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.

Damages Cap and the Chattanooga Bus Crash

Recently, Chattanooga saw another tragedy when a school bus driver lost control and crashed, killing six children and injuring even more. Though news reports continue to evolve, at present it appears that numerous complaints were written by students and educators alike noting the reckless driving patterns of the 24 year old driver. Lawsuits will, and should, follow. Parents lost children and families have been torn apart.

From a litigation standpoint, those affected by the bus crash will likely file suit against the County school system, the private bus contracting company, and the driver. The allocation of fault among the parties won't be known until a jury finally decides, although many people have opinions.

Setting fault aside, however, damages are equally interesting. In 2011, the Tennessee legislature passed and the Governor signed, TCA § 29-39-102, which limits damages in civil lawsuits. This law caps non-economic damages in most instances at $750,000. Non-economic damages include things such as pain and suffering, disfigurement or scarring, the loss of enjoyment of life, etc. All of which likely affect the children on the bus and their families. As a parent, I wonder to myself, “if my daughters had been on that bus, would $750,000 fully compensate them for their pain and suffering, disfigurement, scarring and the loss of enjoyment of life?”

Another interesting issue which may arise, is whether the County or the private bus company performing the County's duties, can argue additional defenses such as those created under Tennessee's Governmental Tort Liability Act. Again, like the apportionment of fault, these issues won't be known until well into the forthcoming litigation. Ultimately, however, the impacted children and families will never be the same regardless of the amount of monetary damages they receive. 

Lawsuit Amendments must be Timely

Car accidents can be traumatic and result in significant injuries and high medical bills. Sometimes, the at fault driver is underinsured and may not be collectible beyond  insurance limits. In such cases, injured parties must ensure that they seek damages from all at fault parties. Two keys to such an approach, are timely pleading the appropriate theories of liability against such additional parties, and also making sure that the facts support the claims.

In the case of Bowman v. Benouttas, et al., Ms. Bowman's car was struck by a tractor-trailer driven by an independent owner operator, Mr. Benouttas. Benouttas was hauling a load as an independent contractor for MGR Freight Systems, Inc. MGR, in turn was hauling the load on a contractual basis for AllStates Trucking, Inc., who was first hired by the shipping party.

In other words: Shipper to AllStates to MGR to Benouttas.

Bowman, the injured Plaintiff, sued Benouttas, MGR, and AllStates. When she filed her complaint, Bowman asserted theories of negligence against Benouttas and that MGR/AllStates were also vicariously liable under agency and joint venture theories. Over two years of litigation and discovery followed and towards the end of the written motion for summary judgment stage (i.e. to dismiss unwarranted claims in light of the facts elicited), Bowman sought to amend her complaint adding additional claims against MGR and AllStates including implied partnership, loaned servant doctrine, vicarious liability for an independent contractor, and negligent hiring. The trial court denied this motion finding that it was too late in the case and further, dismissed AllStates from the case based on the theories actually plead by Bowman.

The appellate court decision is quite lengthy and includes an analysis of the dismissed claims. However, for the purpose of this article, the procedural step of denying the motion to amend so late in the case highlights the importance of timely pleading all available claims, and if the facts show that additional claims are warranted, then to promptly seek leave to amend the complaint.

Based on the facts discussed surrounding the relationship of the three parties, it would have been interesting to know how the court would have viewed the untimely offered new claims at the written motion stage. However, since the motion to amend was filed so late in the case, the prejudice to the defendants outweighed Bowman's right to have those claims heard.

High Personal Injury Damages Despite Modest Medical Bills

Injuries can be traumatic, even if they result from relatively low impact events. In the recent case of Glasgow v. K-VA-T Food Stores, Inc., the Plaintiff was a shopper at a Food City grocery store. The Plaintiff was a diabetic who had one prosthetic leg. He used the restroom. While attempting to stand, the Plaintiff became dizzy and started to fall. He grabbed the handrail, but it pulled out of the wall and the Plaintiff fell and struck his head.

Following the fall, the Plaintiff developed uncontrollable migraines accompanied by light sensitivity. At the time of the fall, the Plaintiff was only 42 years old and had been employed in the television and video production field for 14 years, but he was unable to continue working in that field due to the use of the bright lights. He switched careers and was employed at the time of the trial. He incurred $5,310 in medical bills.

The Plaintiff sued claiming personal injuries as a result of the fall, which would not have occurred but for the faulty handrail and Food City's prior knowledge and failure to fix it. At trial, the Plaintiff presented the testimony of his treating family doctor and neurologist who both testified that the fall caused the headaches and that the headaches may continue into the future. Ultimately, the jury found in the Plaintiff's favor and awarded him $350,000. From a technical standpoint, the trial court reduced this amount to $250,000, as that was the maximum amount the Plaintiff had asked for in his complaint.

Food City appealed the amount of the jury's verdict only on the ground that it was excessive. The Plaintiff and, more importantly, the court disagreed. The appellate court noted that the determination of the amount of damages is for the jury to decide and would not be disturbed if material evidence supported the verdict amount. The court found that the testimony of the two doctors, the previously non-existent migraines, and the impact on the Plaintiff's employment could result in the award given by the jury. Thus, the reduced verdict in the amount of $250,000 for the Plaintiff's fall was affirmed. Overall, it appears that the Plaintiff and his counsel presented an effective case to the jury, which resulted in a fairly high damages amount in light of the relatively modest amount of medical bills. This case emphasizes the importance of solid trial preparation, but also highlights that juries can be unpredictable.

Sirens, Flashers and Car Crashes

I had the privilege of trying a case with a skilled and hard-working local trial attorney, Flossie Weil, in late 2014. The Court of Appeals recently affirmed the favorable verdict.

The case of Jones, et al. v. Bradley County involved personal injury claims resulting from a motor vehicle crash between a responding emergency vehicle and another motorist, Ms. Jones. The emergency vehicle approached an intersection on a red light. The emergency responder testified that had his flashers and sirens on as he approached the red light. He further testified that he "eased into [the other driver's] lane of traffic" without being able to determine whether or not the lane was clear. It turned out that the lane wasn't clear and he struck Ms. Jones’s vehicle, resulting in serious injuries to Ms. Jones.
Since the emergency responder was working at the time of the accident for the County, the suit was filed as a permissible claim under Tennessee's version of the Governmental Tort Liability Act. The case was tried over four days and resulted in a verdict in favor of Ms. Jones. The trial court, determined that the emergency responder was 60% at fault in causing the accident, notwithstanding his use of flashers and sirens. The court of appeals agreed and affirmed the judgment award in favor of Ms. Jones.
This case is illustrative for a few reasons. First, the mere use of flashers and sirens by an emergency vehicle does not remove the need for that driver to still use reasonable care. In this case, the driver's failure to clear all the lanes of travel before entering the intersection was one shortcoming. Second, the Government Tort Liability Act does not exist to prevent a person injured by an emergency vehicle, as here, to be left without recourse. Rather, these laws try to strike a balance between public and private interests. In Ms. Jones' case, her interests were protected as shown by the resulting favorable verdict. Third, establishing a theme is a crucial component to any trial. In this case, the theme of "he took a chance" carried through at trial and into the court of appeals, which cited to the emergency responder's admission that he did, in fact, “take a chance,” as the court went on to ultimately uphold Ms. Jones’ verdict.

No Duty, No Recovery

Following last week’s theme of “let’s sue”, another recent Tennessee Court of Appeals case reinforces why pre-lawsuit and risk mitigation advice are important. In Boykin v. The George P. Morehead Living Trust, the Plaintiff tripped and fell on a concrete landing in a parking lot while returning to his vehicle. Unfortunately, the Plaintiff got hurt. He sued the parking lot owner for his injuries alleging that the owner, “was negligent in maintaining and failing to correct the dangerous condition of the concrete landing, i.e., the four-inch height difference on the right side of the concrete landing.” In addition to his own testimony, the Plaintiff presented photographs of the parking lot on the day of the fall and the testimony of contractor who stated that the parking lot was not flush with the concrete landing.
The Court, however, found that the Plaintiff’s claim did not survive the parking lot owner’s Motion for Summary Judgment (i.e. to dismiss the case as a matter of law before a Jury hears the case). In its Motion, the Defendant successfully argued that it did not owe a duty to the Plaintiff.
Elaborating a bit further, the Court of Appeals concluded that the Plaintiff did not present sufficient evidence to “demonstrate that the height [differential] between the concrete parking landing and the parking lot was a dangerous or defective condition…[and that] [f]or a jury to conclude that the height differential was dangerous or defective would require speculation, conjecture, and guesswork.” Further, the Court noted that the Plaintiff “admitted that, if he had looked down where he was walking, he would have seen the height difference and avoided the fall.” Ultimately, the Court found the Defendant not liable to the Plaintiff.
Understanding when and under what circumstances a duty arises is important before pursuing litigation. In the absence of a duty, there cannot be a successful negligence claim. Further, landowners should read this case and be reminded that although liability was not found under these facts, a landowner – especially one who invites the public to visit – must maintain the property in a reasonably safe manner, free from both known defects and those defects the landowner should have known about had the landowner exercised reasonable diligence. From a practical standpoint, landowners should also talk with their insurance agents to make sure that there is adequate premises liability coverage in place.

Boykin v. The George P. Morehead Living Trust, No. M2014-00575-COA-R3-CV, (Tenn. Ct. App. May 29, 2015).