Henderson v. Quest Expeditions, Inc. - 174 S.W.3d 730 (Tenn. Ct. App. 2005)

Rule:

It is well settled in Tennessee 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. Further, it is not necessary that the word negligence appear in the exculpatory clause and the public policy of Tennessee favors freedom to contract against liability for negligence. An exception to this rule was recognized wherein certain relationships required greater responsibility which would render such a release obnoxious. Where the public interest would be affected by an exculpatory provision, such provision could be held invalid.

Facts:

Plaintiffs filed a complaint against defendant, alleging that Henderson was injured while on a whitewater rafting expedition operated by defendant. According to plaintiffs, defendant’s negligence was the proximate cause of Henderson’s injuries. In its answer, defendant admitted that Henderson participated in a rafting trip sponsored by defendant; however, it argued that it should not be held liable because plaintiff Henderson had signed a “Waiver and Release of Liability.” The trial court granted summary judgment in favor of defendant. On appeal, plaintiffs argued that the release was void as against the public policy of Tennessee.

Issue:

Was the waiver signed by plaintiff void as against the public policy of Tennessee, thereby making the grant of summary judgment in favor of defendant an error?

Answer:

No.

Conclusion:

The appellate court noted that the whitewater rafting service offered by the company was not a professional trade, which affected the public interest. Many jurisdictions had recognized that recreational sporting activities were not activities of an essential nature which would render exculpatory clauses contrary to the public interest. The Tennessee legislature had evidenced that the public policy of the State was that commercial white water rafting companies be protected from claims for injuries to patrons. The fact that the injury occurred during an activity that was not foreseeable or not associated with a risk "inherent in the sport" did not matter. The release was clear and unambiguous, and stated that the patrons agreed to release the company from any and all liability, including the company's own negligence. The contract specifically mentioned that the patrons were being furnished and participating in whitewater rafting and bus or van transportation provided by the company.