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Blackwell and Its Impact on Minor Medical Expenses and Liability Waivers

In 2006, I had the pleasure of representing a private school in a personal injury action, where a student was struck by a foul ball during a baseball game.  A related appellate decision involving the case can be viewed here.  One of the first questions my client asked was how the school could be sued when the student’s parents had previously signed a liability waiver.
Although the Tennessee Supreme Court had never specifically considered the question, minor liability waivers were generally thought to be ineffective under Tennessee law at the time.  See Childress v. Madison County, 777 S.W.2d 1 (Tenn. Ct. App. 1989). This was true despite the fact that the student’s parents in our case had promised their son would never sue the school.  Our dispute was resolved before we could fully test whether Tennessee law had changed in this regard since the late 1980s.
I encountered this issue again when we represented a local indoor trampoline park, which routinely required parents to sign minor liability waivers on behalf of their children.  Following an alleged injury, one of the park’s minor customers filed suit. Among other defenses, our client challenged whether Tennessee law had changed since the appellate court’s ruling in Childress, and notwithstanding, whether the child could recover his medical expenses, where his mother had executed her own waiver.
The trial court denied our motion with regard to the first issue, but found in our client’s favor on the second.  It subsequently allowed the parties to pursue a dual interlocutory appeal on both issues, which the Tennessee Court of Appeals accepted. Ultimately, a decision was rendered which affirmed the general principle in Childress that Tennessee still disfavors minor liability waivers.  At the same time, however, the appellate court held that where a minor’s parent signs her own liability waiver, generally speaking the child cannot recover his medical expenses.
Both parties sought further appeal of these decisions to the Tennessee Supreme Court, but once again, the high court refused to weigh in.  While most commentators I have spoken with were not too surprised that Childress continues to be the law of the land in Tennessee, many of them – and especially my colleagues in the plaintiff’s bar – were particularly intrigued by the medical expense component of the decision in Blackwell.
Some of the commentators found the decision to be inconsistent.  They argued that if Childress still applied, how could a minor’s claim to recover medical expenses be extinguished by what was, in effect, a minor liability waiver?  In addition, they pondered whether the parent waived the claim and essentially assigned it to the child by executing the waiver?  I think the fundamental problem with this type of analysis is the assumption that such a claim to medical expenses is or should be a minor’s claim.  In reality, the claim actually belongs to the parents and, in almost every case, the claim is not waivable or assignable to the child. This has been the law in Tennessee for many years.
In 2006, we had similar issues involving medical expenses in our private school case.  In addition to the student’s parent signing a minor liability waiver, he also waited until almost his nineteenth birthday to file suit on his own.  This necessarily raised statute of limitations concerns with regard to the student’s claim for medical expenses.  While his personal injury claim would be tolled until he reached the age of majority, his parent’s medical expense claim would likely not be.
Back then, the idea that under Tennessee law a parent could waive or assign her claim to a child’s medical expenses to the child was very much in vogue.  I specifically recall plaintiff’s bar advocates arguing that the law should protect the expense claim for the child, regardless of who was considered to be the actual holder.  Doing anything else – such as following the law – was considered by many to be cruel and even heartless.
In any event, I am not sure Blackwell would have been resolved the way it was, at least with regard to a minor’s medical expenses being subject to a parent's liability waiver, had it not been for a particularly learned federal district court judge in Chattanooga.  A few months before oral argument in our case, Judge Harry S. Mattice, Jr., issued an opinion in Grant v. Kia Motors Corp., 185 F.Supp.3d 1033 (E.D. Tenn. 2016).  We have previously written extensively about Grant here.
Suffice it to say, either through sheer advocacy by the defendant’s counsel or Judge Mattice’s keen intellect – or more likely, both – the Court in Grant determined that the so-called "waiver rule" for a child’s medical expenses, which has pervaded Tennessee jurisprudence over the last few decades was, in fact, predicated on a typo.  As Judge Mattice astutely wrote:
The extraordinary nature of this finding warrants an in-depth discussion of the history and evolution of the so-called waiver rule, which finds its roots in Smith v. King, 1984 WL 586817 (Tenn. Ct. App. Sept. 21, 1984). Therein, Barbara Ellen Smith, a minor, filed a claim, by her parents as next friends, for personal injuries sustained during a school bus crash. Ultimately, the court concluded,
[u]pon considering the foregoing cases and particularly Wolfe, we are persuaded that Tennessee has adopted the waiver rule and that a child under circumstances where the parent has acted as next friend 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.
Id. at *2. The above-quoted sentence suffers from a distinct lack of intra-sentence punctuation and an overreliance on pronouns; at first blush, therefore, it is unclear whether the Smith court intended for the waiver rule to apply to situations in which the parent has paid for or is legally obligated to pay medical expenses, or if the court meant that the child must have paid for or be legally obligated to pay such expenses. The Palanki court resolved this ambiguity in favor of the former, quoting the Smith opinion as follows: “a child under circumstances where the parent has acted as next friend may maintain an action for his medical expenses provided that [the parent] has paid for them ... or is legally obligated to pay them.” Palanki, 215 S.W.3d at 394 (quoting Smith, 1984 WL 586817 at *2). As Defendant KMC identifies, however, a more thorough analysis of Smith and the cases cited therein reveals that the Palanki court should have inserted “the child” into the brackets instead of “the parent.”
The Blackwell court rightly adopted Judge Mattice’s insightful analysis.
Not surprisingly, a few commentators remain skeptical.  However, they are not nearly as confident as in 2006, when they seemed to campaign for a "waiver" in almost every circumstance.  I am obviously disappointed that the Tennessee Supreme Court did not take up our case, as is our adversary for rather obvious reasons.  To be sure, while Blackwell may not have changed the rationale in Childress that Tennessee disfavors minor liability waivers, it has significantly reduced the value of such claims, at least inasmuch as they involve personal injuries to children whose parents provide them with insurance benefits.  More importantly, Blackwell extends existing jurisprudence in Tennessee and elsewhere which recognizes that parents are generally better equipped to handle their children’s decisions than is the government. 
I think that is a good start.