Are Liability Waivers Enforceable in Tennessee?

A man recovering from knee replacement surgery was being taken to an appointment with his orthopaedic surgeon. A driver from the medical transport company his hospital had contracted with wheeled him out to a van, and he fell getting in. The company pointed to the exculpatory terms in the paperwork, and both lower courts agreed the terms were enforceable. In 2018 the Tennessee Supreme Court disagreed, and in the process tore up the test the state had used since the seventies. Tennessee now decides these agreements on the totality of the circumstances, weighing bargaining power, clarity of language and public interest, and it removed the limit that had confined the analysis to professional services. That last change matters most to guides, because it means the modern test applies to your booking form as much as to a surgeon's. Other states are compared on the liability and waivers hub. Written from one Supreme Court opinion and a federal standards provision, for people who run trips. Not advice.

Are liability waivers enforceable in Tennessee?

Generally yes, judged now on the whole picture rather than a checklist.

The decision is Copeland v. HealthSouth/Methodist Rehabilitation Hospital, LP, 565 S.W.3d 260 (Tenn. 2018). The court began by acknowledging a genuine tension: Tennessee public policy favours freedom of contract, while another strand disfavours letting a party escape the consequences of its own negligence. It resolved that tension in the operator's favour as a starting point, holding that contracts exempting one party from liability for negligence are not disfavoured in this state and are generally enforceable. Then it held that not all such agreements should be enforceable, and that courts must decide by looking at the circumstances of the parties, the language of the agreement and the public interest.

Housatonic River, CT

The old test was too rigid, and it is gone

Tennessee had spent four decades applying a fixed list of factors borrowed from a California decision about a hospital. The court noted that only a handful of states still use that list, that courts elsewhere had criticised it for failing to consider the totality of circumstances and for being overly rigid and arbitrary, and that the same criticism applied here. It kept the old factors as instructive where relevant, and replaced the framework with a weighing exercise. The totality of the facts and circumstances of each case dictates how much weight each factor carries, and the factors need not be weighed equally. That is a more flexible test, which cuts both ways: it removes some arbitrary outcomes and it removes the comfort of knowing in advance which box you are in.

The professional services limit was abolished

The change with the widest reach got the least attention. The old approach had been confined by a professional services criterion, so the analysis applied to doctors and other licensed professionals rather than to ordinary businesses. The court held there is no such criterion restricting the analysis to contracts for professional services, and expressly overruled a string of earlier decisions to the extent they conflicted. For a guide, that means the modern Tennessee test now applies to your paperwork directly. You cannot rely on the reasoning that these rules were written for surgeons and hospitals, because the court has said in terms that they are not.

How bargaining power is measured

The court gave two criteria for judging disparity: the importance of the service at issue for the physical or economic wellbeing of the person signing, and the amount of free choice that person has in seeking alternative services. It then said a standardised form offered on a take it or leave it basis may be invalid where there was great disparity of bargaining power, no opportunity for negotiation, and the services could not reasonably be obtained elsewhere. Read the three conditions together, because a take it or leave it form is not enough on its own. A fishing trip scores well on all three: it is nobody's necessity, alternatives are plentiful, and a customer who dislikes the terms can book elsewhere or stay home.

Make the alternatives real and documented

Since free choice is half the bargaining power inquiry, it is worth creating evidence of it rather than assuming it. Say in the booking email that the release is attached, that anyone uncomfortable with it should say so before paying, and that a customer who declines gets a full refund. Be willing to name other operators. None of that costs bookings in practice, and it converts an abstract point about market alternatives into a documented fact about your own transaction. The same move is discussed in the Oklahoma analysis, where an operator's offer of a refund and of other providers' names defeated the disparity argument outright.

What clear language means here

The clarity factor is stated in unusually demanding terms. The agreement must be clear, unambiguous and unmistakable about what the party who signs it is giving up. Surveying other states, the court collected several formulations worth borrowing as a drafting standard: that an exculpatory clause must clearly, unequivocally, specifically and unmistakably state the intention to exempt a party from liability for its own negligence; that the language should alert the signer that it is giving up a very substantial right; and that the wording should be so clear and understandable that an ordinary and knowledgeable person will know what they are contracting away. It also noted a case where a clause failed partly because there was no evidence it had been pointed out to the person signing.

Pointing it out is part of the job

That last detail deserves emphasis because it is about conduct rather than text. A clause can be well drafted and still fail if nobody drew attention to it. For a guide operation the fix is a sentence at handover and a sentence in the booking email: this is the release, it says we are not responsible if our carelessness causes you harm, please read it before you sign. Saying that out loud costs nothing and it converts a document into a communicated term. It also aligns with the standard the court described, since a signer who has had the clause pointed out is much closer to knowing what they are contracting away.

The limits that survive any wording

In its survey the court restated principles that hold across jurisdictions and that Tennessee shares. A party may not, for public policy reasons, exempt itself from liability for gross negligence, reckless conduct or intentional wrongdoing. Exculpatory provisions in contracts involving common carriers are unenforceable on public policy and bargaining power grounds, because public policy forbids relieving carriers of responsibility given their position of advantage over members of the public who are compelled to deal with them, and the same rule applies to inns and airports that assume a duty of public service. Most courts require that exculpatory language be unequivocal and clear. And most jurisdictions decline to enforce provisions contrary to public policy.

The common carrier point deserves a decision

Any operation carrying passengers should think about that second principle rather than skate past it. The rule is aimed at businesses in a position of advantage over people who are compelled to deal with them, which is not what a fishing charter is. But how you describe yourself feeds the question. Published schedules, seats sold to any member of the public, point to point transport as the service being purchased: those are the features that make an argument available. A business that sells a guided fishing trip, arranges times with specific customers and holds itself out as a recreational service is describing something else. Be deliberate about the language on your booking page, because it is the first evidence anybody will read.

What the public policy factor actually asks

The court quoted a treatise formulation that is useful precisely because it is not a formula. Whether an exculpatory agreement is void as against public policy depends on all the facts and circumstances surrounding the making of the agreement, society's expectations, the identity and nature of the parties including their relative education, experience, sophistication and economic status, and the nature of the transaction itself, including the subject matter, the presence or absence of competition, the relative bargaining strength and negotiating ability of the weaker party, and the terms of the agreement, including whether it was arrived at through arm's length negotiation or dictated by the stronger party on an adhesive take it or leave it basis. Every item in that list is something an operator can influence except society's expectations.

Lees Ferry On The Fly, AZ

Why the transport company lost

Applying the new test, the court found the exculpatory provisions unenforceable for three reasons together: unequal bargaining power between the parties, overly broad and unclear language in the agreement, and the important public interest implicated. It is worth noticing how different the setting is from a guided trip. A post surgical patient being moved from a hospital bed to a medical appointment has no meaningful alternative, no negotiating position, and a service that is plainly important to his physical wellbeing. A fishing customer has none of those characteristics. The reasoning is what transfers, not the outcome, and the reasoning says the operator's job is to keep bargaining power and clarity on the right side of the ledger.

Overly broad is a defect in this state too

One of the three findings was that the language was overly broad as well as unclear, which is a pattern running through several states in this series. Breadth is not strength. A clause that purports to cover every conceivable claim invites the argument that the signer cannot possibly have known what they were giving up, which is precisely the clarity standard Tennessee applies. Write a release that covers the operator's ordinary negligence in conducting the trip and the risks inherent in the activity, name the parties protected, and stop. Anyone building a first document should read the introduction to these forms before drafting.

Flexibility cuts both ways

It is worth being honest about what a totality test costs an operator. Under the old approach, a business could look at a fixed list and form a reasonable view about where it stood. Under the new one, the answer depends on how a court weighs three factors against the particular facts, and the court said explicitly that the weight given to each will vary. That makes outcomes harder to predict and it makes the parts you control more valuable, because the only way to influence a balancing exercise is to put weight on your own side of it. Clarity is entirely within your gift. So is the evidence about choice. Neither requires a lawyer to improve, and both are what a court will actually look at. The same shift toward weighing rather than checking runs through the Oregon analysis, where an unambiguous release still lost the balance.

Sophistication of the parties is on the list

Tucked into the public policy discussion is a factor operators rarely consider: the relative education, experience, sophistication and economic status of the parties. That is a comment about who your customers are. An operation running trips for experienced anglers who own their own boats sits differently from one taking families who have never held a rod. It does not mean the second business cannot use a release. It means the second business has to work harder on the clarity half, because the standard is what an ordinary person would understand, and the ordinary person on your boat may be a fourteen year old on a first trip. Write for the least experienced customer you actually take. The same reader standard decides outcomes in the Ohio analysis, where the document is measured against what an ordinarily prudent party of the customer's class would understand.

Existence or absence of competition

Another item in the same list is whether competition exists in the market. Most guide markets are competitive to the point of being crowded, which is good news for this factor and worth being able to demonstrate. If somebody argues your customer had no real choice, the answer is a short list of other operators working the same water. Keep that in mind if your business happens to hold an exclusive permit, a sole concession or the only access to a particular stretch, because those are exactly the circumstances where the argument becomes available. Operating without competitors is commercially enviable and legally awkward, and the response is to be scrupulous about the other two factors.

Arm's length negotiation, in a business that never negotiates

The treatise language asks whether the agreement was arrived at through arm's length negotiation or dictated by the stronger party on an adhesive take it or leave it basis. Guide businesses do not negotiate their forms and never will. What they can do is remove the dictated quality from the transaction: send the document early, invite questions, answer them, and be willing to make a note if a customer raises something. A booking thread in which a guest asked about the release and got a plain answer is evidence of a very different transaction from a clipboard on a dock, even though the wording never changed. That distinction also does the work discussed in the South Dakota piece, where how the document was presented decided the case.

Drafting for the current test

Five moves, each aimed at one of the three factors. Say plainly and near the top that by signing, the customer is giving up the right to sue the operator for injuries caused by the operator's own carelessness, since that sentence answers the clarity standard head on. Describe the trip and its risks specifically. Name the entity, its owners, captains, guides, crew, agents and vessels. Keep it to ordinary negligence and inherent risks. And document the choice you gave the customer, which is the bargaining power half. Then have somebody outside the business read it and tell you what they think they gave up, because that is the actual test.

The crew standard is set somewhere else entirely

None of this touches the people who work for you. The federal framework governing employee safety works through promulgated standards, and under 29 U.S.C. 655 the Secretary, when setting standards for toxic materials or harmful physical agents, must set the standard which most adequately assures, to the extent feasible and on the best available evidence, that no employee will suffer material impairment of health or functional capacity even with regular exposure over a working life. That is a different order of protection from anything a customer signs, and it is a reminder that the crew file and the guest file answer to separate systems.

Getting ready for the season

Rewrite the opening of your release so the giving up sentence appears before anything else, and cut whatever sweeping language is currently doing the work. Add the refund and alternatives language to your booking email so that free choice is documented rather than assumed. Brief whoever hands over paperwork to point the clause out in one plain sentence. Review your booking page for anything that describes the business as scheduled transport rather than recreation. Then look at coverage for the claims no wording reaches, which the captain insurance breakdown works through, alongside the federal overview of business insurance if this is a first purchase. Verify the exact current licensing and permit requirements with the office that issues them before deposits arrive. Local water detail sits in the Tennessee guide hub, the weather and cancellation habit is set out in the contingency routine, and the piece on releases that failed covers the presentation errors that undo good drafting.