., ;t't

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE 20'[ M1.R -4 p, I

i1 '-!: I 0

CRYSTAL BLACKWELL, as next friend to JACOB BLACKWELL, a minor,

Plaintiff,

v.

SKY HIGH SPORTS NASHVILLE OPERATIONS, LLC,

Defendant.

) ) ) ) ) ) Case No. _ _______ _ ) ) On Appeal from the Circuit Court of ~ Davidson County

) ) )

RULE 9 APPLICATION FOR PERMISSION TO APPEAL ON BEHALF OF SKY HIGH SPORTS NASHVILLE OPERATIONS, LLC

Ben M. Rose (#21254) Joshua D. Arters (#31340) The Law Offices of Ben M. Rose, PLLC Post Office Box 1108 Brentwood, Tennessee 37024 615-942-8295

Attorneys for the Defendant, Sky High Nashville Sports Operations, LLC

INTRODUCTION

This is an Application for Permission to Appeal of an Order ("Application") entered by the

Circuit Court for the Twentieth Judicial District at Nashville, Tennessee, the Honorable Thomas

W. Brothers, presiding. The Applicant/Defendant, Sky High Sports Nashville Operations, LLC,

will be referred to as "Sky High Nashville."1 The Plaintiff, Crystal Blackwell, will be referred to

as "Ms. Blackwell." Ms. Blackwell filed this lawsuit as next friend to her minor son, Jacob

Blackwell, who will be referred to as "Mr. Blackwell." References to the Appendix, where

necessary, will be by page number ("App._.").

This Application involves important unsettled issues in Tennessee law, including whether

a parent may bind her minor child to a choice oflaw provision, a forum selection provision, and/or

a liability release. As outlined infra, the Trial Court' s Order as to the enforceability of a choice of

law and forum selection provision conflicts with other Tennessee authority and case law in many

other jurisdictions. Further, the Trial Court' s Order as to the question of the enforceability of a

parental liability release is based on a single Tennessee case from nearly 30 years ago. The case

was rendered long before later courts have made clear that the state ' s authority to invalidate such

a parental decision is subservient to the principle that a fit-parent has a fundamental authority to

make important decisions on behalf of her child without state intrusion.

Accordingly, Sky High Nashville respectfully submits that this Court should grant its

request for interlocutory review of these unsettled issues. Further, an interlocutory appeal would,

at the very least, "result in a net reduction in the duration and expense of the litigation." Tenn. R.

App. P. 9(a).

Sky High Nashville is a recreational facility based on the emerging " indoor trampoline park" concept. (App. 25, fn. 3.) It is a part of a larger national brand, Sky High Sports, which began in California. (Id.) Sky High facilities are now in seven different states. (Id.)

11

TABLE OF CONTENTS TABLE OF AUTHORITIES .... ......... ................... ............ ........ ............. ...... ........ ................. ......... iv

ISSUE PRESENTED FOR REVIEW ...... ........ .. ........ .......... ............................ ....... .................... viii

STATEMENT OF THE CASE .... ....... ........ ... ...... ...... ..... ......... ..... .......................... .... ........ .... ..... .. . 1

STATEMENT OF THE FACTS .................. ......................... ...... .................. .......................... ....... 3

I. Plaintiffs General Factual Allegations ........... .. ................................. ..... .................... 3

II. Sky High Nashville' s Motion to Enforce the Contract Between the Parties .... .. ......... 3

III. Hearing on Sky High Nash ville ' s Motion to Enforce the Contract and Appealed Order Subject to this Application for Permission to Appeal.. .... ......... ............ ............ 7

IV. Motion to Alter/Amend or, in the Alternative, for Interlocutory Appeal.. .... .. ... ....... .. 7

REASONS SUPPORTING AN IMMEDIATE APPEAL. .......... ....... ..... ....................... ...... .... ... . 11

I. There is a Need to Develop a Uniform Body of Law ...... .......................... .............. . 11

A. Uniform Body of Law Regarding Enforceability of Forum Selection and Choice of Law Provisions to a Minor' s Tort Claims ............... ..... ................... 12

B. Uniform Body of Law Regarding Enforceability of Liability Release Signed by a Parent Against the Parent' s Minor Child ................. ........... ................. .......... 13

II. Interlocutory Review is Necessary to Prevent Needless, Expensive, and Protracted Litigation .......... ........ ... .. ....... .. .... ................. ... .. .. ... .. .. ..... ...... ................. .... ........ .. ...... 20

CONCLUSION ......................... .......... ....... ..... ... ....... ........ ......... ........ ..................... ..... ................. 22

CERTIFICATE OF SERVICE ....................................... .............. .. ....... ........... ........................ .... 23

ADDENDUM ................. ... ..... .............. ........... .... .. .. ...... ....... ..... ....... .... ........................ ... ...... ....... 24

lll

TABLE OF AUTHORITIES

United States Supreme Court Cases

Pierce v Society of Sisters, 268 U.S. 510 (1925) ..... .. .......... ............................. ............ ............... . 16

,..___ Stanley v. Illinois, 405 U.S. 645 (1972) ........ ... ..... ........ ........ ................... .... ......................... ........ 17

Troxel v. Granville, 530 U.S. 57 (2000) ..... .... ............. ............................................ ..................... 17

Wisconsin v. Yoder, 406 U.S. 205 (1972) ...... ........ ........ ..... ....................... .......... .... ..... ............ .... 16

United States District Court Cases

Kelly v. US. , 809 F. Supp. 2d 429 (E.D. N.C. 2011) .................. ......................... .. ................ ... ... 19

Kondrad v. Bismarck Park Dist. , 655 N. W.2d 411 (N.D. 2003) .. .............................. ........... ... .. .. 19

Tune v. Louisville & Nashville Railroad Co., 223 F. Supp. 928 (M.D. Tenn. 1963) .. ................. 14

Tennessee Cases

American General Equity Services Corp. v. Schablik, 2005 WL 3076884 (Tenn. Ct. App. 2005) ... ... ... .... .... ... ... ..... ......................... ..... .............. 11

Childress v. Madison County, 777 S.W.2d 1 (Tenn. Ct. App. 1989) .................. ..... .... 7, 12, 13, 14

Freeman v. CSXTransp., Inc. , 2011WL1344727 (Tenn. Ct. App. 2011) .. .... .............. ... .. .... ... .. 12

Hawkv. Hawk, 855 S.W.2d 573 (Tenn. 1993) ..... ... ..................... .... ............ ...... ... ...... ........... 15, 16

In re Hamilton, 658 S.W.2d 425 (Tenn. Ct. App. 1983) .. .................... .. ........ .. .......... .................. 16

Lovelace v. Copley, 418 S.W.3d 1(Tenn.2013) ............... .. ............... .......................................... 17

Miles v. Kaigler, 18 Tenn. (10 Yerg. 1836) ... .............................................................................. . 14

Rogers v. Donelson-Hermitage Chamber of Commerce, 807 S.W.2d 242 (Tenn. Ct. App. 1990) ..................... ............................... .... .............. 12, 15

Rosenberg v. BlueCross BlueShield of Tennessee, Inc. , 219 S.W.3d 892 (Tenn. Ct. App. 2006) .. ......................... ... ..... ... .... ....................... ......... .. 11

Simmons v. Simmons, 900 S.W.2d 682 (Tenn. 1995) .................. ............. ...... .......................... .... 16

Spitzer v. Knoxville Iron, Co., 180 S.W. 163 (Tenn. 1915) ..... ..... .......................... ... ................... 14

lV

Wadkins v. Wadkins, 2012 WL 6571044 (Tenn. Ct. App. Dec. 14, 2012) ................................... 16

Williams v. Smith, 2014 WL 6065818 (Tenn. Ct. App. Nov. 6, 2014) .................................... .... . 12

Other State Cases

Aaris v. Las Virgenes Unified School Dist. , 64 Cal. App. 4th 1112 (1998) ................................. 18

BJ's Wholesale Club, Inc. v. Rosen, 80 A.3d 345 (Md. Ct. App. 2013) ................ ........ ............... 19

Cross v. Carnes, 724 N.E.2d 828 (Ohio 1998) ........................... .............. .. .................................. 13

Davis v. Sun Valley Ski Education Foundation, Inc., 941P.2d1301 (Id. 1997) ..................... .. ... 20

DeKalb County School System v. White , 260 S.E.2d 853 (Ga. 1979) .......................................... 19

Doyle v. Guiliucci, 401P.2d1(Cal.1965) ..................................................................... .............. 12

f" Fischer v. Rivest, 2002 WL 31126288 (Conn. Super. Ct. 2002) ... .................... ........... ................ 18

Global Travel Marketing, Inc. v. Shea, 908 So. 2d 392 (Fla. 2005) ... ........ .................. .. .. ....... ..... 12

Hohe v. San Diego Unified School Dist. , 224 Cal. App. 3d 1559 (Cal. Ct. App. 1990) ..... ...... ..... .. .... .. .. .. ............................ 13, 17, 18

Hojnowski v. Vans Ska.te Park, 868 A.2d 1087 (N.J. Sup. Ct. 2005) ........................................... 13

Lehmann v. Har-Con Corp., 76 S.W.3d 555 (Tex. App. 2002) ........................ ...... ..................... 18

Leong v. Kaiser Found. Hasps. , 788 P.2d 164 (Haw. 1990) .................................................. ...... 13

Osborn v. Cascade Mountain, Inc. , 655 N.W.2d 546 (Wi. Ct. App. 2002) ................................. 18

Pulford v. County of Los Angeles, 2004 WL 2106545 (Cal. Ct. App. Sept. 22, 2004) .. ............. . 18

Quinn v. Mississippi State University, 720 So.2d 843 (Miss. 1998) ............................................ 20

Quirk v. Walker's Gymnastics & Dance, 2003 WL 21781387 (Mass. Super. July 25, 2003) ........................................................... 18

Saccente v. LaFlamme, 2003 WL 21716586 (Conn. Super. Ct. July 11 , 2003) ........................... 19

Sharon v. City of Newton, 769 N.E.2d 738 (Mass. 2002) ............................................................. 18

Smoky, Inc. v. McCray, 396 S.E.2d 794 (Ga. Ct. App. 1990) ...................................................... 20

v

Tunkl v. Regents of University of California, 383 P.2d 441(Cal.1963) ...... ........ .. ...................... 18

Zivich v. Mentor Soccer Club, Inc. , 696 N.E.2d 201. (Ohio 1998) .................................. ......... ... 18

United States Constitional Provisions

U.S. CONST. amend XIV ......................................................................... .. .. ..... ... .. ............... ... ...... 17

Tennessee Constitutional Provisions

TENN. CONST. art I,§ 8 ............ ......... .. ... ... .... ... .... ..... ... ... ......... .... ....... .... ......... ...... ....... .............. .. 16

Tennessee Rules and Statutes

Tenn. Code Ann. § 36-6-101 ................................. .. ...................... ..... .. ............. .......... .... ............. 16

Tenn. R. App. P. 9 ............... .... ........... ....... ..... ......... ......... ....... ............ .... ... ................ ... ......... passim

Secondary Authorities

39 Am.Jur.2d, Guardian & Ward,§ 102 (1968) ............................. .... ... .. .... ................................. 14

42 Am.Jur.2d, Infants§ 152 (1969) ........ ........ ...... .............. .. .......... .... ......... ...... .. .......... ........ .... ... 14

44 C.J.S. Insane Persons§ 49 (1945) .............. ..... ....... ............ ...................................................... 14

Allison M. Foley, We, the Parents and Participant, Promise not to Sue . .. Until There is an Accident. The Ability of High School Students and their Parents to Waive Liability for Participation in School-Sponsored Athletics, 37 SUFFOLK U. L. REV. 439 (2004) ... ... .. .. 19

Angeline Purdy, Scott v. Pacific West Mountain Resort: Erroneously Invalidating Parental Releases of A Minor's Future Claim, 68 WASH. L. REv. 457, 474 (1993) ............ .......... . 19

Black' s Law Dictionary, 1144 (8th ed. 2004) .................... ...... ............................ .... ..................... 15 Doyice J. Cotten, Sport Risk Consulting & Sarah J. Young, Effectiveness of Parental Waivers,

Parental Indemnification Agreements, and Parental Arbitration Agreements as Risk Management Tools, 17 J. LEGAL ASPECTS OF SPORT 53 (2007) ...................................... 19

Elisa Lintemuth, Parental Rights v. Parens Patriae: Determining the Correct Limitations on the Validity of Pre-Injury Waivers Effectuated by Parents on Behalf of Minor Children, 2010 MICH. ST. L. REV. 169 (2010) .............................. .. .................. ............. ............................ 19

Jordan A. Desnick, The Minefield of Liability for Minors: Running Afoul of Corporate Risk Management in Florida," 64 U. MIAMI L. REv. 1031 (2010) ..... ..... ...... ..... .. ............ ... .... ... 19

Vl

Robert S. Nelson, The Theory of the Waiver Scale: An Argument Why Parents Should be Able to Waive their Children' s Tort Liability Claims, 36 U.S.F. L. REv. 535 (2002) ..... ... .. .. .. 19

Vll

ISSUE PRESENTED FOR REVIEW

Sky High Nashville respectfully submits that the issue presented for review in this appeal

is whether the Trial Court erred in denying Sky High Nashville' s Motion to Enforce the Contract

Between the Parties.

vm

STATEMENT OF THE CASE

Sky High Nashville respectfully submits that the relevant procedural history of this case is

as follows:

On January 7, 2015, Ms. Blackwell, individually and as next friend to Mr. Blackwell, a

minor, filed an Amended Complaint against Sky High Nashville.2 (App. 1.)

On March 17, 2015, Sky High Nashville filed its Motion to Enforce the Contract Between

the Parties. (App. 8.) Sky High Nashville' s motion sought an Order to enforce the provisions

contained in the "Customer Release of Liability and Assumption of Risk" contract ("Contract")

signed by Ms. Blackwell on her own behalf and on behalf of Mr. Blackwell. (Id.; App 13.) The

Contract contained, among other provisions, a choice of law and forum selection provision

stipulating California law as the applicable law and California courts as the appropriate forum for

any disputes between the parties contracting thereto, and a liability waiver and release. (Id.)

On May 4, 2015, Ms. Blackwell filed a Response to Sky High Nashville' s Motion to

Enforce the Contract Between the Parties, on behalf of Mr. Blackwell.3 (App. 66.)

On May 6, 2015, Sky High Nashville filed a Reply in support of its Motion to Enforce the

Contract Between the Parties. (App. 73.) In addition, Sky High Nashville filed the Affidavit of

Rolland Weddell. (App. 83.)

2 Ms. Blackwell initially filed a Complaint individually, and as next friend to Mr. Blackwell, against "Sky High Sports Nashville, LLC" on February 5, 2014. Because Sky High Sports Nashville, LLC, was not the correctly named defendant, the Plaintiff filed the Amended Complaint naming Sky High Nashville as the Defendant.

On the same day, instead of responding on her own behalf to Sky High Nashville's motion, Ms. Blackwell summarily filed a Notice of Voluntary Dismissal ofh'er individual capacity claims. (App. 71.) On May 4, 2015, Sky High Nashville filed a separate Motion to Strike Ms. Blackwell' s Notice, which was denied. (App. 86.) This ruling is not the subject of this Application.

1

On May 8, 2015, Sky High Nashville' s Motion to Enforce the Contract Between the Parties

was heard.4

On May 22, 2015, the Trial Court entered an Order that is subject to this Application, which

denied Sky High Nashville ' s Motion to Enforce the Contract Between the Parties.5 (App. 88.)

On June 22, 2015, Sky High Nashville filed a Motion to Alter/Amend the Order or, in the

Alternative, for Interlocutory Appeal of the Order. (App. 91.) In addition, Sky High Nashville

filed the Second Affidavit of Rolland Weddell in support of the motion. (App. 94.)

On December 11 , 2015, Ms. Blackwell filed a Response to Sky High Nashville ' s Motion

to Alter/A.mend or, in the Alternative, for Interlocutory Appeal. (App. 124.)

On December 18, 2015, Sky High Nashville ' s Motion to Alter/Amend or, m the

Alternative, for Interlocutory Appeal was heard. 6

On February 23, 2016, the Trial Court entered an Order denying Sky High Nashville ' s

request to alter/amend the Order, but granting its request for permission to seek appellate review

with this Court ("Order Granting Permission to Appeal").7 (App. 138.)

This Application was timely filed on March 4, 2016. Tenn. R. App. P. 9(c).

4 The May 22, 2015, Order incorrectly states that this matter came to be heard on "May 8, 2014." (App. 88.)

Sky High Nashville has included the Order subject to this Application herein pursuant to Tenn. R. ~9(d)(I ).

6 The Motion to Alter/ Amend or, in the Alternative, for Interlocutory Appeal was heard in conjunction with Plaintiff's Motion to Amend Complaint, which was filed on July 31 , 2015 . (App. 113.) Among other relief sought in the Motion to Amend, Ms. Blackwell requested that she be allowed to file a Second Amended Complaint which requested, on Mr. Blackwell ' s behalf, reimbursement for the pre-majority medical expenses incurred allegedly related to Mr. Blackwell's injury. (Id. ; App. 117.)

In addition, the Trial Court granted the Plaintiff's Motion to Amend Complaint, except to the extent that the motion sought leave to file an Amended Complaint seeking recovery of any pre-majority medical expenses related to Mr. Blackwell' s alleged injury, which was denied. (App. 138.) Although the Trial Court sua sponte granted permission to request an appeal of the ruling on the Motion to Amend Complaint, Sky High Nashville does not seek interlocutory review of that ruling. (Id.) Indeed, Sky High Nashville submits that the Trial Court' s ruling in this regard was unequivocally correct. (Id.)

2

STATEMENT OF THE FACTS

Sky High Nashville respectfully submits that the relevant factual history of this case is as

follows:

I. Plaintiff's General Factual Allegations.

The Plaintiff alleges that on March 26, 2013 , Mr. Blackwell participated in a trampoline

dodgeball game at Sky High Nashville. (App. 2, Amend. Compl. if 5.) While playing in the game,

the Plaintiff alleges that Mr. Blackwell "awkward[ly ]" landed on some "padding between

trampolines." (Id. iii! 5, 8.) When Mr. Blackwell landed, another participant allegedly "double

bounced" Mr. Blackwell thereby contributing to his "awkward landing." (Id. if 9.) The Plaintiff

alleges that as a result, Mr. Blackwell tore a tendon in his knee and broke his tibia. (Id. if 11.) The

Plaintiff alleges that Mr. Blackwell' s injury was the result of Sky High Nashville' s negligence and

that the Plaintiff is entitled to relief because, inter alia, "[a]ny warning, disclaimers, or waivers of

liability which Defendant may have given to Jacob Blackwell and to which he or his mother may

have agreed were void, invalid, and/or inadequate." (Id. if 23.)

II. Sky High Nashville's Motion to Enforce the Contract Between the Parties.

In response to the Amended Complaint filed by the Plaintiff, Sky High Nashville filed its

Motion to Enforce the Contract Between the Parties.8 (App 8.) Sky High Nashville ' s motion

sought to enforce several provisions contained in the Contract signed by Ms. Blackwell on her

own behalf and on behalf of Mr. Blackwell - including the following combined forum selection,

choice of law, and severability provision:

In the event that I file a lawsuit against SKY HIGH SPORTS, 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 the law rules of that state. I agree that if any

The Trial Court' s denial of the Motion to Enforce the Contract Between the Parties in the Interlocutory Order is the subject of this Application. See infra.

3

-"'

(App. 13, ~ 6.)

portion of this agreement is found to be void or unenforceable, the remaining portions shall remain in full force and effect.

In addition, Sky High Nashville sought to enforce Ms. Blackwell' s agreement, on her own

behalf, that she understood and voluntarily assumed all of the risks associated with Mr.

Blackwell' s participation in Sky High Nashville ' s activities and agreed to release Sky High

Nashville from any and all liability arising therefrom:

[P]articipation in SKY HIGH SPORTS trampoline games entail known and unknown risks that could result in physical or emotional injury, paralysis, death, or damage to myself, to property or to third parties. I understand that such risks simply cannot be eliminated without jeopardizing the essential qualities of the activity.

The risks include, among other things . .. the usual risk of cuts and bruises. Other more serious risks exist as well. Participants often fall off equipment, sprain or break wrists and ankles, and can suffer more serious injuries as well. Traveling to and from trampoline location raises the possibility of any manner of transportation accidents. Double bouncing, more than one person per trampoline, can create a rebound effect causing serious injury. Flipping and running and bouncing off the walls is dangerous and can cause serious injury and must be done at the participants own risk. Similar risks are also inherent in using the Foam Pit. In any event, if you or your child is injured, you or your child may require medical assistance, at your own expense.

Furthermore, SKY HIGH SPORTS employees have difficult jobs to perform. They seek safety, but they are not infallible. They might be unaware of a participant' s fitness or abilities. They may give incomplete warnings or instructions, and the equipment being used might become loose, out of adjustment, or malfunction. There is also a risk that SKY HIGH SPORTS employees may be negligent in, among other things, monitoring and supervising use of its equipment and facilities and in the maintenance and repair of its equipment and facilities.

I expressly agree and promise to accept and assume all of the risks existing in this activity. My participation in this activity is purely voluntary, and I elect to participate in spite of the risks.

4

I hereby voluntarily release, forever discharge, and agree to defend, indemnify and hold harmless RELEASED P ARTIES9

from any and all claims, demands, or causes of action, which are in any way connected with my participation in this activity or my use of SKY IDGH SPORTS equipment or facilities, including any such claims which allege negligent acts or omissions of RELEASED PARTIES.

Should SKY HIGH SPORTS 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.

I certify that I have adequate insurance to cover any 1IlJury 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.

(Id. , ,, 1-5 (plain bold emphasis in original, numbering omitted, additional emphasis and footnote

added).)

Finally, Sky High Nashville sought to enforce Ms. Blackwell's agreement to all of the

terms contained in the Contract on behalf of Mr. Blackwell. In pertinent part, the Contract

provided as follows:

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.

If the participant is a minor, I further agree to defend, indemnify and hold harmless SKY IDGH 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

9 "Released Parties" is defined as "SKY HIGH SPORTS, its agents, owners, shareholders, directors, partners, employees, volunteers, manufacturers, participants, lessors, affiliates, its subsidiaries, related and affiliated entities, successors and assigns." (App. 13 .)

5

the minor, including injuries or damages caused by the negligence of RELEASED PARTIES, except injuries or damages caused by the sole negligence or willful misconduct of the party seeking indemnity.

* * *

By signing this document, I acknowledge that if anyone is hurt or property damaged during my participation in this activity, I may be found by a court oflaw to have waived my or the minor participant's right to maintain a lawsuit against SKY IBGH SPORTS or any RELEASED PARTIES10 on the basis of any claim from which I have released them herein.

(Id , if 8, 9 (plain bold and underlining in original, numbering omitted, and footnote added).)

Ms. Blackwell filed a response on Mr. Blackwell' s behalf in opposition to the motion. ''

(App 66.) Sky High Nashville timely filed a Reply to the Response, along with the Affidavit of

Rolland Weddell as further support. (App. 73, 83.) In pertinent part, Mr. Weddell stated in his

affidavit, as follows:

IO

11

The "Customer Release of Liability and Assumption of Risk" contract (the "Contract"), which is attached to Sky High Nashville ' s Memorandum in Support of its Motion as Exhibit A, including the choice of law and forum selection provision stipulating California law as the applicable law and California courts as the appropriate forum for any disputes between the parties contracting thereto ("California Choice of Law and Forum Selection Provision"), is an agreement and stipulation that all Sky High Sports brand facilities use throughout the United States in their business operations.

The California Choice of Law and Forum Selection Provision was intentionally included in the Contract. All Sky High Sports brand facilities use the same type of contract throughout the United States in their business operations, including Sky High Nash ville. The use of this provision by the stores is not merely a matter of form. This was done so the stores, like Sky High Nashville, may reasonably determine the state in which they might be subject to suit in court and the laws that will apply to the same.

See fn. 9 supra.

Ms. Blackwell summarily voluntarily dismissed her individual claims in this case. See fn. 2 supra.

6

(App 83, ifif 4-5.)

III. Hearing on Sky High Nashville's Motion to Enforce the Contract and Appealed Order Subject to this Application for Permission to Appeal.

Sky High Nashville' s Motion to Enforce the Contract Between the Parties was heard on

May 8, 2015. On May 22, 2015, the Trial Court entered an Order, which is the subject to this

Application, which denied Sky High Nashville' s Motion to Enforce the Contract Between the

Parties. (App. 88.) In the Order, the Trial Court made the following findings of fact: (1) "[I]t

would be a great hardship for Jacob Blackwell, a minor, to travel to California to bring this action;"

(2) "[T]ennessee has the most reasonable relationship to the facts surrounding this case;" (3)

"Simply running a business in California does not establish a more significant relationship than

that which exists in Tennessee;" (4) "[T]he parties reside in Tennessee;" (4) ''the conduct out of

which the injury arose occurred in Tennessee;" (5) "the injury occurred in Tennessee;" and, (6)

"Tennessee also has a fundamental policy in favor of the protection of children." (Id.)

Based on the foregoing findings of fact, the Trial Court made the following conclusions of

law: (1) Tennessee law applies to Sky High Nashville's Motion to Enforce the Contract Between

the Parties; (2) Under Childress v. Madison County, 777 S.W.2d 1 (Tenn. Ct. App. 1989), an adult

cannot waive a minor' s claims and, therefore, Ms. Blackwell' s signature on the liability waiver

contained in the contract Sky High Nashville sought to enforce by its Motion "does not dismiss

Jacob Blackwell's claims against the Defendant;" and, (3) Sky High Nashville's Motion to Enforce

the Contract Between the Parties is denied. (Id.)

IV. Motion to Alter/Amend or, in the Alternative, for Interlocutory Appeal.

On June 22, 2015, Sky High Nashville filed its Motion to Alter/Amend or, in the

Alternative, for Interlocutory Appeal. (App. 91.) Sky High Nashville respectfully submitted that

7

(App. 145-47.)

And I find also that factor four applies to that as well.

In regards to the choice of law provisions, the lex loci contractus rule is interpreted by the Court of Appeals in Messer Griesheim Industry, Inc. v. Cryotech of Kingsport, stated that if the parties manifest intent to instead apply the laws of another jurisdiction, then the intent will be honored provided certain requirements are met.

One, the choice of law provisions must be execut[ ed] in good faith. Two, the jurisdiction whose law is chosen must bear a material connection to the transaction. Three, the basis for the choice of another jurisdiction' s law must be reasonable and not merely a sham or a subterfuge. And four, the parties choice of another jurisdiction's law must not [be] contrary to a fundamental policy of the state having a materially greater interest in whose law would otherwise govern.

The Court finds that California does not bear a material connection for this accident. As stated in the May 22, 2015 Order, Tennessee has the most reasonable relationship to the facts surrounding this case. Simply running a business in California does not establish a more significant relationship than that which exists in Tennessee, the conduct out of which the injury arose occurred in Tennessee, and the injury occurred in Tennessee.

So I do find that my ruling is an accurate - I believe to be an accurate statement of the current law in Tennessee.

Sky High Nashville timely filed this Application with this Court. Tenn. R. App. P. 9(c).

10

REASONS SUPPORTING AN IMMEDIATE APPEAL

This Court should grant Sky High Nashville's interlocutory appeal for three principal

reasons. First, Tennessee law regarding Ms. Blackwell' s authority to bind Mr. Blackwell to a

choice of law/forum selection provision is unsettled and there is a need to develop a uniform body

of law in this regard. Second, Tennessee law is similarly unsettled regarding Ms. Blackwell's

authority to waive Mr. Blackwell's future tort claims. This is because the only controlling

Tennessee authority is nearly three decades old and was rendered long before the express

clarification of the significant limitations on the state' s authority to invalidate a parental decision

- like Ms. Blackwell's decision to sign the Contract on Mr. Blackwell' s behalf - which is

subservient to a fit-parent's authority to make important decisions on behalf of her child. Third,

even the Plaintiff has conceded that this Court should allow interlocutory appeal of these issues.

(App. 145.) Allowing such an appeal on an interlocutory basis would "result in a net reduction in

the duration and expense of the litigation." Tenn. R. App. P. 9(a).

I. There is a Need to Develop a Uniform Body of Law.

Sky High Nashville respectfully submits that an appeal of the Trial Court's Order on an

interlocutory basis is necessary because it involves an area of unsettled law in Tennessee and in

other jurisdictions. Tenn. R. App. P. 9(a)(3); see also, Rosenberg v. BlueCross BlueShield of

Tennessee, Inc., 219 S.W.3d 892 (Tenn. Ct. App. 2006) (granting interlocutory appeal "on the sole

basis of the need to develop a uniform body of law") (emphasis added); American General Equity

Services Corp. v. Schablik, 2005 WL 3076884 (Tenn. Ct. App. 2005) (granting interlocutory

appeal application pursuant to Tenn. R. App. P. 9(a)(3) where there was a need to develop a

uniform body of law on the legal issues raised in the trial order); Freeman v. CSX Transp., Inc.,

11

2011 WL 1344727 (Tenn. Ct. App. 2011) (granting interlocutory appeal m a case of first

impression where there was a need to develop a uniform body of law).

A. Uniform Body of Law Regarding Enforceability of Forum Selection and Choice of Law Provisions to a Minor's Tort Claims.

The Trial Court ruled that Mr. Blackwell's claims are not subject to the Contract's choice

of law and forum selection provisions. (App. 88, 145-47.) Respectfully, this Court should allow

interlocutory appeal of the Trial Court's Order in this regard because Tennessee authority on the

matter is unsettled. Compare Childress v. Madison County, 777 S.W.2d 1 (Tenn. Ct. App. 1989)

(where a parent did not have the authority to bind her mentally handicapped child to a contract);

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

(same) with Williams v. Smith, 2014 WL 6065818 (Tenn. Ct. App. Nov. 6, 2014) (a minor is bound

as a non-signatory to choice of law and forum selection provision in an insurance contract).

Indeed, Williams conflicts with Childress, Rogers, and the Trial Court's Order because in

Williams, this Court held that a choice of law provision was held to be enforceable even where it

completely extinguished the minor plaintiff's claim. 13 Williams, 2014 WL 6065818, at *2.

Similarly, the Trial Court's Order reaches a different conclusion than decisions from other

state courts, which have held that a parent has the authority to bind her minor child to a choice of

law and forum selection provision. See, e.g. , Doyle v. Guiliucci, 401 P.2d 1 (Cal. 1965); Global

Travel Marketing, Inc. v. Shea, 908 So. 2d 392 (Fla. 2005) (father's wrongful death action against

a safari operator brought on behalf of his minor son after the minor was killed by hyenas while on

13 In Williams, the plaintiffs - a minor child and her parents - were involved in a car accident in Tennessee while driving from North Carolina to Missouri in a vehicle owned by North Carolina residents. Id. at * 1. The vehicle was insured with an uninsured/underinsured motorist policy containing a Missouri choice of law provision. Id. The Trial Court granted the insurance company's motion to dismiss and dismissed all of plaintiffs' claims, including the minor's claims, on the basis of the choice of law provision. Id. at *2. This Court affirmed the Trial Court, thereby promulgating the general principle that a minor may be bound as a non-signatory to choice oflaw and/or forum selection provisions. Indeed, ifthe minor in that case was not so bound, the applicable coverage would have been determined through a conflicts oflaw analysis based on common law.

12

a safari is subject to arbitration provision signed by the father); Cross v. Carnes, 724 N.E.2d 828,

836 (Ohio 1998) (a child' s defamation and fraud claims against the Sally Jessy Raphael Show are

subject to an arbitration provision signed by the child' s parents because "fl/ogically, if a parent

has the authority to bring and conduct a lawsuit on behalfo(the child, he or she has the same

authority to choose arbitration as the litigation (orum. '') (emphasis added); Hojnowski v. Vans

Skate Park, 868 A.2d 1087, 1092 (N.J. Sup. Ct. 2005) (a child' s claim for bodily injuries he

received at a skateboarding park is subject to an arbitration provision signed by the child's parents;

the "real test" is whether the contracting parties intended that a minor should receive a benefit,

thereby subjecting the minor to enforceable obligations). See also Leong v. Kaiser Found. Hasps.,

788 P.2d 164 (Haw. 1990); Hohe v. San Diego Unified School Dist. , 224 Cal. App. 3d 1559, 1565

(Cal. Ct. App. 1990) (although laws generally allow minors to disaffirm their own contracts, those

laws are ultimately "not intended to affect contracts entered into by adults on behalf of their

children." (citations omitted)).

Accordingly, this Court should grant Sky High Nashville' s Application as to the

enforceability of the Contract' s choice oflaw and forum selection provisions to clarify an unsettled

area of Tennessee law.

B. Uniform Body of Law Regarding Enforceability of Liability Release Signed by a Parent Against the Parent's Minor Child.

In 1989, this Court held that an exculpatory clause executed by a mother on behalf of her

mentally handicapped son was void. Childress v. Madison County, 777 S.W.2d 1 (Tenn. Ct. App.

1989). However, Sky High Nashville respectfully submits that Childress was rendered nearly 30

years ago, long before both the Tennessee and United States Supreme Courts significantly

strengthened a parent' s fundamental right to make decisions for her child without State intrusion.

Further, the Childress ruling was issued at a time where not a single case from any other

13

jurisdiction had ruled that the State cannot intrude upon a parent's decision to waive her minor' s

future tort claims and invalidate such a contract.

Conversely, there has been a significant trend over the last several decades towards

allowing a parent to make this type of decision, and courts have enforced liability releases signed

by a parent on her child' s behalf. Accordingly, there is a need to develop a uniform body of law

in Tennessee regarding the authority of a fit-parent to make decisions that are in the best interest

of her child in the context of a pre-injury liability release.

1. Childress v. Madison County.

Childress involved a lawsuit stemming from an injury to a nonverbal and severely mentally

handicapped 20-year-old which occurred while he was training for the Special Olympics at a local

Y.M.C.A. Id. The 20-year-old' s mother and father, on their own behalf and on behalf of their

son, sued Madison County alleging simple negligence. Id. After this Court determined that the

release at issue was not otherwise against general public policy, the Court addressed whether the

parents may waive the rights of their incompetent children - an issue of first impression in

Tennessee at that time. Id. This Court held that the mother did not have the authority to bind her

son because her status as his parent was ultimately the same as a guardian of an infant. Id. (citing

44 C.J.S. Insane Persons § 49 (1945)). This Court reasoned that because a guardian may not

generally waive the rights of an infant or an incompetent, and because a guardian cannot settle an

infant' s existing claim apart from court approval or statutory authority, a parent cannot execute a

valid release as to the rights of her minor or incompetent child. Id. (citing 39 Am.Jur.2d, Guardian

& Ward, § 102 (1968); 42 Am.Jur.2d, Infants§ 152 (1969); Miles v. Kaigler, 18 Tenn. (10 Yerg.

1836); Spitzer v. Knoxville Iron, Co., 180 S.W. 163 (Tenn. 1915); Tune v. Louisville & Nashville

Railroad Co. , 223 F. Supp. 928 (M.D. Tenn. 1963)).

14

The last time any Tennessee appellate court has substantively addressed the validity of a

pre-injury parental waiver as to the minor child was only one year after Childress in Rogers v.

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

parents of a deceased minor brought a wrongful death action against the organizers of a horserace.

Rogers, 807 S.W.2d at 243. This Court held that the waiver was invalid as to the claims brought

on behalf of the minor relying on its ruling in Childress one year earlier. 14 Id.

The fact that Childress has not been developed is significant because, as outlined infra,

both the Tennessee and United States Supreme Courts have since expressly recognized a fit-

parent' s fundamental right to make decisions on behalf of her child without state intrusion.

Clearly, this has a significant impact upon the question of whether a parent, like Ms. Blackwell,

should be allowed to make the important family decision to waive Mr. Blackwell ' s future tort

claims so that the child can participate in an activity she deems worthwhile.

2. Establishment of a Parent's Fundamental Right to Make Decisions on Her Child's Behalf Without State Intrusion.

Since Childress, the Tennessee Supreme Court has made it clear that the state's parens

patrie 15 power to impose its own opinion of the best interests of a child is secondary to opinion of

the parent. Four years after Childress, the Tennessee Supreme Court strengthened the parent's

primary and fundamental role in the upbringing of their children. Hawkv. Hawk, 855 S.W.2d 573

(Tenn. 1993). In Hawk, the Tennessee Supreme Court expressly recognized for the first time that

a parental right to raise her children free from state intrusion is fundamental and is not only

14 The parties in Rogers conceded that a pre-injury parental waiver was, generally, invalid under Childress. The primary issue in that regard was whether a wrongful death claim was the minor child' s claim or the parent's claim. The parties agreed that if it were the child's claim, Childress would invalidate the waiver - which is what the Rogers court ultimately decided. Rogers, 807 S.W.2d 242.

15 Parens patriae is Latin for "parent of his or her country" and describes "the state in its capacity as provider of protection to those unable to care for themselves." See Black's Law Dictionary, 1144 (8th ed. 2004).

15

generally protected by the United States Constitution, but also the Tennessee Constitution. Id.;

TENN. CONST. art I, § 8. Accordingly, under Hawk, "without a substantial danger of harm to the

child," a court may not constitutionally exercise the State's parens patriae interest by imposing its

own subjective notions of the "best interests of the child" when the parents are not otherwise

deemed unfit. Id. Such logic is firmly rooted in the presumption that, fundamentally, "a fit parent

[acts] in [their] child' s best interest." Wadkins v. Wadkins, 2012 WL 6571044, at *5 (Tenn. Ct.

App. Dec. 14, 2012. Requiring a court to make an initial finding of harm to the child before

intervening in a parental decision and evaluating the "best interest of the child" works to "prevent

judicial second-guessing of parental decisions." Hawk, 855 S.W.2d at 581. See also Simmons v.

Simmons, 900 S.W.2d 682 (Tenn. 1995).

Hawk reflects a decidedly straightforward and commonly applied balance of the State ' s

parens patriae interest as secondary to the strong parental privacy rights. See Hawk, 855 S.W.2d

at 579 ("Implicit in Tennessee case and statutory law has always been the insistence that a child's

welfare must be threatened be(ore the state may intervene in parental decision-making." (emphasis

added)); Tenn. Code Ann. § 36-6-101 (In a divorce case, the harm from the discontinuity of the

parents' relationship compels the court to determine child custody "as the welfare and interest of

the child or children may demand"); In re Hamilton , 658 S. W.2d 425 (Tenn. Ct. App. 1983) (child

was declared "dependent and neglected" when her father refused cancer treatment for her on

religious grounds, and such neglect exposed the child to serious harm); Wisconsin v. Yoder, 406

U.S. 205, 230 (1972) (where the fact that Amish children would not be harmed by receiving an

Amish education rather than a public education); Pierce v Society of Sisters, 268 U.S. 510, 534

(1925) (parents' decisions to send their children to private schools were "not inherently harmful,"

as there was "nothing in the . . . records to indicate that [the private schools] have failed to

16

discharge their obligations to patrons, students, or the state"); Stanley v. fllinois , 405 U.S. 645

(1972).

Further, eleven years after Childress, the United States Supreme Court issued its landmark

ruling in Troxel v. Granville, a case similar to Hawk, where the Court - for the first time - expressly

recognized a parent's broad authority over the care and upbringing of his or her children as a right

that is protected by the Due Process Clause of the Fourteenth Amendment. Troxel v. Granville ,

530 U.S. 57, 66 (2000) (" [l]t 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."); U.S. CONST. amend XIV. See also Lovelace v. Copley,

418 S.W.3d 1 (Tenn. 2013) (re-affirming the principles of Hawk as supplemented by Troxel).

Accordingly, as reflected in the authority cited supra, Childress is undeveloped and recent

authority has rendered the principles in Childress unsettled as to whether a fit-parent has the right

to waive her minor child' s future tort claims. In other words, recent authority has made clear that

the state' s authority to invalidate a parental decision - like Ms. Blackwell's decision to sign the

Contract on Mr. Blackwell ' s behalf - is subservient to a fit-parent's authority to make important

decisions on behalf of her child. Therefore, this Court should grant Sky High Nash ville ' s

Application because the law in this regard is unsettled and needs to be resolved.

3. Many Other State Courts Have Held that a Parent's Decision to Sign a Liability Release on her Child's Behalf is Enforceable.

Further, decisions from other states reflect the unsettled nature of Tennessee law in this

regard. Indeed, in the nearly three decades since Childress, there has been a strong shift toward

enforcing a parental liability release against a child - which began in 1990 with the landmark Ho he

decision of the California Court of Appeals. Hohe, 224 Cal. App. 3d 1559. Hohe involved a 15-

17

year-old girl who was injured while under the effects of hypnosis at a school assembly. Id. The

girl ' s father had signed a waiver prior to the minor' s voluntary participation in the show, but sued

claiming the waiver was against public policy. Id. The California Court of Appeals rejected the

minor' s argument and held that no public policy necessarily opposes private, voluntary

transactions in which one party agrees to shoulder a risk which the law would otherwise have

placed upon the other party. Id. (citing Tunkl v. Regents of University of California, 383 P.2d 441

(Cal. 1963)). Since Hohe, California courts have routinely enforced parental waivers. See, e.g. ,

Aaris v. Las Virgenes Unified School Dist. , 64 Cal. App. 4th 1112 (1998); Pulford v. County of

Los Angeles, 2004 WL 2106545 (Cal. Ct. App. Sept. 22, 2004).

Eight years after Hohe, the Ohio Supreme Court enforced a liability waiver against a minor

child which was signed by his mother on behalf the minor as a condition of his participation in a

youth soccer club. Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201. (Ohio 1998). Courts now

enforce liability waivers signed by parents against their minor children in a wide variety of contexts

- involving both commercial and non-commercial parties - and those decisions have been

supplemented by Troxel' s sweeping implications. See, e.g., Fischer v. Rivest, 2002 WL 31126288

(Conn. Super. Ct. 2002) (parental waiver as a condition of the minor child' s participation in a

hockey league is enforceable against the minor); Sharon v. City of Newton, 769 N.E.2d 738 (Mass.

2002) (parental waiver as a condition of the minor child' s participation in a cheerleading program

is enforceable against the minor); Lehmann v. Har-Con Corp. , 76 S.W.3d 555 (Tex. App. 2002)

(parents had the authority to execute a prospective liability release that binds their minor child' s

future claims); Osborn v. Cascade Mountain, Inc. , 655 N.W.2d 546 (Wi. Ct. App. 2002) (parental

waiver as a condition of the minor' s participation in skiing is enforceable against the minor); Quirk

v. Walker 's Gymnastics & Dance, 2003 WL 21781387, at *2 (Mass. Super. July 25, 2003)

18

(parental waiver as a condition of the minor child' s participation in gymnastics is enforceable

against the minor because "[s]uch releases are clearly enforceable even when signed by a parent

on behalf of their child"); Saccente v. LaFlamme, 2003 WL 21716586 (Conn. Super. Ct. July 11 ,

2003) (parental waiver as a condition of the minor child' s participation in horseback-riding lesson

is enforceable against the minor); Kondrad v. Bismarck Park Dist. , 655 N.W.2d 411 (N.D. 2003)

(parental waiver as a condition of the minor child' s participation in an after-school child care

program is enforceable against the minor); Kelly v. US. , 809 F. Supp. 2d 429 (E.D. N.C. 2011)

(parental waiver as a condition of the minor child's participation in the Navy Junior Reserve

Officer Training Corps is enforceable against the minor); BJ's Wholesale Club, Inc. v. Rosen, 80

A.3d 345 (Md. Ct. App. 2013) (parental waiver as a condition of the minor child's use of a

supervised play area offered by a wholesale retail store is enforceable against the minor). Further,

since Hohe, there has been a significant amount of scholarly analysis that has thoughtfully

articulated the legal authority and numerous justifications for enforcing parental liability waivers

against minors in a vast body of publications since Childress. 16

Additionally, at least three other states - Georgia, Idaho, and Mississippi - have authority

which implicitly indicate that if a liability waiver is signed by an adult on behalf of her minor child,

such waiver would be enforceable against the minor child. See DeKalb County School System v.

White , 260 S.E.2d 853 (Ga. 1979) (upholding an athletic eligibility waiver signed by a parent

16 See, e.g. Elisa Lintemuth, Parental Rights v. Parens Patriae: Determining the Correct Limitations on the Validity of Pre-Injury Waivers Effectuated by Parents on BehalfofMinor Children, 2010 MICH. ST. L. REV. 169 (201 O); Jordan A. Desnick, The Minefield of Liability for Minors: Running Afoul of Corporate Risk Management in Florida, 64 U. MIAMIL. REV. 1031 (2010); Doyice J. Cotten, Sport Risk Consulting & Sarah J. Young, Effectiveness of Parental Waivers, Parental Indemnification Agreements, and Parental Arbitration Agreements as Risk Management Tools. 17 J. LEGAL ASPECTS OF SPORT 53 (2007); Allison M. Foley, We, the Parents and Participant, Promise not to Sue . .. Until There is an Accident. The Ability of High School Students and their Parents to Waive Liability for Participation in School-Sponsored Athletics, 37 SUFFOLK U. L. REV. 439 (2004); Angeline Purdy, Scott v. Pacific West Mountain Resort: Erroneously Invalidating Parental Releases of A Minor's Future Claim, 68 WASH. L. REV. 457, 474 (1993); Robert S. Nelson, The Theory of the Waiver Scale: An Argument Why Parents Should be Able to Waive their Children' s Tort Liability Claims, 36 U.S.F. L. REV. 535 (2002).

·19

against a minor child); Smoky, Inc. v. McCray, 396 S.E.2d 794, 797 (Ga. Ct. App. 1990) (a waiver

invalidated against a minor child because only the minor executed the waiver and "was fourteen

years old and unaccompanied by any adult or guardian"); Davis v. Sun Valley Sid Education

Foundation, Inc., 941 P.2d 1301 (Id. 1997) (a waiver invalidated against a minor because it was

not drafted properly); Quinn v. Mississippi State University, 720 So.2d 843 (Miss. 1998)

(Mississippi Supreme Court held that reasonable minds could differ as to the risks that the plaintiffs

were assuming and did not suggest that the waivers signed by parents on behalf of their minor

children are not enforceable).

Thus, as reflecte in cases from other jurisdictions, Sky High Nashville respectfully submits

that Tennessee law regarding parental liability releases is unsettled and outdated. Accordingly,

this Court should grant Sky High Nashville ' s Application to clarify a parent' s authority to bind her

child to a liability release in light of new authority.

II. Interlocutory Review is Necessary to Prevent Needless, Expensive, and Protracted Litigation.

In addition to the reasons outlined supra, this Court should grant Sky High Nashville ' s

Application because substantial expense would be incurred exploring the contested facts of this

case through trial. (See App. 1.) Indeed, as the Trial Court recognized:

[U]nder rule 9, in order to avoid protracted and expensive litigation, it would be justifiable grounds for the Court of Appeals to review this matter. I think it's appropriate for me to suggest that [the Court of Appeals] take it for review.

* * *

[B]ecause of the potential of saving expensive litigation, I'll certainly suggest a Rule 9 appeal at this point.

(App. 145, 147.)

20

This Court may ultimately determine that the Contract's choice of law and forum selection

provisions are enforceable, and/or determine that - in light of nearly three-decades of new case

law on the matter - Ms. Blackwell has the authority to sign a liability release on behalf of Mr.

Blackwell. Allowing an immediate appeal would certainly avoid the substantial costs incurred if

the parties are made to litigate this case to a final judgment before seeking an appeal in this regard.

Tenn. R. App. P. 9(a). Even the Plaintiff has conceded that an immediate appeal is appropriate in

this regard because should the challenged ruling be overturned by this Court now, these

proceedings would be significantly altered, which would "result in a net reduction in the duration

and expense of the litigation." Tenn. R. App. P. 9(a).

Accordingly, Sky High Nashville's Application for Permission to Appeal should be

granted for the additional reason that it would save the parties significant time and expense.

21

CONCLUSION

WHEREFORE, PREMISES CONSIDERED, this Court should grant Sky High Nashville ' s

Rule 9 Application for Permission to Appeal.

22

Respectfully submitted,

Brentwood, Tennessee 37024 615-942-8295

Attorneys for the Defendant, Sky High Nashville Sports Operations, LLC

CERTIFICATE OF SERVICE

I do hereby certify that a true and exact copy of the foregoing has been sent by U.S. Mail, postage pre-paid, to the following on this 4th day of March, 2016:

David J. Weissman Hollins, Raybin & Weissman, P.C. Fifth Third Center, Suite 2200 424 Church Street Nashville, Tennessee 37219

23

ADDENDUM

24

r-

, 1

... ---

wr IN THE CIRCUIT COURT FOR DAVIDSON COUNTY, TENNESSEE

AT NASHVILLE

CRYSTAL BLACKWELL, individually ) and as next friend to ) JACOB BLACKWELL, a minor, )

Plaintiffs,

v.

SKY HJGH SPORTS NASHVILLE OPERATIONS, LLC,

Defendant.

) ) ) ) ) ) ) ) )

CASE NO. J4CS24 JURY DEMAND

ORDER

This matter came to be heard on May 8, 2014, upon Defendant's Motion to Enforce the

Contract Between the Parties and Defendant' s Motion to Strike Plaintiffs' Notice and Order of

Voluntary Dismissal Without Prejudice. Having heard argument from counsel in attendance, and

upon review of the record as a whole, the Court finds the following.

The Plaintiffs' filed a Notice and Order of Voluntary Dismissal of Crystal Blackwell's

individual claim in this matter. Defendant objected to this filing as their Motion to Enforce was

...--. pending and same should be treated as a Motion for Summary Judgment. The Court finds the

argument of Defendant non- persuasive. Summary Judgment is very specifically governed by

--.. Tenn. R. Civ. Pro. 56. The motion regarding enforcement of the contract pending in front of the

Court is jurisdictional in nature and not controlled by Rule 56. Pursuant to Tenn. R. Civ. Pro. 41,

a plaintiff has the right to take a voluntary dismissal except where there is a motion for summary

judgment pending. Defendant's motion is not a motion for summary judgment. As such,

Defendant' s Motion to Strike should be denied .