IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

November 16, 2016 Session

CRYSTAL BLACKWELL, AS NEXT FRIEND TO JACOB BLACKWELL, 

A MINOR v. SKY HIGH SPORTS NASHVILLE OPERATIONS, LLC.

Appeal from the Circuit Court for Davidson County

No. 14C524 Thomas W. Brothers, Judge

___________________________________

No. M2016-00447-COA-R9-CV

___________________________________

In this 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.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Affirmed 

in Part; Reversed in Part; and Remanded

J. 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.

David J. Weissman, Nashville, Tennessee, for the appellant, Crystal Blackwell, as next 

friend of Jacob Blackwell, a minor.

Ben M. Rose and Joshua D. Arters, Brentwood, Tennessee, for the appellee, Sky High 

Sports Nashville Operations, LLC.

OPINION

Background

01/09/2017
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On July 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 dodgeball tournament. 

On 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.

On May 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.

On 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 
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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.

Appellants 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. 

In 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.

The 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 Childress. 

On June 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 
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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. 

On 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. 

Issues Presented

As we 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. 

Standard of Review

In this 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.”).

In 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).

Discussion
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I.

We 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 state.”

The 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.

Generally, 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 agreement.
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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-COAR3-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).

We 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 corporations”). 

The 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
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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. 

We also 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. 

B.

We next 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)).
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Messer Griesheim, 131 S.W.3d at 475 (quoting Vantage, 17 S.W.3d at 650).1

Here, 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. 

We do 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.

II.

 

1

Sky High asserts that the party seeking to invalidate a choice of law provision bears a “heavy burden,” 

citing Security Watch, Inc. v. Sentinel Systems, Inc., 176 F.3d 369 (6th Cir. 1999). First, we note that a 

federal decision, even when interpreting Tennessee law, is not binding on this Court. See Elias v. A & C 

Distrib. Co., Inc., 588 S.W.2d 768, 771 (Tenn. Ct. App. 1979) (“[D]ecisions of [ f]ederal . . . [c]ourts are 

not binding authority upon this Court and other State Courts in Tennessee[.]”). Furthermore, the phrase 

“heavy burden” as quoted by Sky High simply does not appear in the Security Watch Opinion. See

Security Watch, 176 F.3d at 375. Finally, we note that the Security Watch Opinion does not concern a 

choice of law provision, but rather, a forum selection clause. Id. 
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Having 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 High].

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.
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(Emphasis added). 

In the 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 also be clear and unambiguous. See Pitt v. Tyree Org. Ltd., 90 S.W.3d 

244, 253 (Tenn. Ct. App. 2002) (citing Kroger Co. v. Giem, 215 Tenn. 459, 387 S.W.2d 

620 (Tenn. 1964)).

Here, Appellants do not argue, nor did the trial court find, that the liability waiver 

above was unenforceable on its face against Mother pursuant to the above law. Rather, 

the trial court found that the waiver of liability was ineffective to waive Son’s claims due 

to Tennessee public policy, as expressed in this Court’s Opinion in Childress v. Madison 

County, 777 S.W.2d 1 (Tenn. Ct. App. 1989). A brief discussion of the facts and holding 

in Childress is therefore helpful. 

A.

In Childress, the parents of a young man with severe intellectual disabilities 

brought suit on behalf of their son. According to the parents, the young man, who was 

twenty years old at the time of the accident, was injured while training for the Special 

Olympics in connection with his school. Id. at 2. Specifically, while on a trip to a local 

YMCA supervised by a teacher and aide from the Madison County school district, the 

young man was found on the floor of the YMCA pool. The young man was successfully 

resuscitated but sustained injuries and incurred medical expenses as a result of the 

incident. Id.

The parents, individually and on behalf of their son, sued Madison County and the 

Madison County Board of Education for negligence in failing to properly supervise the 

students in the pool. After a bench trial, the trial court ruled in favor of the defendants, 

finding that they had committed no negligence. The parents thereafter appealed to this 

Court. Id.

This Court first reversed the trial court’s finding that the defendants had not 

committed negligence in failing to supervise the young man while he was in the pool. Id.

at 3. The defendants argued, however, that even if they were guilty of negligence, any 

liability had been waived by parents when the mother “executed a release of all liability 

of these defendants.” Id. at 3. In response, the parents argued, inter alia, that the waiver 

was unenforceable because it was against Tennessee public policy to allow parents or 

guardians to release the claims of incompetent persons. Id. at 6–7.
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The Court of Appeals, in what the concurrence characterized as an “excellent 

opinion,” agreed that the parents could not release the claims of their incompetent son. 

Id. at 8 (Tomlin, J., concurring). The Childress Court first noted that the adult son had 

not personally signed the release but that, instead, his mother had signed the document. 

Id. at 6. The Court held that had the young man signed the release, it would certainly 

have been invalid, as the young man was “incompetent, incapable of understanding the 

nature of his action, [and, thus,] the execution could not be given effect.” Id. (citing 44 

C.J.S. Insane Persons § 49 (1945)). The question was therefore whether the mother’s 

action in signing the form, which included an indemnity agreement and an assumption of 

risk clause that were applicable to the son’s claims, were sufficient to bar the young 

man’s claims.2

In reaching its decision, the Childress Court analogized “the status of guardians of 

incompetent persons” with “that of guardians of infants” under well-settled Tennessee 

law. Id. According to the Court:

The general rule is that a guardian may not waive the rights of an 

infant or an incompetent. 39 Am. Jur. 2d, Guardian & Ward § 102 

(1968); 42 Am. Jur. 2d, Infants § 152 (1969). Specifically, the 

Supreme Court of Tennessee long ago stated that a guardian cannot 

settle an existing claim apart from court approval or statutory 

authority. Miles v. Kaigler, 18 Tenn. (10 Yerg.) 10 (1836)[;] Spitzer 

v. Knoxville Iron, Co., 133 Tenn. 217, 180 S.W. 163 (1915)[;] Tune 

v. Louisville & Nashville Railroad Co., 223 F. Supp. 928 (M[.]D[.] 

Tenn. 1963). It has also been held that a guardian may not waive the 

statutory requirements for service of process on an infant or 

incompetent by accepting service of process on himself alone. 

Winchester v. Winchester, 38 Tenn. (1 Head) 460 (1858).[3]

 

2

In Childress, this Court held that by the contract’s own terms, the waiver of liability only applied to the 

mother. Id. at 6 (“[T]here is no indication in the language of the form or in the manner in which [the 

mother] signed that she did in fact . . . release or discharge the Special Olympics on [her son’s] behalf”). 

The Court of Appeals therefore affirmed the trial court’s dismissal of the mother’s individual claims. The 

Court held, however, that the contract provided that both the indemnity clause and assumption of risk 

provision applied to both the mother and the son. Id. (“[The mother] did clearly agree to indemnify the 

Special Olympics ‘from all liabilities for damage, injury or illness to the entrant or his/her property during 

his/her participation in or travel to or from any Special Olympics event.’ . . . [A]ccording to the language 

of the release, [the mother], as his mother and natural parent, acknowledged on [her son’]s behalf that he 

would be participating at his own risk.”).

3 We note that this statement was supported by what appears to be an incorrect citation to authority. See

Watterson v. Watterson, 38 Tenn. 1, 2 (1858) (not involving an infant or service of process); Winchester 

v. Winchester, 23 Tenn. 51, 51 (1843) (same). Regardless, the Childress Court is correct as to this 
- 12 -

Childress, 777 S.W.2d at 6. 

The Childress Court then considered the decisions of other states that also refused 

to enforce waivers made on behalf of minors or incompetent persons. See id. at 6–7 

(citing Gibson v. Anderson, 265 Ala. 553, 92 So. 2d 692, 695 (1956) (legal guardian’s 

acts do not estop ward from asserting rights in property); Ortman v. Kane, 389 Ill. 613, 

60 N.E.2d 93, 98 (1945) (guardian cannot waive tender requirements of land sale contract 

entered into by ward prior to incompetency); Stockman v. City of South Portland, 147 

Me 376, 87 A.2d 679 (1952) (guardian cannot waive ward's property tax exemption); 

Sharp v. State, 240 Miss. 629, 127 So.2d 865, 90 A.L.R.2d 284 (1961) (guardian cannot 

waive statutory requirements for service of process on ward); Jones v. Dressel, 623 P.2d 

370 (Colo.1981) (ratification by parent of contract executed by child does not bind child); 

Whitcomb v. Dancer, 140 Vt. 580, 443 A.2d 458 (1982) (guardian cannot settle personal 

injury claim for a ward without court approval); Natural Father v. United Methodist 

Children's Home, 418 So.2d 807 (Miss. 1982) (infant not bound by evidentiary 

admissions of parent); Colfer v. Royal Globe Ins. Co., 214 N.J.Super. 374, 519 A.2d 893 

(1986) (guardian cannot settle personal injury claim for ward without court approval)). 

This Court found the decisions of three states particularly helpful. First, the Court noted 

that the Mississippi Supreme Court had previously “expressed in broad terms” that under 

Mississippi law: “‘Minors can waive nothing. In the law they are helpless, so much so 

that their representatives can waive nothing for them.’” Childress, 777 S.W.2d at 7 

(quoting Khoury v. Saik, 203 Miss. 155, 33 So.2d 616, 618 (Miss. 1948)). Further, the 

Court cited with approval the Supreme Court of Connecticut, which held that “an 

agreement, signed by one of the parents of a minor as a condition to his being allowed to 

attend a camp, waiving the minor’s claims against a camp for damages in the event of an 

injury was ineffective to waive the rights of the minor against the defendant camp.” 

Childress, 777 S.W.2d at 7 (citing Fedor v. Mauwehu Council, Boy Scouts of America, 

Inc., 21 Conn. Sup. 38, 143 A.2d 466, 468 (1958)). Finally, the Childress Court also 

noted that the Maine Supreme Court came to a similar conclusion, holding that the 

release in question was ineffective “because a parent cannot release the child’s action.” 

Childress, 777 S.W.2d at 7 (citing Doyle v. Bowdoin College, 403 A.2d 1206, 1208 n.3 

(Me. 1979)). 

 

proposition of law. See Taylor v. Walker, 48 Tenn. 734, 378 (Tenn. 1870) (“It is a settled law of this 

State, that a sale without service of process on an infant who has no regular guardian, is void, and that the 

want of such service can not [sic] be waived by the appearance of a guardian ad litem.”); Robertson v. 

Robertson, 32 Tenn. 197, 199 (Tenn. 1852) (“‘A guardian ad litem cannot, by his consent, make his ward 

a party to a suit.’ The infant must be served with process.”); Wheatley’s Lessee v. Harvey, 31 Tenn. 484, 

485 (Tenn. 1852) (holding that “the guardian ad litem had no authority to waive the service of process, 

without which the infant was no party to the suit”).
- 13 -

The Childress Court, however, did not rely solely on the law from other 

jurisdictions. It also noted the conflict created by such agreements, as well as the 

fundamental public policy inherent in Tennessee law to protect the financial interests of 

minors. For example, this Court explained that agreements wherein a parent agrees to 

indemnify a third party for injuries to his or her child “are invalid as they place the 

interests of the child or incompetent against those of the parent or guardian.” Childress, 

777 S.W.2d at 7 (citing Valdimer v. Mt. Vernon Hebrew Camps, Inc., 9 N.Y.2d 21, 210 

N.Y.S.2d 520, 172 N.E.2d 283, 285 (1961)). In addition, the Court noted that refusing to 

enforce a waiver of the child’s rights by the parent “is in keeping with the protection 

which Tennessee has afforded to the rights of infants and minors in other situations.” 

Childress, 777 S.W.2d at 7. The Childress Court noted that arguments to the contrary 

exist, specifically with regard to the chilling effect of its chosen rule, stating: 

We do not deny that there are good and logical reasons for giving 

effect to exculpatory and indemnification clauses executed by 

parents and guardians on behalf of infants and incompetents. Risk is 

inherent in many activities that make the lives of children richer. A 

world without risk would be an impoverished world indeed. As 

Helen Keller well said, “Security is mostly a superstition. It does not 

exist in nature, nor do the children of men as a whole experience it. 

Avoiding danger is no safer in the long run than outright exposure. 

Life is either a daring adventure or nothing.” Partnow, Quotable 

Woman, 173 (1977). Ultimately, this case is a determination of who 

must bear the burden of the risk of injury to infants and minors.

It is not our intention, nor do we feel the result of this case will be, to 

put a chill on activities such as the Special Olympics. The law is 

clear that a guardian cannot on behalf of an infant or incompetent, 

exculpate or indemnify against liability those organizations which 

sponsor activities for children and the mentally disabled. 

Id. at 7–8. 

Ultimately, the Court of Appeals agreed with those courts that had held that a 

parent cannot release a child’s claim against a third party. See id. at 7 (“We, therefore, 

hold that [the mother] could not execute a valid release or exculpatory clause as to the 

rights of her son against the Special Olympics or anyone else, and to the extent the parties 

to the release attempted and intended to do so, the release is void.”). The Court likewise 

held that the indemnity language contained in the contract was invalid. Id. The Childress

Court therefore adopted a rule wherein parents or guardians cannot sign indemnity 

agreements or liability waivers on behalf of minor children or the incompetent. Noting 

the impact that the rule would have on many organizations, however, this Court 

specifically invited either the Tennessee Supreme Court or the Tennessee General 

Assembly to “remedy” this situation if either believed that Tennessee law should be 
- 14 -

otherwise. Id. at 8 (“If this rule of law is other than as it should be, we feel the remedy is 

with the Supreme Court or the legislature.”). 

An application for permission to appeal to the Tennessee Supreme Court was 

eventually filed in Childress. The application was denied, however, by order of August 7, 

1989. The issue was raised again in the Court of Appeals in 1990 by the case of Rogers v. 

Donelson-Hermitage Chamber of Commerce, 807 S.W.2d 242 (Tenn. Ct. App. 1990), 

perm. app. denied (Tenn. 1991), wherein this Court again held that the parent’s purported 

release of the child’s cause of action was unenforceable, even in the context of a 

wrongful death action. Id. at 246–47. Again, an application for permission to appeal to 

the Tennessee Supreme Court was filed and rejected by order of March 11, 1991. In 

addition, no legislative action has been taken to alter the rule established in Childress

over twenty-five years ago.

B.

Sky High does not argue that Childress is not controlling or that it was wrongly 

decided in 1989. See Tenn. R. Sup. Ct. 4(G)(2) (“Opinions reported in the official 

reporter . . . shall be considered controlling authority for all purposes unless and until 

such opinion is reversed or modified by a court of competent jurisdiction.”). As such, 

there is no dispute that if the Childress rule remains the law in Tennessee, Son’s cause of 

action is not barred by the waiver and indemnity language contained in the release signed 

by Mother. Instead, Sky High asserts that this Court should revisit the rule set forth in 

Childress because changes in constitutional law concerning parental rights following the 

Tennessee Supreme Court’s decision in Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993), 

and the United States Supreme Court’s decision in Troxel v. Granville, 530 U.S. 57, 120 

S. Ct. 2054, 147 L. Ed. 2d 49 (2000), have resulted in a “strong shift” in the law in this 

area across the country. Accordingly, we begin with a brief discussion of the Hawk

decision. 

In Hawk, paternal grandparents sought court-ordered visitation with their 

grandchildren pursuant to the Grandparents’ Visitation Act located in Tennessee Code 

Annotated section 36-6-301 (1985). Hawk, 855 S.W.2d at 575. The facts showed that 

grandparents and the children’s married parents had an acrimonious relationship and that, 

eventually, grandparents had been denied any visitation with the children. Id. Under the 

version of Section 36-6-301 then in existence, a court could order “‘reasonable visitation’ 

with grandparents if it is ‘in the best interests of the minor child.’” Id. at 576 (quoting 

Tenn. Code Ann. § 36-6-301). Although the trial court declined to find that parents were 

unfit, it nevertheless ordered substantial visitation between grandparents and the children. 

Id. at 577. The trial court also noted that the grandparents “don’t have to answer to 

anybody when they have the children.” Id.

The Court of Appeals affirmed the judgment of the trial court, and the Tennessee 

Supreme Court eventually granted the parents’ application for permission to appeal. Id. at 
- 15 -

573, 577. The Tennessee Supreme Court first characterized the trial court’s ruling as “a 

virtually unprecedented intrusion into a protected sphere of family life.” Id. at 577. 

Because Section 36-6-301 “suggest[ed] that this level of interference is permissible,” the 

Tennessee Supreme Court determined that it was necessary to examine the 

constitutionality of the statute “as it applies to married parents whose fitness as parents is 

unchallenged.” Id.

Ultimately, the Tennessee Supreme Court held that the trial court’s and Section 

36-6-301’s intrusion into parental decisions was unconstitutional because it interfered 

with the fundamental liberty interest allowing parents the “right to rear one’s children.” 

Id. at 578 (citing Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 626, 67 L. Ed. 

1042 (1923)). According to the Tennessee Supreme Court, this right stemmed from the 

United States Supreme Court’s “larger concern with privacy rights for the family.” Id. at 

578 (citing Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 442, 88 L. Ed. 

645 (1944)). As such, the Tennessee Supreme Court concluded that the right to privacy 

inherent in both the United States and Tennessee Constitutions “fully protects the right of 

parents to care for their children without unwarranted state intervention.” Id. at 579. 

The grandparents in Hawk asserted, however, that grandparent visitation was “a 

‘compelling state interest’ that warrants use of the state’s parens patriae power to impose 

visitation in [the] ‘best interests of the children.’” Id. (footnote omitted). The Tennessee 

Supreme Court rejected this argument, however, holding that “without a substantial 

danger of harm to the child, a court may not constitutionally impose its own subjective 

notions of the ‘best interests of the child’ when an intact, nuclear family with fit, married 

parents is involved.” Id. In reaching this decision, the Hawk Court noted that “[i]mplicit 

in Tennessee case and statutory law has always been the insistence that a child’s welfare 

must be threatened before the state may intervene in parental decision-making.” Id. at 

580 (citing Tenn. Code Ann. § 36-6-101 (allowing court intervention into custody matters 

in cases of divorce); Tenn. Code Ann. §37-1-113 & -114 (allowing court intervention 

into custody matters in dependency and neglect)). The Court also noted that its ruling was 

in line with federal decisions “requir[ing] that some harm threaten a child’s welfare 

before the state may constitutionally interfere with a parent’s right to rear his or her 

child.” Hawk, 855 S.W.2d at 580 (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S. 

Ct. 1526, 1540, 32 L. Ed. 2d 15 (1972) (noting that the children at issue would not be 

harmed by receiving an Amish education); Pierce v. Society of Sisters, 268 U.S. 510, 

534, 45 S. Ct. 571, 573, 69 L. Ed. 1070 (1925) (noting that the parents’ choice of private 

school was “not inherently harmful”); Meyer v. Nebraska, 262 U.S. 390, 402–03, 43 

S.Ct. 625, 628, 67 L. Ed. 1042 (1923) (opining that “proficiency in a foreign language . . . 

is not injurious to the health, morals or understanding of the ordinary child”)). As the 

Tennessee Supreme Court explained: “The requirement of harm is the sole protection that 

parents have against pervasive state interference in the parenting process.” Hawk, 855 

S.W.2d at 581. As such, the Hawk Court held that “neither the legislature nor a court may 

properly intervene in parenting decisions absent significant harm to the child from those 
- 16 -

decisions.” Id. The trial court’s award of grandparent visitation absent a showing of harm 

was therefore deemed unconstitutional. Id. Only a year later, the Tennessee Supreme 

Court extended the holding in Hawk to be applicable to all fit parents, not merely those 

part of “an intact, nuclear family[.]” Nale v. Robertson, 871 S.W.2d 674, 678 & 680 

(Tenn. 1994).

A similar situation was at issue in the United States Supreme Court’s decision in 

Troxel v. Granville. In Troxel, the paternal grandparents of two non-marital children 

filed a petition for grandparent visitation against the children’s mother. Troxel, 530 U.S. 

at 61. Under the Washington statute applicable at that time, any person could petition the 

court for visitation with a child at any time so long as the child’s best interests would be 

served by the visitation. Id. at 60. The trial court eventually entered an order allowing 

visitation. Id. at 61. The Washington Court of Appeals reversed the trial court’s order, 

holding that the paternal grandparents lacked standing to seek visitation under the statute 

where no custody proceeding was pending. Id. at 62. In the meantime, the mother 

remarried, and her new husband adopted the children. Eventually, the Washington 

Supreme Court reversed the Washington Court of Appeals on the issue of standing, 

holding that the statute at issue allowed a visitation petition at any time. The Washington 

Supreme Court concluded, however, that the trial court nevertheless erred in ordering 

visitation under the statute, holding that the statute infringed on the fundamental right of 

parents to rear their children. Id. at 63. The United States Supreme Court eventually 

granted a writ of certiorari on the constitutional issue. Id.

The United States Supreme Court first recognized that “the interest of parents in 

the care, custody, and control of their children—is perhaps the oldest of the fundamental 

liberty interests recognized by this Court.” Id. at 65. Citing decades of United States 

Supreme Court precedent, similar to the Tennessee Supreme Court in Hawk, the Court 

opined that “it cannot now be doubted that the Due Process Clause of the Fourteenth 

Amendment protects the fundamental right of parents to make decisions concerning the 

care, custody, and control of their children.” Id. at 66. The Troxel Court therefore held 

that the Washington statute, as applied to the facts of the case, “unconstitutionally 

infringes on [] fundamental parental right[s].” Id. at 67. The Court noted that the statute 

essentially permitted judges, based solely on their personal evaluation of the child’s best 

interests, to “disregard and overturn any decision by a fit custodial parent concerning 

visitation whenever a third party affected by the decision files a visitation petition[.]” Id. 

The Court noted that none of the courts below had ever found the parents to be unfit, an 

important omission, as “there is a presumption that fit parents act in the best interests of 

their children.” Id. at 68. As such, “so long as a parent adequately cares for his or her 

children (i.e., is fit), there will normally be no reason for the State to inject itself into the 

private realm of the family to further question the ability of that parent to make the best 

decisions concerning the rearing of that parent’s children.” Id. at 68–69. Because the trial

court failed to honor this presumption, failed to give any weight to the preferences of the 

parents, and also failed to consider whether the parents had even denied visitation, the 
- 17 -

Troxel Court held that the visitation award was unconstitutional in that case. Id. at 72. 

The United States Supreme Court declined, however, to rule on “whether the Due 

Process Clause requires all nonparental visitation statutes to include a showing of harm or 

potential harm to the child as a condition precedent to granting visitation.” Id. at 73. 

Accordingly, the Court did not “define . . . the precise scope of the parental due process 

right in the visitation context.” Id.

C.

Although this case does not involve grandparent visitation, Sky High argues that 

the Hawk Court’s rejection of the state’s parens patriae power to interfere in a parenting 

decision is also applicable to Mother’s decision to waive Son’s claims against Sky High. 

Because the Hawk holding has never been applied in the context of an exculpatory 

clause, Sky High cites several decisions relying on the recognition of fundamental 

parental rights in upholding liability waivers signed by parents on behalf of children. 

Indeed, Sky Hall asserts that in the wake of the Troxel decision, the law has seen a 

“strong shift” in favor of enforceability. 

Sky High heavily relies on the Ohio Supreme Court’s decision in Zivich v. Mentor 

Soccer Club, Inc., 696 N.E.2d 201 (Ohio 1998). In Zivich, the child was injured while 

participating in a non-profit soccer club. Id. at 202. Prior to the child’s participation, his 

mother signed a registration form for the activity, which contained a waiver of liability 

against the soccer club on behalf of the child. Id. When the parents sued the soccer club 

for the child’s injuries, the soccer club responded that the claim was barred by the waiver. 

The trial court agreed with the soccer club and granted summary judgment in its favor. 

Id. The Court of Appeals affirmed the dismissal but held that the child’s cause of action, 

once he reached the age of majority, had not been waived. See Zivich v. Mentor Soccer 

Club, Inc., No. 95-L-184, 1997 WL 203646, at *1 (Ohio Ct. App. Apr. 18, 1997), aff’d 

on other grounds, 696 N.E.2d 201 (hereinafter, “Court of Appeals’s Zivich”). Id. One 

Judge concurred in the result only, opining that that Ohio public policy favored 

enforcement of the exculpatory agreement against both parents and the child. Court of 

Appeals’s Zivich, 1997 WL 203646, at *23 (Ford, J., concurring in result only).

The Ohio Supreme Court likewise affirmed the trial court’s decision that the 

claims of both the parents and the child were barred by the exculpatory clause contained 

in the registration form. Zivich, 696 N.E.2d at 207. In reaching this result, the Ohio 

Supreme Court first rejected the parents’ argument that the agreement should not be 

enforced on public policy grounds, given that contracts entered into by minors were 

generally unenforceable in Ohio. Id. at 204. Rather, the Ohio Supreme Court held that 

Ohio public policy actually favored enforcement of the agreement, citing Ohio statutes 

enacted to “encourage landowners to open their land to public use for recreational 

activities without fear of liability.” Id. at 204–05 (citing Ohio Rev. Code Ann. §§ 

1533.18 & 1533.181). Indeed, the Ohio Supreme Court noted that, although the statute 
- 18 -

was not applicable to the case-at-bar, the Ohio General Assembly had recently enacted 

statutes that “accord qualified immunity to unpaid athletic coaches and sponsors of 

athletic events.” Id. at 205 (citing Ohio Rev. Code Ann. §§ 2305.381 & 2305.3825). The 

Zivich Court also noted the inherent benefits in allowing children to participate in 

sporting activities: 

Organized recreational activities offer children the opportunity to learn 

valuable life skills. It is here that many children learn how to work as a 

team and how to operate within an organizational structure. Children also 

are given the chance to exercise and develop coordination skills. Due in 

great part to the assistance of volunteers, nonprofit organizations are able to 

offer these activities at minimal cost. . . . Clearly, without the work of its 

volunteers, these nonprofit organizations could not exist, and scores of 

children would be without the benefit and enjoyment of organized sports. 

Yet the threat of liability strongly deters many individuals from 

volunteering for nonprofit organizations. Developments in the Law—

Nonprofit Corporations—Special Treatment and Tort Law (1992), 105 

Harv. L. Rev. 1667, 1682. Insurance for the organizations is not the answer, 

because individual volunteers may still find themselves potentially liable 

when an injury occurs. Markoff, Liability Threat Looms: A Volunteer’s 

Thankless Task (Sept. 19, 1988), 11 Natl. L.J. 1, 40. Thus, although 

volunteers offer their services without receiving any financial return, they 

place their personal assets at risk.

Id. Given these risks, the Ohio Supreme Court noted that these organizations “could very 

well decide that the risks are not worth the effort,” which would reduce the number of 

low-cost sporting activities available to the youth. Id.

In addition to the Ohio public policy favoring low-cost youth sporting activities, 

the Zivich Court noted that its decision aligned with “the importance of parental 

authority.” Id. (citing Court of Appeals’s Zivich, 1997 WL 203646, at *23 (Ford, J., 

concurring in result only)) (agreeing with the reasoning espoused by Judge Ford in his 

concurrence to the Court of Appeals’s Zivich). As the Zivich Court explained, parents 

have a right to raise their children, a fundamental liberty interest in the “the care, custody, 

and management of their offspring[,]” and “a fundamental, privacy-oriented right of 

personal choice in family matters,” all of which are protected by due process. Id. at 206 

(citing Court of Appeals’s Zivich, 1997 WL 203646, at *24 (Ford, J., concurring in result 

only)). In addition, the Ohio Supreme Court provided examples where Ohio statutory law 

empowers parents to make decisions for their children, including the right to consent or 

decline medical treatment. Id. (citing Ohio Rev. Code Ann. § 2317.54[C]; Lacey v. 

Laird, 166 Ohio St. 12, 19, 1 O.O.2d 158, 161, 139 N.E.2d 25, 30 (Ohio 1956) (Hart, J., 

concurring)). Thus, the Zivich Court concluded that invalidating the release would be 
- 19 -

“inconsistent with conferring other powers on parents to make important life choices for 

their children.” Id. at 206 (citing Court of Appeals’s Zivich, 1997 WL 203646, at *25–26 

(Ford, J., concurring in result only)). According to the Ohio Supreme Court, the decision 

to allow the child to participate in a potentially dangerous activity after having signed a 

liability waiver on behalf of the child is “an important family decision” in which a parent 

makes a decision regarding whether “the benefits to her child outweighed the risk of 

physical injury.” Id. at 207. After concluding that this decision is protected by the 

fundamental right of parental authority, the Ohio Supreme Court ultimately held that the 

decision could not be “disturb[ed]” by the courts. Id. Accordingly, the Zivich Court ruled 

that the waiver was enforceable. 

Sky High emphasizes that at least three other states have similarly held that preinjury waivers of a minor’s claims by parents were enforceable due to the court’s 

inability to interfere with fit parents’ decisions. See Saccente v. LaFlamme, No. 

CV0100756730, 2003 WL 21716586 (Conn. Super. Ct. July 11, 2003); Sharon v. City of 

Newton, 769 N.E.2d 738 (Mass. 2002); BJ’s Wholesale Club, Inc. v. Rosen, 80 A.3d 

345 (Md. 2013). First, in Saccente v. LaFlamme, the child’s father signed an indemnity 

agreement on behalf of his daughter to participate in horseback riding lessons. Saccente, 

2003 WL 21716586, at *1. When the child was injured and the mother sued on her 

behalf, the defendant farm raised the indemnity agreement as a defense. Id. The Superior 

Court of Connecticut ultimately held that the indemnity agreement signed by the child’s 

parent was enforceable to bar the child’s claim. Id. at 7.4In reaching this result, the 

Saccente Court relied, in part, on the fundamental parental rights recognized by the 

United States Supreme Court in Troxel. Id. at *6 (citing Troxel, 530 U.S. at 65). In the 

Saccente Court’s view, a parent’s right to make decisions regarding the rearing of 

children extends to “the right to control their associations,” including the “[t]he decision 

here by her father to let the minor plaintiff waive her claims against the defendants in 

exchange for horseback riding lessons at their farm[.]” Saccente, 2003 WL 21716586, at 

*6–7 (distinguishing cases where releases have been held invalid by the fact that 

Connecticut statutory law did not forbid parents from settling the claims of their 

children).

In Sharon v. City of Newtown, a student sued the city for injuries she had incurred 

while participating in cheerleading practice at a public school. Sharon, 769 N.E.2d at 

741. In rejecting the student’s argument that a waiver signed by the student’s father was 

invalid, the Massachusetts Supreme Judicial Court held that enforcing the waiver 

 

4 The Superior Court in Saccente comes to the opposite conclusion as the Superior Court previously came 

to in Fedor v. Mauwehu Council, Boy Scouts of Am., Inc., 21 Conn. Supp. 38, 143 A.2d 466 (Conn. 

Super. Ct. 1958). The Saccente Court distinguished Fedor on the basis that parents there had “had no 

choice but to sign the waiver” in order to participate in a Boy Scout camp for low-income families. 

Saccente, 2003 WL 21716586, at *4. The Saccente Court concluded that the same was not true of the 

child’s horseback riding lessons.
- 20 -

“comports with the fundamental liberty interest of parents in the rearing of their children, 

and is not inconsistent with the purpose behind our public policy permitting minors to 

void their contracts.” Id. at 747. In addition, the Sharon Court noted that its decision was 

in line with Massachusetts statutes exempting certain nonprofit organizations, volunteer 

managers and coaches, and owners of land who permit the public to use their land for 

recreational purposes without imposing a fee from liability for negligence. Id. (noting 

that enforcement also comports with a policy of “encouragement of athletic activities for 

minors” and does not conflict with Massachusetts statutory law requiring court approval 

of minor settlements). 

Likewise in BJ’s Wholesale Club, Inc. v. Rosen, the defendant wholesale club 

sought to dismiss a negligence claim brought on behalf of a minor due to the fact that the 

parents had signed an exculpatory agreement on behalf of the child. Rosen, 80 A.3d at 

346. The Maryland Court of Appeals, Maryland’s high court, held that the exculpatory 

agreement was valid, rejecting the parents’ argument that the agreement should be 

invalidated through the States’ parens patrie authority. The Rosen Court noted, however, 

that such authority was only invoked where a parent is unfit or in the context of juvenile 

delinquency. Id. at 361. As the Maryland Court of Appeals explained: “We have, thus, 

never applied parens patriae to invalidate, undermine, or restrict a decision, such as the 

instant one, made by a parent on behalf of her child in the course of the parenting role.” 

Id. at 362. Ultimately, the Maryland Court of Appeals upheld the validity of the 

agreement, relying also on Maryland statutes allowing parents to make financial, medical, 

mental health, and educational decisions for their children Id. (citing Md. Code Ann., 

Cts. & Jud. Proc. § 6-405 (allowing parents to settle claims on behalf of minors without 

court approval);5 Md. Code Ann., Educ. § 7-301 (allowing parents the choice to 

homeschool their children); Md. Code Ann., Health-Gen. § 10-610 (allowing a parent to 

commit a child to mental health services under limited circumstances); Md. Code Ann., 

Health-Gen. § 20-102 (giving parents the authority to consent to a minor’s medical 

treatment)). At least one federal case interpreting state law has also enforced such an 

agreement. See Kelly v. United States, No. 7:10-CV-172-FL, 2014 WL 4793009, at *5 

(E.D. N.C. Sept. 25, 2014) (holding that upholding releases signed by parents on behalf 

of children “serve[s] the public interest by respecting the realm of parental authority to 

weigh the risks and costs of physical injury to their children against the benefits of the 

child’s participation in an activity”).

In addition to these cases, it appears that other jurisdictions have likewise upheld 

similar exculpatory agreements signed on behalf of children without reliance on the 

fundamental parental rights doctrine. See Hohe v. San Diego Unified Sch. Dist., 224 Cal. 

 

5 The Rosen Court found this statute particularly instructive, as other jurisdictions where exculpatory 

agreements signed by parents were unenforceable had often relied upon statutes that required court 

approval for parents to settle lawsuits on behalf of minors as next friend. Rosen, 80 A.3d at 356–57; see

also infra, for additional discussion of this factor. 
- 21 -

App. 3d 1559, 274 Cal. Rptr. 647 (Ct. App. 1990) (holding, with little analysis regarding 

the public policy in favor or against such a rule, that “[a] parent may contract on behalf of 

his or her children” even in the context of a release); Kondrad ex rel. McPhail v. 

Bismarck Park Dist., 2003 ND 4, ¶ 5, 655 N.W.2d 411, 413 (including no analysis as to 

the issue of whether a parent may waive claims on behalf of a minor); Osborn v. Cascade 

Mountain, Inc., 2003 WI App 1, ¶ 10, 259 Wis. 2d 481, 655 N.W.2d 546 (same). In still 

other states, court decisions refusing to enforce such agreements have been legislatively 

overturned. See Cooper v. Aspen Skiing Co., 48 P.3d 1229 (Colo. 2002), superseded by

Colo. Rev. Stat. Ann. § 13-22-107 (declaring it the public policy of Colorado to permit “a 

parent of a child to release a prospective negligence claim of the child against” 

organizations that provide “sporting, recreational, educational, and other activities where 

certain risks may exist”); Kirton v. Fields, 997 So. 2d 349, 358 (Fla. 2008), somewhat 

superseded by Fla. Stat. Ann. § 744.301 (permitting a parent to waive a child’s future 

cause of action only as to the inherent risks of an activity against a “commercial activity 

provider,” not claims resulting from the provider’s own negligence). Sky High therefore 

argues that this Court should follow the “strong shift” in the law in favor of enforceability 

based upon Tennessee and federal constitutional law regarding the state’s inability to 

interfere in the parenting decisions of fit parents. 

That is not to say, however, that jurisdictions that enforce exculpatory agreements 

or liability waivers signed on behalf of children by their parents enjoy a distinct majority 

in the United States. Indeed, even as recently as 2010, one court characterized the state of 

the law as the opposite—that “a clear majority” of courts have held in favor of finding 

such agreements unenforceable. Galloway v. State, 790 N.W.2d 252, 258 (Iowa 2010). 

Compared with the approximately nine jurisdictions wherein courts or legislatures have 

enforced such agreements, our research has revealed at least fourteen jurisdictions 

wherein courts have specifically held that exculpatory, release, or indemnification 

agreements signed by parents on behalf of children are unenforceable. See Chicago, R.I. 

& P. Ry. Co. v. Lee, 92 F. 318, 321 (8th Cir. 1899); J.T. ex rel. Thode v. Monster 

Mountain, LLC, 754 F. Supp. 2d 1323, 1328 (M.D. Ala. 2010) (applying Alabama law 

and “the weight of authority in other jurisdictions”); Fedor v. Mauwehu Council, Boy 

Scouts of Am., Inc., 21 Conn. Supp. 38, 143 A.2d 466 (Conn. Super. Ct. 1958); Meyer v. 

Naperville Manner, Inc., 262 Ill. App. 3d 141, 145, 634 N.E.2d 411, 413 (Ill. 1994); 

Galloway v. State, 790 N.W.2d 252, 258 (Iowa 2010); Doyle v. Bowdoin College, 403 

A.2d 1206, 1208 n.3 (Me. 1979); Woodman ex rel. Woodman v. Kera LLC, 486 Mich. 

228, 785 N.W.2d 1 (Mich. 2010); Khoury v. Saik, 203 Miss. 155, 33 So. 2d 616, 618 

(1948) (reaffirmed in Burt v. Burt, 841 So. 2d 108 (Miss. 2001)); Fitzgerald v. Newark 

Morning Ledger Co., 111 N.J. Super. 104, 108, 267 A.2d 557, 559 (N.J. Law. Div. 

1970); Valdimer v. Mount Vernon Hebrew Camps, Inc., 9 N.Y.2d 21, 24, 172 N.E.2d 

283, 285 (N.Y. 1961); Ohio Cas. Ins. Co. v. Mallison, 223 Or. 406, 412, 354 P.2d 800, 

803 (Or. 1960); Shaner v. State Sys. of Higher Educ., 40 Pa. D. & C.4th 308, 313 (Com. 

Pl. 1998), aff’d without opinion, 738 A.2d 535 (Pa. Commw. Ct. 1999); Hawkins ex rel. 

Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062, somewhat superseded by Utah Code Ann. 
- 22 -

§ 78B-4-203 (allowing a release against an “equine or livestock activity sponsor”);6

Munoz v. II Jaz Inc., 863 S.W.2d 207, 210 (Tex. App. 1993); Scott By & Through Scott 

v. Pac. W. Mountain Resort, 119 Wash. 2d 484, 494, 834 P.2d 6, 11 (Wash. 1992).

A few courts refusing to enforce these agreements have expressly considered, and 

rejected, similar arguments contending that enforcement is necessary to comport with a 

parent’s fundamental right to control his or her children. For example, the court in 

Woodman ex rel. Woodman v. Kera LLC rejected this argument on the ground that 

under such an analysis “a parent would be able to bind the child in any contract, no 

matter how detrimental to the child,” including contracts where the law is well-settled 

that parents may not consent on behalf of their children. Woodman, 785 N.W.2d at 8 

(quoting McKinstry v. Valley Obstetrics-Gynecology Clinic, P.C., 428 Mich. 167, 405 

N.W.2d 88 (1987) (noting the general rule that “a parent has no authority to waive, 

release, or compromise claims by or against a child”). Rather, the Woodman Court noted 

that if such a massive shift in the law was warranted, the change should originate in the 

legislature, rather than the courts. Id. at 9–10. 

The Iowa Supreme Court likewise considered an argument that the enforcement of 

pre-injury releases was in line with the “public policy giving deference to parents’ 

decisions affecting the control of their children and their children’s affairs.” Galloway, 

790 N.W.2d at 256. The Galloway Court recognized that parents have a fundamental 

liberty interest “in the care, custody, and control of [their] children[.]” Id. (quoting 

Lamberts v. Lillig, 670 N.W.2d 129, 132 (Iowa 2003)). The Court noted, however, that 

this interest was “restricted to some extent by the public’s interest in the best interests of 

children.” Id. In support, the Court cited Iowa law preventing parents from waiving child 

support payments, preventing parents from receiving payments on behalf of a child of 

more than $25,000.00, and preventing conservators from compromising a child’s cause of 

action absent court approval. Id. at 256–57 (citing Iowa Code § 598.21C(3) (stating that 

any modification to child support is void unless approved by the court); Iowa Code § 

633.574 (limiting a parent’s ability to receive property on behalf of child to an aggregate 

value of $25,000.00); Iowa Code § 633.647(5) (requiring a child’s conservator to obtain 

court approval for the settlement of the child’s claim)). The Court further rejected the 

defendants’ claim that “recreational, cultural, and educational opportunities for youths 

will cease because organizations sponsoring them will be unable or unwilling to purchase 

insurance or otherwise endure the risks of civil liability,” finding such fear “speculative 

and overstated.” Id. at 258–59. The Galloway Court therefore held that inherent in Iowa 

law was “a well-established public policy that children must be accorded a measure of 

protection against improvident decisions of their parents.” Id. at 256. The Iowa Supreme 

Court therefore held that public policy prevented enforcement of the pre-injury release 

 

6

 The Utah Supreme Court has recently announced that Hawkins remains valid law as to 

whether public policy invalidates an exculpatory agreement “in the absence of statutory 

language.” See Penunuri v. Sundance Partners, Ltd., 2013 UT 22, ¶ 28, 301 P.3d 984, 992
- 23 -

signed by a student’s mother regarding injuries the child sustained while on an 

educational field trip organized by a state university. Id. at 253.

Although the holding was later superseded by statute, the reasoning of the 

Colorado Supreme Court on this issue is also illuminating. Cooper v. Aspen Skiing Co.

involved a child injured in a skiing accident whose mother had signed a pre-injury release 

on his behalf. Cooper, 48 P.3d at 1230. In invalidating the release, the Colorado Supreme 

Court specifically held that a parent’s fundamental right to “the care, custody, and control 

of their children” did not extend to a parent’s decision to disclaim a minor’s potential 

future recovery for injuries caused by the negligence of a third party. Id. at 1235 n.11 

(quoting Troxel, 530 U.S. at 65). As the Cooper Court explained: 

A parental release of liability on behalf of his child is not a decision 

that implicates such fundamental parental rights as the right to 

“establish a home and bring up children,” Meyer v. Nebraska, 262 

U.S. 390, 399, 43 S.Ct. 625, 67 L. Ed. 1042 (1923), and the right “to 

direct the upbringing and education of children under their control,”

Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35, 45 S. Ct. 571, 69

L. Ed. 1070 (1925). Moreover, it does not implicate a parent’s 

“traditional interest . . . with respect to the religious upbringing of 

their children,” Wisconsin v. Yoder, 406 U.S. 205, 214, 92 S. Ct. 

1526, 32 L. Ed. 2d 15 (1972), or such medical decisions as a parent’s 

right to “retain a substantial . . . role” in the decision to voluntary 

commit his child to a mental institution (with the caveat that the 

child’s rights and the physician’s independent judgment also plays a 

role), Parham v. J.R., 442 U.S. 584, 604, 99 S. Ct. 2493, 61 L. Ed. 

2d 101 (1979); rather a parental release on behalf of a child 

effectively eliminates a child’s legal right to sue an allegedly 

negligent party for torts committed against him. It is, thus, not of the 

same character and quality as those rights recognized as implicating 

a parents’ fundamental liberty interest in the “care, custody, and 

control” of their children.

Furthermore, even assuming arguendo, that a parental release on 

behalf of a minor child implicates a parent’s fundamental right to the 

care, custody, and control of his child, this right is not absolute. 

Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 88 L. Ed. 

645 (1944); People v. Shepard, 983 P.2d 1, 4 (Colo. 1999). Indeed, 

“[a]cting to guard the general interest in youth’s well being, the state 

as parens patriae may restrict the parent’s control by requiring 

school attendance, regulating or prohibiting the child’s labor and in 

many other ways.” Prince v. Massachusetts, 321 U.S. [at] 166 . . . 
- 24 -

(footnotes omitted). In fact, “in order to protect a child’s well-being, 

the state may restrict parental control.” Shepard, 983 P.2d at 4.

Cooper, 48 P.3d at 1235 n.11. 

Appellants argue that this Court should likewise reject any argument that the 

enforcement of liability waivers against minors is required by the fundamental parental 

rights doctrine. Based upon this split of authority, we must determine whether Tennessee 

public policy favors a change in the rule established by this Court in Childress. 

D.

“‘[T]he public policy of Tennessee is to be found in its constitution, statutes, 

judicial decisions and applicable rules of common law.’” In re Baby, 447 S.W.3d 807, 

823 (Tenn. 2014) (quoting Cary v. Cary, 937 S.W.2d 777, 781 (Tenn.1996)). “Primarily, 

it is for the legislature to determine the public policy of the state, and if there is a statute 

that addresses the subject in question, the policy reflected therein must prevail.” Hyde v. 

Hyde, 562 S.W.2d 194, 196 (Tenn. 1978) (citing United States v. Trans-Missouri 

Freight Ass’n, 166 U.S. 290, 17 S. Ct. 540, 41 L. Ed. 1007 (1897)). In order to determine 

whether a contract “is inconsistent with public policy, courts may consider the purpose of 

the contract, whether any violation is inherent in the contract itself, as opposed to merely 

a collateral consequence, and, finally, whether the enforcement of the contract will have a 

detrimental effect on the public.” Baby, 447 S.W.3d at 823 (citing Baugh v. Novak, 340 

S.W.3d 372, 382 (Tenn. 2011)). “‘The principle that contracts in contravention of public 

policy are not enforceable should be applied with caution and only in cases plainly within 

the reasons on which that doctrine rests.’” Home Beneficial Ass’n v. White, 180 Tenn. 

585, 589, 177 S.W.2d 545, 546 (1944) (quoting Twin City Pipe Line Co. v. Harding 

Glass Co., 283 U.S. 353, 356–57, 51 S. Ct. 476, 477, 75 L. Ed. 1112 (1931)). 

Here, there can be no doubt that the Tennessee public policy, as evidenced by the 

Tennessee Supreme Court’s decision in Hawk, does not favor intervention in the parental 

decisions of fit parents. See Hawk, 855 S.W.2d at 579. As such, where a fit parent makes 

a parental decision, our courts generally will not interfere. Id. Courts in Tennessee have 

cited Hawk to protect a parent’s right most often in the context of dependency and 

neglect proceedings, termination of parental rights proceedings, parentage actions, child 

custody proceedings, and grandparent visitation proceedings. See, e.g., In re Carrington 

H., 483 S.W.3d 507 (Tenn.), cert. denied sub nom. Vanessa G. v. Tenn. Dep’t of 

Children’s Servs., 137 S. Ct. 44, 196 L. Ed. 2d 28 (2016) (involving termination of 

parental rights); Lovlace v. Copley, 418 S.W.3d 1, 26 (Tenn. 2013) (involving 

grandparent visitation); In re Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007) 

(involving termination of parental rights); In re Adoption of Female Child, 896 S.W.2d 

546, 548 (Tenn. 1995) (involving custody of a child); Broadwell by Broadwell v. 

Holmes, 871 S.W.2d 471, 476–77 (Tenn. 1994) (limiting parental immunity only “to 

conduct that constitutes the exercise of parental authority, the performance of parental 
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supervision, and the provision of parental care and custody”); McGarity v. Jerrolds, 429 

S.W.3d 562 (Tenn. Ct. App. 2013) (involving grandparent visitation); State v. Cox, No. 

M1999-01598-COA-R3-CV, 2001 WL 799732, at *10 (Tenn. Ct. App. July 17, 2001) 

(involving dependency and neglect); Matter of Hood, 930 S.W.2d 575, 578 (Tenn. Ct. 

App. 1996) (involving a parentage action). In one case, Hawk was cited as support for a 

parent’s right to control a child’s access to the telephone and to “consent . . . vicariously 

to intercepting, recording and disclosing the child’s conversation with [f]ather.” 

Lawrence v. Lawrence, 360 S.W.3d 416, 421 (Tenn. Ct. App. 2010). In another case, 

however, this Court held that a parent’s fundamental right to rear his or her children was 

not violated by a Tennessee law allowing physicians to prescribe contraceptives to 

minors without parental authorization. See Decker v. Carroll Acad., No. 02A01-9709-

CV-00242, 1999 WL 332705, at *13 (Tenn. Ct. App. May 26, 1999). 

Additionally, this policy of protecting fundamental parental rights is often 

reflected in our statutory law. For example, Tennessee Code Annotated section 34-1-102 

provides that parents are equally charged with the “care, management and expenditure of 

[their children’s] estates.” Another statute, Tennessee Code Annotated section 37-1-140, 

states in relevant part: 

A custodian to whom legal custody has been given by the court 

under this part has the right to the physical custody of the child, the 

right to determine the nature of the care and treatment of the child, 

including ordinary medical care and the right and duty to provide for 

the care, protection, training and education, and the physical, mental 

and moral welfare of the child, subject to the conditions and 

limitations of the order and to the remaining rights and duties of the 

child’s parents or guardian.

Tenn. Code Ann. § 37-1-140(a).7 Other statutes littered throughout the Tennessee Code 

also reflect this policy. See, e.g., Tenn. Code Ann. § 33-8-303 (giving a parent authority 

 

7 We note that this Court recently held that under the specific language of the trust agreement at issue, it 

was “without question the trustee has the right under the Trust Agreement to agree to arbitration binding 

the Minor beneficiary as to claims or demands once they have arisen.” Gladden v. Cumberland Trust & 

Inv. Co., No. E2015-00941-COA-R9-CV, 2016 WL 1166341, at *5 (Tenn. Ct. App. Mar. 24, 2016), 

perm. app.granted (Aug. 18, 2016). The Court held however that the trustee had no power to agree to 

arbitration of unknown future claims. Id. at *6. The situation is distinguishable from this cause for three

reasons: (1) the case involved a question of a trustee’s authority under a specific trust agreement, rather 

than a question of a parent’s authority based upon the Tennessee and federal constitutions; (2) the Court 

held that the language of the agreement, rather than public policy considerations, required it to hold that 

the trustee had no power to agree to arbitrate unknown disputes; (3) the agreement at issue was an 

agreement to arbitrate, which limits only the forum in which a claim may be raised, rather than limiting 

liability. See Buraczynski v. Eyring, 919 S.W.2d 314, 319 (Tenn. 1996) (holding that arbitration 

agreements “do not limit liability, but instead designate a forum that is alternative to and independent of 

the judicial forum”). As such, the Gladden Opinion is inapposite to the issues raised in this case. 

Furthermore, because the Tennessee Supreme Court recently granted permission for appeal of the 
- 26 -

to submit minor child to convulsive therapy, but only if neither the child nor the child’s 

other parent object to the treatment); Tenn. Code Ann. § 36-3-106 (giving a parent 

authority to consent to a minor’s marriage); Tenn. Code Ann. § 47-25-1105 (giving 

parents the authority to solicit minor child’s name, photograph, or likeness); Tenn. Code 

Ann. § 49-2-124 (giving a parent authority to submit their minor child to involuntary 

mental health or socioemotional screening); Tenn. Code Ann. § 50-5-105 (giving parents 

the authority to consent to the employment of their minor children aged sixteen or 

seventeen with certain restrictions set by the state); Tenn. Code Ann. § 62-38-305 (giving 

a parent the authority to consent to a minor’s body piercing, given certain limitations); 

Tenn. Code Ann. § 68-1-118 (allowing parents to consent to the release of protected 

health information of their minor children); Tenn. Code Ann. § 68-117-104 (allowing 

parents to consent to minor’s use of tanning devices).

The fundamental parental rights doctrine, however, is not absolute. See Prince, 

321 U.S. at 166 (“Acting to guard the general interest in youth’s well[-]being, the state as 

parens patriae may restrict the parent’s control by requiring school attendance, regulating 

or prohibiting the child’s labor, and in many other ways.”) (footnotes omitted). Indeed, as 

recently as 2011, the Tennessee Supreme Court recognized the courts’ power to 

invalidate certain contracts made by parents on behalf of minors. See Wright ex rel. 

Wright v. Wright, 337 S.W.3d 166 (Tenn. 2011). In Wright, a minor was seriously 

injured in an automobile accident, and her father retained the services of an attorney to 

represent him and the child in a lawsuit to recover for her injuries. Id. at 170. In 

connection with the representation, the father signed a one-third contingency fee with the 

attorney. The agreement noted, however, that fees on behalf of the minor would require 

court approval. The father thereafter filed a complaint on behalf of the child as next 

friend. Because the child’s parents were divorced, the trial court eventually appointed a 

guardian ad litem for the child. Ultimately, the parties agreed to settle the case for 

$425,000 on behalf of the child, as well as courts costs, guardian ad litem fees, and other 

expenses. The document evincing the agreement also indicated that the parties agreed to 

the “contractual attorney’s fees.” Id. at 171.

A dispute soon arose between the guardian ad litem and the retained attorney over 

the amount of attorney’s fees owed to the attorney; while the retained attorney contended 

he was entitled to one-third of the settlement amount, the guardian ad litem asserted that 

the retained attorney was only entitled to a reasonable fee as set by the court. Id. The trial 

court eventually entered an order awarding the retained attorney his full fee under the 

contingency contract. Id. at 172. The Court of Appeals reversed and remanded for a 

recalculation of the fees. Id. The trial court held a hearing and ultimately awarded 

$131,000.00 in attorney’s fees. Id. at 175 (citing Wright v. Wright, No. M2007-00378-

COA-R3-CV, 2007 WL 4340871, at *1 (Tenn. Ct. App. Dec. 12, 2007) (hereinafter, 

 

Gladden case, we await final resolution of the issues decided therein. 
- 27 -

“Wright I”)). After the fee was affirmed by the Court of Appeals, the Tennessee Supreme 

Court granted the guardian ad litem’s application for permission to appeal. Id. at 176. 

As is relevant to this case, the Tennessee Supreme Court first reaffirmed “the 

long-standing” principle in Tennessee that “a next friend representing a minor cannot 

contract with an attorney for the amount of the attorney’s fee so as to bind the minor[.]” 

Id. at 179 (citing City of Nashville v. Williams, 169 Tenn. 38, 82 S.W.2d 541, 541 

(1935)). In reaching this decision, the Wright Court noted two statutes allowing 

Tennessee courts the power to approve settlements made on behalf of minors. Wright, 

337 S.W.3d at 178. First, Tennessee Code Annotated section 34-1-121 provides, in 

pertinent part: 

In any action, claim, or suit in which a minor or person with a 

disability is a party or in any case of personal injury to a minor or 

person with a disability caused by the alleged wrongful act of 

another, the court in which the action, claim, or suit is pending, or 

the court supervising the fiduciary relationship if a fiduciary has 

been appointed, has the power to approve and confirm a compromise 

of the matters in controversy on behalf of the minor or person with a 

disability. If the court deems the compromise to be in the best 

interest of the minor or person with a disability, any order or decree 

approving and confirming the compromise shall be binding on the 

minor or person with a disability.

Tenn. Code Ann. § 34-1-121(b); see also Vannucci v. Memphis Obstetrics & 

Gynecological Ass’n, P.C., No. W2005-00725-COA-R3-CV, 2006 WL 1896379, at *11 

(Tenn. Ct. App. July 11, 2006) (holding that where a settlement involves a minor, section 

34-1-121 “requir[es]” that the trial court “go beyond its normal role” and approve or 

disapprove of the proposed settlement). Likewise, Section 29-34-105 requires an inchambers hearing attended by both the minor and his or her guardian in order to approve 

a settlement totaling more than $10,000.00. From these statutes, the Tennessee Supreme 

Court concluded that Tennessee public policy allows courts to “assume a special 

responsibility to protect a minor’s interests.” Wright, 337 S.W.3d at 178. The Wright

Court therefore affirmed the ruling that the retained attorney was not entitled to the 

contractual fee, but merely to a reasonable fee as set by the court. Id. Ultimately, the 

Tennessee Supreme Court affirmed the trial court’s award of $131,000.00 in attorney’s 

fees. Id. at 188.

From Wright, we can glean that Tennessee’s public policy includes a well-settled 

principle requiring courts to act as parens patriae to protect a child’s financial interests. 

Indeed, Tennessee statutory law, the most salient source of Tennessee public policy, 

includes several statutes that offer protections for a minor’s financial interests, even if 

that protection interferes with a parent’s decisions. See Tenn. Code Ann. § 29-34-105 

(requiring court approval of settlements on behalf of minors of more than $10,000.00); 
- 28 -

Tenn. Code Ann. § 34-1-102(a) (limiting a parent’s use of child’s income to only “so 

much . . . as may be necessary . . . (without the necessity of court authorization) for the 

child’s care, maintenance and education”); Tenn. Code Ann. § 34-1-121(b) (giving the 

court power to approve settlements on behalf of minors where the settlement is in the 

minor’s best interest); Tenn. Code Ann. § 34-1-122 (authorizing the court to approve or 

disapprove of “expenditures of income or principal of the property of the minor or person 

with a disability” and providing limits on the type of “gift program[s]” that may be 

approved). The Tennessee Supreme Court previously characterized these statutes as 

“plac[ing] the responsibility and burden upon the court to act for the minor.” Busby v. 

Massey, 686 S.W.2d 60, 63 (Tenn. 1984). When these statutes are implicated, “the trial 

court is not bound by desires, interests or recommendations of attorneys, parents, 

guardians or others.” Id. (citing Rafferty v. Rainey, 292 F. Supp. 152 (E.D. Tenn. 1968)); 

see also Wright I, 2007 WL 4340871, at *1 (“By caselaw and by statute the settlement of 

a case brought by a minor for personal injuries must be approved by the court, and the 

court must ensure that the settlement itself is in the best interests of the minor.”) 

(emphasis added). 

In addition to statutes on this subject, Tennessee caselaw provides another 

significant protection for the financial interests of a minor even against his or her parent: 

a parent may not, by agreement, waive the child’s right to support from the other parent. 

Huntley v. Huntley, 61 S.W.3d 329, 336 (Tenn. Ct. App. 2001) (citing Norton v. Norton, 

No. W1999-02176-COA-R3-CV, 2000 WL 52819, at *4 (Tenn. Ct. App. Jan.10, 2000)). 

As this Court explained: “It is against public policy to allow the custodial parent to waive 

the child’s right to support[,]” as the child is the beneficiary of the support, not the parent. 

A.B.C. v. A.H., No. E2004-00916-COA-R3-CV, 2005 WL 74106, at *7 (Tenn. Ct. App. 

Jan. 13, 2005) (citing Pera v. Peterson, 1990 WL 200582 (Tenn. Ct. App. Dec. 14, 

1990)); see also Berryhill v. Rhodes, 21 S.W.3d 188, 192, 194 (Tenn. 2000) (holding that 

private agreements to circumvent child support obligations are against public policy). 

Such agreements are therefore “void as against public policy as established by the 

General Assembly.” Witt v. Witt, 929 S.W.2d 360, 363 (Tenn. Ct. App. 1996); see also

Galloway, 790 N.W.2d at 256–57 (relying on Iowa law preventing parents from entering 

into agreements waiving child support as a reason for its rule invalidating waivers of 

liability signed by parents on behalf of minors). The Tennessee Supreme Court has 

likewise held that parents engaged in a child custody dispute “cannot bind the court with 

an agreement affecting the best interest of their children.” Tuetken v. Tuetken, 320 

S.W.3d 262, 272 (Tenn. 2010). Finally, we note that Rule 17.03 of the Tennessee Rules 

of Civil Procedure allows a court to appoint a guardian ad litem for a child “at any time 

after the filing of the complaint” in two instances: (1) when the child has no duly 

appointed representative; or (2) when “justice requires” the appointment. Thus, Rule 

17.03 allows the appointment of a guardian ad litem even when the child is represented 

by his or her parent in the capacity of next friend. See Gann v. Burton, 511 S.W.2d 244, 

246 (Tenn. 1974) (holding that the court’s decision to appoint a guardian ad litem when 

“justice requires” is discretionary and is determined on a case-by-case basis). 
- 29 -

Tennessee statutory law also contains other protections that arguably interfere with 

a parent’s right to the custody and control of his or her children, albeit not in a financial 

context. See Tenn. Code Ann. § 34-6-307 (granting a parent the right to refuse medical 

treatment for his or her child, unless the parent’s decision “jeopardize[s] the life, health, 

or safety of the minor child”); Tenn. Code Ann. § 37-10-303 (granting the parent the 

right to consent to his or her child’s abortion, but providing that, in the absence of 

parental consent, consent may be obtained from the court); Tenn. Code Ann. §§ 37-10-

401 to -403 (placing on the parent the duty to vaccinate a child, unless certain religious 

exceptions apply); Tenn. Code Ann. § 49-6-3001 (requiring parents to enroll their schoolaged children in school, unless exempted); Tenn. Code Ann. § 49-6-3009 (making it a 

crime for a parent who has control of a child to allow the child to be truant from a 

remedial institution); Tenn. Code Ann. § 49-6-3050 (regulating home schooling); Term. 

Code Ann. § 68-34-107 (allowing a physician to provide a minor with contraceptive if 

the minor obtains parental consent or simply if the minor “requests and is in need of birth 

control procedures, supplies or information”). Indeed, one statute specifically invalidates 

a contract entered into by the biological and adoptive parents if the parties agree to 

visitation post-adoption. See Tenn. Code Ann. § 36-1-121(f) (“Any provision in an order 

of the court or in any written agreement or contract between the parent or guardian of the 

child and the adoptive parents requiring visitation or otherwise placing any conditions on 

the adoption shall be void and of no effect whatsoever[.]”). 

Because of the statutory and caselaw in Tennessee providing protection for a 

minor’s financial and other interests, we first note that Tennessee law is clearly 

distinguishable from many of the cases in which enforcement of liability waivers was 

held to be appropriate. For example, the Connecticut Superior Court in Saccente v. 

LaFlamme specifically noted that its decision did not conflict with Connecticut public 

policy as evidenced by statutes because there was “no Connecticut law, and the [parties 

have] cited none, which affords such specific protections for minors.” Saccente, 2003 

WL 21716586, at *6–7 (citing Conn. Gen. Stat. Ann. § 45a-631 (allowing parents to 

settle the claims of their children if the amount recovered is less than $10,000.00)). 

Likewise in BJ’s Wholesale Club, Inc. v. Rosen, the Maryland Court of Appeals noted 

that rather than having no statute prohibiting the practice of parental consent to minor 

settlements without court approval, such practice was actually authorized by Maryland 

statutory law. See Rosen, 80 A.3d at 362 (citing Md. Code Ann., Cts. & Jud. Proc. § 6-

405 (allowing parents to settle “any” claims on behalf of minors without court approval)). 

Clearly, the legal framework in Tennessee differs significantly from these other 

jurisdictions in this regard. 

In addition, unlike in Sharon and Zivich, Sky High has cited to no statutes, nor 

has our research revealed any, that reflect Tennessee public policy in favor of sheltering 

from liability owners of land opened for recreational uses or unpaid athletic coaches and 
- 30 -

sponsors. See Sharon, 769 N.E.2d at 747 (citing Mass. Gen. Laws Ann. ch. 21, § 17C; 

Mass. Gen. Laws Ann. ch. 231, § 85V); Zivich, 696 N.E.2d at 204–05 (citing Ohio Rev. 

Code Ann. §§ 1533.18; 1533.181; 2305.381; 2305.3825); Indeed, in Justice Deborah L.

Cook’s concurrence in Zivich, she emphasized that her decision to concur was “firmly 

grounded in the public policy of the General Assembly, as evinced by the legislative 

enactments cited by the majority,” rather than any constitutional policy regarding parental 

rights. Zivich, 696 N.E.2d at 208 (Cook, J., concurring). Tennessee law has no such 

statutes that evince the Tennessee General Assembly’s desire to shield the operators of 

for-profit trampoline parks from liability. 

Based on the foregoing, we conclude that the Colorado Supreme Court’s analysis 

on this issue best aligns with existing Tennessee law. See Cooper, 48 P.3d at 1235 n.11. 

First, we note that Sky High has cited no law in which the fundamental right to care for 

and to control children, as recognized by the Tennessee Supreme Court in Hawk, has 

ever been utilized to uphold financial contracts entered into by the parent on behalf of the 

child, especially where the child’s right to recover money may be negated by the parents’ 

agreement. See id. (holding that “[a] parental release of liability on behalf of his child is 

not a decision that implicates such fundamental parental rights”). Indeed, where a child’s 

financial interests are threatened by a parent’s contract, it appears to be this State’s longstanding policy to rule in favor of protecting the minor. See Huntley, 61 S.W.3d at 336 

(preventing parent from agreeing to waive child support). Moreover, as previously 

discussed, our General Assembly has enacted a multitude of statutes evincing a policy of 

protecting children’s finances from improvident decisions on the part of their parents. 

See, e.g., Tenn. Code Ann. §§ 34-1-102; 34-1-121(b). This policy of allowing courts to 

“assume a special responsibility to protect a minor’s interests” was reaffirmed by the 

Tennessee Supreme Court in 2011, well after the decisions in both Hawk and Troxel. See

Wright, 337 S.W.3d at 178. Accordingly, parents in Tennessee, like parents in Colorado,

simply do not have plenary power over the claims of their children, regardless of their 

fundamental parental rights. C.f. Cooper, 48 P.3d at 1235 n.11 (holding that a parent’s 

right to the custody, care, and control of his or her children is “not absolute”).8

We are cognizant that that above statutes as well as the Wright decision concern 

only the parent’s ability to settle a claim after an injury has occurred. See Wright, 337 

S.W.3d at 178. At least two courts have held that similar rules have no application to a 

pre-injury waiver. See Sharon, 769 N.E.2d at 747 n.10 (citing Mass. Gen. Laws Ann. ch. 

231, § 140C 1/2) (providing that a court may approve a settlement on behalf of a minor 

when approval is requested by a party); Zivich, 696 N.E.2d at 201. As the Sharon Court 

explained: 

 

8 Moreover, unlike the Colorado legislature, which enacted new law to overturn the decision in 

Cooper a mere year after that decision was filed, see Colo. Rev. Stat. Ann. § 13-22-107 (eff. May 14, 

2003), the Tennessee General Assembly has chosen to take no action to overturn the rule adopted in 

Childress for the last twenty-five years.
- 31 -

[T]he policy considerations underlying [a post-injury release] are 

distinct from those at issue in the preinjury context. A parent asked 

to sign a preinjury release has no financial motivation to comply and 

is not subject to the types of conflicts and financial pressures that 

may arise in the postinjury settlement context, when simultaneously 

coping with an injured child. Such pressure can create the potential 

for parental action contrary to the child’s ultimate best interests. In 

short, in the preinjury context, there is little risk that a parent will 

mismanage or misappropriate his child’s property.

Sharon, 769 N.E.2d at 747 n.10 (citing Zivich, 696 N.E.2d 201). This Court previously 

rejected a similar argument in Childress, stating: 

Indemnification agreements executed by a parent or guardian in 

favor of tort feasors, actual or potential, committing torts against an 

infant or incompetent, are invalid as they place the interests of the 

child or incompetent against those of the parent or guardian. . . . 

Th[e] fact [that] the agreements at issue were executed pre-injury] 

does not change the rule, and indemnity provisions executed by the 

parent prior to a cause of action in favor of a child cannot be given 

effect. Were the rule otherwise, it would circumvent the rule 

regarding exculpatory clauses and the policy of affording protection 

in the law to the rights of those who are unable effectively to protect 

those rights themselves.

Childress, 777 S.W.2d at 7 (citing Valdimer, 172 N.E.2d at 285 (“Clearly, a parent who 

has placed himself in the position of indemnitor will be a dubious champion of his infant 

child’s rights.”)).

Nothing in Hawk or otherwise cited to this Court leads us to believe that the 

decision in Childress on this particular issue was in error at the outset or has been 

changed by the fundamental parental rights doctrine. An agreement to waive all future 

claims arising out of an incident and to hold a third party harmless even from the third 

party’s negligence clearly has the potential to place the parent’s interest in conflict with 

the child’s interest. As the New Jersey Superior Court explained: “If such an agreement 

could be enforced it would be for the benefit of the [parent] to prevent the bringing of any 

suit on the claim of the infant no matter how advantageous such suit might be for the 

infant.” Fitzgerald, 267 A.2d at 559. The Oregon Supreme Court came to a similar 

conclusion:

As parent-guardian he owes a duty to act for the benefit of his child. 

That duty is not fully discharged where the parent enters into a 

bargain which gives rise to conflicting interests. The conflict may 
- 32 -

arise at the time of settlement when the parent has the opportunity to 

receive a sum of money in his own right as a part of the settlement in 

consideration for which he agrees to indemnity the defendant, and it 

may arise later when it is found advisable that his child bring action 

against the defendant for injuries which had not been known at the 

settlement date. On either of these occasions there is a real danger 

that the child’s interest will be put in jeopardy because of the 

parent’s concern over his or her own economic interests. Certainly a 

parent who is called upon to decide whether his child should bring 

an action for injuries not known at the time of settlement is not likely 

to proceed with such an action in the face of knowledge that any 

recovery eventually will result in his own liability under an 

indemnity agreement. 

Mallison, 354 P.2d at 802. The parent-child relationship has likewise been described as 

fiduciary by Tennessee courts in some situations. See Bayliss v. Williams, 46 Tenn. 440, 

442 (1869) (“The relation may be of any kind which implies confidence, as trustee and 

beneficiary, attorney and client, parent and child, guardian and ward, physician and 

patient, nurse and invalid, confidential friend and adviser, indeed, any relation of 

confidence between persons which give one dominion or influence over the other[.]”);

see also Robinson v. Robinson, 517 S.W.2d 202, 206 (Tenn. Ct. App. 1974) (noting that 

while the parent-child relationship may give rise to a fiduciary duty, that does not 

necessarily mean that the relationship is confidential for purposes of undue influence or 

other legal questions). Accordingly, we agree with the courts in New Jersey, New York, 

and Oregon that the conflict requiring court approval of post-injury settlements involving 

minors is largely equal to the conflict created by a parent’s decision to sign a pre-injury 

waiver on behalf of a minor.

Furthermore, in our view, a pre-injury waiver is largely analogous to a contract 

containing a contingency fee. In the context of a pre-injury waiver, the parent must weigh 

the benefit of the activity with potential injury that may occur, but the injury is merely 

hypothetical at that time. Likewise, when a parent signs a contingency fee agreement, the 

parent must weigh the benefits of the representation against the attorney’s fees that will 

be owed from the child’s recovery. At the time of the signing of the agreement, however, 

such recovery is merely hypothetical. Accordingly, similar interests and conflicts are 

inherent in both transactions. Because the Tennessee Supreme Court has held that 

contingency fee agreements signed by parents are invalid, despite the fact that no statute 

expressly prohibits such action, see Wright, 337 S.W.3d at 178, we likewise conclude 

that pre-injury waivers of liability and indemnification agreements are unenforceable 

under Tennessee law. 
- 33 -

Finally, we cannot discount the fact that Tennessee’s public policy may also be 

determined from our case law. See Baby, 447 S.W.3d at 823. As previously discussed, 

this Court determined in 1989 that contracts such as the one at issue in this case were 

unenforceable under Tennessee law. See Childress, 777 S.W.2d at 6. This Court has 

previously grappled with the question of whether our Opinions, published in the official 

reporter and denied permission to appeal by the Tennessee Supreme Court, are entitled to 

stare decisis effect. Compare Evans v. Steelman, No. 01-A-01-9511-JV00508, 1996 WL 

557844, at *2 (Tenn. Ct. App. Oct. 2, 1996), aff’d, 970 S.W.2d 431 (Tenn. 1998) 

(holding that where only one issue was decided by the Court of Appeals, the denial of 

permission to appeal by the Tennessee Supreme Court should be read as approval of the 

Court of Appeals’s holding until the Tennessee Supreme Court “change[s] its mind”); 

with Evans, 1996 WL 557844, at *8 (Koch, J., dissenting) (citing Swift v. Kirby, 737 

S.W.2d 271, 277 (Tenn. 1987)) (“The doctrine of stare decisis does not apply with full 

force to principles that have not been directly adopted by the Tennessee Supreme 

Court.”); see also Hardy v. Tournament Players Club at Southwind, Inc., No. W2014-

02286-COA-R9-CV, 2015 WL 4042490, at *16 (Tenn. Ct. App. July 2, 2015) (Gibson, 

J., dissenting), perm. app. granted (Tenn. Dec. 9, 2015) (noting the “the oddity of a Court 

of Appeals judge asserting that our own opinions may not have stare decisis effect[,]” in 

the context of an unpublished opinion of the Court of Appeals). If entitled to 

consideration under the stare decisis doctrine, we are “require[d] . . . to uphold our prior 

precedents to promote consistency in the law and to promote confidence in this Court’s 

decisions . . . [unless there is] an error in the precedent, when the precedent is obsolete, 

when adhering to the precedent would cause greater harm to the community than 

disregarding stare decisis, or when the prior precedent conflicts with a constitutional 

provision.” Cooper v. Logistics Insight Corp., 395 S.W.3d 632, 639 (Tenn. 2013).

It appears that the issue was settled, however, by the Tennessee Supreme Court’s 

1999 amendment to Rule 4 of the Rules of the Tennessee Supreme Court. See In re 

Amendment to Supreme Court Rule 4 (Tenn. Nov. 10, 1999), 

https://www.tncourts.gov/sites/default/files/sc_rule_4_amd_publ_opin.pdf (deleting the 

prior rule and adopting a new rule). Under Rule 4 of the Rules of the Tennessee Supreme 

Court, “[o]pinions reported in the official reporter . . . shall be considered controlling 

authority for all purposes unless and until such opinion is reversed or modified by a court 

of competent jurisdiction.” Accordingly, regardless of whether stare decisis applies in 

this case, it remains controlling authority in this case until overturned. As such, we will 

not overrule the Childress decision lightly, especially given the over twenty-five years 

that it has operated as the law in Tennessee. 

A similar issue was raised in Woodman ex rel. Woodman v. Kera LLC, 486 Mich. 

228, 785 N.W.2d 1 (Mich. 2010). As previously discussed, the Michigan Supreme Court 

first recognized the well-settled rule that “a parent has no authority to waive, release, or 

compromise claims by or against a child[.]” Id. at 8. The Woodman Court therefore 

framed the issue as whether that well-settled rule should be altered due to changing 
- 34 -

policy considerations. The Michigan Supreme Court declined the invitation, holding that 

such a dramatic shift in public policy was best left to the state legislature: 

There is no question that, if this Court were inclined to alter the 

common law, we would be creating public policy for this state. Just 

as “legislative amendment of the common law is not lightly 

presumed,” this Court does not lightly exercise its authority to 

change the common law. Indeed, this Court has acknowledged the 

prudential principle that we must “exercise caution and . . . defer to 

the Legislature when called upon to make a new and potentially 

societally dislocating change to the common law.” 

Woodman, 785 N.W.2d at 9 (footnotes omitted) (quoting Wold Architects & Engineers 

v. Strat, 474 Mich. 223, 233, 713 N.W.2d 750 (Mich. 2006); Henry v. Dow Chem. Co., 

473 Mich. 63, 89, 701 N.W.2d 684 (Mich. 2005)) (citing Bott v. Commission of Natural 

Resources, 415 Mich. 45, 327 N.W.2d 838 (Mich. 1982)). 

The same is true in this case. As previously discussed, the Childress Opinion was 

decided over twenty-five years ago. Since that time, both the Tennessee Supreme Court 

and the Tennessee General Assembly have had ample opportunity to affirmatively act to 

change the rule established in Childress. See Childress, 777 S.W.2d at 1 (noting that 

permission to appeal to the Tennessee Supreme Court was denied); Rogers v, 807 S.W.2d 

at 242 (same). Indeed, the Childress Opinion specifically invited both the Tennessee 

Supreme Court and the Tennessee General Assembly to scrutinize its holding. See

Childress, 777 S.W.2d at 8. Despite this fact, the Childress rule has remained unaltered 

for more than two decades. 

Other courts have questioned the danger presented to recreational activities 

participated in by minors in refusing to enforce liability waivers or exculpatory 

agreements. See, e.g., Sharon, 769 N.E.2d at 747 (holding that declining to enforce these 

waivers would “inevitably [be] destructive to school-sponsored programs”); Zivich, Inc., 

696 N.E.2d at 205 (noting the threat that recreational activities will not be available to 

children without the enforcement of waivers). Indeed, even the Childress Court noted 

that possible threat posed by its ruling. See Childress, 777 S.W.2d at 7–8 (discussing 

whether its rule will have a chilling effect on recreational activities for children). Given 

the twenty-five years under which Tennessee has been applying the rule adopted in 

Childress, however, we need not speculate as to the dire consequences that may result to 

children’s recreational opportunities. Indeed, Tennessee law is replete with instances of 

children participating in, and becoming injured by, recreational activities. See, e.g., Neale 

v. United Way of Greater Kingsport, No. E2014-01334-COA-R3-CV, 2015 WL 

4537119, at *1 (Tenn. Ct. App. July 28, 2015) (involving a child injured in a 

woodworking shop operated by the Boys and Girls Club); Pruitt v. City of Memphis, No. 

W2005-02796-COA-R3-CV, 2007 WL 120040, at *1 (Tenn. Ct. App. Jan. 18, 2007) 

(involving a child injured at a public swimming pool); Tompkins v. Annie’s Nannies, 
- 35 -

Inc., 59 S.W.3d 669 (Tenn. Ct. App. 2000) (involving a child injured in a downhill race 

organized by her day care center); Livingston, as Parent, Next Friend of Livingston v. 

Upper Cumberland Human Res. Agency, No. 01A01-9609-CV-00391, 1997 WL 

107059, at *1 (Tenn. Ct. App. Mar. 12, 1997) (involving a child injured at a church 

retreat); Cave v. Davey Crockett Stables, No. 03A01-9504CV00131, 1995 WL 507760, 

at *1 (Tenn. Ct. App. Aug. 29, 1995) (involving a child injured at summer camp).9 In 

fact, Sky High has provided this Court with no evidence that recreational activities open 

to minors have in any way been hindered by the Childress rule. Accordingly, we can 

easily dismiss any claim that refusing to enforce waivers of liability against children will 

in any way limit the recreational opportunities open to children in Tennessee. 

Based on the foregoing, we conclude that there is no basis to depart from this 

Court’s well-reasoned decision in Childress. Because the law in Tennessee states that 

parents may not bind their minor children to pre-injury waivers of liability, releases, or 

indemnity agreements, the trial court did not err in refusing to enforce the waiver of 

liability and indemnity provisions of the release signed by Mother on behalf of Son. 

IV. 

Appellants next argue that the trial court erred in denying their request to amend 

their complaint to include a request for pre-majority medical expenses incurred on behalf 

of the child. Here, the trial court specifically found that “for a minor’s injuries[,] the 

claim for medical expenses [is] a separate and distinct claim of the parent[.]” According 

to the trial court, because Mother waived her right to recover from Sky High, Mother 

“could not effectively assign them or waive them to her son to allow him to pursue 

them.” The trial court therefore partially denied Appellants’ motion to amend their 

complaint. 

As previously discussed, a trial court’s decision on a motion to amend a pleading 

is reviewed under an abuse of discretion standard. Fann v. City of Fairview, 905 S.W.2d 

167, 175 (Tenn.Ct.App.1994). Rule 15.01 of the Tennessee Rules of Civil Procedure 

provides that leave of court to amend pleadings “shall be freely given when justice so 

requires.” The Tennessee Supreme Court has recognized that the language of Rule 15.01 

“substantially lessens the exercise of pre-trial discretion on the part of a trial judge.” 

Branch v. Warren, 527 S.W.2d 89, 91 (Tenn. 1975); see also Hardcastle v. Harris, 170 

S.W.3d 67, 80–81 (Tenn. Ct. App. 2004). In considering a motion to amend, a trial court 

is to consider several factors, including: “undue delay in filing the amendment, lack of 

notice to the opposing party, bad faith by the moving party, repeated failure to cure 

deficiencies by previous amendments, undue prejudice to the opposing party, and the 

futility of the amendment.” Gardiner v. Word, 731 S.W.2d 889, 891–92 (Tenn. 1987).

 

9

In Cave, the child’s parent signed “a consent [form] for the child to participate in the activity 

and . . . a release releasing [one of the defendants] from any liability for personal injuries received by the 

child.” Id. at *1. The Court never reached the issue, however, because of a statute that precluded liability 

for certain equine activities. Id. (citing Tenn. Code Ann. § 44-20-103). 
- 36 -

Although not termed as such by the trial court, it appears to this Court that the trial 

court denied Appellants’ motion to alter or amend on the basis of futility—that is, 

because Son could not recover pre-majority medical expenses even if requested in the 

complaint, the amendment served no purpose.10 Sky High argues that the trial court was 

correct in its decision, citing the Tennessee Supreme Court’s decision in Dudley v. 

Phillips, 218 Tenn. 648, 651, 405 S.W.2d 468 (Tenn. 1966). In Dudley, the Tennessee 

Supreme Court held that when a child is injured, two “separate and distinct causes of 

action” are created: (1) a cause of action on behalf of the parent for “loss of services 

[and] medical expenses to which [the parent] will be put”; and (2) “another and distinct 

cause of action arises in favor of the child for the elements of damage to him, such as 

pain and suffering, disfigurement, etc.” Id. at 469 (quoting 42 A.L.R. 717 (originally 

published in 1926)). The rule expressed in Dudley has been reaffirmed by Tennessee 

courts on multiple occasions. See Vandergriff v. ParkRidge E. Hosp., 482 S.W.3d 545, 

549 (Tenn. Ct. App. 2015); Neale v. United Way of Greater Kingsport, No. E2014-

01334-COA-R3-CV, 2015 WL 4537119, at *5 (Tenn. Ct. App. July 28, 2015); Luther, 

Anderson, Cleary & Ruth, P.C. v. State Farm Mut. Auto. Ins. Co., No. 03A01-9601-

CV-00015, 1996 WL 198233, at *3 (Tenn. Ct. App. Apr. 25, 1996); Rogers v. DonelsonHermitage Chamber of Commerce, 807 S.W.2d 242, 247 (Tenn. Ct. App. 1990)). 

Indeed, the rule has been codified into Tennessee’s statutory law at Tennessee Code 

Annotated section 20-1-105, which provides, in relevant part: “The father and mother of 

 

10 We note that this Court has previously held:

The court . . . should not deny a plaintiff’s Tenn. R. Civ. P. 15 Motion to Amend 

based on an examination of whether it states a claim on which relief can be 

granted. As the United States Supreme Court explained, “[i]f underlying facts or

circumstances relied on by plaintiff may be proper subject of relief, he ought to 

be afforded opportunity to test his claim on merits and therefore should be 

permitted to amend complaint.” Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 

227, 230, 9 L. Ed. 2d 222 (1962). If the legal sufficiency of the proposed 

Complaint is at issue—instead of delay, prejudice, bad faith or futility—the 

better protocol is to grant the motion to amend the pleading, which will afford the 

adversary the opportunity to test the legal sufficiency of the amended pleading by 

way of a Tenn. R. Civ. P. 12.02(6) Motion to Dismiss. See McBurney v. Aldrich, 

816 S.W.2d 30, 33 (Tenn. Ct. App. 1991).

Conley v. Life Care Centers of Am., Inc., 236 S.W.3d 713, 724 (Tenn. Ct. App. 2007). Here, it does 

appear that the trial court judged the merits of Son’s claim for pre-majority expenses in denying 

Appellants’ motion to alter or amend. If we were to remand to the trial court with directions to grant the 

amendment, it is likely that the trial court would later grant a motion to dismiss this claim on the same 

basis that it denied the motion to amend. Consequently, we cannot discern how judicial economy would 

be furthered by requiring the above procedure. Furthermore, this Court in its order granting the 

interlocutory appeal specifically indicated that the question of “whether the minor child can recover 

medical expenses on his own behalf” was “appropriate” for interlocutory review. Accordingly, we 

proceed to consider the merits of this issue. 
- 37 -

a minor child have equal rights to maintain an action for the expenses and the actual loss 

of service resulting from an injury to a minor child in the parents’ service or living in the 

family . . . .” Tenn. Code Ann. § 20-1-105(a). 

Sky High argues that because Mother’s claims were extinguished by her valid and 

undisputed execution of the waiver and indemnification language in the release, any 

claim for pre-majority medical expenses is likewise barred. Appellants agree that Mother 

has waived “her individual right to recover medical expenses incurred by her son.” 

Indeed, all of Mother’s individual claims were voluntarily dismissed in the trial court. 

Appellants also do not dispute the general rule that children may not claim pre-majority 

medical expenses as a measure of damages in the child’s lawsuit because those damages 

are owed solely to the parents. See Dudley, 405 S.W.2d at 469; see also Burke v. Ellis, 

105 Tenn. 702, 58 S.W. 855, 857 (Tenn. 1900) (“It is not alleged or shown that the boy 

incurred any expense for medical services. It is alleged these were incurred by the father. 

Such an element was not proper in estimating the damages in a case brought like this, by 

next friend, for the minor[.]”). Instead, Appellants argue that because Mother waived her 

claims by signing the release, the child is permitted to claim the medical expenses on his 

own behalf, with Mother acting in her capacity as next friend. 

In support of their argument, Appellants cite the Tennessee Supreme Court’s 

decision in Wolfe v. Vaughn, 177 Tenn. 678, 152 S.W.2d 631 (Tenn. 1941). In Wolfe, 

the minor was injured in an automobile accident. Because her mother was deceased and 

her father incompetent, the minor filed suit with her grand uncle acting as next friend. Id.

at 633. The jury eventually awarded the minor plaintiff damages, including pre-majority 

medical expenses. Id. at 632. On appeal, the defendants argued that the minor could not

recover those expenses “the insistence being that the law confers no cause of action upon 

an infant for such expenses.” Id. at 633. The Tennessee Supreme Court agreed with the 

defendant’s contention generally, noting:

“Since the parent is entitled to the services and earnings of the child 

so long as the latter is legally under his custody or control, ordinarily 

an infant suing for personal injuries cannot recover for the 

impairment of his earning capacity during infancy, or for loss of 

time, or for expenses in curing his injuries, when, and only when, he 

is under the control of his parents; after emancipation he may do so. 

However, he may recover for his mental or physical pain and 

sufferings, his permanent injuries, and for the impairment of his 

power to earn money after arriving at majority.”

Id. at 634 (quoting 31 C. J. 1114, 1115). The Wolfe Court held, however, that an 

exception to the rule should be present “where a child has no parent who can sue for such 

expenses that she can sue for and recover the same.” Wolfe, 152 S.W.2d at 634. 

Accordingly, the Tennessee Supreme Court adopted the following rule:
- 38 -

“A parent may waive or be estopped to assert his right to recover for 

loss of services, etc., by reason of injury to his minor child, and 

permit the child to recover the full amount to which both would be 

entitled, as where the parent as next friend brings an action on behalf 

of the child for the entire injury, or permits the case to proceed on 

the theory of the child’s right to recover for loss of services and 

earning capacity during minority. In such case the parent treats the 

child as emancipated in so far as recovery for such damages is 

concerned, and cannot thereafter be permitted to claim that he, and 

not the child, was entitled to recover therefor.”

Id. at 633–34 (quoting 46 C. J. 1301, 1302).

This Court has considered the rule set down in Wolfe on a number of occasions. 

See Neale v. United Way of Greater Kingsport, No. E2014-01334-COA-R3-CV, 2015 

WL 4537119, at *8 (Tenn. Ct. App. July 28, 2015); Palanki ex rel. Palanki v. Vanderbilt 

Univ., 215 S.W.3d 380 (Tenn. Ct. App. 2006); Smith v. King, No. CIV.A. 958, 1984 WL 

586817 (Tenn. Ct. App. Sept. 21, 1984). In Smith, the child, with his parent acting in the 

capacity of next friend, filed suit to recover for her injuries incurred when she was struck 

by a car. Smith, 1984 WL 586817, at *1. Because the parent’s claim was barred by the 

applicable statute of limitations, the child sought to recover not only the damages owed to 

him, but also for pre-majority medical expenses. Id. In Smith, we held that based upon a 

theory of waiver, as set down in Wolfe, “under circumstances where the parent has acted 

as next friend,” the child “may maintain an action for his medical expenses provided that 

he has paid them, as suggested in Burke, or is legally obligated to pay them.” Smith, 

1984 WL 586817, at *2 (citing Burke, 58 S.W. at 857 (holding that it was error for the 

trial court to allow evidence of pre-majority medical expenses that were paid by the 

child’s parent)). The Smith court therefore remanded to determine “whether the child 

could bring herself within the exception to the general rule[.]” Id. The Smith Court, 

however, was not abundantly clear as to who was actually required to have paid the 

expenses, the child or the parent, in order for the child to recover those damages in his or 

her suit. 

The question was answered by this Court in Palanki ex rel. Palanki v. Vanderbilt 

Univ., 215 S.W.3d 380 (Tenn. Ct. App. 2006), no perm. app. filed. Like the child in 

Smith, the child in Palanki filed suit through his next friend. Although the parents’ claim 

was not barred by the statute of limitations, the child in Palanki nevertheless requested 

medical expenses incurred while he was a minor. Id. at 384. This Court held that the 

child “could properly maintain his own action for pre-majority medical expenses incurred 

or likely to be incurred by [the child’s mother] on his behalf[.]” Id. at 394. In reaching 

this result, this Court in Palanki characterized the rule “adopted” in Smith as allowing “a 

child under circumstances where the parent has acted as next friend [to] maintain an 

action for his medical expenses provided that [the parent] has paid for them . . . or is 
- 39 -

legally obligated to pay them.” Id. (alteration in original) (quoting Smith, 1984 WL 

586817, at *2).11 This Court therefore held that evidence regarding the child’s premajority medical expenses was properly admitted and considered by the jury. Id. at 394. 

Recently, the United States District Court for the Eastern District of Tennessee 

called into question the holding in Palanki. See Grant v. Kia Motors Corp., No. 4:14-

CV-79, 2016 WL 6247319 (E.D. Tenn. May 10, 2016).12 In Grant, the minor children 

were injured in an automobile accident, and the children’s mother filed suit in her 

capacity as next friend. Id. at *1. The district court, relying on Dudley, first ruled that any 

claims brought by the mother individually were not tolled due to the children’s minority. 

Id. at *8 (citing Tenn. Code Ann. § 29-28-103(a)) (containing an express tolling 

provision applicable to minors). Because the mother filed her action after the expiration 

of the statute of repose, her claims were barred. Grant, 2016 WL 6247319, at *9. 

The mother argued, however, that given that her individual claims were barred, 

her children were able to pursue pre-majority medical expenses under the theory of 

waiver espoused in Palanki. Id. The district court noted that under the interpretation of 

the waiver rule adopted in Palanki, Tennessee’s intermediate courts “would likely permit 

the minor Plaintiffs in this action to bring claims for their pre-majority medical expenses 

through their mother . . . as next friend.” Id. Under well-settled rules regarding federal 

courts sitting in diversity, the Grant court noted that it “must follow state law as 

announced by the Supreme Court of Tennessee[,]” and “[w]here, as here, ‘a state 

appellate court has resolved an issue to which the high court has not spoken, we will 

normally treat [those] decisions . . . as authoritative absent a strong showing that the 

state’s highest court would decide the issue differently.’” Id. (quoting Kirk v. Hanes 

Corp. of North Carolina, 16 F.3d 705, 707 (6th Cir. 1994) (emphasis in original)). Based 

upon its reading of Wolfe and Smith, however, the district court stated that it was 

“convinced that the Supreme Court of Tennessee would not apply the waiver rule as 

announced in Palanki to the case at bar.” Grant, 2016 WL 6247319, at *9. Specifically, 

the Grant court concluded that the Palanki Court wrongly interpreted the ambiguous 

language in Smith to allow a child to sue for expenses paid by the child’s parent when the 

opposite rule was intended by the Smith Court. Id. at *10 (citing Palanki, 215 S.W.3d at 

394 (citing Smith, 1984 WL 586817, at *2)).

In reaching this conclusion, the district court first referenced the Tennessee 

Supreme Court’s ruling in Wolfe, noting that “the Wolfe court clearly addressed a 

 

11 The Palanki Court inexplicably states that this rule was adopted in Smith with no citation of any kind 

to the Tennessee Supreme Court’s seminal decision in Wolfe, upon which the Smith Court bases its 

analysis.

12 Although federal interpretations of Tennessee law are not controlling on this Court, we may consider 

their analysis helpful in appropriate circumstances. See State v. Hunt, 302 S.W.3d 859, 863–64 (Tenn. 

Crim. App. 2009) (“[A] federal court’s interpretation of Tennessee law is not binding on the courts of this 

state.”).
- 40 -

situation in which the parents neither paid for nor were legally responsible for the child’s 

medical expenses.” Grant, 2016 WL 6247319, at *10. The court in Grant likewise 

concluded that the Court of Appeals in Smith was concerned only with those expenses 

paid by the minor himself. Id. at 11. In support, the district court noted that the proviso in 

the Smith Court’s holding that a claim for pre-majority medical expenses may stand 

“provided he has paid them,” cites the Tennessee Supreme Court’s decision in Burke v. 

Ellis. Grant, 2016 WL 6247319, at *11 (citing Smith, 1984 WL 586817 at *2 (citing 

Burke, 58 S.W. at 857)). In Burke, the Tennessee Supreme Court ruled that the trial 

court erred in allowing evidence of pre-majority medical expenses in a case brought by 

the minor through his next friend. Burke, 58 S.W. at 857. Indeed, the Burke Court 

mentioned that there was no proof that the child was required to pay his own medical 

expenses. Id. (“[W]hile there is no proof that the child paid any expenses for medical 

treatment, there is a statement that such expenses were incurred and paid by the 

father[.]”). As such, the Grant court concluded that:

Burke unmistakably stands for the proposition that it is improper for 

a jury to consider medical expenses as relevant to damages where, as 

here, a minor brings claims by next friend. Moreover, by explicitly 

mentioning twice that there is no proof that the child paid any 

expenses for medical treatment, the court implies that the outcome 

may be different if such proof were presented. Accordingly, where 

the Smith court says that the waiver rule applies to permit a child to 

recover medical expenses “provided that he has paid them, as 

suggested in Burke,” Smith, 1984 WL 586817 at *2, it is clear that 

the “he” to which the Smith court referred was intended to be “the 

child.”

Grant, 2016 WL 6247319, at *11. 

The Grant court also noted other portions of the ruling in Smith that supported its 

interpretation. For example, the Smith court cited two cases regarding the question of 

when a child is liable for necessaries furnished to him. Id. (citing Smith, 1984 WL 

586817 at *2 (citing Gardner v. Flowers, 529 S.W.2d 708 (Tenn. 1975); Foster v. 

Adcock, 161 Tenn. 217, 30 S.W.2d 239 (Tenn. 1930)). In both of these cases, however, 

the dispute involved whether a child, not the child’s parent, was liable on a debt. See

Grant, 2016 WL 6247319, at *11 (citing Gardner, 529 S.W.2d at 711; Foster, 30 S.W.2d 

at 240). Additionally, the Grant court noted that the remand order in Smith indicates that 

the only pre-majority medical expenses that may be raised by the child are those that 

were paid by him or her. See Grant, 2016 WL 6247319, at *12 (“It is clear . . . that the 

court remanded the case so that the minor plaintiff could present evidence that she, the 

child, had paid the medical expenses or was legally obligated to pay same.”). Indeed, the 

Smith Court remanded to the trial court to determine “whether the child could bring 

herself within the exception to the general rule[,]” despite the fact that the record 

contained evidence that the father was billed for the child’s medical expenses. Smith, 
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1984 WL 586817 at *2. Were the rule in Smith that the child could bring a claim for premajority medical expenses paid by him or his parent, a remand would not have been 

necessary to ascertain whether the child could “bring herself within the [waiver] rule.” 

See id.

Finally, the Grant court noted two other considerations that required it to depart 

from this Court’s holding in Palanki: (1) the purpose of the waiver rule was allow a 

claim where there was no threat of double recovery; and (2) accepting the Palanki

interpretation of the waiver rule would “allow a parent to collect as damages his/her 

child’s pre-majority medical expenses notwithstanding the fact that the parent’s 

individual claims are barred.” Grant, 2016 WL 6247319, at *12. The Grant court

concluded that such a result was untenable because it blurred the demarcation between 

the parent’s claims and the child’s claims and permitted the parent to evade the fact that 

his or her own claim was barred. Id. 

Although it is certainly unusual for this Court to depart from the most recent 

reported Tennessee case on this subject in favor of an interpretation offered by a federal 

district court, we must agree with the Court in Grant that the child in this case should not 

be able to claim pre-majority expenses paid by his parents in an effort to circumvent 

Mother’s execution of the release, including its waiver and indemnity provision. First, we 

note that although the Palanki decision is reported in the official reporter and therefore 

“controlling for all purposes,” Tenn. R. Sup. Ct. 4(g)(2), Palanki was published pursuant 

to Rule 11 of the Rules of the Tennessee Court of Appeals, where no application for 

permission to appeal to the Tennessee Supreme Court was filed. See Palanki, 215 

S.W.3d at 380; see also Tenn. R. Ct. App. 11. As previously discussed, there is some 

question as to whether opinions of the Tennessee Court of Appeals which have been 

denied permission to appeal by the Tennessee Supreme Court are entitled to stare decisis 

effect. See generally Evans v. Steelman, No. 01-A-01-9511-JV00508, 1996 WL 557844, 

at *2, *8 (Tenn. Ct. App. Oct. 2, 1996). But see Tenn. R. Sup. Ct 4(g)(2). Regardless, the 

Tennessee Supreme Court has specifically held that:

[W]hen no application for review of an opinion of the 

intermediate courts is sought, it has no stare decisis effect, 

and such an opinion cannot serve to modify or change 

existing law. The doctrine of sta[r]e decisis, especially as 

respects rules of property, does not apply with full force until 

the question has been determined by a court of last resort. 

Swift v. Kirby, 737 S.W.2d 271, 277 (Tenn. 1987). As such, the decision in Palanki

simply cannot serve to alter or change the decisions by the Tennessee Supreme Court in 

Wolfe and Burke. See also Bloodworth v. Stuart, 221 Tenn. 567, 572, 428 S.W.2d 786, 

789 (Tenn. 1968) (citing City of Memphis v. Overton, 54 Tenn. App., 419, 392 S.W.2d 

86 (Tenn.1964) (“The Court of Appeals has no authority to overrule or modify [the 

Tennessee] Supreme Court’s opinions.”)). Morris v. Grusin, No. W2009-00033-COA-
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R3-CV, 2009 WL 4931324, at *4 (Tenn. Ct. App. Dec. 22, 2009) (quoting Davis v. 

Davis, No. M2003-02312-COA-R3-CV, 2004 WL 2296507, at *6 (Tenn. Ct. App. Oct. 

12, 2004) (“Once the Tennessee Supreme Court has addressed an issue, its decision 

regarding that issue is binding on the lower courts.”)); Thompson v. State, 958 S.W.2d 

156, 173 (Tenn. Crim. App. 1997) (quoting State v. Irick, 906 S.W.2d 440, 443 (Tenn. 

1995) (“[I]t is a controlling principle that inferior courts must abide the orders, decrees 

and precedents of higher courts. The slightest deviation from this rigid rule would disrupt 

and destroy the sanctity of the judicial process.”)); Levitan v. Banniza, 34 Tenn. App. 

176, 185, 236 S.W.2d 90, 95 (Tenn. Ct. App. 1950) (“This court is bound by the 

decisions of the Supreme Court.”). Accordingly, to the extent that the decision in Palanki

conflicts with either Wolfe or Burke, we are required to disregard it. 

Furthermore, we agree with the Grant court’s comment that in both Smith and 

Wolfe, the Court was concerned with the situation wherein the child himself paid the 

medical expenses. See Grant, 2016 WL 6247319, at *11–12 (citing Wolfe, 152 S.W.2d at 

634; Smith, 1984 WL 586817 at *2). Indeed, in Wolfe, the child’s parents were not at all 

involved in her life. Wolfe, 152 S.W.2d at 634. Accordingly to deprive her of the premajority medical expenses which she herself paid simply due to a legal fiction that all 

parents must pay for the pre-majority medical expenses of their children would have been 

fundamentally unfair. The Smith Court, likewise, indicated that the child, rather than the 

parent, must have paid the medical expenses and specifically cited the Tennessee 

Supreme Court’s decision in Burke in announcing its rule. Smith, 1984 WL 586817 at 

*2. Again, Burke unequivocally held that the child could not present proof of premajority medical expenses paid by his parent. Burke, 58 S.W. at 857. 

Interpreting the Wolfe waiver rule in this fashion best comports with Tennessee 

law. First, allowing the minor child to recover those expenses he himself has paid 

harmonizes with Tennessee’s public policy of protecting the financial interests of minors. 

See discussion, supra. To hold otherwise would prevent the child from being fully 

compensated for the damages that he actually incurred based upon an arbitrary 

determination that those expenses were paid by the child’s parent, even in the face of 

proof to the contrary. Furthermore, to allow the child in this case to claim Mother’s 

damages despite the fact that she executed a valid release and indemnity agreement 

would be to frustrate this state’s public policy of enforcing clear and unambiguous 

exculpatory agreements entered into freely by adults. See Moss v. Fortune, 207 Tenn. 

426, 429, 340 S.W.2d 902, 903–04 (Tenn. 1960). Indeed, the Smith Court specifically 

confined the rule to only those claims that the parent “might have[.]” Smith, 1984 WL 

586817 at *2. In this case, however, Mother’s claims have been extinguished by her 

execution of the release. Accordingly, she has no claim that she may waive in favor of the 

child. 
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A recent Tennessee Supreme Court case supports our analysis. In Calaway ex rel. 

Calaway v. Schucker, 193 S.W.3d 509 (Tenn. 2005), as amended on reh’g in part (Feb. 

21, 2006), the child’s mother filed a medical malpractice action in federal district court as 

next friend of her minor child. Id. at 512. There was no dispute that the mother’s claims 

were barred by the applicable statute of repose. The dispute in the case concerned 

whether the child’s claim was likewise barred by the statute of repose or whether the 

statutory time limit was tolled during the child’s minority. Id. Because the dispute 

involved Tennessee law, the Tennessee Supreme Court accepted four certified questions 

from the federal court. Id. The Tennessee Supreme Court ultimately concluded that the 

medical malpractice statute of repose was not tolled by a child’s minority but held that 

the rule would only be applied prospectively. Id. at 517–18. The Calaway Court 

thereafter answered the following certified question:

Question 1: Does a minor child have a personal claim for 

medical expenses arising from an injury caused by the fault of 

another when the claim of the child’s parent for such medical 

expenses is barred by a statute of limitation or repose?

Answer: No.

Id. at 519. We acknowledge that this rule is offered with no elaboration and only 

expressly addresses the situation wherein a parent’s claim is barred by a statute of 

limitation or repose. Id. Regardless, we find it highly persuasive that the Tennessee 

Supreme Court does not intend to allow a child to raise claims belonging to his parent 

simply because the parent cannot maintain his or her action, either because of the 

expiration of a statute of limitation or repose or the waiver of that claim through an 

exculpatory agreement. 

Based on the foregoing, we conclude that Son cannot maintain an action for premajority medical expenses that were paid or will be paid by his parents. Rather, under the 

rule in Wolfe and Smith, Son may only maintain an action for those medical expenses 

that he paid or is obligated to pay. Here, the motion to amend Appellants’ complaint does 

not conclusively illustrate whether the requested damages constitute medical expenses 

paid by Son’s parents or medical expenses paid by Son. Like the Smith Court, we are 

reluctant to hinder Son’s ability to fully recover for his injuries. Accordingly, we reverse 

the trial court’s ruling denying the motion to amend the complaint only so as to allow 

Appellants to raise a claim for those pre-majority medical expenses paid by Son or for 

which Son is obligated to pay. With regard to any pre-majority medical expenses paid by 

Son’s parents, we affirm the trial court’s order denying the motion to amend the 

complaint. 

Conclusion

The judgment of the Davidson County Circuit Court is reversed as to the motion to 

amend the complaint only to the extent of allowing Son to raise a claim for those pre-
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majority medical expenses paid by Son or for which Son is obligated to pay. The 

judgment of the trial court is affirmed in all other respects. Costs of this appeal are taxed 

one-half to Appellants Crystal Blackwell as next friend to Jacob Blackwell, and their 

surety, and one-half to Appellee Sky High Sports Nashville Operations, LLC, for all of 

which execution may issue if necessary. 

_________________________________

J. STEVEN STAFFORD, JUDGE