Tennessee is a very active state. You can climb rocks, learn how to ride a motorcycle, or go white water rafting here, but you do all these things recognizing there’s an element of risk.
Recreational businesses in Tennessee often have their customers sign liability waivers. These waivers release their companies and staff members from responsibility, often even in the event of negligence on the part of staff members.
If your small business has or intends to use a waiver then you’re being smart. But keep in mind it is not perfect protection.
The wording of the waiver matters.
A waiver alone will not protect you every time someone gets injured or dies on your watch (see below). But it’s still a powerful part of your total protection package.
Now is not the time to dig around on the Internet, searching for a waiver you can copy and paste.
When you open a business it pays to get legal help even as you get everything set up. This includes having a business attorney craft a waiver that covers your unique business situation and needs. This is especially important in light of the 2018 case, Copeland v. HealthSouth/Methodist Rehab Hospital.
In this case, the Tennessee supreme court emphasized three factors to be used in evaluating the enforceability of a waiver. These include:
The relative bargaining power of the parties
Clarity of the language
Public policy and public interest implications.
The third criteria, public policy and public interest implications, has been around since 1977. It came up in Olson v. Molzen, in which the Tennessee Supreme Court ruled, “certain relationships required greater responsibility which would render such a release ‘obnoxious.'”
It’s easy to see why your company needs strong representation to ensure the waiver has a chance of holding up in court. There are dozens of ways to mishandle a waiver. Try to do it yourself and you could create other, more specific loopholes for a plaintiff to dance through as well.
You can still get sued, even if a customer signs a waiver.
Anyone can sue anyone for any reason. They can’t always win, but they can always sue.
Waivers serve as a strong affirmative defense. Showing your customer signed a waiver and showing you took steps to make sure he or she understood it can protect you. It raises the bar for negligence.
Now, instead of proving mere negligence, the customer would have to prove “gross” negligence. This is a level of negligence that goes “above and beyond.”
In Leatherwood v. Wadley the court laid out what it takes to prove a claim of gross negligence in the state of Tennessee.
“To prevail on a claim of gross negligence in Tennessee, a plaintiff must demonstrate ordinary negligence and then must prove the defendant acted ‘with utter unconcern for the safety of others, or with such reckless disregard for the rights of others that a conscious indifference of consequences is implied in law.”
Obviously this is a much higher burden of proof for the plaintiff to meet. And it’s often easy to undermine.
For example, in the 2013 case Ruth M. Maxwell v. the Motorcycle Safety Foundation, Inc. we were successful in defending the Motorcycle Safety Foundation against a claim of gross negligence. We did this by demonstrating all the ways her instructor had expressed concern for her safety and well-being on the day of the accident. He had taken specific actions we could point to which showed he had done his best to keep Miss Maxwell safe.
You may still have to pay for the customer’s losses.
There are a few times when your waiver won’t help you. There’s the “gross negligence” provision above.
But there are others. For example, if you’re going to be working with children you should be aware the court has ruled a parent can’t sign certain rights away. These rights belong to the child, who also cannot sign them away because he or she is a minor.
“The rights include the right to sue for mental or physical pain and suffering, for permanent injuries, and for the impairment of his power to earn money after arriving at majority.” –Blackwell v. Sky High Sports, citing Wolfe v. Vaugn.
A waiver can still provide partial protection where minors are involved. In Blackwell the court ruled the child’s mother was still responsible for pre-majority medical bills incurred by the child, just as she’d be responsible for the child’s medical bills in the normal course of raising him.
Another instance where a waiver may not help is if you set up a situation where you and your customer have “unequal bargaining power.” Ideally you’ll go over each piece of paper you have a customer sign. This includes liability waivers.
Don’t just hand them over and gloss over them. You should clearly explain what the waiver means and what it will do in the event of an accident or injury. Then give the customer the chance to accept or deny the waiver of his or her own free will. You always have the right to deny services if the customer will not sign.
Issues of public policy and interest don’t come up as often. If you run a recreational business you can take heart knowing the courts are often very friendly to companies like yours when it comes to evaluating this issue. If you’re a home inspector or are running a medical company you may be out of luck.
There are, of course, other issues which might void a waiver. Every case is different. Make no assumptions, and make sure you have an experienced attorney by your side.