Waivers on Behalf of Children in Tennessee are Ineffective

As parents, when we take our children to the roller rink or jump park, we are often asked to sign a waiver in exchange for their participation. In many states, such a waiver may be enforceable. In Tennessee, however, the recent case of Blackwell v. Sky High Sports Nashville Operations, LLC, reinforced Tennessee’s prohibition against enforcing waivers for minors.

In Blackwell, Jacob Blackwell’s mother took him to a trampoline jump park in Nashville when Jacob was a minor. In order to permit Jacob to jump, Jacob’s mother signed a participation waiver, which attempted to do several things: 1) require any lawsuits to be solely brought in California, 2) waive any claims Jacob may have regarding future injuries, and 3) waive any claims Jacob’s parents may have.

Jacob jumped, he got hurt, and his parents sued in Nashville, Tennessee. In response to the lawsuit, the jump park moved to dismiss and/or transfer the suit to California. The Tennessee Court, however, disagreed. After a lengthy analysis of Tennessee’s law regarding waivers and comparisons to other States, the Court ultimately concluded that the lawsuit would remain in Tennessee and that Jacob’s waiver was ineffective. Thus, Jacob had a right to sue for his injuries. The Court held, “the law in Tennessee states that parents may not bind their minor children to pre-injury waivers of liability, releases, or indemnity agreements[.]”

In reaching this conclusion, the Court looked at Tennessee’s public policy regarding protecting the rights of minors and the fact that the Tennessee legislature has never taken steps, like some other states, to permit such waivers. The Court also reasoned that the public policy argument that youth recreational activities would disappear was not persuasive as Tennessee and other states in line with Tennessee have thriving recreation industries. In other words, the Court didn’t see any reason to change the status quo.

Statutory Immunity for AED Use

Tragedies happen too often. And, when tragedies do occur, it’s difficult not to place blame. Placing blame, however, does not always mean that someone is legally liable for the tragedy.

In the recent case of Sandra Wallis v. Brainerd Baptist Church, et al., a tragedy occurred. During a cycling class, the Plaintiff’s husband collapsed and ultimately died. The instructor and other responders immediately gave first aid. It appears that since a slight pulse was found, the responders chose not to use the onsite AED (defibrillator). The Plaintiff-Widow sued the church arguing that it was liable primarily because the AED was not used. The church denied liability and filed a claim against the company that sold it the AED, provided training, and agreed to maintain the church’s physician oversight program.

The very lengthy Tennessee Supreme Court decision addressed numerous legal and factual issues, which won’t all be discussed in this post. However, relevant to this post is the Court’s discussion about the legislature’s decision to adopt laws intend to increase the availability of AEDs. See Tenn. Code Ann. §§ 68-140-401. Although encouraging the use of AEDs, the laws, however, do not mandate their use if a business chooses to have one onsite. But, if a business chooses to have an AED, the business must satisfy Tenn. Code Ann. §§ 68-140-408 and the TN Dept. of Health requirements. These laws generally require certain training, maintenance, registration and program development before an AED may actually be used.

Of note to the Wallis case, is the law which generally statesthat if a business acquires an AED and complies with the law, the business “receives statutory immunity from civil liability for negligent acts or omissions arising from use of an AED, although this immunity does not extend to willful or wanton misconduct or gross negligence.” Wallis at p. 17.

In other words, the business having an onsite AED, which follows the training/registration laws, shouldn’t be liable for a tragic situation such as the one the Plaintiff went through.

Although, the Court didn’t dismiss the entire case due to the current way in which it was on appeal, it seems clear that businesses which choose to have, maintain, and properly use AEDs in emergency situations should not be liable under most tragic situations. As with any application of the law to a specific set of facts, businesses wishing to explore whether they are in compliance with the law should do so in conjunction with legal counsel.

Post-Divorce Agreement about a...Parrot?

I recently came across an article about a tweet from an attorney:

Just settled a divorce over visitation of a parrot. Neither may teach it negative phrases about the other. I went to law school for this.

— Michael Adler (@madler9000) November 14, 2016.

At first glance, this statement may be seen as funny or even sad. Some readers may focus on the apparent pettiness of the divorce clients and their fighting over every last crumb.

An entirely different lesson, however, can also be gleaned. In this case, the divorcing couple identified a problem: Don't train the parrot to say mean things about the other ex-spouse. Maybe this couple had a history of teaching the parrot to mock people that the couple didn't care for? Maybe they were concerned that once separated, their parrot would be used to verbally attack the other spouse? Whatever the reason was, the divorcing couple identified an issue and seemingly communicated it to Mr. Adler.

This tweet illustrates the importance of issue spotting – whether in business, a divorce, estate planning, or litigation. Mr. Adler used his best efforts to resolve one of his client's concerns: avoiding continuous post-divorce litigation over the parrot. Avoiding future issues is a noble pursuit and an integral part of the attorney-client relationship. For this divorcing couple's sake, I hope that the written compromise is indeed sufficient.

On another note, since the tweet was published on November 14th, Mr. Adler's story continued to circulate. Adding a somewhat ironic twist and underscoring the unlimited depth of Twitter research, an astute follower noted that Mr. Adler's tweet is remarkably similar to:

Just settled a divorce over Parrot custody/visitation. Neither may teach it negative phrases abt the other.

I went to law school for this.

— Lady Lawya (@Parkerlawyer) September 15, 2016.

It will be interesting to see how all of this plays out. Does "Lady Lawya" have a case against Mr. Adler? Or, are there a slew of parrot divorce cases out there as a recent article questions?

In any event, the fundamental lesson doesn't change: Identify issues and be cognizant of addressing those issues in writing.