By Doyice Cotten
Ruth Maxwell, a 58-year-old Tennessee resident, saw an ad for a motor scooter convention and decided it would be a fun and economical way to travel to and from work.(Maxwell v. Motorcycle Safety Foundation, Inc., 2013 Tenn. App. LEXIS 52) She decided to enroll in a class to learn how to operate a motor scooter safely and signed up for a course with the defendant Mid Tenn Motorcycle Education Center, Inc (MTMEC). The instructor for the 3-day course was Michael Upchurch, one of the defendants in this case. Prior to the course, she paid her fee and at a later point signed the liability waiver provided here.
WAIVER OF RELEASE OF LIABILITY
In Consideration of MID TENN MOTORCYCLE EDUCATION CENTER furnishing service and/or equipment to enable me to participate in the Motorcycle Rider Education Class, I agree as follows:
I fully understand and acknowledge that: (a) risks and dangers exist in my use of motorcycles and motorcycle equipment and my participation in the Motorcycle Rider Education Class activities; (b) my participation in such activities and/or use of such equipment may result in injury or illness include, but not limited to bodily injury, disease, strains, fracture, partial [*4] and/or total paralysis, death or other ailments that could cause serious disability; (c) these risks and dangers may be caused by the negligence of the owners, employees, officers or agents of MID TENN MOTORCYCLE EDUCATION CENTER, the negligence of the participants, the negligence of others, accidents, breaches of contract, from foreseeable or unforeseeable causes; and (d) by my participation in these activities and/or use of equipment, I hereby assume all risks and dangers and all responsibility for any losses and/or damages, whether caused in whole or in part by the negligence or conduct of the owners, agents, officers, or employees of the MID TENN MOTORCYCLE EDUCATION CENTER or by any other person.
I on behalf of myself, my personal representatives and my heirs hereby voluntarily agree to release, waive, discharge, hold harmless, defendant and indemnify MID TENN MOTORCYCLE EDUCATION CENTER and its owners, agents, officers and employees from any and all claims, suits or causes of action for bodily injury, property damage, wrongful death, loss of services or otherwise which may arise out of my use of motorcycles and motorcycle equipment or my participation in the Motorcycle Rider Education [*5] Class activities. I specifically understand that I am releasing, discharging and waiving my claims of actions that I may have presently or in the future for the negligent acts or other conduct by MID TENN MOTORCYCLE EDUCATION CENTER and its owners, agents, officers or employees.
I HAVE READ THE ABOVE WAIVER OF RELEASE AND BY SIGNING IT AGREE IT IS MY INTENTION TO EXEMPT AND RELIEVE MID TENN MOTORCYCLE EDUCATION CENTER FROM LIABILITY FOR PERSONAL INJURY, PROPERTY DAMAGE OR WRONGFUL DEATH CAUSED BY NEGLIGENCE OR ANY OTHER CAUSE.
Day one consisted of classroom activity and actual practice commenced on day two. All students were familiarized with the functioning of the cycle and taught to perform basic required actions (e.g., use of the brake, clutch, starting and stopping). Later in the lesson when students were riding cycles in a ellipse pattern, Ms. Maxwell fell, but was not injured. On her second attempt at the ellipse pattern, she accelerated to 20 mph, traveled 80 yards off course, jumped a curb, traveled another 80 yards, and struck a parked pickup truck. She suffered serious injuries.
Subsequently she filed suit against Mr. Upchurch, MTMEC , and Motorcycle Safety Foundation, Inc. (MSF), the organization that certified Upchurch. She alleged MTMEC and Mr. Upchurch were negligent and grossly negligent in allowing her to continue and encouraging her to complete the class after it became apparent that she was struggling and had fallen during the first riding exercise. She also alleged MSF was negligent in certifying Mr. Upchurch as a Rider Coach.
The trial court, based on the waiver, granted defendants’ motion for summary judgment and Maxwell appealed claiming the waiver was against public policy because of the services provided and that the waiver was unconscionable.
MAJOR ISSUES: 1) Public Policy
The appellate court stated that Tennessee law favors liability waivers and relied on the Tunkl guidelines in determining that the waiver was not against public policy, in part because Maxwell was not required by law to take the course in order to operate a motorcycle. The court dismissed charges against MSF.
2) Unconscionable Waiver
It further ruled that the waiver was not unconscionable because the non-refundable fee was paid before she was informed of the waiver requirement. The court stated that the possible loss of a fee does not make a waiver unconscionable.
3) Gross Negligence
The court stated that
To prevail on a claim of gross negligence in Tennessee, a plaintiff must demonstrate ordinary negligence and must then prove that the defendant acted ‘with utter unconcern for the safety of others,’ or . . . with such a reckless disregard for the rights of others that a conscious indifference to consequences is implied in law.
Maxwell argued that Upchurch’s behavior reflected “utter unconcern” for her safety and a “reckless disregard” for her rights. She said that Mr. Upchurch continued to encourage her to complete the class after he observed that she was hot, dehydrated, and struggling to keep up with the other students.
However, the court disagreed stating that the alleged acts and omissions of Mr. Upchurch and MTMEC do not constitute gross negligence. It went on to say that evidence indicates that Mr. Upchurch paid extra attention to Ms. Maxwell; when he observed her struggling or making mistakes, he gave her some individualized instruction to help her. It pointed out that the record further shows
Ms. Maxwell was able to listen, apply Mr. Upchurch’s advice, and progress through the exercises. He told her to take a break and get something to drink when he saw that she was getting too hot to properly concentrate. He told her about the option of private lessons, but encouraged her to continue trying in the group class because he observed that she had been able to correct her mistakes. Prior to her accident, Ms. Maxwell had been able to identify the clutch and the brake, and understood how to use them to control the speed and direction of the motorcycle.
The court ruled that there was no gross negligence and affirmed the trial court grant of summary judgment, remanding the matter with costs of appeal assessed against Maxwell. This is another example showing why liability waivers are so important to businesses.
Photo Credit: Thanks to Eyeliam at http://www.flickr.com/photos/eyeliam/2776353541/sizes/n/.
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