unselected court must give effect to the choice of the parties and refuse to entertain the action unless:
(1) the plaintiff cannot secure effective relief in the other state, for reasons other than delay in
bringing the action; (2) or the other state would be a substantially less convenient place for the
trial of the action than this state; (3) or the agreement as to the place of the action was obtained by
misrepresentation, duress, abuse of economic power, or other unconscionable means; (4) or it
would for some other reason be unfair or unreasonable to enforce the agreement.
Id. at 380.
See infra for a more thorough analysis of why the choice oflaw and forum selection provisions are
specifically enforceable against both Ms. Blackwell and Mr. Blaclcwell.
7
relation to the transaction in this case because Sky High Nashville is a business operating under a
larger brand based in California. Bright,
supr~
1998 WL 205757, at *5 (App. 1). Further, there
is no evidence that a California forum is anything more than an inconvenience for the Plaintiffs which is clearly not enough to show that the Contract's choice of law and forum selection
provisions are somehow unreasonable. 9 Sevier Cnty. Bank, supra, 2006 WL 2423547 (App. 10).
Tennessee courts clearly allow businesses to limit where they are subject to suit, just as Sky High
Nashville has done in this case. Thomas, supra, 892 S.W.2d at 841.
Accordingly, the Contract's choice of law and forum selection provisions are otherwise
generally valid and enforceable. The only remaining inquiry for this Court in this regard is
determining the specific parties against whom those provisions can and must be enforced. As
described herein, they must be enforced against both Ms. Blackwell and Mr. Blackwell.
B.
The Contract's choice of law and forum selection provisions are enforceable
against Ms. Blackwell.
It is well-settled that a parent's claim based on the injury to her minor child is distinct and
independent of the minor's claim. Tenn. Code Ann. § 20-1-105; 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, (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." Dudley, supra, 405 S.W.2d at 469 (emphasis added).
The Contract's choice of law and forum selection provisions must be enforced against
Ms. Blackwell because they are contained in a binding contract between her and Sky High
Nashville. Ms. Blackwell had the capacity to contract and a reasonable person would conclude
See infra for a more thorough analysis of whether California law would ~ se extinguish
Plaintiffs' claims or otherwise violate Tennessee' s public policy. Suffice it to say here that the application of
California substantive law would ultimately not~ se extinguish Plaintiffs' claims.
9
8
that she objectively manifested her assent to be bound by the Contract by allowing her minor son
to participate in trampoline activities at Sky High Nashville, as contemplated by the Contract.
Doe v. HCA Health Services, Inc., 46 S.W.3d 191 (Tenn. 2001); Sharon v. City of Newton, 769
N.E.2d 738, 749 (Mass. 2002) (App. 17) (a parent allowing his minor child to participate in
activity is adequate consideration for a contract); Restatement (Second) of Torts § 496B; T.R.
Mills Contractors, Inc. v. WRH Enterprises, LLC, 93 S.W.3d 861 (Tenn. Ct. App. 2002); Moody
Realty Co., Inc. v. Huestis, 237 S.W.3d 666 (Tenn. Ct. App. 2007), appeal den., (Tenn. 2007).
Further, courts enforce nearly identical choice of law and forum selection provisions
against parents in similar contexts. See, e.g., Williams v. Smith, 2014 WL 6065818 (Tenn. Ct.
App. Nov. 6, 2014) (App. 27); Doe v. Cedars Academy, LLC, 2010 WL 5825343 (Del. Sup. Ct.
Oct. 27, 2010) (App. 32). See also infra (for a more detailed analysis of the enforcement of
choice of law and forum selection provisions against parents and their children in similar
contexts). Qi. Childress v. Madison County, 777 S.W.2d 1 (Tenn. Ct. App. 1989) (for the
proposition that parents are ultimately responsible for those contracts to which they are
signatories).
Accordingly, Ms. Blackwell' s claims, which are distinct and independent of Mr.
Blackwell's claims, are subject to the Contract's choice of law and forum selection provisions,
and this Court should either dismiss them in favor of California courts or, alternatively, retain
jurisdiction and apply California substantive law.
9
C.
The Contract's choice of law and forum selection provisions are enforceable
against Mr. Blackwell.
i.
Courts routinely enforce arbitration prov1s1ons against minors
because such provisions merely "select the forum" for resolving the
child's claims.
One of the first cases to generally analyze a parent' s authority to prospectively select a
forum for his or her minor child' s claims was a 1965 California case dealing with a minor's
rights under an arbitration provision in an insurance contract. Doyle v. Guiliucci, 401 P.2d 1
(Cal. 1965) (App. 41 ). In enforcing the arbitration provision against the minor child, the court
held that it did not unreasonably restrict the child' s rights because it does "no more than specify
a forum for the settlement of disputes." Id. at 3. Thus, because a parent has a "right and duty to
provide care for his child," he or she must be allowed to contract on behalf of his or her minor
child in the context of medical services. Id.
Since Doyle, it has become abundantly clear that a parent has the authority to bind his or
her minor child to an arbitration provision in lawsuits involving personal injury, general
negligence, and/or other tort liability. See, e.g. , Global Travel Marketing, Inc. v. Shea, 908 So.
2d 392 (Fla. 2005) (App. 44) (father's wrongful death action against a safari operator brought on
behalf of his minor son after the minor was killed by hyenas while on a safari is subject to
arbitration provision signed by the father); Cross v. Carnes, 724 N.E.2d 828 (Ohio 1998) (App.
56) (a child' s defamation and fraud claims against the Sally Jessy Raphael Show are subject to
an arbitration provision signed by the child' s parents); Hojnowski v. Vans Skate Park, 868 A.2d
1087, 1092 (N.J. Sup. Ct. 2005) (App. 66) (a child' s claim for bodily injuries he received at a
skateboarding park is subject to an arbitration provision signed by the child' s parents). See also
Leong v. Kaiser Found. Hosps., 788 P.2d 164 (Haw. 1990) (App. 87). Ultimately, an arbitration
provision is really a forum selection provision and "only specifies the forum {or resolution of
10
the child's claim" and "does not extinguish the claim." Cross, supra, 724 N.E.2d at 836 (App.
56) (emphasis added). See also Shea, supra, 908 So.2d 392 (App. 44) (arbitration provision was
not comparable to a pre-injury waiver and merely "constitutes a prospective choice of(orum'j.
Simply stated, the fact that claims arise in tort as opposed to contract is "immaterial."
Hojnowski, supra, 868 A.2d at 1092 (App. 66).
Moreover, choice of law and forum selection provlSlons should not be analyzed
differently simply because they govern the claims of a minor. Id. at 1093. Because, "ll/ogically,
if a parent has the authority to bring and conduct a lawsuit on behalf of the child, he or she
has the same authority to choose arbitration as the litigation (orum." Cross, supra, 724 N.E.2d
at 836 (App. 56) (emphasis added). Although laws generally allow minors to disaffirm their own
contracts, those laws are ultimately "not intended to affect contracts entered into by adults on
behalf of their children." Hohe v. San Diego Unified School Dist., 224 Cal. App. 3d 1559, 1565
(Cal. Ct. App. 1990) (App. 93) (citing Doyle, supra, 62 Cal. 2d. at 609 (App. 41)).
Additionally, there is no distinction between commercial versus non-commercial entities
in the determination of whether choice of law and forum selection provisions executed by
parents are enforceable against their minor children. Hojnowski, supra, 868 A.2d at 1093 (App.
66); Shea, supra, 908 So.2d 392 (App. 44); Cross, supra, 724 N.E.2d at 836 (App. 56). It is also
immaterial that the selected forum is more preferable to the commercial entity than to the minor
child. Shea, supra, 908 So. 2d 392 (App. 44); Cross, supra, 724 N.E.2d at 836 (App. 56). The
"real test" is whether the contracting parties intended that a minor should receive a benefit,
thereby subjecting the minor to enforceable obligations. Hojnowski, supra, 868 A.2d at 1092
(App. 66) (citations omitted).
11
ii.
Courts routinely enforce more general forum selection and choice of
law provisions against minors.
Naturally, then, choice of law and forum selection provisions are enforced against minors
outside of arbitration provision contexts because courts uphold arbitration provisions on the
basis that they are essentially choice of law and (orum selection provisions. Cross, 724 N.E.2d
at 836 (App. 56); Shea, supra, 908 So. 2d 392 (App. 44). Recently, the Middle Section of the
Tennessee Court of Appeals arrived at a nearly identical result to those reached in the foregoing
authorities - but went even further - because applying the choice of law provision at issue
completely extinguished the minor plaintiffs claim. See Williams, supra, 2014 WL 6065818
(App. 27).
In Williams, 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 * 1. The vehicle was insured with an uninsured/underinsured
motorist policy containing a Missouri choice of law provision. Id. The trial court granted the
insurance company' s motion to dismiss and dismissed all of plaintiffs' claims, including the
minor' s claims, on the basis of the choice of law provision. 10 Id. at *2. The Court of Appeals
affirmed the trial court, thereby promulgating the general principle that a minor may be bound as
a non-signatory to choice of law and/or forum selection provisions. Indeed, if the minor in that
case was not so bound, the applicable coverage would have been determined through a conflicts
oflaw analysis based on common law.
In a nearly identical case to the one at bar, Doe v. Cedars Academy, a Delaware Court
upheld a general forum selection provision against a minor's prospective personal injury claims
10
If North Carolina law controlled, there was no uninsured motorist coverage; while if Missouri law
controlled, there was such coverage. Williams, supra, 2014 WL 6065818 (App. 27).
12
in favor of California law. Cedars Academy, supra, 2010 WL 5825343 (App. 32). In Cedars
Academy, a mother entered into a contract with a private boarding school 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 waiver, a mandatory California forum selection provision, and a
California choice of law provision.'' 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 (emphasis added) (citations omitted). 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
11
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. Cedars Academy, supra, 2010 WL 5825343 (App. 32).
13
entire case in favor of California jurisdiction. 12 Id. ("Mere inconvenience or additional expense
is not sufficient evidence of unreasonableness.") (emphasis added).
iii.
The Contract's choice of law and forum selection provisions are
enforceable against Mr. Blackwell in this case.
For the foregoing reasons, the Contract's choice of law and forum selection provisions
must be enforced against Mr. Blackwell. Tennessee has long recognized the broad privacy right
a parent has in raising her children, as did the Cedars Academy court and other courts enforcing
such provisions. 13 Hawk v. Hawk, 855 S.W.2d 573, 576 (Tenn. 1993); Parham v. J.R., 442 U.S.
584 (1979). Ultimately, if Ms. Blackwell has the authority to bring and conduct this lawsuit on
behalf of Mr. Blackwell, she has the same authority to prospectively choose the applicable law
and forum for litigation. See Shea, supra, 908 So.2d 392 (App. 44); Cross, supra, 724 N.E.2d at
831 (App. 56). Qi Parham, supra, 442 U.S. 584. To hold otherwise would be inconsistent with
the fundamental principles reserving Ms. Blackwell' s authority to make "life's difficult
decisions" on behalf of Mr. Blackwell. Cedars Academy, supra, 2010 WL 5825343 at *4 (App.
32); Parham, supra, 442 U.S. 584; Hawk, supra, 855 S.W.2d at 576.
Further, enforcing the Contract's choice of law and forum selection provisions against
Mr. Blackwell reflects the well-settled rule that minors may demand to enforce contracts to
12
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)
(App. 93). 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, supra, 2010 WL 5825343 at *7 (App. 32). 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.
13
The Tennessee Supreme Court has unequivocally held that these fundamental rights are protected
by both the United States Constitution and the Tennessee Constitution. Hawk v. Hawk, 855 S.W.2d 573, 576 (Tenn.
1993); Parham v. J.R. , 442 U.S. 584 (1979). Similarly, Tennessee equally recognizes the presumption that,
fundamentally, "a fit parent [acts] in [their] child' s best interest." See Wadkins v. Wadkins, 2012 WL 6571044, at *5
(Tenn. Ct. App. Dec. 14, 2012) (App. 99). See infra for a more in-depth discussion of the development of this right,
which is more relevant to questions regarding the validity of a parental pre-injury exculpatory agreement under
current Tennessee law.
14
which they are third-party beneficiaries. Butler v. Eureka Sec. Fire & Marine Ins. Co., 105
S.W.2d 523 (Tenn. Ct. App. 1937); Lopez v. Taylor, 195 S.W.3d 627 (Tenn. Ct. App. 2005);
Cortez v. Alutech, Inc., 941 S.W.2d 891 (Tenn. Ct. App. 1996); In re Justin A.H., 2014 WL
3058439 (Tenn. Ct. App. June 7, 2014) (App. 106). Indeed, as a third-party beneficiary who has
sought to enforce rights under a contract, Mr. Blackwell is clearly bound by the obligations of
that contract. Benton v. Vanderbilt University, 137 S.W.3d 614 (Tenn. 2004); Hojnowski, supra,
868 A.2d 1087 (App. 66).
Finally, enforcing the Contract' s choice of law and forum selection provisions is not
unreasonable because it does not _pg se extinguish Mr. Blackwell' s claims. Cedars Academy,
supra, 2010 WL 582534 (App. 32); Shea, supra, 908 So. 2d 392 (App. 44). See. e.g., Gavin W.
v. YMCA of Metropolitan Los Angeles, 106 Cal. App. 4th 662 (2d Dist. 2003) (App. 119)
(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).
Indeed,
enforcement in this case necessarily compliments Tennessee's approval of a business's choice to
limit where it may be subject to suit and what substantive law will apply there. See Thomas,
supra, 892 S.W.2d at 841.
Accordingly, like Ms. Blackwell' s claims, Mr. Blackwell' s claims are subject to the
Contract's choice oflaw and forum selection provisions, and this Court should either dismiss this
case in favor of California courts, or, alternatively, retain jurisdiction and apply California law.
15
2.
The Contract's release of liability provision is valid and enforceable.
Notwithstanding the above, this Court should hold that the liability waiver is valid and
enforceable under Tennessee law and dismiss this case entirely.
A.
The liability waiver is otherwise valid and enforceable as a general matter.
Liability waivers are hybrids of contract and tort law and stem from the inevitable
junction of two competing interests: the freedom to contract and one's duty to take responsibility
for his or her actions. 14 Tennessee law is well-settled that when weighing the foregoing two
competing interests, ceteris paribus, the freedom to contract outweighs the policy favoring the
enforcement of tort liability and, therefore, liability waivers are not pg se invalid. 15 Planters Gin
Co. v. Fed. Compress & Warehouse Co., 78 S.W.3d 885, 892 (Tenn. 2002); Crawford v.
Buckner, 839 S.W.2d 754, 756 (Tenn. 1992); Webster v. Psychemedics Corp., 2011 WL
2520157 (Tenn. Ct. App. 2011) (App. 181). Indeed, Tennessee courts have long enforced
liabilitywaivers. 16 Cincinnati, N. 0. & T. P. Ry. Co. v. Saulsbury, 90 S.W. 624 (Tenn. 1905).
14
See. e.g., Blake D. Morant, Contracts Limiting Liability: A Paradox with Tacit Solutions. 69 TUL.
L.REv. 715, 716 (1995) (App. 128). As another commentator has reflected, written waivers are virtually
everywhere: "Renting skis for a vacation? Sign a waiver. Running a road race on the weekend? Sign a waiver.
Going to a Major League Baseball game? Read the back of your ticket." Emily Neisloss Roisman & Michael Hobbs,
The Legal Enforceability of Parental Waivers; Does A Waiver from Veruca Salt's Father Save the Chocolate
Factory?, ACC Docket, July/August 2012, at 66, 68. (App. 173)
15
Thus, in those cases, Tennessee courts routinely enforce waivers. Houghland v. Security Alarms &
Services, Inc .. 755 S.W.2d 769, 773 (Tenn. 1988) (liability of burglar alarm service was limited by an exculpatory
clause); Evco Coro. v. Ross. 528 S.W.2d 20, 23 (Tenn. 1975) (agreed allocation of risk by parties with equivalent
bargaining powers in a commercial setting serves a valid purpose where the agreement explains the parties' duty to
obtain and bear the cost of insurance); Kellogg Co. v. Sanitors, Inc .. 496 S.W.2d 472, 473 (Tenn. 1973) (same);
Health & Beauty Spa, Inc. v. Turner. 503 S.W.2d 188, 191 (Tenn. 1973) (customer assumed the risk of injury from
negligence of a health spa); Chazen v. Trailmobile, Inc .. 384 S.W.2d 1 (Tenn. 1964) (commercial lease absolved
both landlord and tenant from liability for a loss resulting from fire); Moss v. Fortune. 340 S.W.2d 902 (Tenn. 1960)
(renter assumed the risk incident to injury from the hiring and riding ofa horse).
16
However, courts have been wary of such contracts since their very inception leading to ambiguity
and unpredictability in their construction and application. Joseph H. King, Jr., Exculpatory Agreements for
Volunteers in Youth Activities-the Alternative to "Nerf{r)" Tiddlywinks, 53 Ohio St. L.J. 683, 710 (1992) (App.
188). This is true in Tennessee in that while the law is now well-settled that waivers are to be construed using a
reasonable interpretation rather than a strict approach, Tennessee case law reveals different approaches. See. e. g.,
Empress Health and Beauty Spa, Inc. v. Turner, 503 S.W.2d 188 (Tenn. 1973) (enforcing plain, complete, and
16
However, liability waivers are limited by special considerations that are relevant in the
analysis of the waiver in the case at bar.
Planters, supra, 78 S.W.3d at 892.
Those
considerations are rooted in general contract law principles, public policy considerations, or
both. See, e.g. , Burks v. Belz-Wilson Properties, 958 S.W.2d 773, 777 (Tenn. Ct. App. 1997)
(general contract law: ambiguity); Adams v. Roark, 686 S.W.2d 73 , 75-76 (Tenn. 1985) (general
contract law: fraud and duress; and public policy: cannot waive gross negligence or intentional
conduct); Miller v. Hembree, 1998 WL 209016, at *3 (Tenn. Ct. App. Apr. 30, 1998) (App. 246)
(general contract law: rules of construction); Memphis & Charleston Railroad Co. v. Jones, 39
Tenn. (2 Head) 517 (Tenn. 1859) (same).
One inherently more complex public policy consideration - where Tennessee, and the
majority of other jurisdictions, have looked to California law - is when the context under which
the released party operates is categorized as publicly necessary. Olson v. Molzen, 558 S.W.2d
429, 431 (Tenn. 1977). In Olson, the Tennessee Supreme Court adopted the California Supreme
Court' s reasoning in the landmark case, Tunkl v. Regents of University of California, 383 P.2d
441 (Cal. 1963) (App. 249), promulgating six criteria for determining whether a waiver impairs
the public interest. Id. These criteria deal with whether the waiver relates to a business which is
subject to public regulation, performs a public necessity and/or essential service for anyone who
seeks the same, has superior bargaining power, and whether the transaction places the person
releasing the other from liability in control of the released party. Id. at 431. Regardless, it is
unambiguous meaning); Chazen v. Trailmobile. Inc., 384 S.W.2d 1 (Tenn. 1964) (where the terms of an exculpatory
provision were strictly construed); Petry v. Cosmopolitan Spa Intern., Inc., 641 S.W.2d 202. 204 (Tenn. Ct. App.
1982) (Goddard, J., dissenting) (arguing that exculpatory clauses should not be favored, should be strictly construed,
and are not assignable unless expressly authorized); Tate v. Trialco Scrap. Inc., 745 F. Supp. 458 (M.D. Tenn. 1989)
affirmed, 908 F.2d 974 (6th Cir. 1990) (highlighting inconsistencies in Tennessee law on whether a reasonable or
strict construction should apply to exculpatory clauses).
17
clear that legitimate pecuniary motivations will not
rurr
se invalidate an exculpatory clause.
Childress, supra, 777 S.W.2d at 4.
Here, the Contract is not generally against public policy because, firstly, it is clear and
unambiguous and conveys that Ms. Blackwell agreed to hold Sky High Nashville harmless for
"any and all claims or suits for personal injury .. . which are brought by, or on behalf of [Mr.
Blackwell]." 17 (Exh. A,
ii
8.) The Contract clearly conveys to Ms. Blackwell that if anyone,
including Mr. Blackwell, were hurt by Mr. Blackwell' s participation in the activities at Sky High
Nashville, she - and Mr. Blackwell - "may be found by a court of law to have waived [her or
Mr. Blackwell' s] right to maintain a lawsuit" against Sky High Nashville. (Id.
ii
9.) This
language is clear, unambiguous, and must generally be enforced. Adams, supra, 686 S.W.2d at
75-76.
Secondly, the Contract's prospective liability waiver does not violate Olson and Tunkl's
general public policy principles because, inter alia, Mr. Blackwell voluntarily participated in a
recreational activity offered by Sky High Nashville and Ms. Blackwell voluntarily allowed him
to do the same. 18 (Amend. Compl.
ii 5.)
Clearly, the context in which Sky High Nashville had a
duty to Mr. Blackwell is not in any way similar to those contexts in which the Olson and Tunkl
criteria would favor invalidating the Contract's liability waiver on the basis of general public
policy principles. See also, Childress, supra, 777 S.W.2d 1 (the Special Olympics organization
does not have a general public duty and, therefore, generally may enter into contracts with
parties wherein the parties have agreed to release it from damages for its own negligence).
17
Moreover, the Contract clearly informed Ms. Blackwell that she agreed that it was also made "on
behalf of [Mr. Blackwell] and that all releases, waivers and promises [therein] are binding on [Mr. Blackwell]."
(Exh. A, ~ 8.)
18
It is undisputed that Mr. Blackwell had visited Sky High Nashville on numerous occasions prior to
the one at issue in this lawsuit. See fn. 2 supra.
18
Moreover, the Plaintiffs have alleged only basic negligence and no other conduct that is nonwaiveable like gross negligence or willful misconduct. (See generally, Amend. Compl.) Adams,
supra, 686 S.W.2d at 75-76.
Accordingly, the liability waiver is generally valid. The only remaining inquiry for this
Court is whether the fact that Ms. Blackwell prospectively agreed to the waiver on her own
behalf and on behalf of Mr. Blackwell has any effect on its enforceability against either of them.
Sky High Nashville respectfully submits that it does not.
B.
Ms. Blackwell's claims are subject to and barred by the liability waiver.
It is black-letter law in Tennessee and other jurisdictions that when a parent signs an
exculpatory contract prior to his or her child's participation in a certain activity which releases
the other party of liability for basic negligence - like the waiver in this case - the release is
effective to waive the parent' s claim in his or her own right. See. e.g., Childress, supra, 777
S.W.2d at 6; Rogers v. Donelson-Hermitage Chamber of Commerce, 807 S.W.2d 242 (Tenn. Ct.
App. 1990); In re Complaint of Royal Caribbean Cruises, Ltd., 403 F. Supp. 2d 1168 (S.D. Fla.
2005) (App. 256); Wilson v. Massengill, 124 F.2d 666 (6th Cir. 1942) (App. 261); Zivich v.
Mentor Soccer Club, Inc., 696 N.E.2d 201 (Ohio 1998) (App. 264); Simmons v. Parkette Natl.
Gymnastic Training Ctr., 670 F. Supp. 140 (E.D. Pa. 1987) (App. 271); Scott v. Pac. W.
Mountain Resort, 834 P.2d 6, 12 (Wash. 1992) (App. 277); Brooks v. Timberline Tours, Inc.,
127 F.3d 1273, 1276 (10th Cir. 1997) (App. 288); Give Kids the World, Inc. v. Sanislo, 98 So.
3d 759, 761 (Fla. Dist. Ct. App. 2012) approved, 2015 WL 569119 (Fla. Feb. 12, 2015) (App.
293).
g_ Hance v. Haun, 391 S.W.2d 691 (Tenn. 1965); Sharp v. Cincinnati, N.O.
Co., 179 S.W. 375 (Tenn. 1915).
19
& T.P. Ry.
Accordingly, when Ms. Blackwell "acknowledged that [Mr. Blackwell] would be
participating at his own risk" and agreed to "release, discharge and indemnify" Sky High
Nashville, her claims in her own right 19 are unquestionably precluded. Childress, supra, 777
S.W.2d at 6; Rogers, supra, 807 S.W.2d 242. Thus, it is axiomatic that Ms. Blackwell's claims
in this case must be dismissed.
C.
Mr. Blackwell's claims are subject to and barred by the Contract's
exculpatory provision.
The question regarding the validity of the Contract's exculpatory provision as to Mr.
Blackwell is naturally more complex. Historically, cases have held that parents are prevented
from waiving their children' s negligence claims, including a nearly thirty-year-old Tennessee
Court of Appeals case. Childress, supra, 777 S.W.2d 1. However, there is a strong and recent
shift favoring the enforcement of parental waivers against minor children that began in
California20 in a landmark case published in November of 1990 - the same year and month the
last Tennessee decision on this important issue was published.
Additionally, a parent's
fundamental right to raise her child has since been closely analyzed and solidified by the
Tennessee Supreme Court and the United States Supreme Court which forcefully impacts the
support for enforcing a parental liability waiver against his or her minor child.
19
Tenn. Code Ann.§ 20-1-105 ; 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 such claims
are considered a "derivative" of Mr. Blackwell's claims, Ms. Blackwell clearly has a separate and distinct cause of
action independent of Mr. Blackwell 's claims).
°
2
California was also the state which ultimately designed and constructed the general public policy
architecture relating to the validity of liability waivers for the majority of jurisdictions, including Tennessee. See
Tunkl, supra, 383 P.2d 441 (App. 249); Olson, supra, 558 S.W.2d 429. Indeed, at least 11 other states have
recognized the value of, and authority for, enforcing parental waivers since the last time Tennessee appellate courts
weighed in on the issue. See infra.
20
Accordingly, in light of these more recent developments, Tennessee law regarding the
validity of parental waivers is likely outdated and neither accurately reflects the current state of
the law nor practical societal shifts.
i.
Tennessee Authority: Childress and its Progeny.
In Childress, the Tennessee Court of Appeals held that an exculpatory clause executed by
a mother on behalf of her mentally handicapped son was void. Childress, supra, 777 S.W. at 7.
Childress involved a lawsuit stemming from an injury to William Childress - a nonverbal and
severely mentally handicapped 20-year-old - which occurred while he was training for the
Special Olympics at a local Y.M.C.A. 2 1 Id. William' s mother and father, on their own behalf
and on behalf of William, sued Madison County alleging simple negligence. Id.
The Court of Appeals evaluated the validity of a pre-injury liability waiver signed by
William's mother, individually and on William's behalf. 22 Id. at 3. First, the Court analyzed the
general public policy criteria outlined in Olson and held that the Special Olympics does not
normally operate under a public duty and, therefore, does not fall into the public policy exception
prohibiting exculpatory clauses. Id. (citing Olson, supra, 558 S.W.2d at 431). Thus, the Court
unequivocally held that the waiver applied to her claims individually. 23 Id. at 5-6 (citing Dodge
v. Nashville Chattanooga & St. Louis Railway Co., 215 S.W. 274 (Tenn. 1919) (a party' s failure
to read does not constitute lack of notice to that party); Dixon v. Manier, 545 S.W.2d 948, 949
(Tenn. Ct. App. 1976)).
21
While under the supervision of Madison County employees, William Childress was found face
down in the pool and nearly drowned. Childress, supra, 777 S.W. at 7.
22
After a bench trial, the trial court ruled in favor of Madison County finding that Madison County
was not negligent. Id. On appeal, the Court of Appeals reversed the trial court' s findings of fact, which
consequently implicated the validity of the pre-injury waiver. Id. at 3.
23
Just as the Contract' s waiver in this case must bar Ms. Blackwell ' s claims.
21
Having determined that the waiver was not otherwise against general public policy, the
Court substantively addressed whether parents may waive the rights of their incompetent
children - an issue of first impression in Tennessee. Id. The Court held that the mother did not
have the authority to bind William because her status as his parent was ultimately the same as a
guardian of an infant. Id. (citing 44 C.J.S . Insane Persons § 49 (1945)). The Court reasoned that
because a guardian may not generally waive the rights of an infant or an incompetent, and
because a guardian cannot settle an infant's existing claim apart from court approval or statutory
authority, a parent cannot execute a valid release as to the rights of her minor or incompetent
child. 24 Id. (citing 39 Am.Jur.2d, Guardian & Ward, § 102 (1968); 42 Am.Jur.2d, Infants § 152
(1969); Miles v. Kaigler, 18 Tenn. (10 Yerg. 1836); Spitzer v. Knoxville Iron, Co., 180 S.W. 163
(Tenn. 1915); Tune v. Louisville & Nashville Railroad Co., 223 F. Supp. 928 (M.D. Tenn.
1963)).
The last time any Tennessee appellate court has substantively addressed the validity of a
pre-injury parental waiver as to the minor child was only one year after Childress in Rogers v.
Donelson-Hermitage Chamber of Commerce, 807 S.W.2d 242 (Tenn. Ct. App. 1990). There, the
parents of a deceased minor brought a wrongful death action against the organizers of a
horserace. Rogers, 807 S.W.2d at 243. The Tennessee Court of Appeals affirmed Childress and
held that the release signed by the minor's mother on her own behalf and on behalf of her minor
daughter was valid with respect to the mother's independent right to recover, just as the
Contract's waiver in this case bars Ms. Blackwell's claims. Id. Then, with very little substantive
24
This logic has since been harshly criticized by several courts and commentators. See infra.
22
analysis, the Court held that the waiver was invalid as to the claims brought on behalf of the
minor relying on its ruling in Childress one year earlier. 25 Id.
Since Rogers, the general rule outlined in Childress has been left entirely undeveloped as
there have not been any published Tennessee state court cases and only two unpublished United
States District Court cases in Tennessee that have directly relied on Childress and Rogers with
little analysis. See Bonne v. Premier Athletics, LLC, 2006 WL 3030776 (E.D. Tenn. Oct. 23,
2006) (App. 298); Albert v. Ober Gatlinburg, Inc., 2006 WL 208580 (E.D. Tenn. Jan. 25, 2006)
(App. 303). The issue has never been opined on by the Tennessee Supreme Court.
ii.
Since Childress, the fundamental
substantively analyzed and solidified.
parental
right
has
been
"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). Indeed, "[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,
supra, 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).
25
The parties in Rogers conceded that a pre-injury parental waiver was, generally, invalid under
Childress. The primary issue in that regard was whether a wrongful death claim was the minor child's claim or the
parent' s claim. The parties agreed that if it were the child's claim, Childress would invalidate the waiver - which is
what the Rogers court ultimately decided. Rogers, supra, 807 S.W.2d 242.
23
a.
The Tennessee Supreme Court solidified fundamental parental
rights in Hawk v. Hawk.
Three years after Rogers, the Tennessee Supreme Court analyzed and solidified the
foregoing principles, which necessarily affects the analysis of a parent's authority to waive his or
her minor child' s prospective personal injury claims. In Hawk v. Hawk, the Tennessee Supreme
Court officially recognized for the first time that a parental right to raise her children free from
state intrusion is fundamental and is not only generally protected by the United States
Constitution, but also the Tennessee Constitution. Hawk, supra, 855 S.W.2d 573; TENN. CONST.
art I, § 8. Hawk involved a challenge to the constitutionality of a Tennessee statute that allowed
a court to order "reasonable visitation" to a minor' s grandparents if the same was "in the best
interests of the minor child." Id. at 576. The trial court awarded visitation to the grandparents
over the child' s parents' wishes and where the parents had not been found otherwise unfit. Id.
In doing so, the trial court exercised the state' s parens patriae26 power to impose "its own opinion
of the 'best interests' of the children over the opinion of the parents." Id.
The Tennessee Supreme Court reversed the award of visitation thereby recognizing and
reaffirming a parent's fundamental right to rear her children, and officially recognized that such
fundamental parental rights constitute a liberty interest under Article I, Section 8 of the
Tennessee Constitution. Id. at 578-79 (citing Meyer v. Nebraska, 262 U.S . 390, 399 (1923);
Pierce, supra, 268 U.S. at 534-35 (laws which prohibit parents from choosing private education
over public schooling are void because they "unreasonably interfere[] with the liberty of
parents"); Yoder, supra, 406 U.S. at 207; Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992)). See
TENN. CONST. art I, § 8.
26
Parens patriae 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).
24
Accordingly, "without a substantial danger of hann to the child," a court may not
constitutionally exercise the state' s parens patriae interest by imposing its own subjective notions
of the "best interests of the child" when the parents are not otherwise deemed unfit. Id. Such
logic is firmly rooted in the presumption that, fundamentally, "a fit parent [acts] in [their] child's
best interest." Wadkins v. Wadkins, 2012 WL 6571044 (Tenn. Ct. App. Dec. 14, 2012), at *5
(App. 99). Requiring a court to make an initial finding of hann 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, supra, 855 S.W.2d at 581. See also Simmons v.
Simmons, 900 S.W.2d 682 (Tenn. 1995).
Hawk reflects a decidedly straightforward and commonly applied balance of the state's
parens patriae interest against strong parental privacy rights. Hawk, supra, 855 S.W.2d at 579
("Implicit 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."
(emphasis added)); Tenn. Code Ann. § 36-6-101 (In a divorce case, the hann 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
hann); Yoder, supra, 406 U.S. at 230 (where the fact that Amish children would not be hanned
by receiving an Amish education rather than a public education); Pierce, supra, 268 U.S. at 534
(parents' decisions to send their children to private schools were "not inherently hannful," as
there was "nothing in the . . . records to indicate that [the private schools] have failed to
25
discharge their obligations to patrons, students, or the state"); Stanley v. Illinois, 405 U.S. 645
(1972).
b.
The United States Supreme Court emphasized a broad
parental right for the first time in Troxel v. Granville.
Seven years after Hawk - and ten years after Rogers - the United States Supreme Court
issued its landmark ruling in Troxel v. Granville, a case similar to Hawk, wherein the Court
recognized for the first time a parent's broad authority over the care and upbringing of his
children as one protected by the Due Process Clause of the Fourteenth Amendment. Troxel v.
Granville, 530 U.S. 57 (2000) (App. 309); U.S. CONST. amend XIV.
Like Hawk, Troxel
involved an action for visitation rights brought by the grandparents of two young girls pursuant
to a state statute which provided that "[t]he court may order visitation rights for any person when
visitation may serve the best interest of the child.... " Id.
After the Washington Supreme Court held that the statute unconstitutionally infringed the
fundamental rights of the mother to raise her children, the United States Supreme Court granted
certiorari and affirmed. Id. In doing so, the Supreme Court recognized for the first time the
broad right of parents to control the upbringing of their children:
"[lit 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). See also Lovelace v. Copley, 418 S.W.3d 1 (Tenn. 2013) (reaffirming the principles of Hawk as supplemented by Troxel).
26
iii.
Since Childress, courts have enforced liability waivers signed by a
parent against her children, including California - the state which
constructed Tennessee's general architecture regarding a liability
waiver's validity.
Contemporaneously to the solidification by the Tennessee Supreme Court and the United
States Supreme Court of a parent' s fundamental right to rear his or her children - and in the
nearly three decades since Childress - there has been a strong shift toward enforcing a liability
waiver against the child of the signing parent, which began in 1990 with the landmark Hohe
decision of the California Court of Appeals. Hohe, supra, 224 Cal. App. 3d 1559 (App. 93).
Hohe involved a 15-year-old girl who was injured while under the effects of hypnosis at a
school assembly.
Id.
The girl' s father had signed a waiver prior to the minor's voluntary
participation in the show, but sued claiming the waiver was against public policy. Id. Citing the
seminal Tunkl ruling, the California Court of Appeals rejected the minor' s argument and held
that no public policy necessarily opposes private, voluntary transactions in which one party
agrees to shoulder a risk which the law would otherwise have placed upon the other party. Id.
(citing Tunkl, supra, 383 P.2d 441 (App. 249)). Since Hohe, California courts have routinely
enforced parental waivers. See, e.g., Aaris v. Las Virgenes Unified School Dist., 64 Cal. App.
4th 1112 (1998) (App. 330); Pulford v. County of Los Angeles, 2004 WL 2106545 (Cal. Ct.
App. Sept. 22, 2004) (App. 335).
Eight years after Hohe, in Zivich v. Mentor Soccer Club, Inc., the Ohio Supreme Court
enforced a liability waiver against a minor child which was signed by his mother on behalf the
minor as a condition of his participation in a youth soccer club. Zivich, supra, 696 N.E.2d 201
(App. 264). Courts now enforce liability waivers signed by parents against their minor children
in a wide variety of contexts - involving both commercial and non-commercial parties - and
those decisions have been supplemented by Troxel' s sweeping implications. See, e.g., Fischer v.
27
Rivest, 2002 WL 31126288 (Conn. Super. Ct. 2002) (App. 343) (parental waiver as a condition
of the minor child's participation in a hockey league is enforceable against the minor); Sharon,
supra, 769 N.E.2d 738 (App. 17) (parental waiver as a condition of the minor child's
participation in a cheerleading program is enforceable against the minor); Lehmann v. Har-Con
Corp., 76 S.W.3d 555 (Tex. App. 2002) (App. 353) (parents had the authority to execute a
prospective liability release that binds their minor child's future claims); Osborn v. Cascade
Mountain, Inc., 655 N.W.2d 546 (Wi. Ct. App. 2002) (App. 363) (parental waiver as a condition
of the minor' s participation in skiing is enforceable against the minor); Quirk v. Walker' s
Gymnastics & Dance, 2003 WL 21781387, at *2 (Mass. Super. July 25, 2003) (App. 366)
(parental waiver as a condition of the minor child' s participation in gymnastics is enforceable
against the minor because "[s]uch releases are clearly enforceable even when signed by a parent
on behalf of their child"); Saccente v. Laflamme, 2003 WL 21716586 (Conn. Super. Ct. July 11,
2003) (App. 369) (parental waiver as a condition of the minor child' s participation in horsebackriding lesson is enforceable against the minor); Kondrad v. Bismarck Park Dist., 655 N.W.2d
411 (N.D. 2003) (App. 375) (parental waiver as a condition of the minor child' s participation in
an after-school child care program is enforceable against the minor); Kelly v. U.S., 809 F. Supp.
2d 429 (E.D. N.C. 2011) (App. 379) (parental waiver as a condition of the minor child's
participation in the Navy Junior Reserve Officer Training Corps is enforceable against the
minor); BJ's Wholesale Club, Inc. v. Rosen, 80 A.3d 345 (Md. Ct. App. 2013) (App. 387)
(parental waiver as a condition of the minor child's use of a supervised play area offered by a
wholesale retail store is enforceable against the minor). Further, since Hohe, legal scholars have
28
thoughtfully articulated the legal authority and numerous justifications for enforcing parental
liability waivers against minors in a vast body of publications since Childress. 27
Additionally, at least three other states - Georgia, Idaho, and Mississippi - have authority
which implicitly indicate that if a liability waiver is signed by an adult on behalf of her minor
child, such waiver would be enforceable against the minor child. See DeKalb County School
System v. White, 260 S.E.2d 853 (Ga. 1979) (App. 403) (upholding an athletic eligibility waiver
signed by a parent against a minor child); Smoky, Inc. v. McCray, 396 S.E.2d 794, 797 (Ga. Ct.
App. 1990) (App. 405) (a waiver invalidated against a minor child because only the minor
executed the waiver and "was fourteen years old and unaccompanied by any adult or guardian");
Davis v. Sun Valley Ski Education Foundation, Inc., 941 P.2d 1301 (Id. 1997) (App. 413) (a
waiver invalidated against a minor because it was not drafted properly); Quinn v. Mississippi
State University, 720 So.2d 843 (Miss. 1998) (App. 422) (Mississippi Supreme Court held that
reasonable minds could differ as to the risks that the plaintiffs were assuming and did not suggest
that the waivers signed by parents on behalf of their minor children are not enforceable).
iv.
The Contract's liability waiver should be enforced against Mr.
Blackwell in this case.
This Court should enforce the Contract's liability waiver against Mr. Blackwell in this
case for the following reasons: (a) Ms. Blackwell' s rights as the parent of Mr. Blackwell are
27
See. e.g. 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. REV.
169 (2010) (App. 436); Jordan A. Desnick, The Minefield of Liability for Minors: Running Afoul of Corporate Risk
Management in Florida, 64 U. MIAMI L. REV. 1031 (2010) (App. 466); Doyice J. Cotten, Sport Risk Consulting &
Sarah J. Young, Effectiveness of Parental Waivers, Parental Indemnification Agreements, and Parental Arbitration
Agreements as Risk Management Tools. 17 J. LEGAL ASPECTS OF SPORT 53 (2007) (App. 492); 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 School-Sponsored Athletics, 37 SUFFOLK U. L.
REV. 439 (2004) (App. 51 O); 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) (App. 529); Robert S. Nelson, The
Theory of the Waiver Scale: An Argument Why Parents Should be Able to Waive their Children' s Tort Liability
Claims, 36 U.S.F. L. REV. 535 (2002) (App. 545); King, fn. 16 supra (App. 188).
29
broadly defined fundamental rights and encompass the authority to bind Mr. Blackwell to the
liability waiver; (b) enforcement does not conflict with the public policy behind Mr. Blackwell's
general right to avoid contracts; (c) enforcement does not conflict with the public policy behind
Ms. Blackwell's inability to settle Mr. Blackwell's existing tort claims; and, (d) enforcement in
this case promotes the availability of opportunities to expose children to valuable life skills.
a.
Ms. Blackwell's rights as the parent of Mr. Blackwell are
broadly defined fundamental rights and encompass the
authority to bind Mr. Blackwell to the liability waiver.
Hohe did not substantively analyze a parent's inherent authority, specifically, to contract
on behalf of her minor child. Hohe, supra, 224 Cal. App. 3d at 1565 (App. 93). Indeed, the
Hohe court merely answered that question in the affirmative: "[a] parent may contract on behalf
of his or her children." Id. (citing Doyle, supra, 62 Cal. 2d. at 609 (App. 41)). However,
accurately predicting the United States Supreme Court's forthcoming emphasis on a broad
parental right in Troxel, the Zivich court analyzed this precise issue and recognized that the
parental authority to bind her child to a liability waiver is rooted in her fundamental rights:
[T]he right of a parent to raise his or her child is a natural right subject to the
protections of due process. Additionally, parents have a fundamental liberty
interest in the care, custody, and management of their offspring. Further, the
existence of a fundamental, privacy-oriented right of personal choice in family
matters has been recognized under the Due Process Clause by the United States
Supreme Court.
[M]any decisions made by parents 'fall within the penumbra of parental authority,
e.g., the school that the child will attend, the religion that the child will practice,
the medical care that the child will receive, and the manner in which the child will
be disciplined . .. .'
[We believe/ that invalidating the release as to the minor's claim is inconsistent
with conferring other powers on parents to make important life choices for their
children.
30
Zivich, supra, 696 N.E.2d at 206 (App. 264) (emphasis added) (citations omitted). See also
Fischer, supra, 2002 WL 31126288 (App. 343) (affirming the parental principles outlined in
I
Zivich); Cotten, fn. 27 supra (App. 492).
In Sharon v. City of Newton, the Massachusetts Supreme Court enforced a personal
mJury waiver signed by a parent against the minor child as a condition of the minor's
participation in a cheerleading program because "the law presumes that fit parents act in
furtherance of the welfare and best interests of their children, and with respect to matters relating
to their care, custody, and upbringing have a fundamental right to make those decisions for
them." Sharon, supra, 769 N.E.2d at 746-47 (App. 17) (citations omitted). Indeed, where the
father signed the release "in his capacity as parent because he wanted his child to benefit from
participating in cheerleading, as she had done for four previous seasons," he made "an important
family decision cognizant of the risk ofphysical injuries to his child and the financial risk to
the family as a whole." Id. (emphasis added). Applying the same principles found in Hohe, the
court held that "fi/n the circumstance of a voluntary, nonessential activity" courts should not
disturb this "parental judgment." Id. at 747 (emphasis added). See also, Quirk, supra, 2003 WL
21781387, at *2 (App. 496) (Sharon applied outside of the context of a school-related activity).
In Saccente v. LaFlamme, a Connecticut court expressly relied on Troxel, Fischer, and
Sharon, in upholding a parental waiver and enforcing it against a minor child. Saccente, supra,
2003 WL 21716586 (App. 369).
There, the court evaluated Troxel' s implications, which
confirm that "the essence of parenthood is the companionship of the child and the right to
make decisions regarding his or her care, control, education health, religion and association"
and the ability ofa parent to execute a release on behalf of his or her child "clearly" comports
with those rights and with Troxel's principles. Id. at *6 (emphasis added) (citing Zivich, supra,
31
696 N.E.2d 201 (App. 264)). See also Lehmann, supra, 76 S.W.3d at 565 (App. 483) (there is a
presumption that fit parents act in the best interests of their children and when a parent executes
a waiver she is doing so under the fundamental parental rights and the right to "represent the
child in legal action and to make other decisions of substantial legal significance").
Moreover, the Maryland Court of Appeals very recently emphasized the strength of a
parent's fundamental right to raise his or her children and enforced a parental waiver against a
minor child because the decision to execute the waiver was "made by a parent on behalf of her
child in the course of the parenting role." See Rosen, supra, 80 A.3d at 362 (App. 387). There,
the court recognized that such a broad parental authority is reflected by all of the Maryland laws
enacted and is 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, 28
important educational and employment decisions, 29 and important familial and societal
decisions. 30 Id. at 353-54. The Court recognized that these laws, specifically, empower parents
28
Rosen, supra, 80 A.3d at 353-54 (App. 387) (citing Md. Code Ann., Health-Gen. § 20-102; Id. §
20-lOl(b) (parental consent to having their children give blood); Id. § 20-106(b) (parental consent to the use of a
tanning bed); Id. § 18-4A-02(a) (familial consent to immunization of minor family member); Id. § 10-610 (parental
authority to commit child for mental treatment); Id. § 10-923 (parental consent for therapeutic group home
services)).
29
Id. at 354 (citing Md. Code Ann .. Education § 7-301(a)(l) (parental choice to home school
children); Id. § 7-301(a)(2) (parental decision to defer compulsory schooling for one year if parent determines child
is not mature enough); Id. § 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 § 3-21 l(b)(l) (child may not
work more than is statutorily permitted without a parent giving written consent); Id. § 3-403(a)(7) (wage and hour
restrictions do not apply when child works for parent)).
30
Id. (citing Md. Code Ann., Family Law § 2-301 (parental permission for child to marry); Id. § 450l(b)(2) (parental decision to use corporal punishment to discipline children); Id. § 4-522(a)(2) (parental authority
to apply on behalf of minor to address confidentiality program); Id. § 10-314 (authority to bring action on behalf of
minor child for unpaid child support); Md. Code Ann., Natural Resources§ 10-30l(h) (consent to a child obtaining a
hunting license)).
32
to make "significant decisions on behalf of their children" and, therefore, a parent naturally has
the authority to waive her minor child's prospective tort claims. 3 1 Id. at 354.
Here, Ms. Blackwell had the authority to bind Mr. Blackwell to the prospective liability
waiver pursuant to her fundamental rights as a fit parent. Hawk, supra, 855 S.W.2d 573; Troxel,
supra, 530 U.S. 57 (App. 309). Ms. Blackwell is presumed to "possess what [Mr. Blackwell]
lacks in maturity, experience, and capacity for judgment required for making life' s difficult
decisions," including the decision to shoulder the financial risk of physical harm to Mr.
Blackwell. Parham, supra, 442 U.S. at 602. The "natural bonds of affection" between Ms.
Blackwell and Mr. Blackwell, led her to "act in the best interest" of Mr. Blackwell, and,
respectfully, this Court should not overturn her decision solely on the basis of its own
determination of the Mr. Blackwell's best interests. Id.; Troxel, supra, 530 U.S. at 67 (App.
309).
Rather, as Hawk has made clear and Troxel affirms, Ms. Blackwell's right as a fit parent
are protected by the United States Constitution and the Tennessee Constitution. Hawk, supra,
855 S.W.2d 573. Thus, without a showing of "substantial danger" to Mr. Blackwell, Tennessee
courts should not exercise the state' s parens patriae power to ovem1le Ms. Blackwell's
"important family decision cognizant of the risk of physical injuries to [Mr. Blackwell] and the
financial risk to [her] family as a whole." Sharon, supra, 769 N.E.2d at 747 (App. 17).
This Court must view this case in light of Childress through the lens of the vast expansion
of the broad parental fundamental right over the last thirty years. Now, it is undeniably clear that
Ms. Blackwell had the natural and fundamental authority to bind Mr. Blackwell to the liability
31
The Rosen court recognized the state's need to legally protect minors, but noted that Maryland law
allows parents to settle their minor child's lawsuits without court approval. Id. at 355. Therefore, other states that
have invalidated waivers on that premise were completely inapplicable. Id.
33
waiver. This Court must honor her decision and enforce it based on now well-settled precedent
since Childress.
b.
Enforcement does not conflict with the public policy behind
Mr. Blackwell's general right to avoid contracts.
Allowing Ms. Blackwell the foregoing authority is not in conflict with other public policy
considerations, like Mr. Blackwell's right to avoid a contract. In Rohe, the court responded to
that argument as follows: "fa/ parent may contract on behalf of his or her children" and the
laws allowing minors to disaffirm their own contracts were "not intended to affect contracts
entered into by adults on behalf of their children." Rohe, 224 Cal. App. 3d at 1565 (App. 93)
(emphasis added) (citing Doyle, supra, 62 Cal. 2d. at. 609 (App. 41)).
Clearly, the rule that minors may avoid and/or disaffirm contracts is "based upon the
underlying purpose of the ' infancy doctrine' which is to protect minors from their lack of
judgment and 'from squandering their wealth through improvident contracts with craftv
adults who would take advantage ofthem in the marketplace."' Dodson by Dodson v. Shrader,
824 S.W.2d 545, 547 (Tenn. 1992) (emphasis added) (citing Ralbman v. Lemke. 298 N.W.2d
562, 564 (Wis. 1980)). Accordingly, since Rohe, courts have again addressed this issue and held
that the policy permitting minors to avoid and/or disaffirm their contracts is not inconsistent with
allowing a parent to exercise his or her parental authority and execute a liability waiver on behalf
of his or 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 by
permitting parents to exercise their own providence and sound judgment on
behalfoftheir minor children."
Sharon, at 746 (emphasis added) (App. 17) (citing Parham, supra, 442 U.S. 584; Frye v. Yasi,
101N.E.2d128 (1951)).
34
Here, Ms. Blackwell's authority to bind Mr. Blackwell to the liability waiver is not
disturbed by Mr. Blackwell's right to disaffirm and/or avoid a contract. Rather, as several courts
have recognized, the fundamental purpose of allowing Mr. Blackwell to disaffirm and/or avoid a
contract is to protect him from "squandering [his] wealth," to protect him from his own
"improvidence and want of sound judgment." Dodson, supra, 824 S.W.2d at 547; Sharon, supra,
769 N.E.2d at 747 (App. 17). Thus, the purpose of allowing Mr. Blackwell the right to avoid
and/or disaffirm a contract is to protect him from "crafty adults who would take advantage of
[him/." Dodson, supra, 824 S.W.2d at 547 (emphasis added).
Such logic is clearly irrelevant to allowing Ms. Blackwell to decide to bind Mr.
Blackwell to the liability waiver because the law is now clear that Ms. Blackwell has a broad
parental authority to make "important family decisions" with the presumption she is acting in
Mr. Blackwell's best interest- not that she might be "craftily" trying to take advantage of him.
Wadkins, supra, 2012 WL 6571044, at *5 (App. 99).
Tennessee fundamentally trusts this
presumption to the extent that it will not intervene in a parent's decision when it might be in the
child's best interest to do so - but only when the child is exposed to clear and "substantial harm."
Hawk, supra, 855 S.W.2d 573.
Accordingly, Ms. Blackwell's fundamental right to bind Mr. Blackwell to the liability
waiver is not at odds with his ability to disaffirm and/or avoid contracts generally, and this Comt
must enforce the liability waiver.
c.
Enforcement does not conflict with the public policy behind
Ms. Blackwell's inability to settle Mr. Blackwell's existing tort
claims.
The Zivich court expressly rejected the outdated Tennessee Court of Appeals logic in
Childress that the policies regarding a parent's authority to bind his or her minor child to a post-
35
injury settlement is equal to his or her authority to bind the minor child to a pre-injury waiver.
Zivich, supra, 696 N.E.2d 201 (App. 264). See also Purdy, fu. 27 supra (App. 529); King, fus.
16, 27 supra (App. 188). The court explained that "a parent who signs a release before her child
participates in a recreational activity ... has no financial motivation to sign the release;" is
unlikely to maliciously sign such a release in deliberate derogation of her child's best interest;
and is less vulnerable to coercion and fraud than a parent in the position of disposing a child's
existing claim. Zivich, supra, 696 N.E.2d at 371-372 (App. 264).
In that regard, the Zivich court found the following excerpt from an article published by
the Washington Law Review persuasive:
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 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.
A parent who signs a release before her child participates in a recreational
activity, however, 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 signing
a future release is thus more able to reasonably assess the possible consequences
of waiving the right to sue.
36
Purdy, fn. 27 supra (App. 529) (emphasis added).
Respectfully, courts which have reasoned that pre-injury releases should be treated
identically to post-injury settlements - including the Tennessee Court of Appeals in Childress have simply failed to fully appreciate the inherent differences between pre-injury waivers and a
post-injury settlement. When a parent settles her minor child's existing tort claims, she does so
when her interests may clearly conflict with her child. It is abundantly clear that court approval
of settlements of existing claims is necessary because a parent with an injured child may be
motivated to accept a less-than-adequate settlement due to many reasons which conflict with the
child's best interests. Id.
In this case, however, Ms. Blackwell waived Mr. Blackwell's personal injury claims
before he was ever injured. (See Exh. A.) In that context, Ms. Blackwell faced none of the
possible influences which may have turned her interests against those of Mr. Blackwell. See
Zivich, supra, 696 N.E.2d at 371-72 (App. 264). Thus, it was not even conceivable that Ms.
Blackwell would have "malice aforethought" in signing the liability waiver. Purdy, fn. 27 supra
(App. 529). Rather, Ms. Blackwell had the authority to examine the Contract's liability waiver,
explore possible alternatives, and reasonably assess the possible familial and economic
consequences of binding Mr. Blackwell to the liability waiver. Id.
Accordingly, Ms. Blackwell had the authority to assess the financial consequences to her
family should Mr. Blackwell be injured at Sky High Nashville, and Ms. Blackwell should be
required to accept her decision to shoulder that risk.
37
d.
Enforcement in this case promotes the availability of
opportunities to expose children to valuable life skills.
The essential policy emphasized in Hohe is that children benefit from the availability of
recreational activity, and ultimately the general public policy framework does not forbid a parent
from exculpating those who offer such activity from their minor child's personal injury claims:
Hohe volunteered to be part of a [school] activity because it would be "fun."
There was no essential service or good being withheld by [the school]. Hohe, like ,
thousands of children participating in recreational activities sponsored by groups
of volunteers and parents, was asked to give up her right to sue. The public as a
whole receives the benefit of such waivers so that groups such as Boy and Girl
Scouts, Little League, and parent-teacher associations are able to continue without
the risks and sometimes overwhelming costs of litigation. Thousands of children
benefit from the availability of recreational and sports activities. Those options
are steadily decreasing-victims of decreasing financial and tax support for other
than the bare essentials of an education. Every learning experience involves risk.
In this instance Hohe agreed to shoulder the risk. No public policy forbids the
shifting of that burden.
Hohe, supra, 224 Cal. App. 3d at 1564 (App. 93) (emphasis added).
Zivich enforced a liability waiver against the minor child where there was an obviously
non-commercial entity involved: a youth soccer club. Zivich, supra, 696 N.E.2d at 205 (App.
264). The court recognized that the Ohio General Assembly had enacted a law that offered
qualified immunity to unpaid athletic coaches and sponsors of athletic events, thus indicating a
desire to protect "sports activities and protecting volunteers." Id. Turning to the soccer club at
issue in Zivich, the court emphasized that its inherently unique quality was that it offered
organized recreational activities that give children the "opportunity to learn valuable life skills ..
. to work as a team and how to operate within an organizational structure ... and to exercise and
develop coordination skills." Id.
However, the threat of litigation often "strongly deters"
individuals from volunteering to offer those recreational activities, and therefore the children
miss out on exposure to valuable life skills. Id.
38
Since Rohe and Zivich, all of the authority favoring enforcing a liability waiver against a
minor child has made one thing clear: the public has an interest in encouraging affordable
recreational activities for children because such activities expose them to valuable learning
experiences. Rohe, supra, 224 Cal. App. 3d at 1564 (App. 93); Zivich, supra, 696 N.E.2d at 205
(App. 264); Fischer, supra, 2002 WL 31126288, at
*14
(App. 343). Certainly, the sport of
dodgeball is one of these recreational activities. Sky High Nashville provides children with a
facility wherein they may participate in activities requiring them to "work as a team," to "operate
within an organizational structure," and to "exercise and develop coordination skills." Zivich,
supra, 696 N.E.2d at 205 (App. 264). Simply stated, Sky High Nashville provides children with
the opportunity to have "fun" in the emerging "indoor trampoline park" concept.
Finally, there is no need to separate Sky High Nashville because it is a commercial
enterprise. Clearly, Tennessee courts routinely enforce liability waivers in commercial contexts.
Moreover, there is no sound public policy logic that would show that liability waivers involving
minors should be treated any differently in this regard. See fn. 15 supra. Naturally, Mr.
Blackwell is less capable to look out for his own welfare because of his minority status, but
"fw/hether a child's judgment renders him less capable of looking out for his own welfare
heeds true whether or not he or she is playing on a school playground or in a commercial
setting." Rosen, supra, 80 A.2d at 360 (App. 387). Thus, it makes no logical sense to treat
liability waivers differently in commercial contexts on the basis of Mr. Blackwell' s inability to
know what he is doing. Respectfully, the law provides protection for Mr. Blackwell's inability
to know what he is doing all the time - in both commercial and non-commercial contexts.
However, as explained supra, it is his mother who is making the important family decision - not
Mr. Blackwell.
39
IV.
CONCLUSION
WHEREFORE, PREMISES CONSIDERED, this Court should grant Sky High
Nashville' s Motion in all respects.
Respectfully submitted,
Ben
. Rose (#21254)
ua D. Arters (#31340)
The Law Offices of Ben M. Rose,
Post Office Box 1108
Brentwood, Tennessee 37024
ben@bmrfirm.com
josh@bmrfirm.com
615-942-8295
Attorneys for the Defendant, Sky High
Sports Nashville Operations, LLC
40
V.
CERTIFICATE OF SERVICE
I hereby certify that a true and exact copy of the foregoing document has been sent via
U.S Mail to the following on this the 17th day of March, 2015:
David J. Weissman
Hollins, Raybin, & Weissman, P.C.
Fifth Third Center, Suite 2200
424 Church Street
Nashville, Tennessee 37219
Attorney for the Plaintiffs
41
EXHIBIT A
Sky High Sports Customer Release of Liability and Assumption of Risk
***THIS IS A CONTRACT- READ BEFORE SIGNING***
G-.C.,
In consideration of being pennitted by SKY HIGH SPORTS to participate in its activities and to use its equipment and facilities, now and in the
future, I hereby agree to release, indemnify and di~-.:ha'le SKY HIGH SPORTS, its agents, 01A.'11ers, shareholdl'TS, directors, partner$, employees,
volunteers, .manufacturers, participants, lessors, affiliates. its subsidiaries, related and affiliated entities, successors and assigns (the "RELEASED
PARTIES"), on behalf of myself, my spouse, my children. my parents, my heirs, assigns, personal representative and estate as follows:
I.
I acknowledge that my participation 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 10 third parties. I understand that such risks simply cannot be eliminated
wiihout jeopardizing the essential qualities of the activity.
The risks Include, among other things: Trampoline entails certain risks that simply cannot be eliminated without jeopardiijng !he essential qualities
of the activity, Trampoline exposes its participants to the usual risk of cuts and bruises. Other more serious ~isks 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 11 rebound effect causing
serious injury. 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 rislcs 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, al your own expense.
Funhennore, SKY HlGH SPORTS employees have difficult jobs to perform. They seek safety, but they are not infallible. They might be una.ware of
a participant's fitness or abil!tie>. They may give incomplete warnings or instcuctions, and the equipment being used might become loose, out of
adju~tment, or malfunction. There is also a risk that SKY HIGH SPORTS employees may be negligent in, among other things, monitoring aod
supervising use ofits equipment and facilities and in the maintenance and repair of its equipment and facilities,
2.
l 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 Pl!rtidpate in spite of the risks.
J.
I hereby voluntarily release, forever discharge, 11nd agree to defend, indemnify and bold harmless RELEASED PARTlES from any and
all daims, demands, or ea11ses nf aetion, which are In any w.ay con.nected with my participation in this activity or my use of SKY HIGH
SPORTS tquipment or facilities, including any such claims which allege negligent acts o.r omissions or RELEASED PARTIES.
4.
Should SKY HIGH SPORTS or anyone acting on their behalf. be reqHired to incur attorney's fees and costs to enforce this agreement, I agree fo
indemnify and hold them harmless for all such fees and costs. This means !hat J will pay all of those attorney's fees and costs myself.
5.
I certify that l have adequate insurance to cover any injury or damage that l may cause or suffer while participating, or else I agree to bear the
costs of such injury or damage myself. I further certify that Tam willing to assume the risk of ;my medical or physical condition ihat l may have.
6.
In the event that I file a lawsuit against SKY HIGH SPORTS, r agree to do so solely in the state of California and! further agree that.the
substantive law of California shall apply in that action without regard to the conflict of the law rules of that state. I agree that ifany portion of
this a~ement is found to be void or unenforceable, the remaining portions shall remain in full force and effect.
7.
I agree as an adult participant, or lhe Parent/Legal Guardian of a minor participant, in consideration of being permitted to participate at SKY
'HJGJl SPORTS, grant SKY HIGH SPORTS, and all RELEASED PARTIES, the irrevocable right and pennission to photograph and/or record
me or my child(ren)/ward(s) in connection with SKY HlGH SPORTS to use the photograph and/(lr recording for al1 purposes, including advertising and promotional purposes, in any m.anner in any and all media now or hereafter known, in perpetuity throughout the world, without restriction as to alteration. I waive any right to inspect or approve the use of the Photograph an<i/or Recording, and at•knowle-Oge and agree that the
rights granted to this release are without compensation of any kind. All Photogl'llph and/or Recordings are exclusive to SKY HIGH SPORTS.
8.
.If the partielpant ls a minor, I agree that this Rele.ase of Liability and Assumption of Risk agreement ("RELEASE") is made on behalf
ot that minor partklpant and that all of the releases, walvers and promises herel,n are binding on that minor participant. I represent
that l have full aqt!M!ci!l' as Parent nr Legal Guardian of the minor participant to bind the minor participant IQ th!§ agm;ment.
9.
It the participant I~ a minor. ( f!!r1her agr~ to defend, indemnify and bold harmless SKY HIGH: SPORTS from any and all claims or
suits for personal injury, property damage or otherwise·which are brought by, or o·n behalf oftbe minor, and which are in anyway
connected with such use or participation by the minor, including injuries or damages caused by the negligence ofRElEAS'ED PARTIES, except
injuries or .damages caused by the sole negligence or willful misconduct of the party seeking indemnity.
10. In consideration ofnot being required to sign a fresh copy of this RELEASE before each visit, I further agree that this RELEASE shall apply
to all future visits by me and by the minor participant until he/she Is 18 years old in full, including Paragraphs 8 and 9.
By signing I.his document, Tacknowledge that if anyone is hu:rt or property damaged during my participation in this a.c(ivity, I may be found by a
court oflaw 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 ofnny claim from which l ha.ve released them be.rein. I have had sufficient opportunity to read this entire document. 1 have read and
understood it, and I agree to be bound by its terms.
/} /? .
Sigm1ture (Participant or Parent/Legal Guardian if under age ofl8)
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