Session November 16, 2016
from the Circuit Court for Davidson County No. 14C524 Thomas
W. Brothers, Judge.
interlocutory appeal, the defendant trampoline park argues
that the trial court erred by refusing to enforce a forum
selection clause, a choice of law provision, and a waiver of
liability and indemnity clause against the minor plaintiff.
Additionally, the minor plaintiff argues that the trial court
erred in denying his motion to alter or amend his complaint
to allow him to claim pre-majority medical expenses. We
reverse the trial court's denial of the minor
plaintiff's motion to amend only to the extent that the
minor plaintiff may be permitted to assert pre-majority
medical expenses that were paid by him or that he is legally
obligated to pay. We affirm the trial court in all other
respects. Affirmed in part, reversed in part, and remanded.
R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit
Court Affirmed in Part; Reversed in Part; and Remanded.
J. Weissman, Nashville, Tennessee, for the appellant, Crystal
Blackwell, as next friend of Jacob Blackwell, a minor.
Rose and Joshua D. Arters, Brentwood, Tennessee, for the
appellee, Sky High Sports Nashville Operations, LLC.
Steven Stafford, P.J., W.S., delivered the opinion of the
court, in which D. Michael Swiney, C.J., and Brandon O.
Gibson, J., joined.
STEVEN STAFFORD, JUDGE.
3, 2012, Plaintiff/Appellant Crystal Blackwell
("Mother") signed a contract entitled
"Customer Release of Liability and Assumption of
Risk" ("the release") with Defendant/Appellee
Sky High Sports Nashville Operations, LLC ("Sky
High") in order for her son, Jacob Blackwell ("Son,
" and, as represented by Mother as next friend in this
lawsuit, "Appellants") to participate in activities
at an indoor trampoline park operated by Sky High. The
release included a forum selection clause designating
California as the proper forum for litigation, a choice of
law provision stipulating California as the applicable law
governing the contract, and a liability waiver on behalf of
both Mother and Son, as discussed in detail infra.
The release further provided that it would remain in effect
for any future visits to Sky High until Son turned eighteen.
Mother and Son returned to Sky High to participate in
trampolining activities on multiple occasions after Mother
signed the contract. On March 26, 2013, Son was allegedly
injured at Sky High while participating in a trampoline
February 5, 2014, Appellants filed a complaint in the
Davidson County Circuit Court against "Sky High Sports
Nashville, LLC." The complaint alleged that Son moved in
an awkward fashion on a trampoline to dodge the ball and
landed "awkwardly, " that another player's
"double bounce" contributed to his awkward landing,
and that Son suffered from a torn patellar tendon and broken
tibia as a result, necessitating surgery. According to
Appellants, Sky High "knew or should have known that
playing dodgeball on a trampoline was a very dangerous
activity" and therefore was guilty of negligence. The
complaint further alleged that any warnings, disclaimers, or
waivers of liability signed by Mother were "void,
invalid, and/or inadequate." The complaint sought
damages, including past medical expenses, future medical
expenses, pain and suffering, emotional injury and suffering,
loss of enjoyment of life, lost wages, and loss of consortium
in the amount of $500, 000.00.
5, 2014, Sky High Sports Nashville, LLC filed an answer
denying the material allegations contained in the complaint.
In addition, Sky High Sports Nashville, LLC raised several
affirmative defenses: (1) that Sky High Sports Nashville, LLC
was not the proper party; (2) that pursuant to the
parties' contract, California was the proper forum and
California law was applicable to the dispute; and (3) that
Appellants' claims were barred by the release signed by
Mother individually and on Son's behalf. On November 3,
2014, Sky High was substituted as the proper defendant by
agreement of the parties and an amended complaint was filed
reflecting the change.
March 17, 2015, Sky High filed its motion to enforce the
contract between the parties. The motion first argued that
any claims on behalf of Mother should be dismissed because
the release contained a forum selection clause, a choice of
law provision, and a waiver of liability, all of which were
enforceable against Mother. Sky High also argued that the
forum selection clause, choice of law provision, and
liability waiver should be enforced against Son as well,
despite "dated Tennessee authority to the contrary"
which did "not reflect the current state of the
law." In sum, Sky High offered the following various
alternative methods for resolving this dispute: (1) that the
trial court should dismiss the case based on the forum
selection clause; (2) that the trial court retain
jurisdiction but apply California law; or (3) that the trial
court should enforce the release's liability waiver and
dismiss the case as to both Mother and Son.
filed a response to the motion to enforce on May 4, 2015.
Therein, Appellants argued that the forum selection clause
and choice of law provision were invalid because the dispute
involved in this case has no connection to California.
Appellants also asserted that based upon this Court's
decision in Childress v. Madison County, 777 S.W.2d
1 (Tenn. Ct. App. 1989), a parent may not effectively waive
liability on behalf of a minor. The response offered no
argument, however, that the release of liability did not
apply to any claims on behalf of Mother. Accordingly, on the
same day, Mother filed a notice of voluntary dismissal of her
claims against Sky High.
response to Appellants' contention that the dispute in
this case had no connection with California, Sky High filed
the affidavit of Rolland Weddell on May 6, 2015. In his
affidavit, Mr. Weddell asserted that he helped found Sky High
Sports, "a larger national brand" of which Sky High
was a part. According to Mr. Weddell, the company's first
two stores were founded in California in 2006. Mr. Weddell
explained that ten trampoline parks under the Sky High Sports
brand currently operate in California. Mr. Weddell, however,
resides in Nevada, where he serves as the loss prevention
manager for Sky High. There is no dispute that Sky High's
corporate headquarters is also in Nevada.
trial court held a hearing on Sky High's motion to
enforce on May 8, 2014. On May 22, 2015, the trial court
entered an order denying Sky High's motion to enforce in
its entirety. Therein, the trial court ruled that neither the
forum selection clause nor the choice of law provision were
valid because their enforcement would cause a great hardship
for Son to prosecute his action in California and, Tennessee,
rather than California, has "a more significant
relationship to the facts surrounding this case." The
trial court also noted that Tennessee law included a
fundamental public policy regarding the protection of
children. Consequently, the trial court denied Sky High's
request to enforce the waiver of liability as to the
Son's claims, noting that such a contract is not
permissible in Tennessee under the holding in
22, 2015, Sky High filed a motion to alter or amend the trial
court's judgment, or in the alternative, for an
interlocutory appeal of the trial court's denial of the
motion to enforce pursuant to Rule 9 of the Tennessee Rules
of Appellate Procedure. While this motion was pending, on
July 31, 2015, Appellants filed a motion to amend their
complaint. Therein, Appellants contended that because the
individual claims of Mother had been voluntarily dismissed,
an amendment was necessary to ensure the proper parties were
named in the complaint and to request medical expenses, both
past and future, on behalf of Son, with Mother acting as next
friend. Sky High opposed the amendment, arguing that only a
parent could bring a claim for past medical expenses for a
minor child. Sky High contended that, because Mother's
claims were barred by the release, neither Mother nor Son was
entitled to recover these damages.
February 23, 2016, the trial court entered an order on the
pending motions to amend the complaint and to alter or amend,
or in the alternative, for an interlocutory appeal. First,
the trial court denied Sky High's motion to alter or
amend but granted their request for an interlocutory appeal
of the denial of the motion to enforce. Additionally, the
trial court granted Appellants' motion to alter or amend,
except to the extent that the amendment would allow
"recovery of any pre-majority medical expenses."
The trial court, however, also allowed an interlocutory
appeal of this ruling. Eventually, this Court also granted
the requested interlocutory appeal as to both issues.
Accordingly, this appeal followed.
perceive it, this appeal involves four issues:
1. Whether the trial court erred in refusing to enforce the
forum selection clause contained in the release?
2. Whether the trial court erred in refusing to enforce the
choice of law provision contained in the release?
3. Whether the trial court erred in refusing to enforce the
waiver of liability against Son contained in the release
signed by Mother?
4. Whether the trial court erred in refusing to allow the
amendment to the complaint to allow Son to recover for
pre-majority medical expenses.
case, the trial court denied Sky High's motion to dismiss
based upon a forum selection clause, a choice of law
provision, and a liability waiver contained in the release.
In considering an appeal from a trial court's ruling on a
motion to dismiss, we take all allegations of fact in the
complaint as true and review the trial court's legal
conclusions de novo with no presumption of correctness.
Mid-South Industries, Inc. v. Martin Mach. & Tool,
Inc., 342 S.W.3d 19, 27 (Tenn. Ct. App. 2010) (citing
Owens v. Truckstops of America, 915 S.W.2d 420, 424
(Tenn. 1996)); see also Stevens ex rel. Stevens v.
Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547,
553 (Tenn. 2013) (citing Graham v. Caples, 325
S.W.3d 578, 581 (Tenn. 2010)) ("The trial court's
denial of [d]efendants' motions to dismiss involves a
question of law, and, therefore, our review is de novo with
no presumption of correctness.").
addition, the trial court denied Appellants' motion to
amend their complaint. A trial court's decision to deny a
motion to amend a complaint is reviewed under an abuse of
discretion standard. Merriman v. Smith, 599 S.W.2d
548, 559 (Tenn. Ct. App. 1979).
begin first by considering whether the trial court erred in
refusing to dismiss Appellants' complaint on the basis of
the forum selection clause contained in the release, or in
the alternative, in refusing to apply California law to this
dispute. The release signed by Mother on behalf of Son
contains the following language: "In the event that I
file a lawsuit against Sky High , I agree to do so solely
in the state of California and I further agree that the
substantive law of California shall apply in that action
without regard to the conflict of law rules of that
trial court did not rule that the forum selection and choice
of law provisions were unenforceable because the release
containing them was signed by Mother on behalf of Son, as is
true of the liability waiver discussed in detail
infra; instead, the trial court ruled that the forum
selection and choice of law provisions were unenforceable
based upon the Tennessee framework regarding provisions of
this type. Likewise, in their reply brief to this Court,
Appellants do not assert that the forum selection and choice
of law provisions are unenforceable against Son simply due to
the fact that the provisions were included in a contract
signed by Mother on behalf of Son. Rather, Appellants assert
that the trial court correctly determined that California has
so little interest in this case and litigating in California
would be substantially less convenient than in Tennessee so
as to militate against enforcement of both the forum
selection and choice of law provisions. Accordingly, we
assume arguendo for purposes of this appeal that both the
forum selection clause and choice of law provision are
binding against Son unless otherwise rendered unenforceable
by Tennessee law. We therefore first proceed to address
whether Tennessee law renders the forum selection clause
unenforceable in this case.
a forum selection clause is enforceable and binding on the
parties entering into the contract. Lamb v. MegaFlight,
Inc., 26 S.W.3d 627, 631 (Tenn. Ct. App. 2000). A forum
selection clause will be upheld if it is fair and reasonable
in light of all the circumstances surrounding its origin and
application. Id. (citing Dyersburg Mach. Works,
Inc. v. Rentenbach Eng'g Co., 650 S.W.2d 378 (Tenn.
1983)). According to the Tennessee Supreme Court, a court
must give effect to a forum selection clause and refuse to
entertain the action unless:
(1) the plaintiff cannot secure effective relief in the other
state, for reasons other than delay in bringing the action;
(2) or the other state would be a substantially less
convenient place for the trial of the action than this state;
(3) or the agreement as to the place of the action was
obtained by misrepresentation, duress, abuse of economic
power, or other unconscionable means; (4) or it would for
some other reason be unfair or unreasonable to enforce the
Dyersburg, 650 S.W.2d at 380 (quoting The Model
Choice Forum Act of 1968). The Dyersburg Court
further stated that Tennessee courts should give
consideration to the above factors and should enforce a forum
selection clause unless the party challenging the clause
demonstrates that enforcement would be unfair or inequitable.
Id. Our research demonstrates that the factors
promulgated by the Dyersburg Court have been
followed in numerous subsequent cases. E.g.,
Cohn Law Firm v. YP Se. Advert. & Publ'g,
LLC, No. W2014-01871-COA-R3-CV, 2015 WL 3883242, at *11
(Tenn. Ct. App. June 24, 2015); Sevier Cnty. Bank v.
Paymentech Merch. Servs., No. E2005-02420-COA-R3-CV,
2006 WL 2423547 (Tenn. Ct. App. Aug. 23 2006); Spell v.
Labelle, No. W2003-00821-COA-R3-CV, 2004 WL 892534
(Tenn. Ct. App. Apr. 22, 2004); Signal Capital, No.
E2000-00140-COA-R3-CV, 2000 WL 1281322 (Tenn. Ct. App. Sept.
7, 2000); Tennsonita (Memphis), Inc. v. Cucos, Inc.,
No. 36, 1991 WL 66993 (Tenn. Ct. App. May 2, 1991). Tennessee
law is clear, however, that the party challenging the
enforcement of the forum selection clause "should bear a
heavy burden of proof." Chaffin v. Norwegian Cruise
Line Ltd., No. 02A01-9803-CH-00080, 1999 WL 188295, *4
(Tenn. Ct. App. Apr. 7, 1999).
first note that there are no allegations in this case that
the forum selection clause at issue was "obtained by
misrepresentation, duress, abuse of economic power, or other
unconscionable means[.]" Dyersburg, 650 S.W.2d
at 380. We agree with both Appellants and the trial court,
however, that, with respect to the second Dyersburg
factor, California is a substantially less convenient place
to hold this lawsuit. We recognize that a "party
resisting a forum selection clause must show more than
inconvenience or annoyance[.]" ESI Cos., Inc. v. Ray
Bell Constr. Co., No. W2007-00220-COA-R3-CV, 2008 WL
544563, at *7 (Tenn. Ct. App. Feb. 29, 2008). Accordingly,
mere increased litigation expenses will be insufficient to
invalidate a forum selection clause. Still, the Tennessee
Supreme Court has previously held that where neither company
at issue was a resident of the proposed forum and none of the
witnesses were residents of the proposed forum, the party
resisting a forum selection clause had met its burden to show
that the proposed forum was a substantially less convenient
forum. See Dyersburg, 650 S.W.2d at 381 (holding
that the second factor was met because the chosen forum of
Kentucky was "a substantially less convenient place for
trial . . . wherein all witnesses are Tennessee residents,
the plaintiffs and the defendants, . . . are Tennessee
same is true in this case. Here, Mother and Son are Tennessee
residents. Moreover, the alleged injury to Son and his later
treatment all occurred in Tennessee. It thus appears that
Appellants' witnesses to both the alleged negligence and
later treatment may all be found in Tennessee. On the other
hand, Sky High has not presented this Court with any
prospective witnesses regarding the events at issue in this
case that are California residents. While it is true that Sky
High is not a Tennessee corporation, as were the corporations
in Dyersburg, nothing in the record suggests that
Sky High is incorporated or has its principal place of
business in California, the forum designated in the release.
Rather, the only information in the record indicates that Sky
High has its headquarters in Nevada. Instead, from the
affidavit of Mr. Weddell, we discern that Sky High's
limited contact with California involves only that the
"larger brand" under which Sky High operates was
founded in California over a decade ago and now operates
several facilities in California. Respectfully, a decades-old
contact by a parent company with a state and the operation of
several trampoline parks in a state is insufficient to
undermine Appellants' contentions regarding the
inconvenience that would be posed by litigating in
California. Accordingly, we hold that Appellants have met
their burden to show that California presents a substantially
less convenient forum than Tennessee.
agree that, with respect to the first and fourth
Dyersburg factors, California is unlikely to provide
Son with effective relief and that forcing Son to litigate in
California would otherwise be unfair. As discussed in detail
infra, Tennessee law and California law differ as to
whether waivers of liability signed by parents may be
enforced as to their children. Compare Childress v.
Madison Cnty., 777 S.W.2d 1 (Tenn. Ct. App. 1989)
(refusing to enforce such a waiver), with Hohe v. San
Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274
Cal.Rptr. 647 (Ct. App. 1990) (enforcing such a waiver).
Because we reaffirm Tennessee law that parents cannot
effectively sign pre-injury waivers on behalf of their
children, as discussed in detail infra, allowing Son
to litigate his case in Tennessee provides him with a better
opportunity for full relief.
consider whether the trial court erred in refusing to enforce
the release's choice of law provision indicating that
California law should apply to this case. Generally, absent a
choice of law provision in a contract, "Tennessee
follows the rule of lex loci contractus. This rule
provides that a contract is presumed to be governed by the
law of the jurisdiction in which it was executed absent a
contrary intent." Messer Griesheim Indus., Inc. v.
Cryotech of Kingsport, Inc., 131 S.W.3d 457, 474-75
(Tenn. Ct. App. 2003) (quoting Vantage Tech., LLC v.
Cross, 17 S.W.3d 637, 650 (Tenn. Ct. App. 1999)). As
this Court explained:
If the parties manifest an intent to instead apply the laws
of another jurisdiction, then that intent will be honored
provided certain requirements are met. The choice of law
provision must be executed in good faith. Goodwin Bros.
Leasing, Inc. v. H & B Inc., 597 S.W.2d 303, 306
(Tenn. 1980). The jurisdiction whose law is chosen must bear
a material connection to the transaction. Id. The
basis for the choice of another jurisdiction's law must
be reasonable and not merely a sham or subterfuge.
Id. Finally, the parties' choice of another
jurisdiction's law must not be "contrary to 'a
fundamental policy' of a state having [a] 'materially
greater interest' and whose law would otherwise
govern." Id., n.2 (citing RESTATEMENT (SECOND)
OF CONFLICT OF LAWS § 187(2) (1971)).
Messer Griesheim, 131 S.W.3d at 475 (quoting
Vantage, 17 S.W.3d at 650).
there is no allegation that the choice of law provision at
issue was not executed in good faith. Instead, the choice of
law provision fails for largely the same reason that the
forum selection clause fails: no material connection exists
between the transaction at issue and California. As
previously discussed, the contract at issue was signed in
Tennessee, between Tennessee residents and a Nevada company,
concerning activities taking place in Tennessee.
Black's Law Dictionary defines
"material" as "[h]aving some logical
connection with the consequential facts."
Black's Law Dictionary 1066 (9th ed. 2009). The
simple fact that Sky High's parent company was founded in
California over a decade ago and now operates several
facilities there is simply not sufficient to show a logical
connection to the transaction at issue in this case.
not disagree with Sky High's assertion that it is
reasonable and generally enforceable for a company to
"limit where it is subject to suit." Tennessee law
is clear, however, that a company's choice of law
provision will only be honored where the proposed state's
law has a material connection to the transaction at issue.
See Messer Griesheim, 131 S.W.3d at 475.
Furthermore, the cases that Sky High cites for this
proposition do not support their argument in this case.
First, in Bright v. Spaghetti Warehouse, Inc., No.
03A01-9708-CV-00377, 1998 WL 205757 (Tenn. Ct. App. Apr. 29,
1998), the Court of Appeals enforced a choice of law
provision designating that Texas law would apply to the
contract where the contract was largely negotiated in Texas
and the defendant was a Texas corporation. Id. at
*5. As such, the transaction at issue in Bright had
far more contact with the state whose law was named in the
contract than is present in this case. Even more puzzling,
Thomas v. Costa Cruise Lines N.V., 892 S.W.2d 837
(Tenn. Ct. App. 1994), does not involve either a choice of
law provision or the application of Tennessee law to
determine its enforceability; rather, Thomas
involves a forum selection clause, whose enforcement was
governed by federal law. Id. at 840. Accordingly,
the trial court did not err in denying Sky High's request
to enforce the choice of law provision on this basis. Because
the contract's choice of law provision is unenforceable,
the general rule of lex loci contractus applies in
this case. See Messer Griesheim, 131 S.W.3d at 474.
As such, Tennessee law, as the law of the place where the
contract was executed, governs the dispute in this case.
determined that this case has been properly brought in a
Tennessee court and that Tennessee law applies, we next
consider whether the trial court erred in refusing to enforce
the waiver of liability and the indemnity language contained
in the release pursuant to Tennessee law. Here, the contract
at issue contains the following language, in relevant part:
3. I hereby voluntarily release, forever discharge, and agree
to defend indemnify and hold harmless [Sky High] from any and
all claims, demands, causes of action, which are in any way
connected with my participation in this activity or any use
of [Sky High's] equipment or facilities, including any
such claims which allege negligent acts or omissions of [Sky
4. Should [Sky High] or anyone acting on their behalf, be
required to incur attorney's fees and costs to enforce
this agreement, I agree to indemnify and hold them harmless
for all such fees and costs. This means that I will pay all
of those attorney's fees and costs myself.
5. I certify that I have adequate insurance to cover any
injury or damage that I may cause or suffer while
participating, or else I agree to bear the costs of such
injury or damage myself. I further certify that I am willing
to assume the risk of any medical or physical condition that
I may have.
8. If the participant is a minor, I agree that this Release
of Liability and Assumption of Risk agreement
("RELEASE") is made on behalf of that minor
participant and that all of the releases, waivers and
promises herein are binding on that minor participant. I
represent that I have full authority as Parent or Legal
Guardian of the minor participant to bind the minor
participant to this agreement.
9. If the participant is a minor, I further agree to defend,
indemnify and hold harmless SKY HIGH SPORTS from any and all
claims or suits for personal injury, property damage or
otherwise, which are brought by, or on behalf of the minor,
and which are in any way connected with such use or
participation by the minor, including injuries or damages
caused by the negligence of [Sky High], except injuries or
damages caused by the sole negligence or willful misconduct
of the party seeking indemnity.
trial court, Sky High argued that the above language
constituted a legal and enforceable waiver of liability and
indemnity agreement against both the claims brought by Mother
and the claims brought on behalf of Son. There is no dispute
in this case that "parties may contract that one shall
not be liable for his negligence to another but that such
other shall assume the risk incident to such
negligence." Moss v. Fortune, 207 Tenn. 426,
429, 340 S.W.2d 902, 903-04 (Tenn. 1960). These types of
agreements, however, are subject to some important
exceptions, such as waivers involving gross negligence or
willful conduct or those involving a public duty.
Id. at 904. These types of provisions must ...