Crystal BLACKWELL, as Next Friend to Jacob Blackwell, a Minor v. SKY HIGH SPORTS NASHVILLE OPERATIONS, LLC

01/09/2017

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

November 16, 2016 Session

CRYSTAL BLACKWELL, AS NEXT FRIEND TO JACOB BLACKWELL,

A MINOR v. SKY HIGH SPORTS NASHVILLE OPERATIONS, LLC.

Appeal from the Circuit Court for Davidson County

No. 14C524 Thomas W. Brothers, Judge

___________________________________

No. M2016-00447-COA-R9-CV

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In this interlocutory appeal, the defendant trampoline park argues that the trial court erred

by refusing to enforce a forum selection clause, a choice of law provision, and a waiver

of liability and indemnity clause against the minor plaintiff. Additionally, the minor

plaintiff argues that the trial court erred in denying his motion to alter or amend his

complaint to allow him to claim pre-majority medical expenses. We reverse the trial

court’s denial of the minor plaintiff’s motion to amend only to the extent that the minor

plaintiff may be permitted to assert pre-majority medical expenses that were paid by him

or that he is legally obligated to pay. We affirm the trial court in all other respects.

Affirmed in part, reversed in part, and remanded.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Affirmed

in Part; Reversed in Part; and Remanded

J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which D. MICHAEL

SWINEY, C.J., and BRANDON O. GIBSON, J., joined.

David J. Weissman, Nashville, Tennessee, for the appellant, Crystal Blackwell, as next

friend of Jacob Blackwell, a minor.

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

Sports Nashville Operations, LLC.

OPINION

Background

On July 3, 2012, Plaintiff/Appellant Crystal Blackwell (“Mother”) signed a

contract entitled “Customer Release of Liability and Assumption of Risk” (“the release”)

with Defendant/Appellee Sky High Sports Nashville Operations, LLC (“Sky High”) in

order for her son, Jacob Blackwell (“Son,” and, as represented by Mother as next friend

in this lawsuit, “Appellants”) to participate in activities at an indoor trampoline park

operated by Sky High. The release included a forum selection clause designating

California as the proper forum for litigation, a choice of law provision stipulating

California as the applicable law governing the contract, and a liability waiver on behalf of

both Mother and Son, as discussed in detail infra. The release further provided that it

would remain in effect for any future visits to Sky High until Son turned eighteen.

Mother and Son returned to Sky High to participate in trampolining activities on multiple

occasions after Mother signed the contract. On March 26, 2013, Son was allegedly

injured at Sky High while participating in a trampoline dodgeball tournament.

On February 5, 2014, Appellants filed a complaint in the Davidson County Circuit

Court against “Sky High Sports Nashville, LLC.” The complaint alleged that Son moved

in an awkward fashion on a trampoline to dodge the ball and landed “awkwardly,” that

another player’s “double bounce” contributed to his awkward landing, and that Son

suffered from a torn patellar tendon and broken tibia as a result, necessitating surgery.

According to Appellants, Sky High “knew or should have known that playing dodgeball

on a trampoline was a very dangerous activity” and therefore was guilty of negligence.

The complaint further alleged that any warnings, disclaimers, or waivers of liability

signed by Mother were “void, invalid, and/or inadequate.” The complaint sought

damages, including past medical expenses, future medical expenses, pain and suffering,

emotional injury and suffering, loss of enjoyment of life, lost wages, and loss of

consortium in the amount of $500,000.00.

On May 5, 2014, Sky High Sports Nashville, LLC filed an answer denying the

material allegations contained in the complaint. In addition, Sky High Sports Nashville,

LLC raised several affirmative defenses: (1) that Sky High Sports Nashville, LLC was

not the proper party; (2) that pursuant to the parties’ contract, California was the proper

forum and California law was applicable to the dispute; and (3) that Appellants’ claims

were barred by the release signed by Mother individually and on Son’s behalf. On

November 3, 2014, Sky High was substituted as the proper defendant by agreement of the

parties and an amended complaint was filed reflecting the change.

On March 17, 2015, Sky High filed its motion to enforce the contract between the

parties. The motion first argued that any claims on behalf of Mother should be dismissed

because the release contained a forum selection clause, a choice of law provision, and a

waiver of liability, all of which were enforceable against Mother. Sky High also argued

that the forum selection clause, choice of law provision, and liability waiver should be

enforced against Son as well, despite “dated Tennessee authority to the contrary” which

did “not reflect the current state of the law.” In sum, Sky High offered the following

various alternative methods for resolving this dispute: (1) that the trial court should

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dismiss the case based on the forum selection clause; (2) that the trial court retain

jurisdiction but apply California law; or (3) that the trial court should enforce the

release’s liability waiver and dismiss the case as to both Mother and Son.

Appellants filed a response to the motion to enforce on May 4, 2015. Therein,

Appellants argued that the forum selection clause and choice of law provision were

invalid because the dispute involved in this case has no connection to California.

Appellants also asserted that based upon this Court’s decision in Childress v. Madison

County, 777 S.W.2d 1 (Tenn. Ct. App. 1989), a parent may not effectively waive liability

on behalf of a minor. The response offered no argument, however, that the release of

liability did not apply to any claims on behalf of Mother. Accordingly, on the same day,

Mother filed a notice of voluntary dismissal of her claims against Sky High.

In response to Appellants’ contention that the dispute in this case had no

connection with California, Sky High filed the affidavit of Rolland Weddell on May 6,

2015. In his affidavit, Mr. Weddell asserted that he helped found Sky High Sports, “a

larger national brand” of which Sky High was a part. According to Mr. Weddell, the

company’s first two stores were founded in California in 2006. Mr. Weddell explained

that ten trampoline parks under the Sky High Sports brand currently operate in California.

Mr. Weddell, however, resides in Nevada, where he serves as the loss prevention

manager for Sky High. There is no dispute that Sky High’s corporate headquarters is also

in Nevada.

The trial court held a hearing on Sky High’s motion to enforce on May 8, 2014.

On May 22, 2015, the trial court entered an order denying Sky High’s motion to enforce

in its entirety. Therein, the trial court ruled that neither the forum selection clause nor the

choice of law provision were valid because their enforcement would cause a great

hardship for Son to prosecute his action in California and, Tennessee, rather than

California, has “a more significant relationship to the facts surrounding this case.” The

trial court also noted that Tennessee law included a fundamental public policy regarding

the protection of children. Consequently, the trial court denied Sky High’s request to

enforce the waiver of liability as to the Son’s claims, noting that such a contract is not

permissible in Tennessee under the holding in Childress.

On June 22, 2015, Sky High filed a motion to alter or amend the trial court’s

judgment, or in the alternative, for an interlocutory appeal of the trial court’s denial of the

motion to enforce pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure.

While this motion was pending, on July 31, 2015, Appellants filed a motion to amend

their complaint. Therein, Appellants contended that because the individual claims of

Mother had been voluntarily dismissed, an amendment was necessary to ensure the

proper parties were named in the complaint and to request medical expenses, both past

and future, on behalf of Son, with Mother acting as next friend. Sky High opposed the

amendment, arguing that only a parent could bring a claim for past medical expenses for

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a minor child. Sky High contended that, because Mother’s claims were barred by the

release, neither Mother nor Son was entitled to recover these damages.

On February 23, 2016, the trial court entered an order on the pending motions to

amend the complaint and to alter or amend, or in the alternative, for an interlocutory

appeal. First, the trial court denied Sky High’s motion to alter or amend but granted their

request for an interlocutory appeal of the denial of the motion to enforce. Additionally,

the trial court granted Appellants’ motion to alter or amend, except to the extent that the

amendment would allow “recovery of any pre-majority medical expenses.” The trial

court, however, also allowed an interlocutory appeal of this ruling. Eventually, this Court

also granted the requested interlocutory appeal as to both issues. Accordingly, this appeal

followed.

Issues Presented

As we perceive it, this appeal involves four issues:

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

contained in the release?

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

contained in the release?

3. Whether the trial court erred in refusing to enforce the waiver of liability against

Son contained in the release signed by Mother?

4. Whether the trial court erred in refusing to allow the amendment to the complaint

to allow Son to recover for pre-majority medical expenses.

Standard of Review

In this case, the trial court denied Sky High’s motion to dismiss based upon a

forum selection clause, a choice of law provision, and a liability waiver contained in the

release. In considering an appeal from a trial court’s ruling on a motion to dismiss, we

take all allegations of fact in the complaint as true and review the trial court’s legal

conclusions de novo with no presumption of correctness. Mid-South Industries, Inc. v.

Martin Mach. & Tool, Inc., 342 S.W.3d 19, 27 (Tenn. Ct. App. 2010) (citing Owens v.

Truckstops of America, 915 S.W.2d 420, 424 (Tenn. 1996)); see also Stevens ex rel.

Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 553 (Tenn. 2013)

(citing Graham v. Caples, 325 S.W.3d 578, 581 (Tenn. 2010)) (“The trial court’s denial

of [d]efendants’ motions to dismiss involves a question of law, and, therefore, our review

is de novo with no presumption of correctness.”).

In addition, the trial court denied Appellants’ motion to amend their complaint. A

trial court’s decision to deny a motion to amend a complaint is reviewed under an abuse

of discretion standard. Merriman v. Smith, 599 S.W.2d 548, 559 (Tenn. Ct. App. 1979).

Discussion

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I.

We begin first by considering whether the trial court erred in refusing to dismiss

Appellants’ complaint on the basis of the forum selection clause contained in the release,

or in the alternative, in refusing to apply California law to this dispute. The release signed

by Mother on behalf of Son contains the following language: “In the event that I file a

lawsuit against Sky High [], I agree to do so solely in the state of California and I further

agree that the substantive law of California shall apply in that action without regard to the

conflict of law rules of that state.”

The trial court did not rule that the forum selection and choice of law provisions

were unenforceable because the release containing them was signed by Mother on behalf

of Son, as is true of the liability waiver discussed in detail infra; instead, the trial court

ruled that the forum selection and choice of law provisions were unenforceable based

upon the Tennessee framework regarding provisions of this type. Likewise, in their reply

brief to this Court, Appellants do not assert that the forum selection and choice of law

provisions are unenforceable against Son simply due to the fact that the provisions were

included in a contract signed by Mother on behalf of Son. Rather, Appellants assert that

the trial court correctly determined that California has so little interest in this case and

litigating in California would be substantially less convenient than in Tennessee so as to

militate against enforcement of both the forum selection and choice of law provisions.

Accordingly, we assume arguendo for purposes of this appeal that both the forum

selection clause and choice of law provision are binding against Son unless otherwise

rendered unenforceable by Tennessee law. We therefore first proceed to address whether

Tennessee law renders the forum selection clause unenforceable in this case.

A.

Generally, a forum selection clause is enforceable and binding on the parties

entering into the contract. Lamb v. MegaFlight, Inc., 26 S.W.3d 627, 631 (Tenn. Ct.

App. 2000). A forum selection clause will be upheld if it is fair and reasonable in light of

all the circumstances surrounding its origin and application. Id. (citing Dyersburg Mach.

Works, Inc. v. Rentenbach Eng’g Co., 650 S.W.2d 378 (Tenn. 1983)). According to the

Tennessee Supreme Court, a court must give effect to a forum selection clause and refuse

to entertain the action unless:

(1) the plaintiff cannot secure effective relief in the other state, for

reasons other than delay in bringing the action; (2) or the other state

would be a substantially less convenient place for the trial of the

action than this state; (3) or the agreement as to the place of the

action was obtained by misrepresentation, duress, abuse of economic

power, or other unconscionable means; (4) or it would for some

other reason be unfair or unreasonable to enforce the agreement.

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Dyersburg, 650 S.W.2d at 380 (quoting The Model Choice Forum Act of 1968). The

Dyersburg Court further stated that Tennessee courts should give consideration to the

above factors and should enforce a forum selection clause unless the party challenging

the clause demonstrates that enforcement would be unfair or inequitable. Id. Our research

demonstrates that the factors promulgated by the Dyersburg Court have been followed in

numerous subsequent cases. E.g., Cohn Law Firm v. YP Se. Advert. & Publ’g, LLC, No.

W2014-01871-COA-R3-CV, 2015 WL 3883242, at *11 (Tenn. Ct. App. June 24, 2015);

Sevier Cnty. Bank v. Paymentech Merch. Servs., No. E2005-02420-COA-R3-CV, 2006

WL 2423547 (Tenn. Ct. App. Aug. 23 2006); Spell v. Labelle, No. W2003-00821-COA-

R3-CV, 2004 WL 892534 (Tenn. Ct. App. Apr. 22, 2004); Signal Capital, No. E2000-

00140-COA-R3-CV, 2000 WL 1281322 (Tenn. Ct. App. Sept. 7, 2000); Tennsonita

(Memphis), Inc. v. Cucos, Inc., No. 36, 1991 WL 66993 (Tenn. Ct. App. May 2, 1991).

Tennessee law is clear, however, that the party challenging the enforcement of the forum

selection clause “should bear a heavy burden of proof.” Chaffin v. Norwegian Cruise

Line Ltd., No. 02A01-9803-CH-00080, 1999 WL 188295, *4 (Tenn. Ct. App. Apr. 7,

1999).

We first note that there are no allegations in this case that the forum selection

clause at issue was “obtained by misrepresentation, duress, abuse of economic power, or

other unconscionable means[.]” Dyersburg, 650 S.W.2d at 380. We agree with both

Appellants and the trial court, however, that, with respect to the second Dyersburg factor,

California is a substantially less convenient place to hold this lawsuit. We recognize that

a “party resisting a forum selection clause must show more than inconvenience or

annoyance[.]” ESI Cos., Inc. v. Ray Bell Constr. Co., No. W2007-00220-COA-R3-CV,

2008 WL 544563, at *7 (Tenn. Ct. App. Feb. 29, 2008). Accordingly, mere increased

litigation expenses will be insufficient to invalidate a forum selection clause. Still, the

Tennessee Supreme Court has previously held that where neither company at issue was a

resident of the proposed forum and none of the witnesses were residents of the proposed

forum, the party resisting a forum selection clause had met its burden to show that the

proposed forum was a substantially less convenient forum. See Dyersburg, 650 S.W.2d at

381 (holding that the second factor was met because the chosen forum of Kentucky was

“a substantially less convenient place for trial . . . wherein all witnesses are Tennessee

residents, the plaintiffs and the defendants, . . . are Tennessee corporations”).

The same is true in this case. Here, Mother and Son are Tennessee residents.

Moreover, the alleged injury to Son and his later treatment all occurred in Tennessee. It

thus appears that Appellants’ witnesses to both the alleged negligence and later treatment

may all be found in Tennessee. On the other hand, Sky High has not presented this Court

with any prospective witnesses regarding the events at issue in this case that are

California residents. While it is true that Sky High is not a Tennessee corporation, as

were the corporations in Dyersburg, nothing in the record suggests that Sky High is

incorporated or has its principal place of business in California, the forum designated in

the release. Rather, the only information in the record indicates that Sky High has its

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headquarters in Nevada. Instead, from the affidavit of Mr. Weddell, we discern that Sky

High’s limited contact with California involves only that the “larger brand” under which

Sky High operates was founded in California over a decade ago and now operates several

facilities in California. Respectfully, a decades-old contact by a parent company with a

state and the operation of several trampoline parks in a state is insufficient to undermine

Appellants’ contentions regarding the inconvenience that would be posed by litigating in

California. Accordingly, we hold that Appellants have met their burden to show that

California presents a substantially less convenient forum than Tennessee.

We also agree that, with respect to the first and fourth Dyersburg factors,

California is unlikely to provide Son with effective relief and that forcing Son to litigate

in California would otherwise be unfair. As discussed in detail infra, Tennessee law and

California law differ as to whether waivers of liability signed by parents may be enforced

as to their children. Compare Childress v. Madison Cnty., 777 S.W.2d 1 (Tenn. Ct. App.

1989) (refusing to enforce such a waiver), with Hohe v. San Diego Unified Sch. Dist.,

224 Cal. App. 3d 1559, 274 Cal. Rptr. 647 (Ct. App. 1990) (enforcing such a waiver).

Because we reaffirm Tennessee law that parents cannot effectively sign pre-injury

waivers on behalf of their children, as discussed in detail infra, allowing Son to litigate

his case in Tennessee provides him with a better opportunity for full relief.

B.

We next consider whether the trial court erred in refusing to enforce the release’s

choice of law provision indicating that California law should apply to this case.

Generally, absent a choice of law provision in a contract, “Tennessee follows the rule of

lex loci contractus. This rule provides that a contract is presumed to be governed by the

law of the jurisdiction in which it was executed absent a contrary intent.” Messer

Griesheim Indus., Inc. v. Cryotech of Kingsport, Inc., 131 S.W.3d 457, 474–75 (Tenn.

Ct. App. 2003) (quoting Vantage Tech., LLC v. Cross, 17 S.W.3d 637, 650 (Tenn. Ct.

App. 1999)). As this Court explained:

If the parties manifest an intent to instead apply the laws of another

jurisdiction, then that intent will be honored provided certain

requirements are met. The choice of law provision must be executed

in good faith. Goodwin Bros. Leasing, Inc. v. H & B Inc., 597

S.W.2d 303, 306 (Tenn. 1980). The jurisdiction whose law is chosen

must bear a material connection to the transaction. Id. The basis for

the choice of another jurisdiction’s law must be reasonable and not

merely a sham or subterfuge. Id. Finally, the parties’ choice of

another jurisdiction’s law must not be “contrary to ‘a fundamental

policy’ of a state having [a] ‘materially greater interest’ and whose

law would otherwise govern.” Id., n.2 (citing RESTATEMENT

(SECOND) OF CONFLICT OF LAWS § 187(2) (1971)).

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

Here, there is no allegation that the choice of law provision at issue was not

executed in good faith. Instead, the choice of law provision fails for largely the same

reason that the forum selection clause fails: no material connection exists between the

transaction at issue and California. As previously discussed, the contract at issue was

signed in Tennessee, between Tennessee residents and a Nevada company, concerning

activities taking place in Tennessee. Black’s Law Dictionary defines “material” as

“[h]aving some logical connection with the consequential facts.” Black’s Law Dictionary

1066 (9th ed. 2009). The simple fact that Sky High’s parent company was founded in

California over a decade ago and now operates several facilities there is simply not

sufficient to show a logical connection to the transaction at issue in this case.

We do not disagree with Sky High’s assertion that it is reasonable and generally

enforceable for a company to “limit where it is subject to suit.” Tennessee law is clear,

however, that a company’s choice of law provision will only be honored where the

proposed state’s law has a material connection to the transaction at issue. See Messer

Griesheim, 131 S.W.3d at 475. Furthermore, the cases that Sky High cites for this

proposition do not support their argument in this case. First, in Bright v. Spaghetti

Warehouse, Inc., No. 03A01-9708-CV-00377, 1998 WL 205757 (Tenn. Ct. App. Apr.

29, 1998), the Court of Appeals enforced a choice of law provision designating that

Texas law would apply to the contract where the contract was largely negotiated in Texas

and the defendant was a Texas corporation. Id. at *5. As such, the transaction at issue in

Bright had far more contact with the state whose law was named in the contract than is

present in this case. Even more puzzling, Thomas v. Costa Cruise Lines N.V., 892

S.W.2d 837 (Tenn. Ct. App. 1994), does not involve either a choice of law provision or

the application of Tennessee law to determine its enforceability; rather, Thomas involves

a forum selection clause, whose enforcement was governed by federal law. Id. at 840.

Accordingly, the trial court did not err in denying Sky High’s request to enforce the

choice of law provision on this basis. Because the contract’s choice of law provision is

unenforceable, the general rule of lex loci contractus applies in this case. See Messer

Griesheim, 131 S.W.3d at 474. As such, Tennessee law, as the law of the place where the

contract was executed, governs the dispute in this case.

II.

1

Sky High asserts that the party seeking to invalidate a choice of law provision bears a “heavy burden,”

citing Security Watch, Inc. v. Sentinel Systems, Inc., 176 F.3d 369 (6th Cir. 1999). First, we note that a

federal decision, even when interpreting Tennessee law, is not binding on this Court. See Elias v. A & C

Distrib. Co., Inc., 588 S.W.2d 768, 771 (Tenn. Ct. App. 1979) (“[D]ecisions of [ f]ederal . . . [c]ourts are

not binding authority upon this Court and other State Courts in Tennessee[.]”). Furthermore, the phrase

“heavy burden” as quoted by Sky High simply does not appear in the Security Watch Opinion. See

Security Watch, 176 F.3d at 375. Finally, we note that the Security Watch Opinion does not concern a

choice of law provision, but rather, a forum selection clause. Id.

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Having determined that this case has been properly brought in a Tennessee court

and that Tennessee law applies, we next consider whether the trial court erred in refusing

to enforce the waiver of liability and the indemnity language contained in the release

pursuant to Tennessee law. Here, the contract at issue contains the following language,

in relevant part:

3. I hereby voluntarily release, forever discharge, and agree to

defend indemnify and hold harmless [Sky High] from any and all

claims, demands, causes of action, which are in any way connected

with my participation in this activity or any use of [Sky High’s]

equipment or facilities, including any such claims which allege

negligent acts or omissions of [Sky High].

4. Should [Sky High] or anyone acting on their behalf, be

required to incur attorney’s fees and costs to enforce this agreement,

I agree to indemnify and hold them harmless for all such fees and

costs. This means that I will pay all of those attorney’s fees and costs

myself.

5. I certify that I have adequate insurance to cover any injury or

damage that I may cause or suffer while participating, or else I agree

to bear the costs of such injury or damage myself. I further certify

that I am willing to assume the risk of any medical or physical

condition that I may have.

* * *

8. If the participant is a minor, I agree that this Release of

Liability and Assumption of Risk agreement (“RELEASE”) is

made on behalf of that minor participant and that all of the

releases, waivers and promises herein are binding on that minor

participant. I represent that I have full authority as Parent or

Legal Guardian of the minor participant to bind the minor

participant to this agreement.

9. If the participant is a minor, I further agree to defend,

indemnify and hold harmless SKY HIGH SPORTS from any and all

claims or suits for personal injury, property damage or otherwise,

which are brought by, or on behalf of the minor, and which are in

any way connected with such use or participation by the minor,

including injuries or damages caused by the negligence of [Sky

High], except injuries or damages caused by the sole negligence or

willful misconduct of the party seeking indemnity.

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(Emphasis added).

In the trial court, Sky High argued that the above language constituted a legal and

enforceable waiver of liability and indemnity agreement against both the claims brought

by Mother and the claims brought on behalf of Son. There is no dispute in this case that

“parties may contract that one shall not be liable for his negligence to another but that

such other shall assume the risk incident to such negligence.” Moss v. Fortune, 207

Tenn. 426, 429, 340 S.W.2d 902, 903–04 (Tenn. 1960). These types of agreements,

however, are subject to some important exceptions, such as waivers involving gross

negligence or willful conduct or those involving a public duty. Id. at 904. These types of

provisions must also be clear and unambiguous. See Pitt v. Tyree Org. Ltd., 90 S.W.3d

244, 253 (Tenn. Ct. App. 2002) (citing Kroger Co. v. Giem, 215 Tenn. 459, 387 S.W.2d

620 (Tenn. 1964)).

Here, Appellants do not argue, nor did the trial court find, that the liability waiver

above was unenforceable on its face against Mother pursuant to the above law. Rather,

the trial court found that the waiver of liability was ineffective to waive Son’s claims due

to Tennessee public policy, as expressed in this Court’s Opinion in Childress v. Madison

County, 777 S.W.2d 1 (Tenn. Ct. App. 1989). A brief discussion of the facts and holding

in Childress is therefore helpful.

A.

In Childress, the parents of a young man with severe intellectual disabilities

brought suit on behalf of their son. According to the parents, the young man, who was

twenty years old at the time of the accident, was injured while training for the Special

Olympics in connection with his school. Id. at 2. Specifically, while on a trip to a local

YMCA supervised by a teacher and aide from the Madison County school district, the

young man was found on the floor of the YMCA pool. The young man was successfully

resuscitated but sustained injuries and incurred medical expenses as a result of the

incident. Id.

The parents, individually and on behalf of their son, sued Madison County and the

Madison County Board of Education for negligence in failing to properly supervise the

students in the pool. After a bench trial, the trial court ruled in favor of the defendants,

finding that they had committed no negligence. The parents thereafter appealed to this

Court. Id.

This Court first reversed the trial court’s finding that the defendants had not

committed negligence in failing to supervise the young man while he was in the pool. Id.

at 3. The defendants argued, however, that even if they were guilty of negligence, any

liability had been waived by parents when the mother “executed a release of all liability

of these defendants.” Id. at 3. In response, the parents argued, inter alia, that the waiver

was unenforceable because it was against Tennessee public policy to allow parents or

guardians to release the claims of incompetent persons. Id. at 6–7.

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The Court of Appeals, in what the concurrence characterized as an “excellent

opinion,” agreed that the parents could not release the claims of their incompetent son.

Id. at 8 (Tomlin, J., concurring). The Childress Court first noted that the adult son had

not personally signed the release but that, instead, his mother had signed the document.

Id. at 6. The Court held that had the young man signed the release, it would certainly

have been invalid, as the young man was “incompetent, incapable of understanding the

nature of his action, [and, thus,] the execution could not be given effect.” Id. (citing 44

C.J.S. Insane Persons § 49 (1945)). The question was therefore whether the mother’s

action in signing the form, which included an indemnity agreement and an assumption of

risk clause that were applicable to the son’s claims, were sufficient to bar the young

man’s claims.2

In reaching its decision, the Childress Court analogized “the status of guardians of

incompetent persons” with “that of guardians of infants” under well-settled Tennessee

law. Id. According to the Court:

The general rule is that a guardian may not waive the rights of an

infant or an incompetent. 39 Am. Jur. 2d, Guardian & Ward § 102

(1968); 42 Am. Jur. 2d, Infants § 152 (1969). Specifically, the

Supreme Court of Tennessee long ago stated that a guardian cannot

settle an existing claim apart from court approval or statutory

authority. Miles v. Kaigler, 18 Tenn. (10 Yerg.) 10 (1836)[;] Spitzer

v. Knoxville Iron, Co., 133 Tenn. 217, 180 S.W. 163 (1915)[;] Tune

v. Louisville & Nashville Railroad Co., 223 F. Supp. 928 (M[.]D[.]

Tenn. 1963). It has also been held that a guardian may not waive the

statutory requirements for service of process on an infant or

incompetent by accepting service of process on himself alone.

Winchester v. Winchester, 38 Tenn. (1 Head) 460 (1858).[3]

2

In Childress, this Court held that by the contract’s own terms, the waiver of liability only applied to the

mother. Id. at 6 (“[T]here is no indication in the language of the form or in the manner in which [the

mother] signed that she did in fact . . . release or discharge the Special Olympics on [her son’s] behalf”).

The Court of Appeals therefore affirmed the trial court’s dismissal of the mother’s individual claims. The

Court held, however, that the contract provided that both the indemnity clause and assumption of risk

provision applied to both the mother and the son. Id. (“[The mother] did clearly agree to indemnify the

Special Olympics ‘from all liabilities for damage, injury or illness to the entrant or his/her property during

his/her participation in or travel to or from any Special Olympics event.’ . . . [A]ccording to the language

of the release, [the mother], as his mother and natural parent, acknowledged on [her son’]s behalf that he

would be participating at his own risk.”).

3

We note that this statement was supported by what appears to be an incorrect citation to authority. See

Watterson v. Watterson, 38 Tenn. 1, 2 (1858) (not involving an infant or service of process); Winchester

v. Winchester, 23 Tenn. 51, 51 (1843) (same). Regardless, the Childress Court is correct as to this

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

The Childress Court then considered the decisions of other states that also refused

to enforce waivers made on behalf of minors or incompetent persons. See id. at 6–7

(citing Gibson v. Anderson, 265 Ala. 553, 92 So. 2d 692, 695 (1956) (legal guardian’s

acts do not estop ward from asserting rights in property); Ortman v. Kane, 389 Ill. 613,

60 N.E.2d 93, 98 (1945) (guardian cannot waive tender requirements of land sale contract

entered into by ward prior to incompetency); Stockman v. City of South Portland, 147

Me 376, 87 A.2d 679 (1952) (guardian cannot waive ward's property tax exemption);

Sharp v. State, 240 Miss. 629, 127 So.2d 865, 90 A.L.R.2d 284 (1961) (guardian cannot

waive statutory requirements for service of process on ward); Jones v. Dressel, 623 P.2d

370 (Colo.1981) (ratification by parent of contract executed by child does not bind child);

Whitcomb v. Dancer, 140 Vt. 580, 443 A.2d 458 (1982) (guardian cannot settle personal

injury claim for a ward without court approval); Natural Father v. United Methodist

Children's Home, 418 So.2d 807 (Miss. 1982) (infant not bound by evidentiary

admissions of parent); Colfer v. Royal Globe Ins. Co., 214 N.J.Super. 374, 519 A.2d 893

(1986) (guardian cannot settle personal injury claim for ward without court approval)).

This Court found the decisions of three states particularly helpful. First, the Court noted

that the Mississippi Supreme Court had previously “expressed in broad terms” that under

Mississippi law: “‘Minors can waive nothing. In the law they are helpless, so much so

that their representatives can waive nothing for them.’” Childress, 777 S.W.2d at 7

(quoting Khoury v. Saik, 203 Miss. 155, 33 So.2d 616, 618 (Miss. 1948)). Further, the

Court cited with approval the Supreme Court of Connecticut, which held that “an

agreement, signed by one of the parents of a minor as a condition to his being allowed to

attend a camp, waiving the minor’s claims against a camp for damages in the event of an

injury was ineffective to waive the rights of the minor against the defendant camp.”

Childress, 777 S.W.2d at 7 (citing Fedor v. Mauwehu Council, Boy Scouts of America,

Inc., 21 Conn. Sup. 38, 143 A.2d 466, 468 (1958)). Finally, the Childress Court also

noted that the Maine Supreme Court came to a similar conclusion, holding that the

release in question was ineffective “because a parent cannot release the child’s action.”

Childress, 777 S.W.2d at 7 (citing Doyle v. Bowdoin College, 403 A.2d 1206, 1208 n.3

(Me. 1979)).

proposition of law. See Taylor v. Walker, 48 Tenn. 734, 378 (Tenn. 1870) (“It is a settled law of this

State, that a sale without service of process on an infant who has no regular guardian, is void, and that the

want of such service can not [sic] be waived by the appearance of a guardian ad litem.”); Robertson v.

Robertson, 32 Tenn. 197, 199 (Tenn. 1852) (“‘A guardian ad litem cannot, by his consent, make his ward

a party to a suit.’ The infant must be served with process.”); Wheatley’s Lessee v. Harvey, 31 Tenn. 484,

485 (Tenn. 1852) (holding that “the guardian ad litem had no authority to waive the service of process,

without which the infant was no party to the suit”).

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The Childress Court, however, did not rely solely on the law from other

jurisdictions. It also noted the conflict created by such agreements, as well as the

fundamental public policy inherent in Tennessee law to protect the financial interests of

minors. For example, this Court explained that agreements wherein a parent agrees to

indemnify a third party for injuries to his or her child “are invalid as they place the

interests of the child or incompetent against those of the parent or guardian.” Childress,

777 S.W.2d at 7 (citing Valdimer v. Mt. Vernon Hebrew Camps, Inc., 9 N.Y.2d 21, 210

N.Y.S.2d 520, 172 N.E.2d 283, 285 (1961)). In addition, the Court noted that refusing to

enforce a waiver of the child’s rights by the parent “is in keeping with the protection

which Tennessee has afforded to the rights of infants and minors in other situations.”

Childress, 777 S.W.2d at 7. The Childress Court noted that arguments to the contrary

exist, specifically with regard to the chilling effect of its chosen rule, stating:

We do not deny that there are good and logical reasons for giving

effect to exculpatory and indemnification clauses executed by

parents and guardians on behalf of infants and incompetents. Risk is

inherent in many activities that make the lives of children richer. A

world without risk would be an impoverished world indeed. As

Helen Keller well said, “Security is mostly a superstition. It does not

exist in nature, nor do the children of men as a whole experience it.

Avoiding danger is no safer in the long run than outright exposure.

Life is either a daring adventure or nothing.” Partnow, Quotable

Woman, 173 (1977). Ultimately, this case is a determination of who

must bear the burden of the risk of injury to infants and minors.

It is not our intention, nor do we feel the result of this case will be, to

put a chill on activities such as the Special Olympics. The law is

clear that a guardian cannot on behalf of an infant or incompetent,

exculpate or indemnify against liability those organizations which

sponsor activities for children and the mentally disabled.

Id. at 7–8.

Ultimately, the Court of Appeals agreed with those courts that had held that a

parent cannot release a child’s claim against a third party. See id. at 7 (“We, therefore,

hold that [the mother] could not execute a valid release or exculpatory clause as to the

rights of her son against the Special Olympics or anyone else, and to the extent the parties

to the release attempted and intended to do so, the release is void.”). The Court likewise

held that the indemnity language contained in the contract was invalid. Id. The Childress

Court therefore adopted a rule wherein parents or guardians cannot sign indemnity

agreements or liability waivers on behalf of minor children or the incompetent. Noting

the impact that the rule would have on many organizations, however, this Court

specifically invited either the Tennessee Supreme Court or the Tennessee General

Assembly to “remedy” this situation if either believed that Tennessee law should be

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otherwise. Id. at 8 (“If this rule of law is other than as it should be, we feel the remedy is

with the Supreme Court or the legislature.”).

An application for permission to appeal to the Tennessee Supreme Court was

eventually filed in Childress. The application was denied, however, by order of August 7,

1989. The issue was raised again in the Court of Appeals in 1990 by the case of Rogers v.

Donelson-Hermitage Chamber of Commerce, 807 S.W.2d 242 (Tenn. Ct. App. 1990),

perm. app. denied (Tenn. 1991), wherein this Court again held that the parent’s purported

release of the child’s cause of action was unenforceable, even in the context of a

wrongful death action. Id. at 246–47. Again, an application for permission to appeal to

the Tennessee Supreme Court was filed and rejected by order of March 11, 1991. In

addition, no legislative action has been taken to alter the rule established in Childress

over twenty-five years ago.

B.

Sky High does not argue that Childress is not controlling or that it was wrongly

decided in 1989. See Tenn. R. Sup. Ct. 4(G)(2) (“Opinions reported in the official

reporter . . . shall be considered controlling authority for all purposes unless and until

such opinion is reversed or modified by a court of competent jurisdiction.”). As such,

there is no dispute that if the Childress rule remains the law in Tennessee, Son’s cause of

action is not barred by the waiver and indemnity language contained in the release signed

by Mother. Instead, Sky High asserts that this Court should revisit the rule set forth in

Childress because changes in constitutional law concerning parental rights following the

Tennessee Supreme Court’s decision in Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993),

and the United States Supreme Court’s decision in Troxel v. Granville, 530 U.S. 57, 120

S. Ct. 2054, 147 L. Ed. 2d 49 (2000), have resulted in a “strong shift” in the law in this

area across the country. Accordingly, we begin with a brief discussion of the Hawk

decision.

In Hawk, paternal grandparents sought court-ordered visitation with their

grandchildren pursuant to the Grandparents’ Visitation Act located in Tennessee Code

Annotated section 36-6-301 (1985). Hawk, 855 S.W.2d at 575. The facts showed that

grandparents and the children’s married parents had an acrimonious relationship and that,

eventually, grandparents had been denied any visitation with the children. Id. Under the

version of Section 36-6-301 then in existence, a court could order “‘reasonable visitation’

with grandparents if it is ‘in the best interests of the minor child.’” Id. at 576 (quoting

Tenn. Code Ann. § 36-6-301). Although the trial court declined to find that parents were

unfit, it nevertheless ordered substantial visitation between grandparents and the children.

Id. at 577. The trial court also noted that the grandparents “don’t have to answer to

anybody when they have the children.” Id.

The Court of Appeals affirmed the judgment of the trial court, and the Tennessee

Supreme Court eventually granted the parents’ application for permission to appeal. Id. at

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573, 577. The Tennessee Supreme Court first characterized the trial court’s ruling as “a

virtually unprecedented intrusion into a protected sphere of family life.” Id. at 577.

Because Section 36-6-301 “suggest[ed] that this level of interference is permissible,” the

Tennessee Supreme Court determined that it was necessary to examine the

constitutionality of the statute “as it applies to married parents whose fitness as parents is

unchallenged.” Id.

Ultimately, the Tennessee Supreme Court held that the trial court’s and Section

36-6-301’s intrusion into parental decisions was unconstitutional because it interfered

with the fundamental liberty interest allowing parents the “right to rear one’s children.”

Id. at 578 (citing Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 626, 67 L. Ed.

1042 (1923)). According to the Tennessee Supreme Court, this right stemmed from the

United States Supreme Court’s “larger concern with privacy rights for the family.” Id. at

578 (citing Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 442, 88 L. Ed.

645 (1944)). As such, the Tennessee Supreme Court concluded that the right to privacy

inherent in both the United States and Tennessee Constitutions “fully protects the right of

parents to care for their children without unwarranted state intervention.” Id. at 579.

The grandparents in Hawk asserted, however, that grandparent visitation was “a

‘compelling state interest’ that warrants use of the state’s parens patriae power to impose

visitation in [the] ‘best interests of the children.’” Id. (footnote omitted). The Tennessee

Supreme Court rejected this argument, however, holding that “without a substantial

danger of harm to the child, a court may not constitutionally impose its own subjective

notions of the ‘best interests of the child’ when an intact, nuclear family with fit, married

parents is involved.” Id. In reaching this decision, the Hawk Court noted that “[i]mplicit

in Tennessee case and statutory law has always been the insistence that a child’s welfare

must be threatened before the state may intervene in parental decision-making.” Id. at

580 (citing Tenn. Code Ann. § 36-6-101 (allowing court intervention into custody matters

in cases of divorce); Tenn. Code Ann. §37-1-113 & -114 (allowing court intervention

into custody matters in dependency and neglect)). The Court also noted that its ruling was

in line with federal decisions “requir[ing] that some harm threaten a child’s welfare

before the state may constitutionally interfere with a parent’s right to rear his or her

child.” Hawk, 855 S.W.2d at 580 (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S.

Ct. 1526, 1540, 32 L. Ed. 2d 15 (1972) (noting that the children at issue would not be

harmed by receiving an Amish education); Pierce v. Society of Sisters, 268 U.S. 510,

534, 45 S. Ct. 571, 573, 69 L. Ed. 1070 (1925) (noting that the parents’ choice of private

school was “not inherently harmful”); Meyer v. Nebraska, 262 U.S. 390, 402–03, 43

S.Ct. 625, 628, 67 L. Ed. 1042 (1923) (opining that “proficiency in a foreign language . . .

is not injurious to the health, morals or understanding of the ordinary child”)). As the

Tennessee Supreme Court explained: “The requirement of harm is the sole protection that

parents have against pervasive state interference in the parenting process.” Hawk, 855

S.W.2d at 581. As such, the Hawk Court held that “neither the legislature nor a court may

properly intervene in parenting decisions absent significant harm to the child from those

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decisions.” Id. The trial court’s award of grandparent visitation absent a showing of harm

was therefore deemed unconstitutional. Id. Only a year later, the Tennessee Supreme

Court extended the holding in Hawk to be applicable to all fit parents, not merely those

part of “an intact, nuclear family[.]” Nale v. Robertson, 871 S.W.2d 674, 678 & 680

(Tenn. 1994).

A similar situation was at issue in the United States Supreme Court’s decision in

Troxel v. Granville. In Troxel, the paternal grandparents of two non-marital children

filed a petition for grandparent visitation against the children’s mother. Troxel, 530 U.S.

at 61. Under the Washington statute applicable at that time, any person could petition the

court for visitation with a child at any time so long as the child’s best interests would be

served by the visitation. Id. at 60. The trial court eventually entered an order allowing

visitation. Id. at 61. The Washington Court of Appeals reversed the trial court’s order,

holding that the paternal grandparents lacked standing to seek visitation under the statute

where no custody proceeding was pending. Id. at 62. In the meantime, the mother

remarried, and her new husband adopted the children. Eventually, the Washington

Supreme Court reversed the Washington Court of Appeals on the issue of standing,

holding that the statute at issue allowed a visitation petition at any time. The Washington

Supreme Court concluded, however, that the trial court nevertheless erred in ordering

visitation under the statute, holding that the statute infringed on the fundamental right of

parents to rear their children. Id. at 63. The United States Supreme Court eventually

granted a writ of certiorari on the constitutional issue. Id.

The United States Supreme Court first recognized that “the interest of parents in

the care, custody, and control of their children—is perhaps the oldest of the fundamental

liberty interests recognized by this Court.” Id. at 65. Citing decades of United States

Supreme Court precedent, similar to the Tennessee Supreme Court in Hawk, the Court

opined that “it cannot now be doubted that the Due Process Clause of the Fourteenth

Amendment protects the fundamental right of parents to make decisions concerning the

care, custody, and control of their children.” Id. at 66. The Troxel Court therefore held

that the Washington statute, as applied to the facts of the case, “unconstitutionally

infringes on [] fundamental parental right[s].” Id. at 67. The Court noted that the statute

essentially permitted judges, based solely on their personal evaluation of the child’s best

interests, to “disregard and overturn any decision by a fit custodial parent concerning

visitation whenever a third party affected by the decision files a visitation petition[.]” Id.

The Court noted that none of the courts below had ever found the parents to be unfit, an

important omission, as “there is a presumption that fit parents act in the best interests of

their children.” Id. at 68. As such, “so long as a parent adequately cares for his or her

children (i.e., is fit), there will normally be no reason for the State to inject itself into the

private realm of the family to further question the ability of that parent to make the best

decisions concerning the rearing of that parent’s children.” Id. at 68–69. Because the trial

court failed to honor this presumption, failed to give any weight to the preferences of the

parents, and also failed to consider whether the parents had even denied visitation, the

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Troxel Court held that the visitation award was unconstitutional in that case. Id. at 72.

The United States Supreme Court declined, however, to rule on “whether the Due

Process Clause requires all nonparental visitation statutes to include a showing of harm or

potential harm to the child as a condition precedent to granting visitation.” Id. at 73.

Accordingly, the Court did not “define . . . the precise scope of the parental due process

right in the visitation context.” Id.

C.

Although this case does not involve grandparent visitation, Sky High argues that

the Hawk Court’s rejection of the state’s parens patriae power to interfere in a parenting

decision is also applicable to Mother’s decision to waive Son’s claims against Sky High.

Because the Hawk holding has never been applied in the context of an exculpatory

clause, Sky High cites several decisions relying on the recognition of fundamental

parental rights in upholding liability waivers signed by parents on behalf of children.

Indeed, Sky Hall asserts that in the wake of the Troxel decision, the law has seen a

“strong shift” in favor of enforceability.

Sky High heavily relies on the Ohio Supreme Court’s decision in Zivich v. Mentor

Soccer Club, Inc., 696 N.E.2d 201 (Ohio 1998). In Zivich, the child was injured while

participating in a non-profit soccer club. Id. at 202. Prior to the child’s participation, his

mother signed a registration form for the activity, which contained a waiver of liability

against the soccer club on behalf of the child. Id. When the parents sued the soccer club

for the child’s injuries, the soccer club responded that the claim was barred by the waiver.

The trial court agreed with the soccer club and granted summary judgment in its favor.

Id. The Court of Appeals affirmed the dismissal but held that the child’s cause of action,

once he reached the age of majority, had not been waived. See Zivich v. Mentor Soccer

Club, Inc., No. 95-L-184, 1997 WL 203646, at *1 (Ohio Ct. App. Apr. 18, 1997), aff’d

on other grounds, 696 N.E.2d 201 (hereinafter, “Court of Appeals’s Zivich”). Id. One

Judge concurred in the result only, opining that that Ohio public policy favored

enforcement of the exculpatory agreement against both parents and the child. Court of

Appeals’s Zivich, 1997 WL 203646, at *23 (Ford, J., concurring in result only).

The Ohio Supreme Court likewise affirmed the trial court’s decision that the

claims of both the parents and the child were barred by the exculpatory clause contained

in the registration form. Zivich, 696 N.E.2d at 207. In reaching this result, the Ohio

Supreme Court first rejected the parents’ argument that the agreement should not be

enforced on public policy grounds, given that contracts entered into by minors were

generally unenforceable in Ohio. Id. at 204. Rather, the Ohio Supreme Court held that

Ohio public policy actually favored enforcement of the agreement, citing Ohio statutes

enacted to “encourage landowners to open their land to public use for recreational

activities without fear of liability.” Id. at 204–05 (citing Ohio Rev. Code Ann. §§

1533.18 & 1533.181). Indeed, the Ohio Supreme Court noted that, although the statute

- 17 -

was not applicable to the case-at-bar, the Ohio General Assembly had recently enacted

statutes that “accord qualified immunity to unpaid athletic coaches and sponsors of

athletic events.” Id. at 205 (citing Ohio Rev. Code Ann. §§ 2305.381 & 2305.3825). The

Zivich Court also noted the inherent benefits in allowing children to participate in

sporting activities:

Organized recreational activities offer children the opportunity to learn

valuable life skills. It is here that many children learn how to work as a

team and how to operate within an organizational structure. Children also

are given the chance to exercise and develop coordination skills. Due in

great part to the assistance of volunteers, nonprofit organizations are able to

offer these activities at minimal cost. . . . Clearly, without the work of its

volunteers, these nonprofit organizations could not exist, and scores of

children would be without the benefit and enjoyment of organized sports.

Yet the threat of liability strongly deters many individuals from

volunteering for nonprofit organizations. Developments in the Law—

Nonprofit Corporations—Special Treatment and Tort Law (1992), 105

Harv. L. Rev. 1667, 1682. Insurance for the organizations is not the answer,

because individual volunteers may still find themselves potentially liable

when an injury occurs. Markoff, Liability Threat Looms: A Volunteer’s

Thankless Task (Sept. 19, 1988), 11 Natl. L.J. 1, 40. Thus, although

volunteers offer their services without receiving any financial return, they

place their personal assets at risk.

Id. Given these risks, the Ohio Supreme Court noted that these organizations “could very

well decide that the risks are not worth the effort,” which would reduce the number of

low-cost sporting activities available to the youth. Id.

In addition to the Ohio public policy favoring low-cost youth sporting activities,

the Zivich Court noted that its decision aligned with “the importance of parental

authority.” Id. (citing Court of Appeals’s Zivich, 1997 WL 203646, at *23 (Ford, J.,

concurring in result only)) (agreeing with the reasoning espoused by Judge Ford in his

concurrence to the Court of Appeals’s Zivich). As the Zivich Court explained, parents

have a right to raise their children, a fundamental liberty interest in the “the care, custody,

and management of their offspring[,]” and “a fundamental, privacy-oriented right of

personal choice in family matters,” all of which are protected by due process. Id. at 206

(citing Court of Appeals’s Zivich, 1997 WL 203646, at *24 (Ford, J., concurring in result

only)). In addition, the Ohio Supreme Court provided examples where Ohio statutory law

empowers parents to make decisions for their children, including the right to consent or

decline medical treatment. Id. (citing Ohio Rev. Code Ann. § 2317.54[C]; Lacey v.

Laird, 166 Ohio St. 12, 19, 1 O.O.2d 158, 161, 139 N.E.2d 25, 30 (Ohio 1956) (Hart, J.,

concurring)). Thus, the Zivich Court concluded that invalidating the release would be

- 18 -

“inconsistent with conferring other powers on parents to make important life choices for

their children.” Id. at 206 (citing Court of Appeals’s Zivich, 1997 WL 203646, at *25–26

(Ford, J., concurring in result only)). According to the Ohio Supreme Court, the decision

to allow the child to participate in a potentially dangerous activity after having signed a

liability waiver on behalf of the child is “an important family decision” in which a parent

makes a decision regarding whether “the benefits to her child outweighed the risk of

physical injury.” Id. at 207. After concluding that this decision is protected by the

fundamental right of parental authority, the Ohio Supreme Court ultimately held that the

decision could not be “disturb[ed]” by the courts. Id. Accordingly, the Zivich Court ruled

that the waiver was enforceable.

Sky High emphasizes that at least three other states have similarly held that pre-

injury waivers of a minor’s claims by parents were enforceable due to the court’s

inability to interfere with fit parents’ decisions. See Saccente v. LaFlamme, No.

CV0100756730, 2003 WL 21716586 (Conn. Super. Ct. July 11, 2003); Sharon v. City of

Newton, 769 N.E.2d 738 (Mass. 2002); BJ’s Wholesale Club, Inc. v. Rosen, 80 A.3d

345 (Md. 2013). First, in Saccente v. LaFlamme, the child’s father signed an indemnity

agreement on behalf of his daughter to participate in horseback riding lessons. Saccente,

2003 WL 21716586, at *1. When the child was injured and the mother sued on her

behalf, the defendant farm raised the indemnity agreement as a defense. Id. The Superior

Court of Connecticut ultimately held that the indemnity agreement signed by the child’s

parent was enforceable to bar the child’s claim. Id. at 7.4 In reaching this result, the

Saccente Court relied, in part, on the fundamental parental rights recognized by the

United States Supreme Court in Troxel. Id. at *6 (citing Troxel, 530 U.S. at 65). In the

Saccente Court’s view, a parent’s right to make decisions regarding the rearing of

children extends to “the right to control their associations,” including the “[t]he decision

here by her father to let the minor plaintiff waive her claims against the defendants in

exchange for horseback riding lessons at their farm[.]” Saccente, 2003 WL 21716586, at

*6–7 (distinguishing cases where releases have been held invalid by the fact that

Connecticut statutory law did not forbid parents from settling the claims of their

children).

In Sharon v. City of Newtown, a student sued the city for injuries she had incurred

while participating in cheerleading practice at a public school. Sharon, 769 N.E.2d at

741. In rejecting the student’s argument that a waiver signed by the student’s father was

invalid, the Massachusetts Supreme Judicial Court held that enforcing the waiver

4

The Superior Court in Saccente comes to the opposite conclusion as the Superior Court previously came

to in Fedor v. Mauwehu Council, Boy Scouts of Am., Inc., 21 Conn. Supp. 38, 143 A.2d 466 (Conn.

Super. Ct. 1958). The Saccente Court distinguished Fedor on the basis that parents there had “had no

choice but to sign the waiver” in order to participate in a Boy Scout camp for low-income families.

Saccente, 2003 WL 21716586, at *4. The Saccente Court concluded that the same was not true of the

child’s horseback riding lessons.

- 19 -

“comports with the fundamental liberty interest of parents in the rearing of their children,

and is not inconsistent with the purpose behind our public policy permitting minors to

void their contracts.” Id. at 747. In addition, the Sharon Court noted that its decision was

in line with Massachusetts statutes exempting certain nonprofit organizations, volunteer

managers and coaches, and owners of land who permit the public to use their land for

recreational purposes without imposing a fee from liability for negligence. Id. (noting

that enforcement also comports with a policy of “encouragement of athletic activities for

minors” and does not conflict with Massachusetts statutory law requiring court approval

of minor settlements).

Likewise in BJ’s Wholesale Club, Inc. v. Rosen, the defendant wholesale club

sought to dismiss a negligence claim brought on behalf of a minor due to the fact that the

parents had signed an exculpatory agreement on behalf of the child. Rosen, 80 A.3d at

346. The Maryland Court of Appeals, Maryland’s high court, held that the exculpatory

agreement was valid, rejecting the parents’ argument that the agreement should be

invalidated through the States’ parens patrie authority. The Rosen Court noted, however,

that such authority was only invoked where a parent is unfit or in the context of juvenile

delinquency. Id. at 361. As the Maryland Court of Appeals explained: “We have, thus,

never applied parens patriae to invalidate, undermine, or restrict a decision, such as the

instant one, made by a parent on behalf of her child in the course of the parenting role.”

Id. at 362. Ultimately, the Maryland Court of Appeals upheld the validity of the

agreement, relying also on Maryland statutes allowing parents to make financial, medical,

mental health, and educational decisions for their children Id. (citing Md. Code Ann.,

Cts. & Jud. Proc. § 6-405 (allowing parents to settle claims on behalf of minors without

court approval);5 Md. Code Ann., Educ. § 7-301 (allowing parents the choice to

homeschool their children); Md. Code Ann., Health-Gen. § 10-610 (allowing a parent to

commit a child to mental health services under limited circumstances); Md. Code Ann.,

Health-Gen. § 20-102 (giving parents the authority to consent to a minor’s medical

treatment)). At least one federal case interpreting state law has also enforced such an

agreement. See Kelly v. United States, No. 7:10-CV-172-FL, 2014 WL 4793009, at *5

(E.D. N.C. Sept. 25, 2014) (holding that upholding releases signed by parents on behalf

of children “serve[s] the public interest by respecting the realm of parental authority to

weigh the risks and costs of physical injury to their children against the benefits of the

child’s participation in an activity”).

In addition to these cases, it appears that other jurisdictions have likewise upheld

similar exculpatory agreements signed on behalf of children without reliance on the

fundamental parental rights doctrine. See Hohe v. San Diego Unified Sch. Dist., 224 Cal.

5

The Rosen Court found this statute particularly instructive, as other jurisdictions where exculpatory

agreements signed by parents were unenforceable had often relied upon statutes that required court

approval for parents to settle lawsuits on behalf of minors as next friend. Rosen, 80 A.3d at 356–57; see

also infra, for additional discussion of this factor.

- 20 -

App. 3d 1559, 274 Cal. Rptr. 647 (Ct. App. 1990) (holding, with little analysis regarding

the public policy in favor or against such a rule, that “[a] parent may contract on behalf of

his or her children” even in the context of a release); Kondrad ex rel. McPhail v.

Bismarck Park Dist., 2003 ND 4, ¶ 5, 655 N.W.2d 411, 413 (including no analysis as to

the issue of whether a parent may waive claims on behalf of a minor); Osborn v. Cascade

Mountain, Inc., 2003 WI App 1, ¶ 10, 259 Wis. 2d 481, 655 N.W.2d 546 (same). In still

other states, court decisions refusing to enforce such agreements have been legislatively

overturned. See Cooper v. Aspen Skiing Co., 48 P.3d 1229 (Colo. 2002), superseded by

Colo. Rev. Stat. Ann. § 13-22-107 (declaring it the public policy of Colorado to permit “a

parent of a child to release a prospective negligence claim of the child against”

organizations that provide “sporting, recreational, educational, and other activities where

certain risks may exist”); Kirton v. Fields, 997 So. 2d 349, 358 (Fla. 2008), somewhat

superseded by Fla. Stat. Ann. § 744.301 (permitting a parent to waive a child’s future

cause of action only as to the inherent risks of an activity against a “commercial activity

provider,” not claims resulting from the provider’s own negligence). Sky High therefore

argues that this Court should follow the “strong shift” in the law in favor of enforceability

based upon Tennessee and federal constitutional law regarding the state’s inability to

interfere in the parenting decisions of fit parents.

That is not to say, however, that jurisdictions that enforce exculpatory agreements

or liability waivers signed on behalf of children by their parents enjoy a distinct majority

in the United States. Indeed, even as recently as 2010, one court characterized the state of

the law as the opposite—that “a clear majority” of courts have held in favor of finding

such agreements unenforceable. Galloway v. State, 790 N.W.2d 252, 258 (Iowa 2010).

Compared with the approximately nine jurisdictions wherein courts or legislatures have

enforced such agreements, our research has revealed at least fourteen jurisdictions

wherein courts have specifically held that exculpatory, release, or indemnification

agreements signed by parents on behalf of children are unenforceable. See Chicago, R.I.

& P. Ry. Co. v. Lee, 92 F. 318, 321 (8th Cir. 1899); J.T. ex rel. Thode v. Monster

Mountain, LLC, 754 F. Supp. 2d 1323, 1328 (M.D. Ala. 2010) (applying Alabama law

and “the weight of authority in other jurisdictions”); Fedor v. Mauwehu Council, Boy

Scouts of Am., Inc., 21 Conn. Supp. 38, 143 A.2d 466 (Conn. Super. Ct. 1958); Meyer v.

Naperville Manner, Inc., 262 Ill. App. 3d 141, 145, 634 N.E.2d 411, 413 (Ill. 1994);

Galloway v. State, 790 N.W.2d 252, 258 (Iowa 2010); Doyle v. Bowdoin College, 403

A.2d 1206, 1208 n.3 (Me. 1979); Woodman ex rel. Woodman v. Kera LLC, 486 Mich.

228, 785 N.W.2d 1 (Mich. 2010); Khoury v. Saik, 203 Miss. 155, 33 So. 2d 616, 618

(1948) (reaffirmed in Burt v. Burt, 841 So. 2d 108 (Miss. 2001)); Fitzgerald v. Newark

Morning Ledger Co., 111 N.J. Super. 104, 108, 267 A.2d 557, 559 (N.J. Law. Div.

1970); Valdimer v. Mount Vernon Hebrew Camps, Inc., 9 N.Y.2d 21, 24, 172 N.E.2d

283, 285 (N.Y. 1961); Ohio Cas. Ins. Co. v. Mallison, 223 Or. 406, 412, 354 P.2d 800,

803 (Or. 1960); Shaner v. State Sys. of Higher Educ., 40 Pa. D. & C.4th 308, 313 (Com.

Pl. 1998), aff’d without opinion, 738 A.2d 535 (Pa. Commw. Ct. 1999); Hawkins ex rel.

Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062, somewhat superseded by Utah Code Ann.

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§ 78B-4-203 (allowing a release against an “equine or livestock activity sponsor”);6

Munoz v. II Jaz Inc., 863 S.W.2d 207, 210 (Tex. App. 1993); Scott By & Through Scott

v. Pac. W. Mountain Resort, 119 Wash. 2d 484, 494, 834 P.2d 6, 11 (Wash. 1992).

A few courts refusing to enforce these agreements have expressly considered, and

rejected, similar arguments contending that enforcement is necessary to comport with a

parent’s fundamental right to control his or her children. For example, the court in

Woodman ex rel. Woodman v. Kera LLC rejected this argument on the ground that

under such an analysis “a parent would be able to bind the child in any contract, no

matter how detrimental to the child,” including contracts where the law is well-settled

that parents may not consent on behalf of their children. Woodman, 785 N.W.2d at 8

(quoting McKinstry v. Valley Obstetrics-Gynecology Clinic, P.C., 428 Mich. 167, 405

N.W.2d 88 (1987) (noting the general rule that “a parent has no authority to waive,

release, or compromise claims by or against a child”). Rather, the Woodman Court noted

that if such a massive shift in the law was warranted, the change should originate in the

legislature, rather than the courts. Id. at 9–10.

The Iowa Supreme Court likewise considered an argument that the enforcement of

pre-injury releases was in line with the “public policy giving deference to parents’

decisions affecting the control of their children and their children’s affairs.” Galloway,

790 N.W.2d at 256. The Galloway Court recognized that parents have a fundamental

liberty interest “in the care, custody, and control of [their] children[.]” Id. (quoting

Lamberts v. Lillig, 670 N.W.2d 129, 132 (Iowa 2003)). The Court noted, however, that

this interest was “restricted to some extent by the public’s interest in the best interests of

children.” Id. In support, the Court cited Iowa law preventing parents from waiving child

support payments, preventing parents from receiving payments on behalf of a child of

more than $25,000.00, and preventing conservators from compromising a child’s cause of

action absent court approval. Id. at 256–57 (citing Iowa Code § 598.21C(3) (stating that

any modification to child support is void unless approved by the court); Iowa Code §

633.574 (limiting a parent’s ability to receive property on behalf of child to an aggregate

value of $25,000.00); Iowa Code § 633.647(5) (requiring a child’s conservator to obtain

court approval for the settlement of the child’s claim)). The Court further rejected the

defendants’ claim that “recreational, cultural, and educational opportunities for youths

will cease because organizations sponsoring them will be unable or unwilling to purchase

insurance or otherwise endure the risks of civil liability,” finding such fear “speculative

and overstated.” Id. at 258–59. The Galloway Court therefore held that inherent in Iowa

law was “a well-established public policy that children must be accorded a measure of

protection against improvident decisions of their parents.” Id. at 256. The Iowa Supreme

Court therefore held that public policy prevented enforcement of the pre-injury release

6

The Utah Supreme Court has recently announced that Hawkins remains valid law as to

whether public policy invalidates an exculpatory agreement “in the absence of statutory

language.” See Penunuri v. Sundance Partners, Ltd., 2013 UT 22, ¶ 28, 301 P.3d 984, 992

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signed by a student’s mother regarding injuries the child sustained while on an

educational field trip organized by a state university. Id. at 253.

Although the holding was later superseded by statute, the reasoning of the

Colorado Supreme Court on this issue is also illuminating. Cooper v. Aspen Skiing Co.

involved a child injured in a skiing accident whose mother had signed a pre-injury release

on his behalf. Cooper, 48 P.3d at 1230. In invalidating the release, the Colorado Supreme

Court specifically held that a parent’s fundamental right to “the care, custody, and control

of their children” did not extend to a parent’s decision to disclaim a minor’s potential

future recovery for injuries caused by the negligence of a third party. Id. at 1235 n.11

(quoting Troxel, 530 U.S. at 65). As the Cooper Court explained:

A parental release of liability on behalf of his child is not a decision

that implicates such fundamental parental rights as the right to

“establish a home and bring up children,” Meyer v. Nebraska, 262

U.S. 390, 399, 43 S.Ct. 625, 67 L. Ed. 1042 (1923), and the right “to

direct the upbringing and education of children under their control,”

Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35, 45 S. Ct. 571, 69

L. Ed. 1070 (1925). Moreover, it does not implicate a parent’s

“traditional interest . . . with respect to the religious upbringing of

their children,” Wisconsin v. Yoder, 406 U.S. 205, 214, 92 S. Ct.

1526, 32 L. Ed. 2d 15 (1972), or such medical decisions as a parent’s

right to “retain a substantial . . . role” in the decision to voluntary

commit his child to a mental institution (with the caveat that the

child’s rights and the physician’s independent judgment also plays a

role), Parham v. J.R., 442 U.S. 584, 604, 99 S. Ct. 2493, 61 L. Ed.

2d 101 (1979); rather a parental release on behalf of a child

effectively eliminates a child’s legal right to sue an allegedly

negligent party for torts committed against him. It is, thus, not of the

same character and quality as those rights recognized as implicating

a parents’ fundamental liberty interest in the “care, custody, and

control” of their children.

Furthermore, even assuming arguendo, that a parental release on

behalf of a minor child implicates a parent’s fundamental right to the

care, custody, and control of his child, this right is not absolute.

Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 88 L. Ed.

645 (1944); People v. Shepard, 983 P.2d 1, 4 (Colo. 1999). Indeed,

“[a]cting to guard the general interest in youth’s well being, the state

as parens patriae may restrict the parent’s control by requiring

school attendance, regulating or prohibiting the child’s labor and in

many other ways.” Prince v. Massachusetts, 321 U.S. [at] 166 . . .

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(footnotes omitted). In fact, “in order to protect a child’s well-being,

the state may restrict parental control.” Shepard, 983 P.2d at 4.

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

Appellants argue that this Court should likewise reject any argument that the

enforcement of liability waivers against minors is required by the fundamental parental

rights doctrine. Based upon this split of authority, we must determine whether Tennessee

public policy favors a change in the rule established by this Court in Childress.

D.

“‘[T]he public policy of Tennessee is to be found in its constitution, statutes,

judicial decisions and applicable rules of common law.’” In re Baby, 447 S.W.3d 807,

823 (Tenn. 2014) (quoting Cary v. Cary, 937 S.W.2d 777, 781 (Tenn.1996)). “Primarily,

it is for the legislature to determine the public policy of the state, and if there is a statute

that addresses the subject in question, the policy reflected therein must prevail.” Hyde v.

Hyde, 562 S.W.2d 194, 196 (Tenn. 1978) (citing United States v. Trans-Missouri

Freight Ass’n, 166 U.S. 290, 17 S. Ct. 540, 41 L. Ed. 1007 (1897)). In order to determine

whether a contract “is inconsistent with public policy, courts may consider the purpose of

the contract, whether any violation is inherent in the contract itself, as opposed to merely

a collateral consequence, and, finally, whether the enforcement of the contract will have a

detrimental effect on the public.” Baby, 447 S.W.3d at 823 (citing Baugh v. Novak, 340

S.W.3d 372, 382 (Tenn. 2011)). “‘The principle that contracts in contravention of public

policy are not enforceable should be applied with caution and only in cases plainly within

the reasons on which that doctrine rests.’” Home Beneficial Ass’n v. White, 180 Tenn.

585, 589, 177 S.W.2d 545, 546 (1944) (quoting Twin City Pipe Line Co. v. Harding

Glass Co., 283 U.S. 353, 356–57, 51 S. Ct. 476, 477, 75 L. Ed. 1112 (1931)).

Here, there can be no doubt that the Tennessee public policy, as evidenced by the

Tennessee Supreme Court’s decision in Hawk, does not favor intervention in the parental

decisions of fit parents. See Hawk, 855 S.W.2d at 579. As such, where a fit parent makes

a parental decision, our courts generally will not interfere. Id. Courts in Tennessee have

cited Hawk to protect a parent’s right most often in the context of dependency and

neglect proceedings, termination of parental rights proceedings, parentage actions, child

custody proceedings, and grandparent visitation proceedings. See, e.g., In re Carrington

H., 483 S.W.3d 507 (Tenn.), cert. denied sub nom. Vanessa G. v. Tenn. Dep’t of

Children’s Servs., 137 S. Ct. 44, 196 L. Ed. 2d 28 (2016) (involving termination of

parental rights); Lovlace v. Copley, 418 S.W.3d 1, 26 (Tenn. 2013) (involving

grandparent visitation); In re Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007)

(involving termination of parental rights); In re Adoption of Female Child, 896 S.W.2d

546, 548 (Tenn. 1995) (involving custody of a child); Broadwell by Broadwell v.

Holmes, 871 S.W.2d 471, 476–77 (Tenn. 1994) (limiting parental immunity only “to

conduct that constitutes the exercise of parental authority, the performance of parental

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supervision, and the provision of parental care and custody”); McGarity v. Jerrolds, 429

S.W.3d 562 (Tenn. Ct. App. 2013) (involving grandparent visitation); State v. Cox, No.

M1999-01598-COA-R3-CV, 2001 WL 799732, at *10 (Tenn. Ct. App. July 17, 2001)

(involving dependency and neglect); Matter of Hood, 930 S.W.2d 575, 578 (Tenn. Ct.

App. 1996) (involving a parentage action). In one case, Hawk was cited as support for a

parent’s right to control a child’s access to the telephone and to “consent . . . vicariously

to intercepting, recording and disclosing the child’s conversation with [f]ather.”

Lawrence v. Lawrence, 360 S.W.3d 416, 421 (Tenn. Ct. App. 2010). In another case,

however, this Court held that a parent’s fundamental right to rear his or her children was

not violated by a Tennessee law allowing physicians to prescribe contraceptives to

minors without parental authorization. See Decker v. Carroll Acad., No. 02A01-9709-

CV-00242, 1999 WL 332705, at *13 (Tenn. Ct. App. May 26, 1999).

Additionally, this policy of protecting fundamental parental rights is often

reflected in our statutory law. For example, Tennessee Code Annotated section 34-1-102

provides that parents are equally charged with the “care, management and expenditure of

[their children’s] estates.” Another statute, Tennessee Code Annotated section 37-1-140,

states in relevant part:

A custodian to whom legal custody has been given by the court

under this part has the right to the physical custody of the child, the

right to determine the nature of the care and treatment of the child,

including ordinary medical care and the right and duty to provide for

the care, protection, training and education, and the physical, mental

and moral welfare of the child, subject to the conditions and

limitations of the order and to the remaining rights and duties of the

child’s parents or guardian.

Tenn. Code Ann. § 37-1-140(a).7 Other statutes littered throughout the Tennessee Code

also reflect this policy. See, e.g., Tenn. Code Ann. § 33-8-303 (giving a parent authority

7

We note that this Court recently held that under the specific language of the trust agreement at issue, it

was “without question the trustee has the right under the Trust Agreement to agree to arbitration binding

the Minor beneficiary as to claims or demands once they have arisen.” Gladden v. Cumberland Trust &

Inv. Co., No. E2015-00941-COA-R9-CV, 2016 WL 1166341, at *5 (Tenn. Ct. App. Mar. 24, 2016),

perm. app.granted (Aug. 18, 2016). The Court held however that the trustee had no power to agree to

arbitration of unknown future claims. Id. at *6. The situation is distinguishable from this cause for three

reasons: (1) the case involved a question of a trustee’s authority under a specific trust agreement, rather

than a question of a parent’s authority based upon the Tennessee and federal constitutions; (2) the Court

held that the language of the agreement, rather than public policy considerations, required it to hold that

the trustee had no power to agree to arbitrate unknown disputes; (3) the agreement at issue was an

agreement to arbitrate, which limits only the forum in which a claim may be raised, rather than limiting

liability. See Buraczynski v. Eyring, 919 S.W.2d 314, 319 (Tenn. 1996) (holding that arbitration

agreements “do not limit liability, but instead designate a forum that is alternative to and independent of

the judicial forum”). As such, the Gladden Opinion is inapposite to the issues raised in this case.

Furthermore, because the Tennessee Supreme Court recently granted permission for appeal of the

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to submit minor child to convulsive therapy, but only if neither the child nor the child’s

other parent object to the treatment); Tenn. Code Ann. § 36-3-106 (giving a parent

authority to consent to a minor’s marriage); Tenn. Code Ann. § 47-25-1105 (giving

parents the authority to solicit minor child’s name, photograph, or likeness); Tenn. Code

Ann. § 49-2-124 (giving a parent authority to submit their minor child to involuntary

mental health or socioemotional screening); Tenn. Code Ann. § 50-5-105 (giving parents

the authority to consent to the employment of their minor children aged sixteen or

seventeen with certain restrictions set by the state); Tenn. Code Ann. § 62-38-305 (giving

a parent the authority to consent to a minor’s body piercing, given certain limitations);

Tenn. Code Ann. § 68-1-118 (allowing parents to consent to the release of protected

health information of their minor children); Tenn. Code Ann. § 68-117-104 (allowing

parents to consent to minor’s use of tanning devices).

The fundamental parental rights doctrine, however, is not absolute. See Prince,

321 U.S. at 166 (“Acting to guard the general interest in youth’s well[-]being, the state as

parens patriae may restrict the parent’s control by requiring school attendance, regulating

or prohibiting the child’s labor, and in many other ways.”) (footnotes omitted). Indeed, as

recently as 2011, the Tennessee Supreme Court recognized the courts’ power to

invalidate certain contracts made by parents on behalf of minors. See Wright ex rel.

Wright v. Wright, 337 S.W.3d 166 (Tenn. 2011). In Wright, a minor was seriously

injured in an automobile accident, and her father retained the services of an attorney to

represent him and the child in a lawsuit to recover for her injuries. Id. at 170. In

connection with the representation, the father signed a one-third contingency fee with the

attorney. The agreement noted, however, that fees on behalf of the minor would require

court approval. The father thereafter filed a complaint on behalf of the child as next

friend. Because the child’s parents were divorced, the trial court eventually appointed a

guardian ad litem for the child. Ultimately, the parties agreed to settle the case for

$425,000 on behalf of the child, as well as courts costs, guardian ad litem fees, and other

expenses. The document evincing the agreement also indicated that the parties agreed to

the “contractual attorney’s fees.” Id. at 171.

A dispute soon arose between the guardian ad litem and the retained attorney over

the amount of attorney’s fees owed to the attorney; while the retained attorney contended

he was entitled to one-third of the settlement amount, the guardian ad litem asserted that

the retained attorney was only entitled to a reasonable fee as set by the court. Id. The trial

court eventually entered an order awarding the retained attorney his full fee under the

contingency contract. Id. at 172. The Court of Appeals reversed and remanded for a

recalculation of the fees. Id. The trial court held a hearing and ultimately awarded

$131,000.00 in attorney’s fees. Id. at 175 (citing Wright v. Wright, No. M2007-00378-

COA-R3-CV, 2007 WL 4340871, at *1 (Tenn. Ct. App. Dec. 12, 2007) (hereinafter,

Gladden case, we await final resolution of the issues decided therein.

- 26 -

“Wright I”)). After the fee was affirmed by the Court of Appeals, the Tennessee Supreme

Court granted the guardian ad litem’s application for permission to appeal. Id. at 176.

As is relevant to this case, the Tennessee Supreme Court first reaffirmed “the

long-standing” principle in Tennessee that “a next friend representing a minor cannot

contract with an attorney for the amount of the attorney’s fee so as to bind the minor[.]”

Id. at 179 (citing City of Nashville v. Williams, 169 Tenn. 38, 82 S.W.2d 541, 541

(1935)). In reaching this decision, the Wright Court noted two statutes allowing

Tennessee courts the power to approve settlements made on behalf of minors. Wright,

337 S.W.3d at 178. First, Tennessee Code Annotated section 34-1-121 provides, in

pertinent part:

In any action, claim, or suit in which a minor or person with a

disability is a party or in any case of personal injury to a minor or

person with a disability caused by the alleged wrongful act of

another, the court in which the action, claim, or suit is pending, or

the court supervising the fiduciary relationship if a fiduciary has

been appointed, has the power to approve and confirm a compromise

of the matters in controversy on behalf of the minor or person with a

disability. If the court deems the compromise to be in the best

interest of the minor or person with a disability, any order or decree

approving and confirming the compromise shall be binding on the

minor or person with a disability.

Tenn. Code Ann. § 34-1-121(b); see also Vannucci v. Memphis Obstetrics &

Gynecological Ass’n, P.C., No. W2005-00725-COA-R3-CV, 2006 WL 1896379, at *11

(Tenn. Ct. App. July 11, 2006) (holding that where a settlement involves a minor, section

34-1-121 “requir[es]” that the trial court “go beyond its normal role” and approve or

disapprove of the proposed settlement). Likewise, Section 29-34-105 requires an in-

chambers hearing attended by both the minor and his or her guardian in order to approve

a settlement totaling more than $10,000.00. From these statutes, the Tennessee Supreme

Court concluded that Tennessee public policy allows courts to “assume a special

responsibility to protect a minor’s interests.” Wright, 337 S.W.3d at 178. The Wright

Court therefore affirmed the ruling that the retained attorney was not entitled to the

contractual fee, but merely to a reasonable fee as set by the court. Id. Ultimately, the

Tennessee Supreme Court affirmed the trial court’s award of $131,000.00 in attorney’s

fees. Id. at 188.

From Wright, we can glean that Tennessee’s public policy includes a well-settled

principle requiring courts to act as parens patriae to protect a child’s financial interests.

Indeed, Tennessee statutory law, the most salient source of Tennessee public policy,

includes several statutes that offer protections for a minor’s financial interests, even if

that protection interferes with a parent’s decisions. See Tenn. Code Ann. § 29-34-105

(requiring court approval of settlements on behalf of minors of more than $10,000.00);

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Tenn. Code Ann. § 34-1-102(a) (limiting a parent’s use of child’s income to only “so

much . . . as may be necessary . . . (without the necessity of court authorization) for the

child’s care, maintenance and education”); Tenn. Code Ann. § 34-1-121(b) (giving the

court power to approve settlements on behalf of minors where the settlement is in the

minor’s best interest); Tenn. Code Ann. § 34-1-122 (authorizing the court to approve or

disapprove of “expenditures of income or principal of the property of the minor or person

with a disability” and providing limits on the type of “gift program[s]” that may be

approved). The Tennessee Supreme Court previously characterized these statutes as

“plac[ing] the responsibility and burden upon the court to act for the minor.” Busby v.

Massey, 686 S.W.2d 60, 63 (Tenn. 1984). When these statutes are implicated, “the trial

court is not bound by desires, interests or recommendations of attorneys, parents,

guardians or others.” Id. (citing Rafferty v. Rainey, 292 F. Supp. 152 (E.D. Tenn. 1968));

see also Wright I, 2007 WL 4340871, at *1 (“By caselaw and by statute the settlement of

a case brought by a minor for personal injuries must be approved by the court, and the

court must ensure that the settlement itself is in the best interests of the minor.”)

(emphasis added).

In addition to statutes on this subject, Tennessee caselaw provides another

significant protection for the financial interests of a minor even against his or her parent:

a parent may not, by agreement, waive the child’s right to support from the other parent.

Huntley v. Huntley, 61 S.W.3d 329, 336 (Tenn. Ct. App. 2001) (citing Norton v. Norton,

No. W1999-02176-COA-R3-CV, 2000 WL 52819, at *4 (Tenn. Ct. App. Jan.10, 2000)).

As this Court explained: “It is against public policy to allow the custodial parent to waive

the child’s right to support[,]” as the child is the beneficiary of the support, not the parent.

A.B.C. v. A.H., No. E2004-00916-COA-R3-CV, 2005 WL 74106, at *7 (Tenn. Ct. App.

Jan. 13, 2005) (citing Pera v. Peterson, 1990 WL 200582 (Tenn. Ct. App. Dec. 14,

1990)); see also Berryhill v. Rhodes, 21 S.W.3d 188, 192, 194 (Tenn. 2000) (holding that

private agreements to circumvent child support obligations are against public policy).

Such agreements are therefore “void as against public policy as established by the

General Assembly.” Witt v. Witt, 929 S.W.2d 360, 363 (Tenn. Ct. App. 1996); see also

Galloway, 790 N.W.2d at 256–57 (relying on Iowa law preventing parents from entering

into agreements waiving child support as a reason for its rule invalidating waivers of

liability signed by parents on behalf of minors). The Tennessee Supreme Court has

likewise held that parents engaged in a child custody dispute “cannot bind the court with

an agreement affecting the best interest of their children.” Tuetken v. Tuetken, 320

S.W.3d 262, 272 (Tenn. 2010). Finally, we note that Rule 17.03 of the Tennessee Rules

of Civil Procedure allows a court to appoint a guardian ad litem for a child “at any time

after the filing of the complaint” in two instances: (1) when the child has no duly

appointed representative; or (2) when “justice requires” the appointment. Thus, Rule

17.03 allows the appointment of a guardian ad litem even when the child is represented

by his or her parent in the capacity of next friend. See Gann v. Burton, 511 S.W.2d 244,

246 (Tenn. 1974) (holding that the court’s decision to appoint a guardian ad litem when

“justice requires” is discretionary and is determined on a case-by-case basis).

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Tennessee statutory law also contains other protections that arguably interfere with

a parent’s right to the custody and control of his or her children, albeit not in a financial

context. See Tenn. Code Ann. § 34-6-307 (granting a parent the right to refuse medical

treatment for his or her child, unless the parent’s decision “jeopardize[s] the life, health,

or safety of the minor child”); Tenn. Code Ann. § 37-10-303 (granting the parent the

right to consent to his or her child’s abortion, but providing that, in the absence of

parental consent, consent may be obtained from the court); Tenn. Code Ann. §§ 37-10-

401 to -403 (placing on the parent the duty to vaccinate a child, unless certain religious

exceptions apply); Tenn. Code Ann. § 49-6-3001 (requiring parents to enroll their school-

aged children in school, unless exempted); Tenn. Code Ann. § 49-6-3009 (making it a

crime for a parent who has control of a child to allow the child to be truant from a

remedial institution); Tenn. Code Ann. § 49-6-3050 (regulating home schooling); Term.

Code Ann. § 68-34-107 (allowing a physician to provide a minor with contraceptive if

the minor obtains parental consent or simply if the minor “requests and is in need of birth

control procedures, supplies or information”). Indeed, one statute specifically invalidates

a contract entered into by the biological and adoptive parents if the parties agree to

visitation post-adoption. See Tenn. Code Ann. § 36-1-121(f) (“Any provision in an order

of the court or in any written agreement or contract between the parent or guardian of the

child and the adoptive parents requiring visitation or otherwise placing any conditions on

the adoption shall be void and of no effect whatsoever[.]”).

Because of the statutory and caselaw in Tennessee providing protection for a

minor’s financial and other interests, we first note that Tennessee law is clearly

distinguishable from many of the cases in which enforcement of liability waivers was

held to be appropriate. For example, the Connecticut Superior Court in Saccente v.

LaFlamme specifically noted that its decision did not conflict with Connecticut public

policy as evidenced by statutes because there was “no Connecticut law, and the [parties

have] cited none, which affords such specific protections for minors.” Saccente, 2003

WL 21716586, at *6–7 (citing Conn. Gen. Stat. Ann. § 45a-631 (allowing parents to

settle the claims of their children if the amount recovered is less than $10,000.00)).

Likewise in BJ’s Wholesale Club, Inc. v. Rosen, the Maryland Court of Appeals noted

that rather than having no statute prohibiting the practice of parental consent to minor

settlements without court approval, such practice was actually authorized by Maryland

statutory law. See Rosen, 80 A.3d at 362 (citing Md. Code Ann., Cts. & Jud. Proc. § 6-

405 (allowing parents to settle “any” claims on behalf of minors without court approval)).

Clearly, the legal framework in Tennessee differs significantly from these other

jurisdictions in this regard.

In addition, unlike in Sharon and Zivich, Sky High has cited to no statutes, nor

has our research revealed any, that reflect Tennessee public policy in favor of sheltering

from liability owners of land opened for recreational uses or unpaid athletic coaches and

- 29 -

sponsors. See Sharon, 769 N.E.2d at 747 (citing Mass. Gen. Laws Ann. ch. 21, § 17C;

Mass. Gen. Laws Ann. ch. 231, § 85V); Zivich, 696 N.E.2d at 204–05 (citing Ohio Rev.

Code Ann. §§ 1533.18; 1533.181; 2305.381; 2305.3825); Indeed, in Justice Deborah L.

Cook’s concurrence in Zivich, she emphasized that her decision to concur was “firmly

grounded in the public policy of the General Assembly, as evinced by the legislative

enactments cited by the majority,” rather than any constitutional policy regarding parental

rights. Zivich, 696 N.E.2d at 208 (Cook, J., concurring). Tennessee law has no such

statutes that evince the Tennessee General Assembly’s desire to shield the operators of

for-profit trampoline parks from liability.

Based on the foregoing, we conclude that the Colorado Supreme Court’s analysis

on this issue best aligns with existing Tennessee law. See Cooper, 48 P.3d at 1235 n.11.

First, we note that Sky High has cited no law in which the fundamental right to care for

and to control children, as recognized by the Tennessee Supreme Court in Hawk, has

ever been utilized to uphold financial contracts entered into by the parent on behalf of the

child, especially where the child’s right to recover money may be negated by the parents’

agreement. See id. (holding that “[a] parental release of liability on behalf of his child is

not a decision that implicates such fundamental parental rights”). Indeed, where a child’s

financial interests are threatened by a parent’s contract, it appears to be this State’s long-

standing policy to rule in favor of protecting the minor. See Huntley, 61 S.W.3d at 336

(preventing parent from agreeing to waive child support). Moreover, as previously

discussed, our General Assembly has enacted a multitude of statutes evincing a policy of

protecting children’s finances from improvident decisions on the part of their parents.

See, e.g., Tenn. Code Ann. §§ 34-1-102; 34-1-121(b). This policy of allowing courts to

“assume a special responsibility to protect a minor’s interests” was reaffirmed by the

Tennessee Supreme Court in 2011, well after the decisions in both Hawk and Troxel. See

Wright, 337 S.W.3d at 178. Accordingly, parents in Tennessee, like parents in Colorado,

simply do not have plenary power over the claims of their children, regardless of their

fundamental parental rights. C.f. Cooper, 48 P.3d at 1235 n.11 (holding that a parent’s

right to the custody, care, and control of his or her children is “not absolute”).8

We are cognizant that that above statutes as well as the Wright decision concern

only the parent’s ability to settle a claim after an injury has occurred. See Wright, 337

S.W.3d at 178. At least two courts have held that similar rules have no application to a

pre-injury waiver. See Sharon, 769 N.E.2d at 747 n.10 (citing Mass. Gen. Laws Ann. ch.

231, § 140C 1/2) (providing that a court may approve a settlement on behalf of a minor

when approval is requested by a party); Zivich, 696 N.E.2d at 201. As the Sharon Court

explained:

8

Moreover, unlike the Colorado legislature, which enacted new law to overturn the decision in

Cooper a mere year after that decision was filed, see Colo. Rev. Stat. Ann. § 13-22-107 (eff. May 14,

2003), the Tennessee General Assembly has chosen to take no action to overturn the rule adopted in

Childress for the last twenty-five years.

- 30 -

[T]he policy considerations underlying [a post-injury release] are

distinct from those at issue in the preinjury context. A parent asked

to sign a preinjury release has no financial motivation to comply and

is not subject to the types of conflicts and financial pressures that

may arise in the postinjury settlement context, when simultaneously

coping with an injured child. Such pressure can create the potential

for parental action contrary to the child’s ultimate best interests. In

short, in the preinjury context, there is little risk that a parent will

mismanage or misappropriate his child’s property.

Sharon, 769 N.E.2d at 747 n.10 (citing Zivich, 696 N.E.2d 201). This Court previously

rejected a similar argument in Childress, stating:

Indemnification agreements executed by a parent or guardian in

favor of tort feasors, actual or potential, committing torts against an

infant or incompetent, are invalid as they place the interests of the

child or incompetent against those of the parent or guardian. . . .

Th[e] fact [that] the agreements at issue were executed pre-injury]

does not change the rule, and indemnity provisions executed by the

parent prior to a cause of action in favor of a child cannot be given

effect. Were the rule otherwise, it would circumvent the rule

regarding exculpatory clauses and the policy of affording protection

in the law to the rights of those who are unable effectively to protect

those rights themselves.

Childress, 777 S.W.2d at 7 (citing Valdimer, 172 N.E.2d at 285 (“Clearly, a parent who

has placed himself in the position of indemnitor will be a dubious champion of his infant

child’s rights.”)).

Nothing in Hawk or otherwise cited to this Court leads us to believe that the

decision in Childress on this particular issue was in error at the outset or has been

changed by the fundamental parental rights doctrine. An agreement to waive all future

claims arising out of an incident and to hold a third party harmless even from the third

party’s negligence clearly has the potential to place the parent’s interest in conflict with

the child’s interest. As the New Jersey Superior Court explained: “If such an agreement

could be enforced it would be for the benefit of the [parent] to prevent the bringing of any

suit on the claim of the infant no matter how advantageous such suit might be for the

infant.” Fitzgerald, 267 A.2d at 559. The Oregon Supreme Court came to a similar

conclusion:

As parent-guardian he owes a duty to act for the benefit of his child.

That duty is not fully discharged where the parent enters into a

bargain which gives rise to conflicting interests. The conflict may

- 31 -

arise at the time of settlement when the parent has the opportunity to

receive a sum of money in his own right as a part of the settlement in

consideration for which he agrees to indemnity the defendant, and it

may arise later when it is found advisable that his child bring action

against the defendant for injuries which had not been known at the

settlement date. On either of these occasions there is a real danger

that the child’s interest will be put in jeopardy because of the

parent’s concern over his or her own economic interests. Certainly a

parent who is called upon to decide whether his child should bring

an action for injuries not known at the time of settlement is not likely

to proceed with such an action in the face of knowledge that any

recovery eventually will result in his own liability under an

indemnity agreement.

Mallison, 354 P.2d at 802. The parent-child relationship has likewise been described as

fiduciary by Tennessee courts in some situations. See Bayliss v. Williams, 46 Tenn. 440,

442 (1869) (“The relation may be of any kind which implies confidence, as trustee and

beneficiary, attorney and client, parent and child, guardian and ward, physician and

patient, nurse and invalid, confidential friend and adviser, indeed, any relation of

confidence between persons which give one dominion or influence over the other[.]”);

see also Robinson v. Robinson, 517 S.W.2d 202, 206 (Tenn. Ct. App. 1974) (noting that

while the parent-child relationship may give rise to a fiduciary duty, that does not

necessarily mean that the relationship is confidential for purposes of undue influence or

other legal questions). Accordingly, we agree with the courts in New Jersey, New York,

and Oregon that the conflict requiring court approval of post-injury settlements involving

minors is largely equal to the conflict created by a parent’s decision to sign a pre-injury

waiver on behalf of a minor.

Furthermore, in our view, a pre-injury waiver is largely analogous to a contract

containing a contingency fee. In the context of a pre-injury waiver, the parent must weigh

the benefit of the activity with potential injury that may occur, but the injury is merely

hypothetical at that time. Likewise, when a parent signs a contingency fee agreement, the

parent must weigh the benefits of the representation against the attorney’s fees that will

be owed from the child’s recovery. At the time of the signing of the agreement, however,

such recovery is merely hypothetical. Accordingly, similar interests and conflicts are

inherent in both transactions. Because the Tennessee Supreme Court has held that

contingency fee agreements signed by parents are invalid, despite the fact that no statute

expressly prohibits such action, see Wright, 337 S.W.3d at 178, we likewise conclude

that pre-injury waivers of liability and indemnification agreements are unenforceable

under Tennessee law.

- 32 -

Finally, we cannot discount the fact that Tennessee’s public policy may also be

determined from our case law. See Baby, 447 S.W.3d at 823. As previously discussed,

this Court determined in 1989 that contracts such as the one at issue in this case were

unenforceable under Tennessee law. See Childress, 777 S.W.2d at 6. This Court has

previously grappled with the question of whether our Opinions, published in the official

reporter and denied permission to appeal by the Tennessee Supreme Court, are entitled to

stare decisis effect. Compare Evans v. Steelman, No. 01-A-01-9511-JV00508, 1996 WL

557844, at *2 (Tenn. Ct. App. Oct. 2, 1996), aff’d, 970 S.W.2d 431 (Tenn. 1998)

(holding that where only one issue was decided by the Court of Appeals, the denial of

permission to appeal by the Tennessee Supreme Court should be read as approval of the

Court of Appeals’s holding until the Tennessee Supreme Court “change[s] its mind”);

with Evans, 1996 WL 557844, at *8 (Koch, J., dissenting) (citing Swift v. Kirby, 737

S.W.2d 271, 277 (Tenn. 1987)) (“The doctrine of stare decisis does not apply with full

force to principles that have not been directly adopted by the Tennessee Supreme

Court.”); see also Hardy v. Tournament Players Club at Southwind, Inc., No. W2014-

02286-COA-R9-CV, 2015 WL 4042490, at *16 (Tenn. Ct. App. July 2, 2015) (Gibson,

J., dissenting), perm. app. granted (Tenn. Dec. 9, 2015) (noting the “the oddity of a Court

of Appeals judge asserting that our own opinions may not have stare decisis effect[,]” in

the context of an unpublished opinion of the Court of Appeals). If entitled to

consideration under the stare decisis doctrine, we are “require[d] . . . to uphold our prior

precedents to promote consistency in the law and to promote confidence in this Court’s

decisions . . . [unless there is] an error in the precedent, when the precedent is obsolete,

when adhering to the precedent would cause greater harm to the community than

disregarding stare decisis, or when the prior precedent conflicts with a constitutional

provision.” Cooper v. Logistics Insight Corp., 395 S.W.3d 632, 639 (Tenn. 2013).

It appears that the issue was settled, however, by the Tennessee Supreme Court’s

1999 amendment to Rule 4 of the Rules of the Tennessee Supreme Court. See In re

Amendment to Supreme Court Rule 4 (Tenn. Nov. 10, 1999),

https://www.tncourts.gov/sites/default/files/sc_rule_4_amd_publ_opin.pdf (deleting the

prior rule and adopting a new rule). Under Rule 4 of the Rules of the Tennessee Supreme

Court, “[o]pinions reported in the official reporter . . . shall be considered controlling

authority for all purposes unless and until such opinion is reversed or modified by a court

of competent jurisdiction.” Accordingly, regardless of whether stare decisis applies in

this case, it remains controlling authority in this case until overturned. As such, we will

not overrule the Childress decision lightly, especially given the over twenty-five years

that it has operated as the law in Tennessee.

A similar issue was raised in Woodman ex rel. Woodman v. Kera LLC, 486 Mich.

228, 785 N.W.2d 1 (Mich. 2010). As previously discussed, the Michigan Supreme Court

first recognized the well-settled rule that “a parent has no authority to waive, release, or

compromise claims by or against a child[.]” Id. at 8. The Woodman Court therefore

framed the issue as whether that well-settled rule should be altered due to changing

- 33 -

policy considerations. The Michigan Supreme Court declined the invitation, holding that

such a dramatic shift in public policy was best left to the state legislature:

There is no question that, if this Court were inclined to alter the

common law, we would be creating public policy for this state. Just

as “legislative amendment of the common law is not lightly

presumed,” this Court does not lightly exercise its authority to

change the common law. Indeed, this Court has acknowledged the

prudential principle that we must “exercise caution and . . . defer to

the Legislature when called upon to make a new and potentially

societally dislocating change to the common law.”

Woodman, 785 N.W.2d at 9 (footnotes omitted) (quoting Wold Architects & Engineers

v. Strat, 474 Mich. 223, 233, 713 N.W.2d 750 (Mich. 2006); Henry v. Dow Chem. Co.,

473 Mich. 63, 89, 701 N.W.2d 684 (Mich. 2005)) (citing Bott v. Commission of Natural

Resources, 415 Mich. 45, 327 N.W.2d 838 (Mich. 1982)).

The same is true in this case. As previously discussed, the Childress Opinion was

decided over twenty-five years ago. Since that time, both the Tennessee Supreme Court

and the Tennessee General Assembly have had ample opportunity to affirmatively act to

change the rule established in Childress. See Childress, 777 S.W.2d at 1 (noting that

permission to appeal to the Tennessee Supreme Court was denied); Rogers v, 807 S.W.2d

at 242 (same). Indeed, the Childress Opinion specifically invited both the Tennessee

Supreme Court and the Tennessee General Assembly to scrutinize its holding. See

Childress, 777 S.W.2d at 8. Despite this fact, the Childress rule has remained unaltered

for more than two decades.

Other courts have questioned the danger presented to recreational activities

participated in by minors in refusing to enforce liability waivers or exculpatory

agreements. See, e.g., Sharon, 769 N.E.2d at 747 (holding that declining to enforce these

waivers would “inevitably [be] destructive to school-sponsored programs”); Zivich, Inc.,

696 N.E.2d at 205 (noting the threat that recreational activities will not be available to

children without the enforcement of waivers). Indeed, even the Childress Court noted

that possible threat posed by its ruling. See Childress, 777 S.W.2d at 7–8 (discussing

whether its rule will have a chilling effect on recreational activities for children). Given

the twenty-five years under which Tennessee has been applying the rule adopted in

Childress, however, we need not speculate as to the dire consequences that may result to

children’s recreational opportunities. Indeed, Tennessee law is replete with instances of

children participating in, and becoming injured by, recreational activities. See, e.g., Neale

v. United Way of Greater Kingsport, No. E2014-01334-COA-R3-CV, 2015 WL

4537119, at *1 (Tenn. Ct. App. July 28, 2015) (involving a child injured in a

woodworking shop operated by the Boys and Girls Club); Pruitt v. City of Memphis, No.

W2005-02796-COA-R3-CV, 2007 WL 120040, at *1 (Tenn. Ct. App. Jan. 18, 2007)

(involving a child injured at a public swimming pool); Tompkins v. Annie’s Nannies,

- 34 -

Inc., 59 S.W.3d 669 (Tenn. Ct. App. 2000) (involving a child injured in a downhill race

organized by her day care center); Livingston, as Parent, Next Friend of Livingston v.

Upper Cumberland Human Res. Agency, No. 01A01-9609-CV-00391, 1997 WL

107059, at *1 (Tenn. Ct. App. Mar. 12, 1997) (involving a child injured at a church

retreat); Cave v. Davey Crockett Stables, No. 03A01-9504CV00131, 1995 WL 507760,

at *1 (Tenn. Ct. App. Aug. 29, 1995) (involving a child injured at summer camp).9 In

fact, Sky High has provided this Court with no evidence that recreational activities open

to minors have in any way been hindered by the Childress rule. Accordingly, we can

easily dismiss any claim that refusing to enforce waivers of liability against children will

in any way limit the recreational opportunities open to children in Tennessee.

Based on the foregoing, we conclude that there is no basis to depart from this

Court’s well-reasoned decision in Childress. Because the law in Tennessee states that

parents may not bind their minor children to pre-injury waivers of liability, releases, or

indemnity agreements, the trial court did not err in refusing to enforce the waiver of

liability and indemnity provisions of the release signed by Mother on behalf of Son.

IV.

Appellants next argue that the trial court erred in denying their request to amend

their complaint to include a request for pre-majority medical expenses incurred on behalf

of the child. Here, the trial court specifically found that “for a minor’s injuries[,] the

claim for medical expenses [is] a separate and distinct claim of the parent[.]” According

to the trial court, because Mother waived her right to recover from Sky High, Mother

“could not effectively assign them or waive them to her son to allow him to pursue

them.” The trial court therefore partially denied Appellants’ motion to amend their

complaint.

As previously discussed, a trial court’s decision on a motion to amend a pleading

is reviewed under an abuse of discretion standard. Fann v. City of Fairview, 905 S.W.2d

167, 175 (Tenn.Ct.App.1994). Rule 15.01 of the Tennessee Rules of Civil Procedure

provides that leave of court to amend pleadings “shall be freely given when justice so

requires.” The Tennessee Supreme Court has recognized that the language of Rule 15.01

“substantially lessens the exercise of pre-trial discretion on the part of a trial judge.”

Branch v. Warren, 527 S.W.2d 89, 91 (Tenn. 1975); see also Hardcastle v. Harris, 170

S.W.3d 67, 80–81 (Tenn. Ct. App. 2004). In considering a motion to amend, a trial court

is to consider several factors, including: “undue delay in filing the amendment, lack of

notice to the opposing party, bad faith by the moving party, repeated failure to cure

deficiencies by previous amendments, undue prejudice to the opposing party, and the

futility of the amendment.” Gardiner v. Word, 731 S.W.2d 889, 891–92 (Tenn. 1987).

9

In Cave, the child’s parent signed “a consent [form] for the child to participate in the activity

and . . . a release releasing [one of the defendants] from any liability for personal injuries received by the

child.” Id. at *1. The Court never reached the issue, however, because of a statute that precluded liability

for certain equine activities. Id. (citing Tenn. Code Ann. § 44-20-103).

- 35 -

Although not termed as such by the trial court, it appears to this Court that the trial

court denied Appellants’ motion to alter or amend on the basis of futility—that is,

because Son could not recover pre-majority medical expenses even if requested in the

complaint, the amendment served no purpose.10 Sky High argues that the trial court was

correct in its decision, citing the Tennessee Supreme Court’s decision in Dudley v.

Phillips, 218 Tenn. 648, 651, 405 S.W.2d 468 (Tenn. 1966). In Dudley, the Tennessee

Supreme Court held that when a child is injured, two “separate and distinct causes of

action” are created: (1) a cause of action on behalf of the parent for “loss of services

[and] medical expenses to which [the parent] will be put”; and (2) “another and distinct

cause of action arises in favor of the child for the elements of damage to him, such as

pain and suffering, disfigurement, etc.” Id. at 469 (quoting 42 A.L.R. 717 (originally

published in 1926)). The rule expressed in Dudley has been reaffirmed by Tennessee

courts on multiple occasions. See Vandergriff v. ParkRidge E. Hosp., 482 S.W.3d 545,

549 (Tenn. Ct. App. 2015); Neale v. United Way of Greater Kingsport, No. E2014-

01334-COA-R3-CV, 2015 WL 4537119, at *5 (Tenn. Ct. App. July 28, 2015); Luther,

Anderson, Cleary & Ruth, P.C. v. State Farm Mut. Auto. Ins. Co., No. 03A01-9601-

CV-00015, 1996 WL 198233, at *3 (Tenn. Ct. App. Apr. 25, 1996); Rogers v. Donelson-

Hermitage Chamber of Commerce, 807 S.W.2d 242, 247 (Tenn. Ct. App. 1990)).

Indeed, the rule has been codified into Tennessee’s statutory law at Tennessee Code

Annotated section 20-1-105, which provides, in relevant part: “The father and mother of

10

We note that this Court has previously held:

The court . . . should not deny a plaintiff’s Tenn. R. Civ. P. 15 Motion to Amend

based on an examination of whether it states a claim on which relief can be

granted. As the United States Supreme Court explained, “[i]f underlying facts or

circumstances relied on by plaintiff may be proper subject of relief, he ought to

be afforded opportunity to test his claim on merits and therefore should be

permitted to amend complaint.” Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct.

227, 230, 9 L. Ed. 2d 222 (1962). If the legal sufficiency of the proposed

Complaint is at issue—instead of delay, prejudice, bad faith or futility—the

better protocol is to grant the motion to amend the pleading, which will afford the

adversary the opportunity to test the legal sufficiency of the amended pleading by

way of a Tenn. R. Civ. P. 12.02(6) Motion to Dismiss. See McBurney v. Aldrich,

816 S.W.2d 30, 33 (Tenn. Ct. App. 1991).

Conley v. Life Care Centers of Am., Inc., 236 S.W.3d 713, 724 (Tenn. Ct. App. 2007). Here, it does

appear that the trial court judged the merits of Son’s claim for pre-majority expenses in denying

Appellants’ motion to alter or amend. If we were to remand to the trial court with directions to grant the

amendment, it is likely that the trial court would later grant a motion to dismiss this claim on the same

basis that it denied the motion to amend. Consequently, we cannot discern how judicial economy would

be furthered by requiring the above procedure. Furthermore, this Court in its order granting the

interlocutory appeal specifically indicated that the question of “whether the minor child can recover

medical expenses on his own behalf” was “appropriate” for interlocutory review. Accordingly, we

proceed to consider the merits of this issue.

- 36 -

a minor child have equal rights to maintain an action for the expenses and the actual loss

of service resulting from an injury to a minor child in the parents’ service or living in the

family . . . .” Tenn. Code Ann. § 20-1-105(a).

Sky High argues that because Mother’s claims were extinguished by her valid and

undisputed execution of the waiver and indemnification language in the release, any

claim for pre-majority medical expenses is likewise barred. Appellants agree that Mother

has waived “her individual right to recover medical expenses incurred by her son.”

Indeed, all of Mother’s individual claims were voluntarily dismissed in the trial court.

Appellants also do not dispute the general rule that children may not claim pre-majority

medical expenses as a measure of damages in the child’s lawsuit because those damages

are owed solely to the parents. See Dudley, 405 S.W.2d at 469; see also Burke v. Ellis,

105 Tenn. 702, 58 S.W. 855, 857 (Tenn. 1900) (“It is not alleged or shown that the boy

incurred any expense for medical services. It is alleged these were incurred by the father.

Such an element was not proper in estimating the damages in a case brought like this, by

next friend, for the minor[.]”). Instead, Appellants argue that because Mother waived her

claims by signing the release, the child is permitted to claim the medical expenses on his

own behalf, with Mother acting in her capacity as next friend.

In support of their argument, Appellants cite the Tennessee Supreme Court’s

decision in Wolfe v. Vaughn, 177 Tenn. 678, 152 S.W.2d 631 (Tenn. 1941). In Wolfe,

the minor was injured in an automobile accident. Because her mother was deceased and

her father incompetent, the minor filed suit with her grand uncle acting as next friend. Id.

at 633. The jury eventually awarded the minor plaintiff damages, including pre-majority

medical expenses. Id. at 632. On appeal, the defendants argued that the minor could not

recover those expenses “the insistence being that the law confers no cause of action upon

an infant for such expenses.” Id. at 633. The Tennessee Supreme Court agreed with the

defendant’s contention generally, noting:

“Since the parent is entitled to the services and earnings of the child

so long as the latter is legally under his custody or control, ordinarily

an infant suing for personal injuries cannot recover for the

impairment of his earning capacity during infancy, or for loss of

time, or for expenses in curing his injuries, when, and only when, he

is under the control of his parents; after emancipation he may do so.

However, he may recover for his mental or physical pain and

sufferings, his permanent injuries, and for the impairment of his

power to earn money after arriving at majority.”

Id. at 634 (quoting 31 C. J. 1114, 1115). The Wolfe Court held, however, that an

exception to the rule should be present “where a child has no parent who can sue for such

expenses that she can sue for and recover the same.” Wolfe, 152 S.W.2d at 634.

Accordingly, the Tennessee Supreme Court adopted the following rule:

- 37 -

“A parent may waive or be estopped to assert his right to recover for

loss of services, etc., by reason of injury to his minor child, and

permit the child to recover the full amount to which both would be

entitled, as where the parent as next friend brings an action on behalf

of the child for the entire injury, or permits the case to proceed on

the theory of the child’s right to recover for loss of services and

earning capacity during minority. In such case the parent treats the

child as emancipated in so far as recovery for such damages is

concerned, and cannot thereafter be permitted to claim that he, and

not the child, was entitled to recover therefor.”

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

This Court has considered the rule set down in Wolfe on a number of occasions.

See Neale v. United Way of Greater Kingsport, No. E2014-01334-COA-R3-CV, 2015

WL 4537119, at *8 (Tenn. Ct. App. July 28, 2015); Palanki ex rel. Palanki v. Vanderbilt

Univ., 215 S.W.3d 380 (Tenn. Ct. App. 2006); Smith v. King, No. CIV.A. 958, 1984 WL

586817 (Tenn. Ct. App. Sept. 21, 1984). In Smith, the child, with his parent acting in the

capacity of next friend, filed suit to recover for her injuries incurred when she was struck

by a car. Smith, 1984 WL 586817, at *1. Because the parent’s claim was barred by the

applicable statute of limitations, the child sought to recover not only the damages owed to

him, but also for pre-majority medical expenses. Id. In Smith, we held that based upon a

theory of waiver, as set down in Wolfe, “under circumstances where the parent has acted

as next friend,” the child “may maintain an action for his medical expenses provided that

he has paid them, as suggested in Burke, or is legally obligated to pay them.” Smith,

1984 WL 586817, at *2 (citing Burke, 58 S.W. at 857 (holding that it was error for the

trial court to allow evidence of pre-majority medical expenses that were paid by the

child’s parent)). The Smith court therefore remanded to determine “whether the child

could bring herself within the exception to the general rule[.]” Id. The Smith Court,

however, was not abundantly clear as to who was actually required to have paid the

expenses, the child or the parent, in order for the child to recover those damages in his or

her suit.

The question was answered by this Court in Palanki ex rel. Palanki v. Vanderbilt

Univ., 215 S.W.3d 380 (Tenn. Ct. App. 2006), no perm. app. filed. Like the child in

Smith, the child in Palanki filed suit through his next friend. Although the parents’ claim

was not barred by the statute of limitations, the child in Palanki nevertheless requested

medical expenses incurred while he was a minor. Id. at 384. This Court held that the

child “could properly maintain his own action for pre-majority medical expenses incurred

or likely to be incurred by [the child’s mother] on his behalf[.]” Id. at 394. In reaching

this result, this Court in Palanki characterized the rule “adopted” in Smith as allowing “a

child under circumstances where the parent has acted as next friend [to] maintain an

action for his medical expenses provided that [the parent] has paid for them . . . or is

- 38 -

legally obligated to pay them.” Id. (alteration in original) (quoting Smith, 1984 WL

586817, at *2).11 This Court therefore held that evidence regarding the child’s pre-

majority medical expenses was properly admitted and considered by the jury. Id. at 394.

Recently, the United States District Court for the Eastern District of Tennessee

called into question the holding in Palanki. See Grant v. Kia Motors Corp., No. 4:14-

CV-79, 2016 WL 6247319 (E.D. Tenn. May 10, 2016).12 In Grant, the minor children

were injured in an automobile accident, and the children’s mother filed suit in her

capacity as next friend. Id. at *1. The district court, relying on Dudley, first ruled that any

claims brought by the mother individually were not tolled due to the children’s minority.

Id. at *8 (citing Tenn. Code Ann. § 29-28-103(a)) (containing an express tolling

provision applicable to minors). Because the mother filed her action after the expiration

of the statute of repose, her claims were barred. Grant, 2016 WL 6247319, at *9.

The mother argued, however, that given that her individual claims were barred,

her children were able to pursue pre-majority medical expenses under the theory of

waiver espoused in Palanki. Id. The district court noted that under the interpretation of

the waiver rule adopted in Palanki, Tennessee’s intermediate courts “would likely permit

the minor Plaintiffs in this action to bring claims for their pre-majority medical expenses

through their mother . . . as next friend.” Id. Under well-settled rules regarding federal

courts sitting in diversity, the Grant court noted that it “must follow state law as

announced by the Supreme Court of Tennessee[,]” and “[w]here, as here, ‘a state

appellate court has resolved an issue to which the high court has not spoken, we will

normally treat [those] decisions . . . as authoritative absent a strong showing that the

state’s highest court would decide the issue differently.’” Id. (quoting Kirk v. Hanes

Corp. of North Carolina, 16 F.3d 705, 707 (6th Cir. 1994) (emphasis in original)). Based

upon its reading of Wolfe and Smith, however, the district court stated that it was

“convinced that the Supreme Court of Tennessee would not apply the waiver rule as

announced in Palanki to the case at bar.” Grant, 2016 WL 6247319, at *9. Specifically,

the Grant court concluded that the Palanki Court wrongly interpreted the ambiguous

language in Smith to allow a child to sue for expenses paid by the child’s parent when the

opposite rule was intended by the Smith Court. Id. at *10 (citing Palanki, 215 S.W.3d at

394 (citing Smith, 1984 WL 586817, at *2)).

In reaching this conclusion, the district court first referenced the Tennessee

Supreme Court’s ruling in Wolfe, noting that “the Wolfe court clearly addressed a

11

The Palanki Court inexplicably states that this rule was adopted in Smith with no citation of any kind

to the Tennessee Supreme Court’s seminal decision in Wolfe, upon which the Smith Court bases its

analysis.

12

Although federal interpretations of Tennessee law are not controlling on this Court, we may consider

their analysis helpful in appropriate circumstances. See State v. Hunt, 302 S.W.3d 859, 863–64 (Tenn.

Crim. App. 2009) (“[A] federal court’s interpretation of Tennessee law is not binding on the courts of this

state.”).

- 39 -

situation in which the parents neither paid for nor were legally responsible for the child’s

medical expenses.” Grant, 2016 WL 6247319, at *10. The court in Grant likewise

concluded that the Court of Appeals in Smith was concerned only with those expenses

paid by the minor himself. Id. at 11. In support, the district court noted that the proviso in

the Smith Court’s holding that a claim for pre-majority medical expenses may stand

“provided he has paid them,” cites the Tennessee Supreme Court’s decision in Burke v.

Ellis. Grant, 2016 WL 6247319, at *11 (citing Smith, 1984 WL 586817 at *2 (citing

Burke, 58 S.W. at 857)). In Burke, the Tennessee Supreme Court ruled that the trial

court erred in allowing evidence of pre-majority medical expenses in a case brought by

the minor through his next friend. Burke, 58 S.W. at 857. Indeed, the Burke Court

mentioned that there was no proof that the child was required to pay his own medical

expenses. Id. (“[W]hile there is no proof that the child paid any expenses for medical

treatment, there is a statement that such expenses were incurred and paid by the

father[.]”). As such, the Grant court concluded that:

Burke unmistakably stands for the proposition that it is improper for

a jury to consider medical expenses as relevant to damages where, as

here, a minor brings claims by next friend. Moreover, by explicitly

mentioning twice that there is no proof that the child paid any

expenses for medical treatment, the court implies that the outcome

may be different if such proof were presented. Accordingly, where

the Smith court says that the waiver rule applies to permit a child to

recover medical expenses “provided that he has paid them, as

suggested in Burke,” Smith, 1984 WL 586817 at *2, it is clear that

the “he” to which the Smith court referred was intended to be “the

child.”

Grant, 2016 WL 6247319, at *11.

The Grant court also noted other portions of the ruling in Smith that supported its

interpretation. For example, the Smith court cited two cases regarding the question of

when a child is liable for necessaries furnished to him. Id. (citing Smith, 1984 WL

586817 at *2 (citing Gardner v. Flowers, 529 S.W.2d 708 (Tenn. 1975); Foster v.

Adcock, 161 Tenn. 217, 30 S.W.2d 239 (Tenn. 1930)). In both of these cases, however,

the dispute involved whether a child, not the child’s parent, was liable on a debt. See

Grant, 2016 WL 6247319, at *11 (citing Gardner, 529 S.W.2d at 711; Foster, 30 S.W.2d

at 240). Additionally, the Grant court noted that the remand order in Smith indicates that

the only pre-majority medical expenses that may be raised by the child are those that

were paid by him or her. See Grant, 2016 WL 6247319, at *12 (“It is clear . . . that the

court remanded the case so that the minor plaintiff could present evidence that she, the

child, had paid the medical expenses or was legally obligated to pay same.”). Indeed, the

Smith Court remanded to the trial court to determine “whether the child could bring

herself within the exception to the general rule[,]” despite the fact that the record

contained evidence that the father was billed for the child’s medical expenses. Smith,

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1984 WL 586817 at *2. Were the rule in Smith that the child could bring a claim for pre-

majority medical expenses paid by him or his parent, a remand would not have been

necessary to ascertain whether the child could “bring herself within the [waiver] rule.”

See id.

Finally, the Grant court noted two other considerations that required it to depart

from this Court’s holding in Palanki: (1) the purpose of the waiver rule was allow a

claim where there was no threat of double recovery; and (2) accepting the Palanki

interpretation of the waiver rule would “allow a parent to collect as damages his/her

child’s pre-majority medical expenses notwithstanding the fact that the parent’s

individual claims are barred.” Grant, 2016 WL 6247319, at *12. The Grant court

concluded that such a result was untenable because it blurred the demarcation between

the parent’s claims and the child’s claims and permitted the parent to evade the fact that

his or her own claim was barred. Id.

Although it is certainly unusual for this Court to depart from the most recent

reported Tennessee case on this subject in favor of an interpretation offered by a federal

district court, we must agree with the Court in Grant that the child in this case should not

be able to claim pre-majority expenses paid by his parents in an effort to circumvent

Mother’s execution of the release, including its waiver and indemnity provision. First, we

note that although the Palanki decision is reported in the official reporter and therefore

“controlling for all purposes,” Tenn. R. Sup. Ct. 4(g)(2), Palanki was published pursuant

to Rule 11 of the Rules of the Tennessee Court of Appeals, where no application for

permission to appeal to the Tennessee Supreme Court was filed. See Palanki, 215

S.W.3d at 380; see also Tenn. R. Ct. App. 11. As previously discussed, there is some

question as to whether opinions of the Tennessee Court of Appeals which have been

denied permission to appeal by the Tennessee Supreme Court are entitled to stare decisis

effect. See generally Evans v. Steelman, No. 01-A-01-9511-JV00508, 1996 WL 557844,

at *2, *8 (Tenn. Ct. App. Oct. 2, 1996). But see Tenn. R. Sup. Ct 4(g)(2). Regardless, the

Tennessee Supreme Court has specifically held that:

[W]hen no application for review of an opinion of the

intermediate courts is sought, it has no stare decisis effect,

and such an opinion cannot serve to modify or change

existing law. The doctrine of sta[r]e decisis, especially as

respects rules of property, does not apply with full force until

the question has been determined by a court of last resort.

Swift v. Kirby, 737 S.W.2d 271, 277 (Tenn. 1987). As such, the decision in Palanki

simply cannot serve to alter or change the decisions by the Tennessee Supreme Court in

Wolfe and Burke. See also Bloodworth v. Stuart, 221 Tenn. 567, 572, 428 S.W.2d 786,

789 (Tenn. 1968) (citing City of Memphis v. Overton, 54 Tenn. App., 419, 392 S.W.2d

86 (Tenn.1964) (“The Court of Appeals has no authority to overrule or modify [the

Tennessee] Supreme Court’s opinions.”)). Morris v. Grusin, No. W2009-00033-COA-

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R3-CV, 2009 WL 4931324, at *4 (Tenn. Ct. App. Dec. 22, 2009) (quoting Davis v.

Davis, No. M2003-02312-COA-R3-CV, 2004 WL 2296507, at *6 (Tenn. Ct. App. Oct.

12, 2004) (“Once the Tennessee Supreme Court has addressed an issue, its decision

regarding that issue is binding on the lower courts.”)); Thompson v. State, 958 S.W.2d

156, 173 (Tenn. Crim. App. 1997) (quoting State v. Irick, 906 S.W.2d 440, 443 (Tenn.

1995) (“[I]t is a controlling principle that inferior courts must abide the orders, decrees

and precedents of higher courts. The slightest deviation from this rigid rule would disrupt

and destroy the sanctity of the judicial process.”)); Levitan v. Banniza, 34 Tenn. App.

176, 185, 236 S.W.2d 90, 95 (Tenn. Ct. App. 1950) (“This court is bound by the

decisions of the Supreme Court.”). Accordingly, to the extent that the decision in Palanki

conflicts with either Wolfe or Burke, we are required to disregard it.

Furthermore, we agree with the Grant court’s comment that in both Smith and

Wolfe, the Court was concerned with the situation wherein the child himself paid the

medical expenses. See Grant, 2016 WL 6247319, at *11–12 (citing Wolfe, 152 S.W.2d at

634; Smith, 1984 WL 586817 at *2). Indeed, in Wolfe, the child’s parents were not at all

involved in her life. Wolfe, 152 S.W.2d at 634. Accordingly to deprive her of the pre-

majority medical expenses which she herself paid simply due to a legal fiction that all

parents must pay for the pre-majority medical expenses of their children would have been

fundamentally unfair. The Smith Court, likewise, indicated that the child, rather than the

parent, must have paid the medical expenses and specifically cited the Tennessee

Supreme Court’s decision in Burke in announcing its rule. Smith, 1984 WL 586817 at

*2. Again, Burke unequivocally held that the child could not present proof of pre-

majority medical expenses paid by his parent. Burke, 58 S.W. at 857.

Interpreting the Wolfe waiver rule in this fashion best comports with Tennessee

law. First, allowing the minor child to recover those expenses he himself has paid

harmonizes with Tennessee’s public policy of protecting the financial interests of minors.

See discussion, supra. To hold otherwise would prevent the child from being fully

compensated for the damages that he actually incurred based upon an arbitrary

determination that those expenses were paid by the child’s parent, even in the face of

proof to the contrary. Furthermore, to allow the child in this case to claim Mother’s

damages despite the fact that she executed a valid release and indemnity agreement

would be to frustrate this state’s public policy of enforcing clear and unambiguous

exculpatory agreements entered into freely by adults. See Moss v. Fortune, 207 Tenn.

426, 429, 340 S.W.2d 902, 903–04 (Tenn. 1960). Indeed, the Smith Court specifically

confined the rule to only those claims that the parent “might have[.]” Smith, 1984 WL

586817 at *2. In this case, however, Mother’s claims have been extinguished by her

execution of the release. Accordingly, she has no claim that she may waive in favor of the

child.

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A recent Tennessee Supreme Court case supports our analysis. In Calaway ex rel.

Calaway v. Schucker, 193 S.W.3d 509 (Tenn. 2005), as amended on reh’g in part (Feb.

21, 2006), the child’s mother filed a medical malpractice action in federal district court as

next friend of her minor child. Id. at 512. There was no dispute that the mother’s claims

were barred by the applicable statute of repose. The dispute in the case concerned

whether the child’s claim was likewise barred by the statute of repose or whether the

statutory time limit was tolled during the child’s minority. Id. Because the dispute

involved Tennessee law, the Tennessee Supreme Court accepted four certified questions

from the federal court. Id. The Tennessee Supreme Court ultimately concluded that the

medical malpractice statute of repose was not tolled by a child’s minority but held that

the rule would only be applied prospectively. Id. at 517–18. The Calaway Court

thereafter answered the following certified question:

Question 1: Does a minor child have a personal claim for

medical expenses arising from an injury caused by the fault of

another when the claim of the child’s parent for such medical

expenses is barred by a statute of limitation or repose?

Answer: No.

Id. at 519. We acknowledge that this rule is offered with no elaboration and only

expressly addresses the situation wherein a parent’s claim is barred by a statute of

limitation or repose. Id. Regardless, we find it highly persuasive that the Tennessee

Supreme Court does not intend to allow a child to raise claims belonging to his parent

simply because the parent cannot maintain his or her action, either because of the

expiration of a statute of limitation or repose or the waiver of that claim through an

exculpatory agreement.

Based on the foregoing, we conclude that Son cannot maintain an action for pre-

majority medical expenses that were paid or will be paid by his parents. Rather, under the

rule in Wolfe and Smith, Son may only maintain an action for those medical expenses

that he paid or is obligated to pay. Here, the motion to amend Appellants’ complaint does

not conclusively illustrate whether the requested damages constitute medical expenses

paid by Son’s parents or medical expenses paid by Son. Like the Smith Court, we are

reluctant to hinder Son’s ability to fully recover for his injuries. Accordingly, we reverse

the trial court’s ruling denying the motion to amend the complaint only so as to allow

Appellants to raise a claim for those pre-majority medical expenses paid by Son or for

which Son is obligated to pay. With regard to any pre-majority medical expenses paid by

Son’s parents, we affirm the trial court’s order denying the motion to amend the

complaint.

Conclusion

The judgment of the Davidson County Circuit Court is reversed as to the motion to

amend the complaint only to the extent of allowing Son to raise a claim for those pre-

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majority medical expenses paid by Son or for which Son is obligated to pay. The

judgment of the trial court is affirmed in all other respects. Costs of this appeal are taxed

one-half to Appellants Crystal Blackwell as next friend to Jacob Blackwell, and their

surety, and one-half to Appellee Sky High Sports Nashville Operations, LLC, for all of

which execution may issue if necessary.

_________________________________

J. STEVEN STAFFORD, JUDGE

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