Chapter 7: Assumption of Risk

§7.1 Generally

The Case : Perez v. McConkey, 872 S.W.2d 897 (Tenn. 1994).

The Basic Facts: Woman was injured in an on-the-job accident. Her employer, the defendant, was not covered by the Worker's Compensation Act and raised assumption of risk as a defense.

The Bottom Line:

  • "According to that analysis [by Professor Mutter], there are two basic types of assumption of risk, express and implied. Express assumption of risk refers to an express release, waiver, or exculpatory clause, by which one party agrees to assume the risk of harm arising from another party's negligence. Such agreements are of a contractual nature and will generally be enforced by a court unless it is contrary to a sound public policy. Id. at 285. Implied assumption of risk refers to at least two different concepts, primary implied assumption of risk and secondary implied assumption of risk. Implied assumption of risk, it its primary sense, applies to bar recovery when a plaintiff has assumed known risks inherent in a particular activity, such as observing a baseball game from an unscreened seat. Id. at 286. In this situation, an assumption of risk defense is simply an alternative manner of stating that the plaintiff has failed to establish a cause of action, because the defendant has no duty to protect the plaintiff from the inherent risk. Id. Secondary implied assumption of risk applies when the plaintiff, either reasonably or unreasonably, decides to encounter a known risk. When the plaintiff's decision to take the risk is unreasonable, secondary assumption of risk is indistinguishable from contributory negligence, and should only reduce, not preclude, recovery under a comparative fault analysis. Id. When the plaintiff's decision to encounter the risk is reasonable, the plaintiff is not negligence, but because the decision is voluntary, commentators are split as to whether a plaintiff's recovery, under comparative fault, should be precluded, reduced or unaffected." 872 S.W.2d at 900 (footnotes omitted).
  • "After reviewing the wealth of authorities from other jurisdictions, as well as the writings of numerous legal commentators on the subject, we join the vast majority of jurisdictions by concluding that the doctrine of implied assumption of risk no longer operates as a complete bar to recovery in Tennessee. It would be ironic indeed if, after abolishing the all-or-nothing proposition of contributory negligence in McIntyre, we were to reinstate it here using the vehicle of assumption of risk. However valid at the time, the policy of insulating business from human overhead, from which assumption of risk developed, now runs directly counter to modern social policy that is typified by the almost universal enactment of workmen's compensation legislation." Id. at 905 (footnote omitted).
  • "We agree with those states that have abandoned all categories of implied assumption of risk, as well as the traditional assumption of risk terminology, in the wake of judicial or statutory adoption of a scheme of comparative fault. The types of issues raised by implied assumption of risk are readily susceptible to analysis in terms of the common-law concept of duty and the principles of comparative negligence law." Id.
  • "Moreover, we do not consider it necessary or desirable to retain the doctrine of secondary implied assumption of risk as a separate defense. Rather, the reasonableness of a party's conduct in confronting a risk should be determined under the principles of comparative fault.
    Attention should be focused on whether a reasonably prudent person in the exercise of due care knew of the risk, or should have known of it, and thereafter confronted the risk; and whether such a person would have behaved in the manner in which the plaintiff acted in light of all the surrounding circumstances, including the confronted risk." Id. (footnote omitted).
  • "We also believe that the contractually-oriented principle of express assumption of risk is unaffected by our shift from contributory negligence to comparative fault. In exercising, perhaps, an overabundance of caution, some jurisdictions have required that the term "express assumption of risk" be banished from the range of acceptable legal terms of art. Although we have concluded that implied assumption of risk doctrine and terminology should no longer be used, we find it unnecessary to eliminate the term 'express assumption of risk', primarily because it has never been used to refer to various, distinct, and overlapping legal concepts." Id. at 905-06.

Recent Cases: Baggett v. Bedford County , 270 S.W.3d 550 (Tenn. Ct. App. 2008), perm. appeal denied, (June 30, 2008) (holding "simple tool doctrine" is a form of assumption of the risk and has been abolished in favor of comparative negligence).

§7.2 Contractual Waiver of Liability

The Case: Olson v. Molzen , 558 S.W.2d 429 (Tenn. 1977).

The Basic Facts: Doctor sought to avoid liability to patient because of an exculpatory clause he had her execute at the time she engaged his services.

The Bottom Line:

  • "The courts of Tennessee have long recognized that, subject to certain exceptions, parties may contract that one shall not be liable for his negligence to another. Moss v. Fortune, [340 S.W.2d 902 (Tenn. 1960)]." 558 S.W.2d at 430.
  • "While these cases are relevant and make it clear that as a general rule a party may contract against his or her own negligence, they do not afford a satisfactory solution in a case involving a professional person operating in an area of public interest and pursuing a profession subject to licensure by the state." Id.
  • "Moss points us in the direction of a controlling consideration, i. e. whether the exculpatory provision affects the public interest by recognizing the exceptions made for the benefit of the public. Generally our cases uphold exculpatory contracts between private contracting parties but, aside from those involving common carriers, no case has been decided wherein the public interest consideration has been discussed." Id. at 431.
  • "This was the primary factor that led the California Supreme Court in Tunkl v. Regents of University of California, [383 P.2d 441 (Ca. 1963)], to hold that a release from future liability, as a condition of admission to a charitable hospital, was invalid. There the Court enumerated and discussed what it deemed to be the controlling characteristics of the transaction, as follows:
    1. It concerns a business of a type generally thought suitable for public regulation.
    2. 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.
    3. 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.
    4. As a result of the essential nature of the service, 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.
    5. 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 reasonable fees and obtain protection against negligence.
    6. 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.
    [383 P.2d at 445-446]." Id.
  • "We think these criteria are sound and we adopt them. It is not necessary that all be present in any given transaction, but generally a transaction that has some of these characteristics would be offensive. Here, we think all characteristics were present." Id.

  • "A professional person should not be permitted to hide behind the protective shield of an exculpatory contract and insist that he or she is not answerable for his or her own negligence. We do not approve the procurement of a license to commit negligence in professional practice. [ Id. at 432(footnote omitted)]. Under the guidelines herein adopted, we hold that an exculpatory contract signed by a patient as a condition of receiving medical treatment is invalid as contrary to public policy and may not be pleaded as a bar to the patient's suit for negligence." Id.

Other Sources of Note : Crawford v. Buckner, 839 S.W.2d 754 (Tenn. 1992) (striking down a clause in a residential lease that attempt to eliminate a residential landlord's liability for negligence); Houghland v. Security Alarms & Services, Inc., 755 S.W.2d 769 (Tenn. 1988) (upholding exculpatory clause in home security contract in the absence of fraud, deceit or misrepresentation); Carey v. Merritt, 148 S.W.3d 912 (Tenn. Ct. App. 2004) (voiding exculpatory clause in residential home inspection contract); Buckner v. Varner, 973 S.W.2d 939 (Tenn. Ct. App. 1990) (a contractual waiver of liability will not protect a person guilty of gross negligence); Rogers v. Donelson-Hermitage Chamber of Commerce, 807 S.W.2d 242 (Tenn. Ct. App. 1990), perm. appeal denied, (Mar. 11, 1991) (holding release signed by mother was effective to waive any claim mother had in her own right as a result of the wrongful death of her daughter, but holding release was not effective to release her daughter's cause of action against defendants for their negligence and daughter's resulting death); Childress v. Madison County, 777 S.W.2d 1 (Tenn. Ct. App. 1989), perm. app. denied, (Aug. 7, 1989) (finding parents and guardians of incompetent persons "cannot on behalf of an infant or incompetent, exculpate or indemnify against liability those organizations which sponsor activities for children and the mentally disabled," and holding release signed by mother was effective to relieve defendant county of liability to the mother, but did not relieve liability as to her mentally incompetent child); Parton v. Mark Pirtle Oldsmobile-Cadillac- Izuzu, Inc., 730 S.W.2d 634 (Tenn. Ct. App. 1987) (excellent discussion of whether to enforce exculpatory language in a boilerplate contract for automotive repair).

Recent Cases: Stewart v. Chalet Village Properties, Inc. , No. E2007-01499-SC-R11-CV, 2009 WL 275767 (Tenn. Nov. 3, 2009) (holding trial court failed to apply factors adopted in Olson v. Molzen, 558 S.W.2d 429, 431 (Tenn. 1977) for determining whether an exculpatory clause violates public policy, and remanding for further proceedings consistent with this opinion); Maggart v. Almany Realtor's, Inc., 259 S.W.3d 700 (Tenn. 2008) (affirming Court of Appeals' reversal on alternate grounds finding pre-injury release signed by employee releasing employer for liability for injuries was a specific release not a general release and finding injury at issue fell outside scope of release); Thrasher v. Riverbend Stables, LLC, No. M2008-02698-COA-RM-CV, 2009 WL 275767 (Tenn. Ct. App. Feb. 5, 2009) (holding services provided by the defendants in training and boarding horses do not fall under public policy exception in Olson v. Molzen, 558 S.W.2d 429, 431 (Tenn. 1977) prohibiting exculpatory clauses); Underwood v. National Alarm Services, Inc., No. E2006-00107-COA-R3-CV, 2007 WL 1412040 (Tenn. Ct. App. May 14, 2007) (holding limitation of liability clause in alarm contract limiting recovery to $250 is valid); Jones v. Tennessee Riders Instruction Program, Inc., No. M2006-01087-COA-R3-CV, 2007 WL 393630 (Tenn. Ct. App. Feb. 5, 2007) (defendant did not commit gross negligence as a matter of law and therefore waiver signed by plaintiff barred claim).

After an accident, many injury victims and their families want more information on the accident and their legal rights. Consequently, many of them have found their way to these pages. While we are happy you are here, please understand Day on Torts: Leading Cases in Tennessee Tort Law was written to be a quick, invaluable reference for Tennessee tort lawyers. While the book provides the leading case for more than 300 tort law subjects and thousands of related case citations, it is not a substitute for personalized legal advice from a qualified lawyer.

Rather than researching these legal issues alone, we urge you to contact one of our award-winning lawyers who can sit down with you, review your case, answer your questions and clearly explain your rights and your options in a no-cost, no-obligation consultation. Our experienced attorneys handle all personal injury and wrongful death cases on a contingency basis, so we only get paid if we win. If for any reason you are unable to come to our office, we will gladly come to you.

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

To order a copy of the book, visit www.dayontortsbook.com. John also blogs regularly on key issues for tort lawyers. To subscribe to the Day on Torts blog, visit www.dayontorts.com.

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