TENNESSEE
Likelihood of Enforcement: Strong
A. Pre-Injury Liability Waivers
Exculpatory agreements that release a party from liability for negligence are generally enforceable under Tennessee law. Copeland v. Healthsouth/Methodist Rehab. Hosp., 565 S.W.3d 260, 273 (Tenn. 2018). However, not all liability waivers are enforceable, and courts must scrutinize the terms and circumstances of the contract and consider the public interest. Id. To determine whether the exculpatory clause is enforceable, Tennessee courts weigh (1) the relative bargaining power of the parties, (2) the clarify of the exculpatory language, and (3) whether enforcing the contract violates public policy. Copeland, 565 S.W.2d at 274.[1] The weight and applicability of each of these three factors will vary depending on “the totality of the facts and the circumstances of each case.” Id. at 274.
i. Relative Bargaining Power
The evaluation of the relative bargaining power of the parties turns on “the importance of the service at issue for the physical or economic well-being of the party signing the agreement and the amount of free choice that party has in seeking alternate services.” Id.
ii. Clarity of the Language
Exculpatory clauses should be “clear, unambiguous, and unmistakable about what the party who signs the agreement is giving up.” Id. The language should not be so broad that it protects the party from any possible liability, id. at 275, but the contract does not need to explicitly use the term negligence to waive liability for negligence, Empress Health & Beauty Spa, Inc. v. Turner, 503 S.W.2d 188, 190 (Tenn. 1973); Moss v. Fortune, 207 Tenn. 426, 428, 340 S.W.2d 902, 903 (1960) (holding that a clause, which stated that “I am hiring your horse to ride today and all future rides at my own risk,” exculpated the defendant from liability for negligence).
iii. Public Policy
Tennessee courts are more likely to intervene on public policy grounds where the party benefitting from the exculpatory clause “has a public service obligation,” in that the business is “suitable for public regulation” and provides particularly important services. Copeland, 565 S.W.2d at 276 (listing public utilities, common carriers, and innkeepers as examples). Any contract that exempts a party from liability for gross negligence, reckless conduct, or intentional wrongdoing violates is against public policy and unenforceable. Adams v. Roark, 686 S.W.2d 73 (Tenn. 1985).
B. Waivers Signed By Parents on Behalf of Minor Children
In Childress v. Madison County, the Tennessee Court of Appeals ruled that a parent/guardian cannot sign a pre-injury agreement releasing an organization from liability or indemnifying that organization from liability on behalf of their minor child. 777 S.W.2d 1, 7 (Tenn. Ct. App. 1989). The Tennessee Court of Appeals has since held that such liability waivers also cannot be enforced against parents bringing a wrongful death lawsuit, Rogers v. Donelson-Hermitage Chamber of Com., 807 S.W.2d 242, 245 (Tenn. Ct. App. 1990), and has declined to create an exception for activities run by non-profits, Blackwell v. Sky High Sports Nashville Operations, LLC, 523 S.W.3d 624, 651 (Tenn. Ct. App. 2017).[2]
[1] In Olson v. Molzen, 558 S.W.2d 429 (Tenn. 1977), the Tennessee Supreme Court had adopted the six-factor test from Tunkl v. Regents of University of California, 383 P.2d 441 (Cal. 1963). However, the Copeland court rejected this approach, noting that “only five other states” relied on the Tunkl factors, and concluding that the factors were “overly rigid and arbitrary.” Copeland, 565 S.W.3d at 272.
[2] Some have argued that the Tennessee Supreme Court’s embrace of parental rights requires Tennessee courts to reject Childress. See Joshua D. Arters & Ben M. Rose, Kindly Remove My Child from the Bubble Wrap—Analyzing Childress v. Madison County and Why Tennessee Courts Should Enforce Parental Pre-Injury Liability Waivers, 11 Tenn. J.L. & Pol’y 8 (2016). Contra Blackwell, 525 S.W.3d at 648-651.
Last updated 03/2022
This assessment of the enforceability of waivers has been prepared by non-lawyer law students and does not constitute legal advice.