Frederick Copeland v. Healthsouth/Methodist Rehabilitation Hospital, LP

12/20/2018

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

May 31, 2018 Session Heard at Nashville1

FREDERICK COPELAND v. HEALTHSOUTH/METHODIST

REHABILITATION HOSPITAL, LP ET AL.

Appeal by Permission from the Court of Appeals

Circuit Court for Shelby County

No. CT-000196-16 Rhynette N. Hurd, Judge

___________________________________

No. W2016-02499-SC-R11-CV

___________________________________

A rehabilitation hospital hired a medical transportation company to take a patient

to a doctor’s appointment. Before the transport, the company’s driver required the

patient to sign an agreement that, in part, released the company from any liability.

After the appointment, the patient fell as he was getting into the company’s van.

He sued the medical transportation company, which moved to dismiss based on the

exculpatory provisions of the agreement. The trial court and the Court of Appeals

ruled that the exculpatory provisions were enforceable. We hold that to determine

the enforceability of an exculpatory agreement, a court should consider the totality

of the circumstances and weigh these non-exclusive factors: (1) relative bargaining

power of the parties; (2) clarity of the exculpatory language, which should be clear,

unambiguous, and unmistakable about what the party who signs the agreement is

giving up; and (3) public policy and public interest implications. We hold that the

exculpatory provisions in the agreement between the medical transportation

company and the patient are unenforceable based on the unequal bargaining power

of the parties, the overly broad and unclear language of the agreement, and the

important public interest implicated by the agreement. Thus, the exculpatory

language in the agreement does not, as a matter of law, bar the patient’s claim. We

vacate the judgment of the trial court, reverse the judgment of the Court of

Appeals, and remand this case to the trial court for further proceedings.

1

We heard oral argument on the campus of Lipscomb University in Nashville, Davidson County,

Tennessee, as part of the American Legion Auxiliary Volunteer Girls State S.C.A.L.E.S (Supreme Court

Advancing Legal Education for Students) project.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals

Reversed; Judgment of the Trial Court Vacated; Remanded to the

Trial Court

SHARON G. LEE, J., delivered the opinion of the Court, in which JEFFREY S. BIVINS,

C.J., and CORNELIA A. CLARK, HOLLY KIRBY, and ROGER A. PAGE, JJ., joined.

Donald K. Vowell, Knoxville, Tennessee, and David E. Gordon and Erin L.

Hillyard, Memphis, Tennessee, for the appellant, Frederick Copeland.

Diana M. Comes, Memphis, Tennessee, for the appellee, MedicOne Medical

Response Delta Region, Inc.

OPINION

I.

Frederick Copeland was a patient at HealthSouth Rehabilitation Hospital

North Memphis (HealthSouth or the hospital) after having knee replacement

surgery. On December 2, 2014, Mr. Copeland had an appointment to see his

orthopedic surgeon. The hospital had contracted with MedicOne Medical Response

Delta Region, Inc. (MedicOne), a medical transportation company, to provide

transportation services for its patients, including Mr. Copeland.

On the day of Mr. Copeland’s appointment at his orthopedic surgeon’s

office, a MedicOne employee driving a wheelchair van2 arrived at the hospital to

take Mr. Copeland to and from the appointment. After the driver pushed Mr.

Copeland in a wheelchair from his room to the entrance of the hospital, Mr.

Copeland got out of the wheelchair, walked to the van using a walker, and climbed

into the front passenger seat. Before leaving HealthSouth, the MedicOne driver

gave Mr. Copeland a pre-printed two-sided document that contained on one side a

Wheelchair Van/Transportation Run Report (Run Report) and on the other side a

Wheelchair Van Transportation Agreement (Agreement). The Run Report

provided that HealthSouth was responsible for MedicOne’s charges. The

Agreement consisted of nine single-spaced paragraphs, including three paragraphs

2

The MedicOne wheelchair van had no seats in the rear compartment, but was equipped with a

mechanical wheelchair lift and safety restraints to secure the wheelchair and its occupant after being

loaded into the van. The only seats in the van were the driver’s seat and the front passenger seat.

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of exculpatory language. The exculpatory language provided that Mr. Copeland

was releasing MedicOne from any and all claims arising from or in any way

associated with any transportation services provided by MedicOne. After Mr.

Copeland signed the Run Report and the Agreement, the MedicOne driver took

him to his doctor’s appointment.

After the appointment, the MedicOne driver returned to the doctor’s office

to take Mr. Copeland back to the hospital. As Mr. Copeland was getting into the

van, he lost his footing on the running board, fell, and was injured.

Mr. Copeland sued MedicOne for negligence in the Shelby County Circuit

3

Court. MedicOne moved to dismiss or, in the alternative, for summary judgment

based on the exculpatory language in the Agreement. The trial court granted

summary judgment in favor of MedicOne.4 The trial court found that the

Agreement was not a contract of adhesion and that the services provided by

MedicOne were not professional services, but merely transportation services, and

so, the exculpatory provisions were enforceable. The Court of Appeals affirmed,

finding that the case involved non-professional transportation services and

presented no significant public interest considerations. Copeland v.

HealthSouth/Methodist Rehab. Hosp., LP, No. W2016-02499-COA-R3-CV, 2017

WL 3433130, at *3, *5 (Tenn. Ct. App. Aug. 10, 2017).

II.

The issue here is the validity of the exculpatory language in the Agreement

signed by Mr. Copeland releasing MedicOne from any liability. We review the

trial court’s summary judgment ruling on this question of law de novo with no

presumption of correctness. Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477

S.W.3d 235, 250 (Tenn. 2015) (citing Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.

1997)); Circle C Constr., LLC v. Nilsen, 484 S.W.3d 914, 917 (Tenn. 2016) (citing

3

Mr. Copeland also sued HealthSouth, which is not a party to this appeal.

4

MedicOne supported its motion with an affidavit of its records custodian and copies of the Run

Report and the Agreement. The parties also relied on excerpts of the MedicOne driver’s deposition

testimony. The trial court treated the motion as a motion for summary judgment. Under Tennessee Rule

of Civil Procedure 12.02, if a motion to dismiss based on 12.02(6) is supported by matters outside the

pleading and those matters are not excluded by the court, the court treats the motion as one for summary

judgment.

-3-

Hamblen Cnty. v. City of Morristown, 656 S.W.2d 331, 335–36 (Tenn. 1983))

(stating that contract interpretation is a question of law).

There is a natural tension between Tennessee’s public policy that favors

allowing parties to have freedom to contract5 and the public policy that disfavors

allowing a party to escape the consequences of the party’s negligence. In Olson v.

Molzen, 558 S.W.2d 429 (Tenn. 1977), we adopted factors to be considered when

determining the enforceability of an exculpatory agreement. Olson involved an

agreement, signed by a patient before a medical procedure, releasing the doctor

from “any present or future legal responsibility associated with” the procedure. Id.

at 429–30. The procedure was unsuccessful, and the patient sued the doctor. The

trial court dismissed the lawsuit based on the agreement. Id. at 429. The Court of

Appeals affirmed the dismissal. Id.

On review, we acknowledged that parties may agree that one party will not

be liable for negligence to the other party, subject to certain exceptions. Id. at 430

(citing Moss v. Fortune, 340 S.W.2d 902 (Tenn. 1960)). This Court recognized a

line of Tennessee cases upholding such agreements,6 but none involving a

physician, who is a “professional person operating in an area of public interest and

pursuing a profession subject to licensure by the state.” Id. at 430. We

distinguished between “tradesmen in the market place” and those “experts” who

were practicing state regulated professions. Id. This Court noted that because

certain relationships require of one party “‘greater responsibility than that

required of the ordinary person,’” an exculpatory agreement between such parties

is “‘peculiarly obnoxious.’” Id. (quoting Williston on Contracts § 1751 (3d ed.

1972)). To guide the analysis, this Court adopted a series of factors from Tunkl v.

Regents of University of California, 383 P.2d 441 (Cal. 1963), to be considered in

determining whether a transaction affected the public interest:

a. It concerns a business of a type generally thought suitable for

public regulation.

5

Adams v. Roark, 686 S.W.2d 73, 75 (Tenn. 1985); Empress Health & Beauty Spa, Inc. v.

Turner, 503 S.W.2d, 188, 190 (Tenn. 1973); Trailmobile, Inc. v. Chazen, 370 S.W.2d 840, 844 (Tenn. Ct.

App. 1963); Moss v. Fortune, 340 S.W.2d 902, 903–04 (Tenn. 1960).

6

These prior cases included Empress, 503 S.W.2d 188; Trailmobile, 370 S.W.2d 840; and Dixon

v. Manier, 545 S.W.2d 948 (Tenn. Ct. App. 1976).

-4-

b. The party seeking exculpation is engaged in performing a service

of great importance to the public, which is often a matter of

practical necessity for some members of the public.

c. The party holds himself out as willing to perform this service for

any member of the public who seeks it, or at least for any member

coming within certain established standards.

d. As a result of the essential nature of the services, in the economic

setting of the transaction, the party invoking exculpation possesses

a decisive advantage of bargaining strength against any member of

the public who seeks his services.

e. In exercising a superior bargaining power the party confronts the

public with a standardized adhesion contract of exculpation, and

makes no provision whereby a purchaser may pay additional fees

and obtain protection against negligence.

f. Finally, as a result of the transaction, the person or property of the

purchaser is placed under the control of the seller, subject to the

risk of carelessness by the seller or his agents.

Olson, 558 S.W.2d at 431. Noting that not all of these factors must be present for

the exception to apply, we found that all the factors were present in Olson and held

that the exculpatory agreement was unenforceable. Id. at 431–32.

After our decision in Olson, there was some confusion about whether the

Olson factors applied only to exculpatory agreements involving professional

services. In two cases, the Court of Appeals determined that the Olson analysis did

not apply because the cases did not involve contracts for professional services. In

Schratter v. Development Enterprises, Inc., 584 S.W.2d 459, 461 (Tenn. Ct. App.

1979), the Court of Appeals upheld an exculpatory provision in a residential lease,

based in part on its determination that this Court had limited application of the

Olson factors to professional service contracts.7 Likewise, in Parton v. Mark Pirtle

Oldsmobile-Cadillac-Isuzu, Inc., 730 S.W.2d 634, 636 (Tenn. Ct. App. 1987)

(citing Olson, 558 S.W.2d at 430), the Court of Appeals declined to apply the

7

This Court later expressly overruled Schratter in Crawford v. Buckner, 839 S.W.2d 754, 760

(Tenn. 1992).

-5-

Olson factors to a contract for automobile repair because it concluded that this

Court did not intend for the Olson analysis to apply to tradesmen in the market

place.8 By the same token, in Petty v. Privette, 818 S.W.2d 743 (Tenn. Ct. App.

1989), the Court of Appeals applied the Olson factors to exculpatory language in a

will that was intended to protect the attorney who had drafted the will. Finding

only two of the Olson factors were present, the Court of Appeals held that this was

insufficient to render the exculpatory clause in the will unenforceable as against

public policy. Id. at 746.9

Yet the Court of Appeals in other cases applied the Olson factors when

ruling on the enforceability of exculpatory provisions in contracts not involving

professional services. In Childress v. Madison County, 777 S.W.2d 1 (Tenn. Ct.

App. 1989), the Court of Appeals analyzed an exculpatory release for participation

in the Special Olympics. The intermediate appellate court held that the release did

not fall under the exception provided by Olson based on the lack of any business

motivations, citing the references in Olson to “‘business, bargaining strength in

economic settings, purchasers, and payment of additional fees, to obtain protection

against negligence’” and concluded that “the rule was intended to operate primarily

in the marketplace.” Id. at 4 (quoting Olson, 558 S.W.2d at 431). The Court of

Appeals in Smith v. Peoples Bank of Elk Valley, No. 01A01-9111-CV-00421, 1992

WL 117061, at *5 (Tenn. Ct. App. June 3, 1992), analyzed an exculpatory

provision in a safe deposit box rental contract using the Olson factors. The

intermediate appellate court held that the exculpatory provision was unenforceable

because all factors were present – safe deposit box rental was regulated by statute

and involved a service of great importance to the public; banks hold themselves out

as willing to perform this service for any member of the public able to pay the

rental fees; banks have greater bargaining power because most people cannot

provide that type of protection for their valuables; it was a standardized contract of

adhesion not open to negotiation; and the customer’s property was placed under

the control of the bank. Id. at *4.

8

The Parton court held the agreement unenforceable on other grounds, finding that the

exculpatory language hidden in fine print did not fall within the parties’ “circle of assent” and thus did not

relieve the defendant from liability. 730 S.W.2d at 638.

9

Although the Court of Appeals did not find the exculpatory clause unenforceable under Olson, it

remanded the case so the trial court could determine whether the clause was included because of undue

influence, overreaching, or abuse of fiduciary relationship on the part of the attorney who drafted the will.

818 S.W.2d at 746–48.

-6-

In still other post-Olson cases, the Court of Appeals did not mention the

Olson factors or any professional services requirement but relied on the language

of the contract to determine the enforceability of the exculpatory provisions. In

Hays v. Ernesto’s, Inc., 1987 WL 11119, at *2 (Tenn. Ct. App. May 19, 1987), the

Court of Appeals found that exculpatory language in a release signed by a party

before riding a mechanical bull was enforceable because parties may contract for a

release from liability and an assumption of the risk incident to negligence.

Similarly, in Buckner v. Varner, 793 S.W.2d 939, 941 (Tenn. Ct. App. 1990), the

Court of Appeals upheld a waiver of liability signed by the plaintiff before

participating in horseback riding.

After Olson, this Court upheld contractual provisions limiting liability to a

sum certain. In Affiliated Professional Services v. South Central Bell Telephone

Co., 606 S.W.2d 671, 672 (Tenn. 1980), the Court declined to apply the Olson

analysis to a provision in a contract with a telephone company that limited the

company’s liability for errors or omissions in yellow pages advertisements to the

cost of the advertisement. Citing Smith v. Southern Bell Telephone & Telegraph

Co., 364 S.W.2d 952 (Tenn. 1962) and noting that nearly every appellate court that

had considered this frequently litigated issue had upheld the limitation of liability

in these contracts with telephone companies, the Court found that the case did not

fall within the purview of Olson and upheld the agreement. Affiliated Prof’l Servs.,

606 S.W.2d at 672. Later, in Houghland v. Security Alarms & Services, Inc., 755

S.W.2d 769, 773 (Tenn. 1988), this Court upheld a clause limiting the liability of a

company providing security alarm monitoring to a sum certain, citing cases from

other jurisdictions and noting that such limitations of liability have generally been

upheld in these types of cases against providers of alarm monitoring services. The

Court in Houghland mentioned Olson, observing that agreements such as the one

examined there would be unenforceable if licensed professional personnel were

involved. Id. (citing Olson, 558 S.W.2d 429). Houghland and its progeny involved

limitations of liability and liquidated damages provisions, and thus were

distinguishable from the agreement in Olson. In addition, the alarm monitoring

company in Houghland did not present the contract on a “take-it-or-leave-it” basis,

but offered the customer the opportunity to pay more for the services in return for

the company assuming greater liability. Id.; see also Underwood v. Nat’l Alarm

Servs., Inc., No. E2006-00107-COA-R3-CV, 2007 WL 1412040 (Tenn. Ct. App.

May 14, 2007); E.B. Harvey & Co., Inc. v. Protective Sys., Inc., 1989 WL 9546

(Tenn. Ct. App. 1989).

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In another post-Olson case, Adams v. Roark, 686 S.W.2d 73, 75 (Tenn.

1985), this Court did not reference the Olson factors in finding that a release signed

by a participant in a motorcycle race was enforceable in a claim for ordinary

negligence.10 Instead, the Court noted that the public policy of Tennessee favors

freedom to contract and that releases from liability in motor racing events are

expressly permitted by statute in Tennessee.11 Id. at 75–76.

This Court next considered the applicability of the Olson factors to a

nonprofessional services contract in Crawford v. Buckner, 839 S.W.2d 754 (Tenn.

1992). Analyzing an exculpatory clause in a residential lease contract, the Court

found that the landlord-tenant relationship satisfied all of the Olson factors, and

thus the exculpatory clause in the lease was unenforceable because it was contrary

to public policy. Id. at 758–59. The Court explained “where there is no declaration

in the Constitution or the statutes, and the area is governed by common law

doctrines, it is the province of the courts to consider the public policy of the state

as reflected in old, court-made rules.” Id. at 759. Thus, “the exception to the

freedom of contract rule for exculpatory [provisions] affecting the public interest is

also a judicial declaration of public policy.” Id.

The Court in Crawford expressly overruled Schratter and other prior

inconsistent decisions, noting Schratter’s conclusion that the Olson factors applied

only to contracts involving professional services. Id. at 760. The Court held that

“under the facts here,” the exculpatory clause in the lease was against public

policy. Id. This limiting language appears to have added to the confusion about the

applicability of the Olson factors because even after Crawford, the inconsistency in

application continued.

In some post-Crawford cases, the Court of Appeals determined that the

Olson factors did not apply because the agreement did not involve professional

services. Petry v. Cosmopolitan Spa Int’l, Inc., 641 S.W.2d 202, 203 (Tenn. Ct.

App. 1982) (stating that “Olson did not overrule Empress” because spas are not

“businesses ‘of a type generally thought suitable for regulation’”) (quoting Olson,

10

The Court found that there was a genuine issue of material fact as to the plaintiff’s allegations

of gross negligence, and remanded the case to the trial court for a determination of that issue. 686 S.W.2d

at 74.

11

“The practice of participants in motor racing events of releasing the promoters thereof from

liability and of assuming liability for any injuries sustained is expressly approved.” Tenn. Code Ann.

§ 55-22-105 (1968) (now Tenn. Code Ann. § 55-22-103 (2015)).

-8-

558 S.W.2d at 431); Floyd v. Club Sys. of Tenn., Inc., No. 01-A-01-9807-CV-

00399, 1999 WL 820610, at *4 (Tenn. Ct. App. July 20, 1999) (finding, based on

Petry, that the Olson test did not apply to health club contracts); Henderson v.

Quest Expeditions, Inc., 174 S.W.3d 730, 732–33 (Tenn. Ct. App. 2005)

(upholding an exculpatory waiver for whitewater rafting because it did not involve

a professional trade affecting the public interest); Thrasher v. Riverbend Stables,

LLC, No. M2008-02698-COA-RM-CV, 2009 WL 275767, at *3 (Tenn. Ct. App.

Feb. 5, 2009) (quoting Russell v. Bray, 116 S.W.3d 1, 6 (Tenn. Ct. App. 2003))

(upholding an exculpatory provision in a contract for boarding and training horses

because the Olson test applied only to agreements involving a professional person).

Yet in other post-Crawford cases, the Court of Appeals applied the Olson

analysis to contracts that did not involve professional services. Lomax v. Headley

Homes, No. 02A01-9607-CH-00163, 1997 WL 269432, at *7–9 (Tenn. Ct. App.

May 22, 1997) (holding an exculpatory provision in a home construction loan

agreement unenforceable under the Olson analysis); Hancock v. U-Haul Co. of

Tenn., No. 01-A-01-9801-CC-00001, 1998 WL 850518, at *4–5 (Tenn. Ct. App.

Dec. 10, 1998) (concluding an exculpatory provision was enforceable in a

self-storage facility contract because although three of the Olson factors were

present, the “important questions” of state regulation, reasonable alternatives for

the plaintiff, and control over the plaintiff’s property were lacking); Lane-Detman,

L.L.C. v. Miller & Martin, 82 S.W.3d 284, 293–94 (Tenn. Ct. App. 2002)

(applying the Olson analysis to a contract with a law firm to provide background

checks and holding that the contract was enforceable because “at most” three of the

Olson factors were present, both parties to the contract were sophisticated

commercial entities, and the services provided were not subject to regulation);

Tompkins v. Helton, No. M2002-01244-COA-R3-CV, 2003 WL 21356420, at *4

(Tenn. Ct. App. June 12, 2003) (applying the Olson factors to uphold a waiver

signed at a racetrack because races are not of great importance to the public or a

practical necessity; there was no disparity in bargaining power; and because the

activity was voluntary, the plaintiff had not been placed under the control of the

racetrack owner); Maxwell v. Motorcycle Safety Found., Inc., 404 S.W.3d 469,

474–75 (Tenn. Ct. App. 2013) (citing Henderson, 174 S.W.3d at 733; Tompkins,

2003 WL 21356420 at *1) (determining that a release for a motorcycle safety

course was enforceable under the Olson analysis because it was a voluntary

activity much like a motor speedway race or whitewater rafting).

In other post-Crawford cases, the Court of Appeals found that exculpatory

provisions were unenforceable and against public policy under the Olson analysis

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specifically because the cases involved professional services or services that

affected the public interest in a way analogous to a professional services contract.

In Russell v. Bray, 116 S.W.3d 1, 6 (Tenn. Ct. App. 2003) (citing Olson, 558

S.W.2d at 430; Parton, 730 S.W.2d at 636), the Court of Appeals stated that the

Olson analysis should be “limited to situations involving a contract with a

professional person, rather than a tradesman.” The Russell court found that an

exculpatory provision in a home inspection contract was suitable for analysis under

the Olson test because unlike tradesmen, home inspectors do not perform hands-on

tasks but sell their expert analysis and opinions. Id.; see also Carey v. Merritt, 148

S.W.3d 912 (Tenn. Ct. App. 2004) (holding an exculpatory clause in a home

inspection contract unenforceable based on the holding in Russell). In Maggart v.

Almany Realtors, Inc., No. M2005-02532-COA-R3-CV, 2007 WL 2198204 at *5

(Tenn. Ct. App. July 26, 2007) (quoting Olson, 558 S.W.2d at 430–31), aff’d on

other grounds, 259 S.W.3d 700 (Tenn. 2008), the Court of Appeals analogized an

exculpatory agreement between employer and employee to exculpatory provisions

in business contracts with consumers, observing that the relationship was one

requiring greater responsibility on the part of the employer, which would render an

exculpatory release in favor of the employer “obnoxious.”

There are also post-Crawford cases in which the Court of Appeals did not

mention Olson, but relied solely on the common law of contracts and the language

of the agreement to determine the enforceability of an exculpatory provision. Pettit

v. Poplar-Union Extended Mini-Storage, 1995 WL 30602, at *2 (Tenn. Ct. App.

Jan. 26, 1995) (holding an exculpatory provision in a self-storage contract

enforceable because the language was unambiguous); Burks v. Belz-Wilson Props.,

958 S.W.2d 773, 777 (Tenn. Ct. App. 1997) (citation omitted) (finding a release

for participation in a work-sponsored athletic event unenforceable because the

wording was ambiguous and thus construed against the drafter); Fleming v.

Murphy, No. W2006-00701-COA-R3-CV, 2007 WL 2050930, at *14 (Tenn. Ct.

App. July 19, 2007) (citing Ouzts v. Womack, 160 S.W.3d 883, 885 (Tenn. Ct.

App. 2004)) (“Under the common law of contracts, we interpret exculpatory

clauses according to the plain meaning of their terms.”); Gibson v. Young Men’s

Christian Ass’n of Middle Tenn., No. M2015-01465-COA-R9-CV, 2016 WL

2937320, at *2–3 (Tenn. Ct. App. May 16, 2016) (applying the rules of contract

interpretation and looking at the plain meaning of the words to find the exculpatory

provision enforceable where the agreement was clear and the plaintiff was injured

while using the facilities as contemplated by the parties).

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Federal courts have followed suit by inconsistently applying Olson. See

Teles v. Big Rock Stables, L.P., 419 F. Supp. 2d 1003, 1008–09 (E.D. Tenn. 2006)

(analyzing a contract with a horse stable under the Olson test and finding that it did

not fall under the Olson exception prohibiting exculpatory provisions, although

there was a genuine issue of material fact as to gross negligence that precluded

summary judgment); Farris v. KTM N. Am., Inc., No. 3:04-CV-354, 2006 WL

73618, at *3 (E.D. Tenn. Jan. 11, 2006) (quoting Olson, 558 S.W.2d at 430) (citing

Olson in support of enforcing an exculpatory waiver for test driving motorcycles

because it did not involve a service of great importance to the public, but noting

that application of the Olson factors is typically limited to a contract for

professional services).

This Court has not addressed the enforceability of exculpatory agreements

since Crawford in 1992.12 Because of the inconsistency in how these agreements

have been reviewed, we take this opportunity to restate the proper analysis to be

applied to these agreements.

III.

Although courts throughout the country have taken numerous and varied

approaches to exculpatory agreements, there are some common principles.13 First,

a party may not, for public policy reasons, exempt itself from liability for gross

negligence, reckless conduct, or intentional wrongdoing. Restatement (Second) of

12

This Court granted permission to appeal in Stewart v. Chalet Village Properties, Inc., No.

E2007-01499-COA-R3-CV, 2008 WL 836136 (Tenn. Ct. App. Mar. 31, 2008). In Stewart, the Court of

Appeals applied the Olson analysis, holding that an exculpatory clause in a short-term vacation rental

agreement was unenforceable because it affected the public interest and was contrary to public policy. Id.

at *6. This Court, in an opinion designated not for publication under Tennessee Supreme Court Rule 4,

agreed that an analysis under Olson was appropriate, but reversed and remanded the case to the trial court

because the trial court had failed to apply the Olson factors and this Court’s application of the Olson

factors was hampered by an incomplete record. Stewart v. Chalet Vill. Props., Inc., No. E2007-01499-SC-

R11-CV, 2009 WL 3616611, at *1 (Tenn. Nov. 3, 2009).

13

In two states, exculpatory agreements are unenforceable in personal injury cases. In Louisiana,

agreements excluding or limiting liability for personal injuries are void and unenforceable by statute. La.

Civ. Code Ann. art. 2004 (1985). Similarly, in Virginia, parties may contract for the release of liability

and indemnification of third parties for property damage, but not for personal injury. Hiett v. Lake

Barcroft Cmty. Ass’n, 418 S.E.2d 894, 895–96 (Va. 1992).

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Contracts § 195 (1981); Maxwell, 404 S.W.3d at 476 (citing Buckner, 793 S.W.2d

at 941).

Second, exculpatory provisions in contracts involving common carriers are

unenforceable on the grounds of public policy and disparity of bargaining power.

14 Am. Jur. 2d Carriers § 853 (Nov. 2018 update) (noting that public policy

forbids relieving carriers of responsibility based on their position of advantage over

members of the public who are compelled to deal with them); see also Trailmobile,

Inc. v. Chazen, 370 S.W.2d 840, 841–42 (Tenn. Ct. App. 1963); Moss, 340 S.W.2d

at 904. The same rule applies to inns and airports that assume “a duty of public

service” to certain segments of the public. 1A Stuart M. Speiser et al., American

Law of Torts § 5:39 (Mar. 2018 update).14

Third, although exculpatory agreements are generally enforceable, in many

states they are disfavored. See 8 Williston on Contracts § 19:25 (4th ed. 1993).15

14

See also Maxwell Operating Co. v. Harper, 200 S.W. 515 (Tenn. 1918); Ellerman v. Atlanta

Am. Motor Hotel Corp., 191 S.E.2d 295, 296 (Ga. Ct. App. 1972) (observing that the public does not have

equal bargaining power when dealing with innkeepers, who are in a position to deny needed services);

Northwest Airlines, Inc. v. Alaska Airlines, Inc., 351 F.2d 253, 256 (9th Cir. 1965) (quoting Restatement

(Second) of Contracts § 575(1)) (noting that exemption from liability for negligence is unenforceable if

one of the parties has a duty to the public for which it is to be compensated and the agreement relates to

negligence in the performance of that public duty).

15

Exculpatory provisions are not disfavored in Tennessee. See, e.g., Trailmobile, 370 S.W.2d at

844. In other states, exculpatory agreements are disfavored and strictly construed against the party

seeking enforcement. See Kissick v. Schmierer, 816 P.2d 188, 191–92 (Alaska 1991); Salt River Project

Agric. Improvement and Power Dist. v. Westinghouse Elec. Corp., 694 P.2d 198, 213 (Ariz. 1984),

abrogated in part on other grounds by Phelps v. Firebird Raceway, Inc., 111 P.3d 1003, 1010–11 & n.5

(Ariz. 2005); Plant v. Wilbur, 47 S.W.3d 889, 893 (Ark. 2001); Am. Auto. Ins. Co. v. Seaboard Sur. Co.,

318 P.2d 84, 87–88 (Cal. Dist. Ct. App. 1957); Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467

(Colo. 2004); Hanks v. Powder Ridge Rest. Corp., 885 A.2d 734, 739 (Conn. 2005); Sanderson v.

Firestone Tire & Rubber Co., Civ. A. No. 89C-MR-212, 1994 WL 807899 (Del. Super. Ct. July 28,

1994); Zinz v. Concordia Props., Inc., 694 So. 2d 120, 121 (Fla. Dist. Ct. App. 1997); Fujimoto v. Au, 19

P.3d 699, 738 (Haw. 2001); Jesse v. Lindsley, 233 P.3d 1, 6 (Idaho 2008); Hawkins v. Capital Fitness,

Inc., 29 N.E.3d 442, 447 (Ill. App. Ct. 2015); Belger Cartage Svc., Inc. v. Holland Constr. Co., 582 P.2d

1111, 1119 (Kan. 1978); Cumberland Valley Contractors, Inc. v. Bell Cnty. Coal Corp., 238 S.W.3d 644,

649 (Ky. 2007); Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 923 (Minn. 1982); Turnbough v. Ladner,

754 So. 2d 467, 469 (Miss. 1999); Warren v. Paragon Techs. Grp., Inc., 950 S.W.2d 844, 845 (Mo.

1997); Agric. Aviation Eng’g Co. v. Bd. of Clark Cnty. Comm’rs, 794 P.2d 710, 713 (Nev. 1990); Barnes

v. N.H. Karting Ass’n, 509 A.2d 151, 154 (N.H. 1986); Stelluti v. Casapenn Enters., LLC, 1 A.3d 678,

688–90 (N.J. 2010); Princetel, LLC v. Buckley, 944 N.Y.S.2d 191, 193 (N.Y. App. Div. 2012); Hyatt v.

- 12 -

Fourth, most courts require that the exculpatory language be unequivocal

and clear. Williston § 19:22. An exculpatory clause must “clearly, unequivocally,

specifically, and unmistakably” state the intention to exempt one of the parties

from liability for its own negligence. Id. § 19:25; see also, e.g., Parton, 730

S.W.2d at 638 (holding an exculpatory clause invalid based on a lack of evidence

that it had been pointed out to the plaintiff or that “a person of ordinary intelligence

and experience” would understand that the agreement relieved the defendant of all

liability); Sirek v. Fairfield Snowbowl, Inc., 800 P.2d 1291, 1295 (Ariz. Ct. App.

1990) (stating that exculpatory language should alert the party signing the release

that “it is giving up a very substantial right”); Sanislo v. Give Kids the World, Inc.,

157 So. 3d 256, 261 (Fla. 2015) (holding exculpatory agreements enforceable if the

language is “so clear and understandable that an ordinary and knowledgeable

person will know what he or she is contracting away”).

Fifth, most jurisdictions do not enforce exculpatory provisions that are

contrary to public policy. There is no bright line rule defining when a provision is

contrary to public policy, but Williston suggests that whether an exculpatory

agreement is void as against public policy depends on:

all of the facts and circumstances surrounding the making of the

agreement; society’s expectations; the identity and nature of the

parties involved, including their relative education, experience,

sophistication, and economic status; and the nature of the transaction

itself, including the subject matter, the existence or absence of

competition, the relative bargaining strength and negotiating ability of

the economically weaker party, and the terms of the agreement itself,

including whether it was arrived at through arm’s length negotiation

or on terms dictated by the stronger party and on an adhesive, take-it-

or-leave-it basis.

Williston § 19:22.

Mini Storage on the Green, 763 S.E.2d 166, 169 (N.C. Ct. App. 2014); Konrad ex rel. McPhail v.

Bismarck Park Dist., 655 N.W.2d 411, 413 (N.D. 2003); Schmidt v. United States, 912 P.2d 871, 874

(Okla. 1996); Mann v. Wetter, 785 P.2d 1064, 1066 (Or. Ct. App. 1990); Fisher v. Stevens, 584 S.E.2d

149, 152 (S.C. Ct. App. 2003); Housing Vermont v. Goldsmith & Morris, 685 A.2d 1086, 1089 (Vt.

1996); Atkins v. Swimwest Family Fitness Ctr., 691 N.W.2d 334, 338 (Wis. 2005).

- 13 -

This Court adopted the Olson factors based on the Tunkl analysis. Tunkl,

however, is the minority approach, with only five other states currently relying on

the Tunkl factors to determine the enforceability of exculpatory provisions.16

Courts in several states have observed that the factors fail to consider the totality of

circumstances and, as a result, are overly rigid and arbitrary. See Wolf v. Ford, 644

A.2d 522, 527 (Md. 1994) (declining to adopt Tunkl because of concern that the six

fixed factors may be too rigid and arbitrary); Schlobohm v. Spa Petite, Inc., 326

N.W.2d 920, 924 (Minn. 1982) (noting that although a number of courts cite Tunkl

with approval, post-Tunkl cases generally consider disparity in bargaining power

and whether the agreement involves a public or essential service); Hanks v.

Powder Ridge Rest. Corp., 885 A.2d 734, 744 (Conn. 2005) (stating that public

interest cannot adequately be defined within the four corners of a formula, and thus

the analysis should be guided but not limited by the Tunkl factors).

After reviewing precedent in this state and across the country, we conclude

that the public policy in Tennessee has historically favored freedom of contract.

Thus, contracts exempting one party from liability for negligence are not

disfavored and are generally enforceable. Olson, 558 S.W.2d at 430. That said, not

16

See Morgan v. S. Cent. Bell Tel. Co., 466 So. 2d 107, 117 (Ala. 1985); City of Santa Barbara v.

Superior Court, 161 P.3d 1095, 1099–1102 (Cal. 2007); Bodyslimmer, Inc. v. Sanford, 398 S.E.2d 840,

841 (Ga. Ct. App. 1990); Glassford v. Brickkicker, 35 A.3d 1044, 1050 (Vt. 2011); Vodopest v.

MacGregor, 913 P.2d 779, 786 (Wash. 1996). Courts in other states have cited Tunkl and applied the

Tunkl factors in certain cases without adopting them. See Cudnik v. William Beaumont Hosp., 525

N.W.2d 891, 895 (Mich. Ct. App. 1994) (citing Tunkl as the leading case addressing an exculpatory

agreement between a hospital and a patient, and finding that the agreement at issue fulfilled all of the

Tunkl criteria); Schutkowski v. Carey, 725 P.2d 1057, 1060 (Wyo. 1986) (citing the four-part test adopted

by the Colorado Supreme Court and applying the Tunkl factors to determine whether a private

recreational business involved a public duty or was a matter of great necessity as required by that

four-part test); Banfield v. Louis, 589 So.2d 441, 446 (Fla. Dist. Ct. App. 1991) (quoting Bituminous Cas.

Corp. v. Williams, 17 So.2d 98, 102 (Fla. 1944)) (applying the Tunkl factors in finding that the plaintiff

had failed to show sufficient evidence to invalidate an exculpatory agreement based on “‘great prejudice

to the dominant public interest’”). Several other states use the Tunkl factors to guide their analysis of

public policy or the public interest as one part of a multi-part test. See Jones v. Dressel, 623 P.2d 370, 376

(Colo. 1981) (using the Tunkl factors to determine whether the public interest prong of Colorado’s

four-part test has been met); Courbat v. Dahana Ranch, Inc., 141 P.3d 427, 438–39 (Haw. 2006)

(determining the public interest element of Hawaii’s three-part test by application of the Tunkl factors);

Berlangieri v. Running Elk Corp., 76 P.3d 1098, 1109–10 (N.M. 2003) (adopting the Tunkl factors for

guidance, but noting that they are only “indicators” helpful to determine “the larger question of whether

enforcement of the release would be unjust”); Pearce v. Utah Athletic Found., 179 P.3d 760 (Utah 2008)

(adopting the Tunkl factors to determine whether the public interest prong of Utah’s two-part test has been

met), abrogated in part on other grounds by Penunuri v. Sundance Partners, Ltd., 423 P.3d 1150 (Utah

2017).

- 14 -

all exculpatory agreements should be enforceable, and courts should determine

their enforceability by consideration of the circumstances of the parties, the

language used in the agreement, and the public interest. While the factors adopted

in Olson remain instructive and may be considered when relevant, the Olson

approach is too rigid, fails to consider all the relevant circumstances, and is

followed by only a handful of jurisdictions.

We, therefore, need to restate our approach to determining the validity of

exculpatory agreements. After surveying the factors adopted by courts in other

states17 and considering Tennessee precedent, we hold that the enforceability of an

17

See Plant v. Wilbur, 47 S.W.3d 889, 893–94 (Ark. 2001) (three factors: public interest

considerations; equality of bargaining power; clarity of language); Jones v. Dressel, 623 P.2d 370, 376

(Colo. 1981) (four factors: existence of a duty to the public (determined by the Tunkl factors); the nature

of the service performed; whether the agreement was fairly entered into; clear and unambiguous

language); Moore v. Waller, 930 A.2d 176, 181–83 (D.C. 2007) (three factors: whether the exculpatory

language is clear and unambiguous; bargaining power, specifically including whether the contract

involves a necessary service; public policy); Sanislo, 157 So.3d at 260 (two factors: unambiguous

language; public policy); Courbat v. Dahana Ranch, Inc., 141 P.3d 427, 438–39 (Haw. 2006) (three

factors: not violative of a statute; public interest (defined by Tunkl); equality of bargaining power); Jesse

v. Lindsley, 233 P.3d 1, 6 (Idaho 2008) (two factors: bargaining power; existence of a public duty);

Hawkins v. Capital Fitness, Inc., 29 N.E.3d 442, 446–47 (Ill. App. Ct. 2015) (three factors: disparity in

bargaining power; public policy; social relationship between the parties that “militates against upholding

the clause”); McAdams v. Foxcliff Estates Cmty. Ass’n, 92 N.E.3d 1144, 1150 (Ind. Ct. App. 2018) (four

factors: bargaining power; unconscionability; whether the contract affects public interest; public policy);

B.J.’s Wholesale Club, Inc. v. Rosen, 80 A.3d 345, 351–52 (Md. 2013) (three factors: clear and specific

language; bargaining power; whether the contract affects the public interest); Xu v. Gay, 668 N.W.2d 166,

171–73 (Mich. 2003) (two factors: whether the release was fairly and knowingly made; explicit and

unambiguous language); Schlobohm, 326 N.W.2d at 923 (two factors: bargaining power; whether the

contract affects the public interest); Turnbough v. Ladner, 754 So. 2d 467, 469 (Miss. 1999) (two factors:

whether the agreement was “fairly and honestly negotiated and understandingly entered into”; clear and

precise language); Stelluti v. Casapenn Enters., LLC, 1 A.3d 678, 689 (N.J. 2010) (four factors: whether

the agreement affects the public interest; existence of a legal duty to perform the service; no public utility

or common carrier is involved; bargaining power/unconscionability); Princetel, LLC v. Buckley, 944

N.Y.S.2d 191, 193 (N.Y. App. Div. 2012) (three factors: no contravening public policy; clear,

unequivocal language; the existence of a special relationship between the parties “such that an overriding

public interest prohibits enforcement”); Hyatt v. Mini Storage on the Green, 763 S.E.2d 166, 169 (N.C.

Ct. App. 2014) (three factors: not violative of a statute; bargaining power; public interest); Schmidt v.

United States, 912 P.2d 871, 874 (Okla. 1996) (three factors: clear and unambiguous language; bargaining

power; public policy); Topp Copy Prods., Inc. v. Singletary, 626 A.2d 98, 99 (Pa. 1993) (four factors:

public policy; the contract relates entirely to the parties’ private affairs; bargaining power; clear and

unambiguous language); K.N. v. Life Time Fitness, Inc., No. 2:16-cv-39, 2018 WL 1472483 at *6 (D.

Utah March 23, 2018) (citing Pearce v. Utah Athletic Found., 179 P.3d 760 (Utah 2008)) (two factors:

clear and unambiguous language; public interest). Roberts v. T.H.E. Ins. Co., 879 N.W.2d 492, 501–02

(Wis. 2016) (three-factor public policy analysis: exculpatory language must not be overly broad and

all-inclusive; adequate notice of the waiver’s nature and significance; bargaining power); Massengill v.

- 15 -

exculpatory agreement should be determined by considering the totality of the

circumstances and weighing these non-exclusive factors: (1) relative bargaining

power of the parties; (2) clarity of the exculpatory language, which should be clear,

unambiguous, and unmistakable about what the party who signs the agreement is

giving up; and (3) public policy and public interest implications. The totality of the

facts and circumstances of each case will dictate the applicability of and the weight

to be given to each of these factors. The factors need not be weighed equally in any

given case – rather, the analysis should involve balancing each of these

considerations given the facts and circumstances surrounding the formation of the

agreement. In addition, we hold that there is no “professional services criterion”

that restricts application of this analysis to contracts for professional services.

Therefore, we overrule Parton, 730 S.W.2d 634; Petty, 818 S.W.2d 743; Petry,

641 S.W.2d 202; Floyd, 1999 WL 820610; Henderson, 174 S.W.3d 730; Thrasher,

2009 WL 275767; Russell, 116 S.W.3d 1; Carey, 148 S.W.3d 912; and any other

previous decisions to the extent these cases conflict with our holding.

We next turn to defining these factors to provide additional guidance in their

application to the facts and circumstances of each case.

Relative bargaining power. Although there is no precise rule by which to

define sufficient disparity in bargaining power between the parties to invalidate an

exculpatory agreement, two key criteria are the importance of the service at issue

for the physical or economic well-being of the party signing the agreement and the

amount of free choice that party has in seeking alternate services. Schmidt v.

United States, 912 P.2d 871, 874 (Okla. 1996). For example, a standardized form

offered on a take-it-or-leave-it basis may be invalid if there was great disparity of

bargaining power, no opportunity for negotiation, and the services could not

reasonably be obtained elsewhere. Schlobohm, 326 N.W.2d at 924.18

S.M.A.R.T. Sports Med. Clinic, P.C., 996 P.2d 1132, 1136 (Wyo. 2000) (four factors: the existence of a

duty to the public; the nature of the service performed; whether the agreement was fairly entered into;

clear and unambiguous language).

18

See also Hyatt v. Mini Storage on the Green, 763 S.E.2d 166, 171 (N.C. Ct. App. 2014)

(quoting Hall v. Sinclair Ref. Co., 89 S.E.2d 396, 398 (N.C. 1955)) (defining disparity in bargaining

power sufficient to invalidate an exculpatory agreement as bargaining power unequal to the extent that the

releasing party must either accept the agreement or forgo a service important to him that is, for all

practical purposes, not obtainable elsewhere); Crowell v. Hous. Auth. of Dallas, 495 S.W.2d 887, 889

(Tex. 1973) (concluding that if one party is at such a disadvantage in bargaining power that he is

practically compelled to sign the release, it will be unenforceable).

- 16 -

Clarity of language. The language of an exculpatory agreement must clearly

and unequivocally state a party’s intent to be relieved from liability, and the

wording must be “so clear and understandable that an ordinary and knowledgeable

person will know what he or she is contracting away.” Sanislo, 157 So. 3d at 260–

61.19 The language must also alert the party agreeing to the exculpatory provision

that the provision concerns a substantial right. Sirek, 800 P.2d at 1295. The

language in the agreement should not be so broad as to relieve the exculpated party

from liability for any injury for any reason. Burks, 958 S.W.2d at 777 (holding

exculpatory provision relieving the defendant “from any and all liability . . .

relating to participation in these events” unenforceable as overly broad and

ambiguous); Roberts v. T.H.E. Ins. Co., 879 N.W.2d 492, 503 (Wis. 2016) (citing

Richards v. Richards, 513 N.W.2d 118, 121 (Wis. 1994)).20 Ambiguous language

will be construed against the party that drafted the agreement. Burks, 958 S.W.2d

at 777.

Public policy and the public interest. The third factor, public policy and the

public interest, is the most difficult to articulate. Public policy has been defined as

“‘that principle of law under which freedom of contract or private dealings is

restricted by law for the good of the community.’” Roberts, 879 N.W.2d at 501–02

(quoting Atkins v. Swimwest Family Fitness Ctr., 691 N.W.2d 334, 339 (Wis.

2005)). A private contract violates public policy if it conflicts with the constitution,

statutes, or judicial decisions of this state or tends to be harmful to the public good,

public interest, or public welfare. Spiegel v. Thomas, Mann & Smith, P.C., 811

S.W.2d 528, 530 (Tenn. 1991). As this Court explained in Crawford, without a

declaration in the constitution or the statutes of Tennessee, a judicial declaration of

public policy is within the province of the courts. 839 S.W.2d at 759. Public policy

is also determined by societal expectations that are flexible and change over time.

See Wolf, 644 A.2d at 527–28 (“The ultimate determination of what constitutes the

19

See also Turnbough v. Ladner, 754 So. 2d 467, 469 (Miss. 1999) (stating that the intention to

release one party from liability for negligence must be expressed in “clear and unmistakable language”

and “should express as clearly and precisely as possible the extent to which a party intends to be absolved

from liability”).

20

See also Turnbough, 754 So. 2d at 469 (“We do not sanction broad, general, ‘waiver of

negligence’ provisions, and strictly construe them against the party asserting them as a defense.”);

Richards v. Richards, 513 N.W.2d 118, 122 (Wis. 1994) (finding that the overly broad language of the

release “raised questions about its meaning and demonstrate[d] its one-sidedness” as unreasonably

favorable to the released party). But see Huber v. Hovey, 501 N.W.2d 53, 54–55 (Iowa 1993) (upholding

broad release from “any and all” loss, damage, or claim whether caused by negligence or otherwise).

- 17 -

public interest must be made considering the totality of the circumstances of any

given case against the backdrop of current societal expectations.”).

Whether the public interest is affected may be determined by considering

whether a party to the transaction has a public service obligation, such as a public

utility, common carrier, or innkeeper. Wolf, 644 A.2d at 526. This analysis also

includes transactions that are not as readily defined, but are so important to the

public good that an exculpatory clause would be contrary to society’s expectations.

Id. (quoting Md.-Nat’l Capital Park & Planning Comm’n v. Wash. Nat’l Arena,

386 A.2d 1216, 1228 (Md. 1978)); see also Hanks v. Powder Ridge Rest. Corp.,

885 A.2d 734, 744 (Conn. 2005) (citations omitted) (agreeing with the Maryland

and Vermont Supreme Courts that the public interest must be determined based on

the totality of the circumstances and that the analysis, guided but not limited by

Tunkl, “is informed by any other factors that may be relevant given the factual

circumstances of the case and current societal expectations”); Williston § 19:22.

In determining whether the service involved is a public or essential service,

courts should consider whether it is a type of service generally considered suitable

for public regulation. Schlobohm, 326 N.W.2d at 925–26. And in deciding whether

enforcement of an exculpatory provision would be against public policy, courts

should consider whether the services involved are of great importance to the

public, which are a practical necessity for some members of the public. Id.; see

also Plant v. Wilbur, 47 S.W.3d 889, 893 (Ark. 2001) (upholding release signed by

a spectator at a car race because that activity involved a narrow segment of the

public, unlike a public utility, common carrier, or “a similar entity connected with

the public interest”).

IV.

In applying this restated analysis to the facts before us, we take the strongest

legitimate view of the evidence in favor of Mr. Copeland as the non-moving party

for summary judgment and allow all reasonable inferences in his favor. B & B

Enters. of Wilson Cnty., LLC v. City of Lebanon, 318 S.W.3d 839, 844–45 (Tenn.

2010); Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008) (citing

Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000)).

We begin with the first factor – disparity in bargaining power. Mr. Copeland

was a seventy-seven-year-old hospital patient recovering from knee replacement

surgery who needed to go to a follow-up appointment at his doctor’s office. Mr.

- 18 -

Copeland did not select, hire, or pay MedicOne. Instead, the hospital where Mr.

Copeland was a patient arranged for his transportation with MedicOne. The

MedicOne driver presented Mr. Copeland with a pre-printed, two-sided document

containing two different forms – the Run Report and the Agreement – which Mr.

Copeland had limited time to review and sign before being transported to his

doctor’s appointment. The Agreement consisted of nine single-spaced paragraphs,

including three paragraphs of exculpatory language. The MedicOne driver spent

only nineteen minutes at the hospital, which began with his arrival, and included

going to Mr. Copeland’s room, pushing Mr. Copeland in a wheelchair to the

hospital entrance, getting him into the van, loading his walker into the back of the

van, and having Mr. Copeland review and sign the two forms.

The MedicOne driver presented the Agreement to Mr. Copeland on a

take-it-or-leave-it basis with the expectation that he would sign it. The driver did

not understand the implications of the Agreement, could not have explained it if

asked, had no authority to alter it, and would not have transported Mr. Copeland to

his appointment if he had not signed the document.

Mr. Copeland had a practical necessity to get to his medical appointment. He

had the difficult choice of signing the Agreement or delaying or forgoing his

medical care that day. Mr. Copeland’s situation was analogous to the difficult

choice presented to the plaintiff in Wofford v. M.J. Edwards & Sons Funeral

Home, Inc., 490 S.W.3d 800 (Tenn. Ct. App. 2015). There, a funeral home

presented the plaintiff with a contract for funeral services after her father’s body

had been embalmed. Relying on Buraczynski v. Eyring, 919 S.W.2d 314 (Tenn.

1996), the Wofford court ruled that the arbitration clause in the contract was

unenforceable because it was a contract of adhesion, offered on a take-it-or-leave-it

basis, and the plaintiff’s failure to sign the agreement would have interrupted the

rendition of services and caused delay, resulting in a “difficult choice.” 490

S.W.3d at 824. Recognizing that the Buraczynski analysis rests on the critical

finding of a unique relationship built on trust (such as the doctor-patient

relationship in Buraczynski), the Wofford court found that the plaintiff had no

realistic choice other than to sign the contract, and that asking her to stop the

funeral services at that point would be like asking her “to swap horses midstream.”

Id. at 816. Mr. Copeland may not have had a preexisting relationship with

MedicOne that was “unique and built on trust,” but he did have a hospital-patient

relationship with HealthSouth, the entity that had arranged for his transportation by

MedicOne. Mr. Copeland also faced the same kind of difficult choice – refusing to

sign the Agreement, offered on a take-it-or-leave-it basis that would have

- 19 -

potentially interrupted and caused a delay in his medical care by requiring him to

reschedule his appointment or, as the Court of Appeals suggested, calling a taxi. In

our view, asking Mr. Copeland to make such a choice would be like asking him to

“swap horses in midstream.” Id. There is ample evidence in the record of relative

disparity in the parties’ bargaining power.

We now turn to the second factor – the clarity of the Agreement’s

exculpatory language. Much of the exculpatory language appears in bold print and

all capital letters. Even so, although portions of paragraphs three and four purport

to limit the exculpatory language in those paragraphs to simple negligence by

expressly excluding gross negligence and willful misconduct, this limiting

language begins by stating, “WITHOUT LIMITATION OF THE FOREGOING

. . . .” The “foregoing” in paragraph three reads:

Client does hereby release and forever discharge MedicOne . . . from

any and all claims, suits, rights, interests, demands, actions, causes of

action, liabilities, accident, injury (including death), costs, fees,

expenses and any and all other damages or losses of any kind

whatsoever, whether to person or property . . . arising out of,

incidental to, associated with, or in any way related to any

transportation services provided to Client by MedicOne.

Similarly, the “foregoing” in paragraph four reads:

CLIENT WILL INDEMNIFY, DEFEND AND HOLD HARMLESS

MEDICONE RELATED PARTIES FROM AND AGAINST ANY

AND ALL CLAIMS ASSERTED BY CLIENT, ANY PERSON OR

ENTITY RELATED TO CLIENT OR ASSERTING A CLAIM BY

OR THROUGH CLIENT, OR ANY OTHER THIRD PARTIES OR

ENTITIES WHICH, IN ANY WAY, ARISE OUT OF, ARE

INCIDENTAL TO, ASSOCIATED WITH, OR IN ANY WAY

RELATED TO ANY TRANSPORTATION SERVICES PROVIDED

TO CLIENT BY MEDICONE.

Paragraph six contains no limitation for claims of gross negligence or willful

misconduct, but purports to release MedicOne from “any liability, damage or

expense arising out of any claim in any way associated with or relating to any

transportation services provided to Client by MedicOne.”

- 20 -

Courts in many jurisdictions, including Tennessee, have found such

unlimited language to be so overly broad as to render the provisions unenforceable.

See Burks, 958 S.W.2d at 777 (holding release “from any and all liability claims,

demands, actions or causes of action whatsoever, arising out of or any injury,

illness loss or damage including death relating to participation in these events”

unenforceable because it would “extend its exculpation to unbounded limits”);

Fisher v. Stevens, 584 S.E.2d 149, 152–53 (S.C. Ct. App. 2003) (finding a waiver

signed at a racetrack to be overly broad and unenforceable based on public policy

because the waiver released from liability “any persons in any restricted area”);

Jesse v. Lindsley, 233 P.3d 1, 7–8 (Idaho 2008) (holding exculpatory clause in a

residential lease unenforceable because it purported to release the landlord from

liability “for any occurrence of any nature”); Alack v. Vic Tanny Int’l of Mo., Inc.,

923 S.W.2d 330, 337–38 (Mo. 1996) (finding exculpatory clause unenforceable

based on its ambiguity because the clause did not specifically state that the

customer was releasing the health club from liability for negligence and used

words like “any” and “all” injuries and claims, which could include intentional or

grossly negligent conduct that cannot be excluded from liability); Roberts, 879

N.W.2d at 503 (holding waiver unenforceable because it was too broad and

all-inclusive, ambiguous about whether it covered injury while waiting in line for

the activity, and was a standard pre-printed form with no opportunity to negotiate).

We find the exculpatory language in the Agreement to be overly broad and

ambiguous. Although the Agreement also contains a severability clause,21 the three

paragraphs containing broad, all-encompassing exculpatory language combined

with the severability paragraph do not make it clear and unmistakable what Mr.

Copeland was giving up by signing the Agreement, especially during the limited

time he was given to read and comprehend the document.

21

The severability clause appears in paragraph 5 of the Agreement:

5. The invalidity or unenforceability of any particular provision of this

Agreement shall not affect any other provision hereof, and in the event that any provision

hereof is found by a proper authority to be invalid or unenforceable, this Agreement shall

be construed in all respects as if such invalid or unenforceable provision had never

comprised a part hereof and the remaining provisions hereof shall remain in full force and

effect and shall not be affected by the invalid or unenforceable provision or by its

severance here from. Furthermore, in lieu of such invalid or unenforceable provision,

there shall be automatically hereto and as a part hereof a provision as similar in terms and

intent to such invalid and unenforceable provision as may be possible and be legal, valid

and enforceable.

- 21 -

Finally, we turn to the third factor – public policy and public interest

implications. Mr. Copeland’s appointment with his doctor was a medical necessity.

That practical necessity distinguishes this case from those involving purely

voluntary or recreational activities, which generally do not affect the public interest

or raise public policy concerns. Maxwell, 404 S.W.3d at 475; Henderson, 174

S.W.3d at 733. Although public policy and the public interest are difficult concepts

to define, some relationships require greater responsibility of one of the parties.

Olson, 558 S.W.2d at 430. MedicOne was in a position of greater responsibility

when it undertook to transport Mr. Copeland to and from his doctor’s office. Mr.

Copeland had limited time to read and comprehend the overly broad and

ambiguous Agreement and the Run Report. Under these circumstances, it is not

reasonable to conclude that Mr. Copeland could have just called a taxi or

rescheduled his appointment. Our public policy protects patients and clients of

professionals, residential tenants, employees, bank customers, and homebuyers

from exculpatory provisions. It only makes sense that our public policy should also

protect a hospital patient under the circumstances faced by Mr. Copeland when he

signed the Agreement. Based on the circumstances of the parties, including

contemporary societal expectations, we conclude that enforcement of the

Agreement against a member of the public in Mr. Copeland’s position would be

contrary to the public interest.

V.

In sum, after considering the totality of the circumstances and weighing the

inequality in the relative bargaining power of the parties, the lack of clarity of the

exculpatory language, and the public policy and public interest implications, we

hold that, as a matter of law, the exculpatory provisions in the Agreement signed

by Mr. Copeland are unenforceable and do not bar his claim against MedicOne.

We vacate the judgment of the trial court, reverse the judgment of the Court of

Appeals, and remand to the trial court for further proceedings consistent with this

opinion. We tax the costs of this appeal to MedicOne Medical Response Delta

Region, Inc., for which execution may issue if necessary.

_________________________________

SHARON G. LEE, JUSTICE

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