Waiver and Release of Liability – Is a waiver and release of liability document signed by a participant in a motorcycle safety training course enforceable under Tennessee law?

Brief Summary:  A waiver and release of liability document signed by a participant in a motorcycle safety training course is enforceable and binding on the plaintiff.  The plaintiff’s claim was therefore barred by the executed waiver and the plaintiff could therefore not bring a claim for negligence against the motorcycle safety and training course company.

I apologize for the length of this post.  However, this is an important issue and I want to give you a complete picture of the opinion.

Analysis:  The Tennessee Court of Appeals in Ruth M. Maxwell v. Motorcycle Safety Foundation, Inc., No. M2012-000699-COA-R3-CV, 2013 WL 357600 (Tenn. Ct. App. January 29, 2013) discussed the enforceability of a waiver and release of liability agreement signed prior to the injury in question.  In this case, the plaintiff desired to learn how to ride a motor scooter. Maxwell at 1.  As a result, she took a motor scooter safety class with the defendant in order to learn how to safely operate a motor scooter. Maxwell at 1.  This course was a three-day basic rider beginner course.  The course is not required to obtain a motorcycle endorsement or driver’s license, however upon proof of completion the Tennessee Department of Motor Vehicles waives the written and riding exams ordinarily required for a motorcycle endorsement on the license. Maxwell at 1.

Before the course began the plaintiff was required to read and sign a “waiver of release of liability”.  This waiver document stated as follows:

READ CAREFULLY WAIVER OF RELEASE OF LIABILITY

In Consideration of MID TENN MOTORCYCLE EDUCATION CENTER furnishing service and/or equipment to enable me to participate in the Motorcycle Rider Education Class, I agree as follows:

I fully understand and acknowledge that: (a) risks and dangers exist in my use of motorcycles and motorcycle equipment and my participation in the Motorcycle Rider Education Class activities; (b) my participation in such activities and/or use of such equipment may result in injury or illness include, but not limited to bodily injury, disease, strains, fracture, partial and/or total paralysis, death or other ailments that could cause serious disability; (c) these risks and dangers may be caused by the negligence of the owners, employees, officers or agents of MID TENN MOTORCYCLE EDUCATION CENTER, the negligence of the participants, the negligence of others, accidents, breaches of contract, from foreseeable or unforeseeable causes; and (d) by my participation in these activities and/or use of equipment, I hereby assume all risks and dangers and all responsibility for any losses and/or damages, whether caused in whole or in part by the negligence or conduct of the owners, agents, officers, or employees of the MID TENN MOTORCYCLE EDUCATION CENTER or by any other person.

I on behalf of myself, my personal representatives and my heirs hereby voluntarily agree to release, waive, discharge, hold harmless, defendant and indemnify MID TENN MOTORCYCLE EDUCATION CENTER and its owners, agents, officers and employees from any and all claims, suits or causes of action for bodily injury, property damage, wrongful death, loss of services or otherwise which may arise out of my use of motorcycles and motorcycle equipment or my participation in the Motorcycle Rider Education Class activities. I specifically understand that I am releasing, discharging and waiving my claims of actions that I may have presently or in the future for the negligent acts or other conduct by MID TENN MOTORCYCLE EDUCATION CENTER and its owners, agents, officers or employees.

I HAVE READ THE ABOVE WAIVER OF RELEASE AND BY SIGNING IT AGREE IT IS MY INTENTION TO EXEMPT AND RELIEVE MID TENN MOTORCYCLE EDUCATION CENTER FROM LIABILITY FOR PERSONAL INJURY, PROPERTY DAMAGE OR WRONGFUL DEATH CAUSED BY NEGLIGENCE OR ANY OTHER CAUSE.

Maxwell at 1, 2.  This documents basically waives any liability for any risks or dangers that could occur in the motorcycle training course.  This waiver is effective even if the risks or dangers are caused by the negligence of the defendant.

The plaintiff completed several initial portions of the safety course. Maxwell at 2.  However, when it came time to operate the motorcycle by completing several laps, the plaintiff ran off the track into a parked pickup truck and sustained significant injuries. Maxwell at 3.  The plaintiff filed suit against the defendant Motorcycle Safety Course, among others.  The defendants filed motions for summary judgment asserting the plaintiff’s negligence claims were barred by the waiver agreement she signed. Maxwell at 3.  The trial court awarded summary judgment based on the executed release and that decision was appealed to the Tennessee Court of Appeals. Maxwell at 3.

The main issue before the Tennessee Court of Appeals was therefore whether the executed waiver was enforceable.  Tennessee Court of Appeals noted “it is well-settled law in Tennessee that, subject to certain exceptions, parties may contract that one shall not be liable for his negligence to another.”  Maxwell at 4.  (citing Olson v. Molzen, 558 S.W.2d 429, 430 (Tenn. 1977)).  The Tennessee Supreme Court has recognized that exceptions to the general rule favoring exculpatory agreements can be appropriate due to the fact “certain relationships required greater responsibility which would render such a release obnoxious.”  (Olson at 430). 

The Tennessee Supreme Court in Olson adopted six factors for courts to consider when determining whether an exculpatory agreement violates public policy.  These factors are as follows:

(a.) It concerns a business of a type generally thought suitable for public regulation.

(b.) 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.

(c.) 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.

(d.) 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.

(e.) 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.

(f.) Finally, as a result of the transaction, the person or property of the purchase is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.

Olson at 431.  In Maxwell, the court found that Ms. Maxwell’s situation does not fit within the exceptions to the general rule that exculpatory clauses are acceptable under Tennessee law.  In fact, the Maxwell court found her case was very different from the exceptions that have been created in prior cases that prohibited the exculpatory clause.  One such exception involves an exculpatory clauses signed by a patient as a condition of receiving medical treatment.  Olson at 431.  Another example is an exculpatory clause in a home inspector’s contract due to the reasoning that “the purchase of a home is, perhaps, the largest investment an average person will make and therefore such inspections are of great importance to the public and a matter of practical necessity for most members of the public.”  Carey v. Merritt, 148 S.W.3d 912, 916 (Tenn. Ct. App. 2004). 

The court further noted that the facts in Maxwell are actually similar to other cases where exculpatory agreements have been upheld in Tennessee. Maxwell at 5.  One such case involved a waiver and release by a white water rafting company.  Henderson v. Quest Expeditions, Inc., 174 S.W.3d 730, 733 (Tenn. Ct. App. 2005).  Another case where an exculpatory clause was upheld in Tennessee, involved a motor speedway racing situation.  Tompkins v. Helton, 2003 WL 21356420, at *1 (Tenn. Ct. App. June 12, 2003). 

As a result, the Tennessee Court of Appeals found the exculpatory clause in the Maxwell case involving a motorcycle safety course did not violate Tennessee Public Policy.  They found this situation was most similar to the cases involving white water rafting or attending a motor speedway race.  Additionally, the court noted this conclusion was further bolstered by the fact the Tennessee Department of Safety actually requires that participants in any motorcycle rider education program such as the one involved here must have a “release, waiver, and indemnification form supplied by the Department.”  Tenn. Comp. R. & Regs 1340-1-11-.06(5)(e).  Maxwell at 6.

As a result, the release and waiver form executed by the plaintiff was upheld and the claim against the motorcycle safety class was therefore barred.  This case shows there is a certain class of situations in Tennessee where a release and waiver of claims that is signed by participants will be found valid.  The outer limits of the acceptability of such clauses are not known because it is a case by case determination.  However, clearly white water rafting activity, motor speedway racing events and participation in motorcycle training courses are all examples where exculpatory clauses have been upheld.  As a result, businesses that perform services in any similar areas should use releases and waivers of liability for participants in the activity.