,---.

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE

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

Appellant,

v.

SKY HIGH SPORTS NASHVILLE OPERA TIO NS, LLC,

Appellee.

) ) ) ) ) ) No. M2016-00447-COA-R9-CV ) ) Circuit Court for Davidson County, ) Tennessee ) ) ) )

REPLY BRIEF

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 Appellee, Sky High Sports Nash ville Operations, LLC

ORAL ARGUMENT REQUESTED

INTRODUCTION

The Appellee, Sky High Sports Nashville Operations ("Sky High Nashville"), submits

this Reply Brief pursuant to Tenn. R. App. P. 27(c). The Appellant, Crystal Blackwell, as next

friend to Jacob Blackwell, a minor, will be referred to as "Ms. Blackwell" or "Appellant." Jacob

Blackwell, a minor, will be referred to as "Mr. Blackwell."

Due to the nature of this Reply Brief, it is impossible for the Appellee to address each and

every deficiency contained within the Appellant's Briefing. Instead, the Appellee will attempt to

address those issues most pertinent to this appeal and rely upon its Brief of the Appellee for its

case in chief. For clarity and consistency, the Appellee will continue its use of the abbreviations

for citation of the Technical Record and Exhibits.

r-

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TABLE OF CONTENTS

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

LEGAL ARGUMENT ... ................ ............. .......... ........ ...... .. .... ...... .... ....... .. .... ..... ........ ... ....... .. .. .. ... 1

I. The Forum Selection Provision Should Be Enforced ... ...... ..... ....... ...... .... ... ... ...... .. 1

II.

A.

B.

c.

D.

The Appellant Confuses The Factors Applicable To The Forum Selection Provision Enforcement Analysis .. .. .... .. ....... .. ..... ..... ... ..... 1

The Appellant Did Not Offer Any Evidence To Overcome Her "Heavy Burden" .. .......... ... .. ....... ........ ....... ............... ...................... ....... 3

The Possibility Of Having To Travel Is Not "So Seriously Inconvenient" That It "Effectively Deprives" The Appellant Of Her Day In Court . ... .... .... ..... ..... ... .... ...... ... ....... .. .... ... .... .. ...... 4

Any Purported "Hardship" Was Present When The Contract Was Executed ... ..... ... .. .... ..... ... ........ ......... ..... .... ........ ... ..... .. .......... 9

The Choice of Law Provision Should Be Enforced .... ............ ....... .. ... .... ... ... ..... ... 10

A.

B.

Sky High Nashville Is Not Required To Prove That Tennessee Does Not Have A Substantial Relationship To This Case ......... ...... ...... ....... .. .... .... ... ... ........ .... ...... ................. ......... ..... .... .. 11

California Laws Are Not Contrary To Any Tennessee "Fundamental Policy" ........... ... ... .. ...... ........... ..... .......... .. ..... ....... ... ... ........ 12

III. The Liability Waiver Should Be Enforced Against Mr. Blackwell.. ............. ....... 13

A.

B.

C.

D.

The Question Posed In Childress Is Different Than The Question Now Before This Court .. ... .. .......... ........... ... .. ................... ......... 13

Sky High Nashville Does Not Contend That There Is Never A Need for Courts To Protect Children ................ ... ... .............................. 14

Enforcing The Liability Waiver Would Not Create New Tennessee Public Policy As The Appellant Suggests .. ............................. 15

Appellant Cites No Authority Supporting The Position That This Court Should Not Review And Modify Its Previous Decision In Childress Based On New Precedent.. ... ........... ........... .. .. .. ..... 18

IV. Alternatively, Ms. Blackwell May Not Seek Her Claim For Mr. Blackwell ' s Pre-Majority Medical Expenses ....... .. ... ..... ............. ............. ..... .. ..... . 19

11

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......._

A.

B.

Argument Regarding an Alleged "Potential Subrogation Claim" Against Mr. Blackwell Is As Improper As It Is Incorrect. ... .. .. .. ...... ..... ............ ........... ...................... ... ...... ....... .. ....... .. ....... 19

No Claim For Medical Expenses Ever Existed In This Case ......... ..... ...... 21

CONCLUSION ..... .............. ..... ........... ................ .... ......... ..... ..................... .... .... ....... ..... ..... .... ... ... . 21

CERTIFICATE OF SERVICE ......... ..... ...................... .............. .... .......... ...................................... 22

1ll

,/°'· TABLE OF AUTHORITIES

United States Supreme Court Cases

Parham v. JR., 442 U.S. 584 (1979) .... .............. ............... ........................................................... 17

Stanley v. fllinois, 405 U.S. 645 (1972) ....... .......... ............................ ........... .... ....... .. .......... ......... 15

Troxel v. Granville, 530 U.S. 57 (2000) .... .. ..... ....... ...... .... .......... ..... ..... .... ..... .... ....... .... .... ..... 14, 17

United States Circuit Court of Appeals Cases

Afram Carriers, Inc. v. Moeykens, 145 F.3d 298 (5th Cir. 1998) ................................................... 6

Calavo Growers of California v. Generali Belgium, 632 F .2d 963 (2d Cir. 1980) ..... ....... .. .......... 5

Calix-Chacon v. Global Intern. Marine, Inc. , 493 F.3d 507 (5th Cir. 2007) ..... ...... ....... ............... 6

_,-.. In re Segal, 2011 WL 1582517 (11th Cir. 2011) .. .... .. ........ .. ... ........ .. ............... ... .... .. ... ...... ............ 5

Interamerican Trade Corp. v. Companhia Fabricadora de Pecas, 973 F.2d 487 (6th Cir. 1992) ...................................... ......... ............................................................................. 9

Kepas v. eBay, 412 Fed. Appx. 40 (10th Cir. 2010) ........ ... .. ... .. .... ...... .. ........ ... .. ....... ..... ....... ....... .. 5

MB. Restaurants, Inc. v. CKE Restaurants, Inc. , 183 F.3d 750 (8th Cir. 1999) .... ............... .... ..... 6

Phillips v. Audio Active Ltd., 494 F.3d 378 (2d Cir. 2007) .... ....... ..... .. .... ....... .. ........ ............... .. .... 6

Sun World Lines, Ltd. v. March Shipping Corp., 801F.2d1066 (8th Cir. 1986) .... .. ... ........ .... ..... 6

Union Elec. Co. v. Energy Ins. Mut. Ltd., 689 F.3d 968 (8th Cir. 2012) .. .... ... .... .......... ................. 5

United States District Court Cases

Applied Waterproofing Technology, Inc. v. American Safety Indem. Co., 2009 WL 2448272 (S.D. Cal. 2009) ............. ...... .... ... .............................. .. .......... .... .... ...... ................. 6

Automotive Consultants Div., Progressive Marketing Group, Inc. v. Faris, 2003 WL 21318320 (N.D. Tex. 2003) ... ... ...................... ... ..... .. .............................. .......... .. .... .... .... .... 7

Burns v. Wilderness Ventures, Inc., 2012 WL 3779069 (N.D. Ill. Aug. 30, 2012) ........................ 8

Caputo v. Holland America Line, Inc., 2009 WL 2258326 (E.D.N.Y. 2009) ..................... ... ........ 6

Dillon v. Ski Shawnee, Inc., 2014 WL 3900877 (D.N.J. Aug. 11, 2014) ...... .... .. ..... .. .................... 8

Doe v. SeacampAss'n, Inc. , 276 F. Supp. 2d 222 (D. Mass. 2003) ................................................ 8

IV

E.K.D. ex rel. Dawes v. Facebook, Inc., 885 F. Supp. 2d 894 (S.D. Ill. 2012) .... ............. ........ ..... 8

Harden v. American Airlines, 178 F.R.D. 583 (M.D. Ala. 1998) ............. ....... .. ................. ... ....... .. 9

Igneri v. Carnival Corp., 1996 WL 68536 (E.D.N.Y. Feb. 1, 1996) ...... ........................................ 5

Kelly v. US., 809 F. Supp. 2d 429 (E.D. N.C. 2011) ...... .................... .. ........ .... ................ ........ ... 15

Longv. Dart International, Inc. , 173 F.Supp.2d 774 (W.D. Tenn. 2001) ............. .... .......... ... ...... .. 5

Madoff v. Bold Earth Teen Adventures, 2013 WL 1337337 (D. Haw. Mar. 28, 2013) ....... ......... .. 8

McNair v. Monsanto Co., 279 F. Supp. 2d 1290 (M.D. Ga. 2003) .... ... ..................... ... ............... .. 7

Mercer v. Raildreams, Inc., 702 F. Supp. 2d 176 (E.D.N.Y. 2010) ....... ................ ........................ 6

National Biodiesel Bd. v. FutureFuel Chemical Co., 647 F. Supp. 2d 1074 (S.D. Iowa 2009) ........... .............. ... ........ ................. ........................ ... ... ............... ... .. ...... ............. 7

.~. Paster v. Putney Student Travel, Inc. , 1999 WL 1074120 (C.D. Cal. 1999) ...................... .. ....... ... 9

RGC International Investors, LDC v. ARI Network Services, Inc. , 2003 WL 21843637 (D. Del. 2003) ....... ...................................... ....................... ... .... ..... ......... ..... .. .... 3

-- Rodriguez v. Class Travel Worldwide, L.L.C. , 2000 WL 222165 (E.D. La. Feb. 18,

2000) ·· ···· ··· ····· ···· ································· ······· ·················· ······················································· 8

Sarmiento v. BMG Entertainment, 326 F. Supp. 2d 1108 (C.D. Cal. 2003) ................................... 3

Schoemann ex rel. Schoemann v. Excellus Health Plan, Inc., 447 F. Supp. 2d 1000 (D. Minn. 2006) ............................................ ....... .... ...... ..................... ...... .. .... ...... .............. 8

Songfi, Inc. v. Google Inc., 72 F. Supp. 3d 53 (D.D.C. 2014) ......................... ............................ .. 8

The Hipage Co. , Inc. v. Access2Go, Inc. , 589 F. Supp. 2d 602 (E.D. Va. 2008) .... .................... ... 7

Van Zyl v. Aviatour, Inc. , 2009 WL 2025159 (M.D. Fla. 2009) ...... ...... ......................................... 7

Vega- Perez v. Carnival Cruise Lines, 361F.Supp.2d1(D.P.R.2005) ...... ........ ................ .. ........ .. 8

Wood v. World Wide Ass'n of Specialty Programs & Sch. , Inc. , 2008 WL 4328819 (D. Utah Sept. 16, 2008) .................................. .... ..... ... ..... .................................................. 8

Tennessee Cases

Busby v. Massey, 686 S.W.2d 60 (Tenn. 1984) .... .... ..... ... ........ ........... .. ....................................... 16

.--... Childress v. Madison County, 777 S.W.2d 1 (Tenn. Ct. App. 1989) .............. ...... ........... 13, 18, 19

v

Cohn Law Firm v. YP Southeast Advertising & Publishing, LLC, 2015 WL 3883242 (Tenn. Ct. App. June 24, 2015).:.:····· ················ ·········· ······ ········· .. ..... .... ............... ... ..... .. .. 2, 3

Dixon v. Manier, 545 S.W.2d 948 (Tenn. Ct. App. 1976) .... .... ... ... ... .......... ........................ ......... 17

Dyersburg Mach. Works, Inc. v. Rentenbach Engineering, Co., 650 S.W.2d 378 (Tenn. 1983) ....... .. .............. ...... ........ ................................... ....... .......... .................. ........ . 2, 7

Great American Ins. Co. v. Hartford Acc. & Indemnity Co., 519 S.W.2d 578 (Tenn. 1975) ...................... ........... .......... ........ ........ .... ......... .. ... ........ ................ ......... ..... ........ 10, 11

Hawkv. Hawk, 855 S.W.2d 573 (Tenn. 1993) ....... .................. ........ ........... ............ ......... ...... 14, 15

Hutchison v. Tennessee Farmers Mut. Insurance Co. , 652 S.W.2d 904 (Tenn. Ct. App. 1983) ....... ... ............ .. ........ .. ....... .... ...... .... .... ....... ....... ..... ...... .... ........ .. ....... ............... 11

,-- Messer Griesheim Indus., Inc. v. Cryotech of Kingsport, Inc., 131S.W.3d457 (Tenn. Ct. App. 2003) .......... ................ ..... ...... ..... ....... ... ....... .... .... .... ................. ........... ... ...... ..... .. 11

.-Ohio Casualty Ins. Co. v. Travelers Indemnity Co., 493 S.W.2d 465 (Tenn. 1973) ... ........... ...... 10

Safeco Ins. Co. of Am. v. Shaver, 1994 WL 481402 (Tenn. Ct. App. Sept. 7, 1994) ........... .. .... 3, 9

Sevier Cnty. Bank v. Paymentech Merch. Servs. , 2006 WL 2423547 (Tenn. Ct. App. Aug. 23 2006) ... ..... .. ... .. ... .. ... .... ............. ...... ........ .......... .... ........... ............................. ... ...... 2

Signal Capital Corp. v. Signal One, LLC, 2000 WL 1281322 (Tenn. Ct. App. Sept. 7, 2000) ....... ...... .... ... ... .... ....... .... ............. ........ ....... ............ .... ......................... .... ..... ..... .. .... .. .. 2

Sloan v. Jones , 241S.W.2d506 (Tenn. 1951) ............ ... ...... .. ........ .. ......... ..... .................. ..... ... ..... 10

Smith v. King, 1984 WL 586817 (Tenn. Ct. App. Sept. 21 , 1984) .. ....... .......... ............... ............. 21

Solomon v. FloWarr Management, Inc. , 777 S.W.2d 701 (Tenn. Ct. App. 1989) .................. ..... 11

Spell v. Labelle, 2004 WL 892534 (Tenn. Ct. App. Apr. 22, 2004) ........ .. ....... ......... ...... ... ... ......... 2

Tennsonita (Memphis), Inc. v. Cucos, Inc., 1991 WL 66993 (Tenn. Ct. App. May 2, 1991) ................. ........ .... ......... ....................... ..... ... ... ....... ................. ..... ......... ....... .............. 2

Wade v. Baybarz, 660 S.W.2d 493 (Tenn. Ct. App. 1983) .. .. .. ... .............. ............................... ..... 16

Wimberly v. American Casualty Co. , 584 S.W.2d 200 (Tenn. 1979) ................ ...... ....... ... ... ........ 20

Wolfv. Vaughn, 152 S.W.2d 631(Tenn.1941) ....... ..... ........ ............. .... ..... ................. ................. 21

Wright v. Wright, 337 S.W.3d 166 (Tenn. 2011) ................... .... ........ .......................... .......... ....... 14

Yorkv. Sevier Cty. Ambulance Auth. , 8 S.W.3d 616 (Tenn. 1999) ......................... .. ... .... .. ... ..... .. 20

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Other State Cases

Berg v. Traylor, 148 Cal.Rptr.3d 140 (Cal. App. 2007) ............................................................... 12

Bernstein v. Wysoki , 77 A.D.3d 241 (N.Y.S.2d 2010) ................................................................... 8

BJ's Wholesale Club, Inc. v. Rosen, 80 A.3d 345 (Md. Ct. App. 2013) ...... ........ ...................... .. . 15

Burnand v. Irigoyen, 186 P.2d 417 (Cal. App. 1947) ................................................................... 12

Calanea v. D & S Mfg. Co., 510 N.E.2d 21 (Ill. Ct. App. 1982) .................................................... 9

Fischer v. Rivest, 2002 WL 31126288 (Conn. Super. Ct. 2002) .................................................. 15

Hohe v. San Diego Unified School Dist., 224 Cal.App.3d 1559 (Cal. App. 1990) .......... ............ 15

,,- Hojnowski v. Vans State Park, 187 N.J. 323, 901A.2d381 (N.J.2006) ........................................ 8

Kondrad v. Bismarck Park Dist., 655 N.W.2d 411 (N.D. 2003) .......... .... ............ ...... .................. 15

Lehmann v. Har-Con Corp., 76 S.W.3d 555 (Tex. App. 2002) ...... ............ ...... ................... ...... .. 15

Niemann v. Deverich, 221 P .2d 178 (Cal. App. 1950) ................................................................. 12

Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546 (Wi. Ct. App. 2002) ... ........ ...................... 15

People v. Olsen, 685 P .2d 52 (Cal. App. 1984) .............................. .............................................. 13

Quirk v. Walker 's Gymnastics & Dance, 2003 WL 21781387 (Mass. Super. July 25, 2003) ... .............. ........ ..... ...... .. ................. .... .................... ....... ............. ... ......... .. ......... .... ... 15

,,....., Saccente v. LaFlamme, 2003 WL 21716586 (Conn. Super. Ct. July 11, 2003) ...... ............ .. ....... 15

Scott v. Phoenix Sch., Inc., 96 Cal.Rptr.3d 159 (Cal. App. 4th 2009) ...................... .. .......... ..... ... 13

Sharon v. City of Newton, 769 N.E.2d 738 (Mass. 2002) ...... ......................... .............................. 15

Woodman v. Kera, LLC, 785 N.W.2d 1 (Mich. 2010) ............................................... .......... ......... 18

Zivich v. Mentor Soccer Club, Inc, 696 N.E.2d 201(Ohio1998) ................................................ 15

United States Constitional Provisions

U.S. CONST. amend. XIV ................................................................................................. ............. 14

Tennessee Constitutional Provisions

TENN. CONST. art. I,§ 8 ................................................................................................................ 14

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Tennessee Rules and Statutes

Tenn. Code Ann.§ 29-34-105 ...... .. ........ .. ....... ..... ........ ... .................. .. ......................................... 16

Tenn. R. Civ. P. 4.04 ............................... .. .. ... .. .. ....... ...... ....... ... ......... .. ..... ............................ ... .. ... 14

Secondary Authorities

Angeline Purdy, Scott v. Pacific Mountain Resort: Erroneously Invalidating Parental Releases of A Minor' s Future Claim, 68 WASH. L. REV. 457 (1993) ..... ................... ...... 16

The Model Choice of Forum Act of 1968 .. ........... ... ....... ... ... ...... .............. ........ ... ..... ....................... 2

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LEGAL ARGUMENT

I. The Forum Selection Provision Should Be Enforced.

The argument contained in Appellant's Reply relating to the forum selection provision

mischaracterizes Tennessee law. As described, infra, the Appellant's assertions are flawed for at

least the following four reasons: (1) She confuses the relevant factors in the analysis of the

enforceability of a forum selection provision; (2) She has nevertheless failed to meet her "heavy

burden of proof' required to invalidate the forum selection provision because she submitted no

evidence of any alleged "hardship" enforcing the provision would yield; (3) The possibility of

having to travel to the selected forum - California - is not "so seriously inconvenient" that it

would deprive her of her day in court; and, (4) Notwithstanding, the Appellant was aware of the

possibility of having to travel to California to litigate this case on the day she agreed to the forum

selection provision, which renders that basis insufficient in this context.

A. The Appellant Confuses The Factors Applicable To The Forum Selection Provision Enforcement Analysis.

The Appellant has enigmatically introduced factors that are not relevant to the analysis of

the forum selection provision at issue in this case. In that regard, the Appellant argues that Sky

High Nashville had no legitimate reason to insert a California forum selection provision into the

Contract, and that "Tennessee clearly has a more substantial connection to the transaction at

issue." (Reply p. 4.) Then, based on those arguments, the Appellant inexplicably asserts that

"[w]hile these arguments ... are seen in Ms. Blackwell's reasoning as to why the choice of law

provision should not be enforced, they clearly apply to the forum provision as well." (Id.

(emphasis added)). The Appellant's position is clearly incorrect.

As described in Sky High Nashville's principal Brief, the Tennessee Supreme Court

promulgated the clear analysis relevant for determining whether to enforce a forum selection

1

provision in Dyersburg Mach. Works, Inc. v. Rentenbach Engineering, Co. , 650 S.W.2d 378

(Tenn. 1983). See e.g. , Cohn Law Firm v. YP Southeast Advertising & Publishing, LLC, 2015

WL 3883242, at *11 n. 14 (Tenn. Ct. App. June 24, 2015) (" (W]e note that the Tennessee

Supreme Court's case of Dyersburg ... offers the appropriate framework under which

Tennessee courts should analyze forum selection clauses.") Indeed, this Court has recognized

that "the factors promulgated by the Dyersburg Court have been followed in numerous

subsequent cases." Id. (citing Sevier Cnty. Bank v. Paymentech Merch. Servs. , 2006 WL

2423547 (Tenn. Ct. App. Aug. 23 2006); Spell v. Labelle, 2004 WL 892534 (Tenn. Ct. App. Apr.

22, 2004); Signal Capital Corp. v. Signal One, LLC, 2000 WL 1281322 (Tenn. Ct. App. Sept. 7,

2000); Tennsonita (Memphis), Inc. v. Cucos, Inc. , 1991 WL 66993 (Tenn. Ct. App. May 2,

1991)).

Thus, the only factors relevant to the analysis of whether to invalidate the forum selection

provision in this case are (1) whether the plaintiff could "secure effective relief in the other state,

for reasons other than delay in bringing the action;" (2) whether the "other state would be a

substantially less convenient place for the trial of the action than [Tennessee] ;" (3) whether the

opposing party' s agreement to the selected forum was obtained by "misrepresentation, duress,

abuse of economic power, or other unconscionable means;" and, (4) whether "it would for some

other reason be unfair or unreasonable to enforce the agreement." Dyersburg, 650 S.W.2d at 380

(quoting The Model Choice of Forum Act of 1968).

Accordingly, the Appellant's argument as to Sky High Nashville's purported motive for

incorporating the forum selection provision into the Contract, and whether Tennessee might have

the most material relationship to this case is, at the least, extraneous and irrelevant to the analysis

relating to the forum selection provision in this case.

2

B. The Appellant Did Not Offer Any Evidence To Overcome Her "Heavy Burden."

Notwithstanding, the Appellant recognizes that she, as the party opposing the

enforcement of the forum selection provision, has a high burden to overcome, but she

nevertheless asserts that she met that burden. (Reply p. 3.) This is demonstrably incorrect.

As described in Sky High Nashville's principal Brief, and restated here, a trial court

"must give effect to a forum selection clause" unless enforcing such a provision would be unfair

or inequitable, and "the partv challenging the enforcement of the forum selection clause

'should bear a heavy burden ofproof. "' Cohn, 2015 WL 3883242, at *4, *11 (emphasis added)

(citations omitted). Accordingly, it is axiomatic that a forum selection provision should be

enforced - like the forum selection provision in this case - where the party opposing

enforcement offers no evidence concerning any specific "hardship" she would suffer if the

provision were enforced. Safeco Ins. Co. of Am. v. Shaver, 1994 WL 481402, at *4 (Tenn. Ct.

App. Sept. 7, 1994) (forum selection provision enforced when there was no evidence in the

record regarding increased litigation expenses in selected forum). See also RGC International

Investors, LDC v. ARI Network Services, Inc., 2003 WL 21843637, at *2 (D. Del. 2003) (The

resisting party had offered no evidence that the forum selection clause was the result of fraud or

overreaching, that there was a strong public policy against the enforcement of the forum

selection clause, or that enforcement would have forced litigation in an inconvenient

jurisdiction); Sarmiento v. BMG Entertainment, 326 F. Supp. 2d 1108, 1111 (C.D. Cal. 2003) (If

the party challenging the forum selection clause fails to come forward with anything beyond

general and conclusory allegations of inconvenience, the court must uphold the agreement).

Here, the trial court ultimately invalided the forum selection provision because, in its

view, "it would be a great hardship for Jacob Blackwell, a minor, to travel to California to bring

3

this action[,]" and, therefore, California "would be a substantially less convenient place for the

trial of [this] action than [Tennessee] ," and "it would for some other reason be unfair or

unreasonable to enforce the agreement." (T.R. Vol. 6 at 778.) However, it is respect[ully

submitted that the trial court's findings in that regard were based on nothing more than

conjecture.

In her Reply, the Appellant asserts that the trial court "clearly carefully analyzed the

evidence presented and correctly determined that the forum selection clause should not be

enforced." (Reply p. 5.) It did not. The Appellant provided the trial court with absolutely no

evidence of any "hardship" that would be caused by enforcing the {orum selection provision

in this case. Indeed, the only reference to any alleged "hardship" was contained in the

Appellant ' s Response to Sky High Nashville's Motion to Enforce the Contract: "[A]sking the

Court to dismiss this case in Tennessee and deem California to be the appropriate venue would

create an undue burden on the Plaintiff. Plaintiff, Jacob Blackwell, is a minor and still in school.

It would be a great hardship on Mr. Blackwell to be required to bring this lawsuit in any other

state than Tennessee." (T.R. Vol. 5 at 674.)

Accordingly, the trial court should be reversed in this regard for the simple reason that

the Appellant failed to offer even the slightest iota of evidence and has therefore objectively

failed to meet her "heavy burden of proof."

c. The Possibility Of Having To Travel Is Not "So Seriously Inconvenient" That It "Effectively Deprives" The Appellant Of Her Day In Court.

Regardless, the Appellant persists in arguing that the record justifies the trial court's

"careful analysis" and subsequent ruling invalidating the forum selection provision. This is

equally incorrect. Indeed, the only alleged "hardship" even referenced in the record in this case

4

involves the possibility that the Appellant and/or Mr. Blackwell might need to travel to

California at some point during the litigation of this case there. (T.R. Vol. 6 at 778.) However,

allowing the Appellant to avoid the (orum selection provision on the basis of the possibility of

having to travel to California to litigate this case is contrary to a tremendous weight of

authority to the contrary. 1

Specifically, invalidating a forum selection prov1s1on under Dyersburg based on

inconvenience requires that the selected forum be "so seriously inconvenient that to require the

plaintiff to bring suit there would effectively deprive him of his day in court." Long v. Dart

International, Inc., 173 F.Supp.2d 774, 776-77 (W.D. Tenn. 2001). Stated simply, the possibility

of having to travel to the selected forum does not rise to the level of "so seriously inconvenient"

that it effectively deprives the Appellant of an opportunity to be heard. See, e.g., Calavo

Growers of California v. Generali Belgium, 632 F.2d 963, 969 (2d Cir. 1980) ("A (orum is not

necessarily inconvenient because of its distance from pertinent parties or places if it is readily

accessible in a few hours of air travel." (emphasis added)); Igneri v. Carnival Corp., 1996 WL

68536, at *3 (E.D.N.Y. Feb. 1, 1996) (same).

Indeed, other courts have considered this principle and routinely rejected the contention

that the possibility of travel alone renders a forum selection provision invalid. Union Elec. Co. v.

Energy Ins. Mut. Ltd. , 689 F.3d 968, 974 (8th Cir. 2012) ("[I]nconvenience to a party is an

insufficient basis to defeat an otherwise enforceable forum selection clause."); In re Segal, 2011

WL 1582517, *2 (11th Cir. 2011) ("any financial difficulty or inconvenience did not outweigh

the venue mandated by the forum-selection clause of the parties' participation agreement.");

Kepas v. eBay, 412 Fed. Appx. 40, 45 (10th Cir. 2010) (Plaintiffs challenge to a forum selection

Further, and perhaps even more telling, the Appellant cited no authority supporting her position in this regard.

5

clause and the increased witness travel expenses associated with that forum was not

"compelling."); Phillips v. Audio Active Ltd., 494 F.3d 378, 393 (2d Cir. 2007) (requiring a

plaintiff to litigate a case in England pursuant to a forum selection clause was not so

inconvenient as to deny her of her day in court because travel overseas was not "impossible.");

Calix-Chacon v. Global Intern. Marine, Inc., 493 F.3d 507, 515 (5th Cir. 2007) (the modem

conveniences of electronic filing and videoconferencing eliminated the necessity of being

physically present in Honduras); MB. Restaurants, Inc. v. CKE Restaurants, Inc., 183 F.3d 750,

753 (8th Cir. 1999) (forum selection clause was enforced over plaintiff's objection that he could

not afford to litigate in Utah); Afram Carriers, Inc. v. Moeykens, 145 F.3d 298, 303-304 (5th Cir.

1998) (forum selection clause for Peru was enforced against financially destitute family of

deceased security guard); Sun World Lines, Ltd. v. March Shipping Corp., 801 F.2d 1066, 1068

(8th Cir. 1986) (enforcing clause requiring Missouri plaintiff to sue in Germany, because

"alternative of using depositions of key witnesses provides adequate opportunity for [plaintiffs]

to have their fair day in court."); Mercer v. Raildreams, Inc., 702 F. Supp. 2d 176, 181 (E.D.N.Y.

2010) ("Moreover, although Mercer's letter claims in the most general of terms that the

Michigan forum is inconvenient, he does not explain how enforcing the forum selection clause

would work a gravely inconvenient or unfair result."); Applied Waterproofing Technology, Inc.

v. American Safety Indem. Co., 2009 WL 2448272, *5 (S.D. Cal. 2009) ("Generally, even when

a forum selection clause requires a litigant seek relief in a foreign court, courts have held such

requirement does not deprive the litigant of his day in court so as to render the clause

unenforceable."); Caputo v. Holland America Line, Inc., 2009 WL 2258326 (E.D.N.Y. 2009)

(Although an otherwise valid forum selection clause could be deemed unreasonable in a situation

in which a plaintiff is unable to travel to the selected venue due to a physical disability, in a

6

situation in which such travel would merely be inconvenient and the plaintiff refuses to take pain

medication to make such travel easier, the clause will be enforced); Van Zyl v. Aviatour, Inc.,

2009 WL 2025159, *4 (M.D. Fla. 2009) (The fact that all witnesses, with the exclusion of the

plaintiff, would have to be called from outside the selected forum state to testify, and that almost

all depositions in the case would take place outside of the state, did not constitute such "grave"

inconvenience so as to deprive the defendants of their day in court); National Biodiesel Bd. v.

FutureFuel Chemical Co., 647 F. Supp. 2d 1074, 1080 (S.D. Iowa 2009) ("[A] forum selection

clause cannot be set aside simply because a party is inconvenienced, unless the inconvenience is

so severe that trying the case in the selected forum would deprive the party of its fair day in

court."); The Hipage Co., Inc. v. Access2Go, Inc. , 589 F. Supp. 2d 602, 612-613 (E.D. Va. 2008)

(the difficulty and expense of transporting witnesses is not recognized as such grave

inconvenience to preclude enforcement of a valid forum selection clause); McNair v. Monsanto

Co., 279 F. Supp. 2d 1290, 1302 (M.D. Ga. 2003) (litigants are not deprived of a day in court

merely because litigation in the contract forum might require the use of deposition testimony

rather than live testimony); Automotive Consultants Div. , Progressive Marketing Group, Inc. v.

Faris, 2003 WL 21318320, *5 (N.D. Tex. 2003) (nothing unreasonable or unjust about requiring

the defendant to litigate in Texas; although the defendant would be "somewhat inconvenienced"

by having to litigate in Texas, and most if not all of the material witnesses were located in

Pennsylvania, retaining the case in Texas would not pose such a difficulty as to deprive the

defendant of his day in court).

Moreover, the fact that Mr. Blackwell is a minor does not make a forum other than a

Tennessee court any more unjust under Dyersburg - as Appellant asserts - and courts routinely

7

enforce forum selection provisions against claims brought on behalf of minors.2 See Bernstein v.

Wysoki , 77 A.D.3d 241, 248 (N.Y.S.2d 2010); E.K.D. ex rel. Dawes v. Facebook, Inc., 885 F.

Supp. 2d 894, 899 (S.D. Ill. 2012) (enforcement of forum-selection clause against minors); Song

fl, Inc. v. Google Inc., 72 F. Supp. 3d 53, 56 (D.D.C. 2014) (same); Schoemann ex rel.

Schoemann v. Excellus Health Plan, Inc., 447 F. Supp. 2d 1000 (D. Minn. 2006) (same); Burns

v. Wilderness Ventures, Inc., 2012 WL 3779069, at *1 (N.D. Ill. Aug. 30, 2012) (same); Doe v.

Seacamp Ass'n, Inc., 276 F. Supp. 2d 222 (D. Mass. 2003) (forum selection clause in application

for enrollment in summer camp was enforceable against minor child's tort claims); Dillon v. Ski

Shawnee, Inc., 2014 WL 3900877, at *2 (D.N.J. Aug. 11 , 2014) ("A parent can bind a minor

child to a forum-selection clause to which the parent agreed to enter."); Vega-Perez v. Carnival

Cruise Lines, 361 F.Supp.2d 1 (D.P.R.2005) (transferring personal injury action brought on

behalf of a minor from District of Puerto Rico to Southern District of Florida based upon

contract with forum-selection clause signed by minor' s mother); Hojnowski v. Vans State Park,

187 N.J. 323, 901 A.2d 381 , 391- 94 (N.J.2006) (finding that agreements to arbitrate disputes

signed by a parent on behalf of a minor child are generally presumed valid as to any tort claims

asserted); Rodriguez v. Class Travel Worldwide, L.L. C., 2000 WL 222165, at *4 (E.D. La. Feb.

18, 2000) (same); Wood v. World Wide Ass'n of Specialty Programs & Sch. , Inc., 2008 WL

4328819, at *4 (D. Utah Sept. 16, 2008) ("Plaintiffs argue the clause is unenforceable as to

Baker because he was a minor, but offer no case law in support of their position .. . . [T]he Court

finds the forum selection clause is enforceable against the Student Plaintiff."); Madoff v. Bold

Earth Teen Adventures, 2013 WL 1337337, at *3 (D. Haw. Mar. 28, 2013) (fact that mother

The trial court ostensibly gave considerable weight to the fact that this case involves claims brought on a minor's behalf in its determination of whether to enforce the forum selection provision in this case. (T.R. Vol. 6 at 778 ("it would be a great hardship for Jacob Blackwell, a minor, to travel to California to bring this action."))

8

r'·

signed forum selection provision on behalf of her minor son did not render the provision

unenforceable, because the minor was '"closely' related to the dispute such that it becomes

' foreseeable ' the [he would] be bound."). Cf Harden v. American Airlines, 178 F.R.D. 583 , 587

(M.D. Ala. 1998) (a minor passenger could not escape the forum selection clause by voiding a

contract after accepting the benefits of the contract); Paster v. Putney Student Travel, Inc., 1999

WL 1074120, at *2 (C.D. Cal. 1999) (a minor plaintiff "can not accept the benefits of a contract

and then seek to void it in an attempt to escape the consequences of a clause that does not suit

her.")

Accordingly, the trial court erred and the forum selection provision in this case should be

enforced.

D. Any Purported "Hardship" Was Present When The Contract Was Executed.

Notwithstanding the multiple reasons that the Appellant's argument fails as described

supra, the Appellant's argument is flawed because any alleged "hardship" existed on the day the

parties agreed to the forum selection provision. In other words, on the day she signed the forum

selection provision, the Appellant was aware, or should have reasonably foreseen, the possibility

that it would be inconvenient to litigate a lawsuit in California. The Appellant' s position that she

should nevertheless be permitted to avoid the forum selection provision on the basis of

inconvenience is precisely that which this Court has expressly rejected: "Parties challenging a

(orum selection clause cannot rely on facts and circumstances that were present or reasonably

foreseen when they signed the contract." Safeco, 1994 WL 481402, at *4 (emphasis added)

(citing Interamerican Trade Corp. v. Companhia Fabricadora de Pecas, 973 F.2d 487, 489 (6th

Cir. 1992); Calanea v. D & S Mfg. Co., 510 N.E.2d 21 , 23 (Ill. Ct. App. 1982)).

9

Accordingly, the purported "hardship" of having to litigate claims in a forum other than

Tennessee was foreseen on the date the Contract was executed and is, therefore, an insufficient

basis for invaliding the forum selection provision.

II. The Choice of Law Provision Should Be Enforced.

As described in the Appellant's Reply, the trial court ruled that the choice of law

provision in this case should not be enforced based on the following:

First, it would be a great hardship for Jacob Blackwell, a minor, to travel to California to bring this action. Second, 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 as the parties reside in Tennessee and the injury occurred in Tennessee. Additionally, Tennessee also has a fundamental public policy in favor of the protection of children.

(T.R. Vol. 5 at 713.)

Further, in her Reply, the Appellant ultimately emphasizes that the trial court's decision

to invalidate the choice of law provision was justified because "Tennessee clearly has the more

substantial relationship to this transaction" and "Tennessee ... has a fundamental public policy

in favor of the protection of children," which, according to the Appellant at least, would be

violated if California law were to apply. (Reply p. 6.) This position emphasizes an incorrect

application of the flexible lex loci contractus rule in Tennessee3 for at least the following two

reasons: (1) Sky High Nashville is not required to prove that Tennessee does not have a

substantial relationship to this case; and, (2) California laws are not contrary to any Tennessee

"fundamental policy."

Tennessee does not apply a rigid version of lex loci contractus common law rule. If Tennessee courts did so, the law of the state in which the contract was executed would ultimately govern the parties' rights thereunder, and parties would be prohibited as a matter of law from choosing to apply the law of other states. See Great American Ins. Co. v. Hartford Acc. & Indemnity Co., 519 S.W.2d 578 (Tenn. 1975); Ohio Casualty Ins. Co. v. Travelers Indemnity Co., 493 S.W.2d 465 (Tenn. 1973); Sloan v. Jones, 241S.W.2d506 (Tenn. 1951).

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A. Sky High Nashville Is Not Required To Prove That Tennessee Does Not Have A Substantial Relationship To This Case.

As stated supra, the Appellant asserts that the trial court was correct because, first,

Tennessee "clearly has the more substantial relationship to this transaction." (Reply p. 6.)

However, the Appellant's assertion emphasizes a misapplication of the relevant factors.

Tennessee courts will honor the parties' intent to apply the laws of another jurisdiction

provided, among other requirements,4 "the jurisdiction whose law is chosen ... bear[s] a material

connection to the transaction." Messer Griesheim Indus. , Inc. v. Cryotech of Kingsport, Inc., 131

S.W.3d 457, 475 (Tenn. Ct. App. 2003). Accordingly, the Appellant' s position that she should

be permitted to avoid the choice of law provision simply because "Tennessee has the most

reasonable relationship to the facts surrounding this case" is an erroneous application of

Tennessee law. Indeed, the Tennessee Supreme Court has expressly declined to adopt the

"dominant contracts" rule in the context of choice of law provisions. Great American Ins. Co.

v. Hartford Acc. & Indemnity Co., 519 S.W.2d 578 (Tenn. 1975); see also Solomon v. FloWarr

Management, Inc., 777 S.W.2d 701 , 704 (Tenn. Ct. App. 1989); Hutchison v. Tennessee

Farmers Mut. Insurance Co., 652 S.W.2d 904, 906 (Tenn. Ct. App. 1983). Thus, to be clear,

Sky High Nashville does not have the burden of proving that Tennessee does not bear a

reasonable relationship to this case.

Rather, Sky High Nashville has done precisely what is required. Specifically, it has

offered evidence that the transaction - that is, the transaction in which Ms. Blackwell executed

the Contract with Sky High Nashville so that Mr. Blackwell could play dodgeball - bears a

4 These requirements are: (1) "The choice of Jaw provision must be executed in good faith;" (2) "The jurisdiction whose law is chosen must be a material connection to the transaction;" (3) "The basis for the choice of another jurisdiction' s law must be reasonable and not merely a sham or subterfuge;" and, (4) "[T]he parties' choice of another jurisdiction' s law must not be ' contrary to a 'fundamental policy' of a state having [a] 'materially greater interest' and whose Jaw would otherwise govern." Messer Griesheim Indus., Inc. v. Cryotech of Kingsport, Inc., 131 S.W.3d 457, 475 (Tenn. Ct. App. 2003) (citations omitted).

11

material connection to California. The record indicates that Sky High Nashville was a

"corporate store," among other corporate stores, under the national Sky High Sports brand -

which was founded by Rolland Weddell in the State of California in 2006. (T.R. Vol. 5 at 708;

T.R. Vol. 5 at 721-21.) Further, the California choice of law provision is included in all

contracts that "all Sky High Sports brand facilities use throughout the United States in their

business operations for corporate stores." (T.R. Vol. 5 at 721-21 , emphasis added). Indeed,

such provisions are included not merely as "a matter of form[,]" but are used so that corporate

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." (Id.)

Accordingly, California bears a material connection to the transaction in this case, and

the Appellant is now merely emphasizing a misapplication of the relevant factors. Sky High

Nashville has provided evidence of precisely what is required under the applicable law, and the

Appellant should not be permitted to avoid the choice of law provision.

B. California Laws Are Not Contrary To Any Tennessee "Fundamental Policy."

Notwithstanding, the Appellant's argument in her Reply that the trial court should be

affirmed because "Tennessee ... has a fundamental public policy in favor of protecting children"

(T.R. Vol. 5 at 713), and "California's law violates Tennessee's public policy" is flatly incorrect.

(Reply p. 6.) While Tennessee's laws certainly reflect a fundamental public policy in favor of

protecting children, so do the laws of the State of California. See Niemann v. Deverich, 221 P .2d

178 (Cal. App. 1950) ("It is the policy of the law to protect a minor against himself and his

indiscretions and immaturity[.]"; Burnand v. Irigoyen, 186 P.2d 417 (Cal. App. 1947) (same);

Berg v. Traylor, 148 Cal.Rptr.3d 140 (Cal. App. 2007) (same); People v. Olsen, 685 P.2d 52, 57

(Cal. App. 1984) ("There exists a strong public policy to protect children of tender years."); Scott

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v. Phoenix Sch. , Inc., 96 Cal.Rptr.3d 159, 169 (Cal. App. 4th 2009) ("The public policy of

protecting children in this case is equally significant.")

Accordingly, the Appellant' s emphasis on a fabricated conflict between Tennessee and

California fundamental public policies is unfounded, and in any event, does not justify

invalidating the choice of law provision in this case.

III. The Liability Waiver Should Be Enforced Against Mr. Blackwell.

In her Reply, the Appellant ultimately emphasizes four issues regarding the enforcement

of the liability waiver against claims brought on Mr. Blackwell ' s behalf: (1) that Childress v.

Madison County, 777 S.W.2d 1 (Tenn. Ct. App. 1989) applies; (2) that "the Tennessee Supreme

Court still acknowledges the need to protect minor children in certain instances[;]" (3) that

enforcing the liability waiver would essentially mandate a sweeping change in public policy;

and, (4) that this Court should now ultimately refrain from reviewing the very same issue it

decided in Childress. Sky High Nashville will address the Appellant' s positions seriatim below.

A. The Question Posed In Childress Is Different Than The Question Now Before This Court.

In her Reply, the Appellant ultimately emphasizes the application of Childress. Sky High

Nashville relies on its principal Brief for an in-depth analysis of Childress, but it is ultimately

important to emphasize that when Childress was decided, this Court was without pivotal

constitutional precedent. This is important because the lack of such precedent framed the

question before the Childress Court differently. In other words, in Childress, this Court was not

tasked with assessing the significant implication of a parent' s fundamental constitutional right to

make parenting decisions upon the state' s ability to intrude therein. Indeed, even a point

emphasized by the Appellant in her Reply reflects modifications in Tennessee law since

Childress. (See Reply p. 9 (emphasizing the recognition in Childress of the since-altered rule

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,,,-...

that a guardian is unable to accept service of process on behalf of her minor child.)) See, e.g. ,

Tenn. R. Civ. P. 4.04(2) (Service upon an infant may be made "by delivering a copy of the

summons and complaint to the person' s resident guardian.")

Stated simply, this Court is now posed with the question of whether a parent' s

constitutional right to make parenting decisions on her minor child's behalf - like a mother' s

decision to execute a liability waiver so that her son can play dodgeball - can be later overturned.

For all the reasons stated in Sky High Nashville' s principal Brief, a Tennessee court now

respectfully lacks the authority to intrude upon Ms. Blackwell ' s decision to execute a liability

waiver on Mr. Blackwell' s behalf.

B. Sky High Nashville Does Not Contend That There Is Never A Need for Courts To Protect Children.

In addition, in her Reply, the Appellant incorrectly portrays Sky High Nashville' s

position as asserting that Tennessee courts may !!:!IJ!!!. exercise their inherent parens patriae

powers to protect children. (Reply p. 10 (emphasizing that "the Tennessee Supreme Court still

acknowledges the need to protect minor children in certain instances)). This is obviously not

what Sky High Nashville is asserting. Sky High Nashville does not disagree with the general

contention that "the courts in Tennessee ... assume a special responsibility to protect a minor' s

interest." Wright v. Wright, 337 S.W.3d 166, 178 (Tenn. 2011).

Sky High Nashville ' s position is simple: After Hawk and Troxel, in the specific context

of a parent making a parenting decision on her child's behalf - like executing a prospective

liability waiver - such a decision is now expressly protected by certain fundamental

constitutional rights. TENN. CONST. art. I, § 8; U.S. CONST. amend. XIV. See Hawk v. Hawk, 855

S.W.2d 573 (Tenn. 1993); Troxel v. Granville, 530 U.S. 57 (2000). As a result, the state is

constitutionally prohibited from overturning such a decision absent an "individualized finding"

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that such a decision effectively constituted "parental neglect." See Hawk, 855 S.W.2d at 580

(citing Stanley v. fllinois , 405 U.S. 645 (1972)). Indeed, the correct application of Sky High

Nashville' s position is embodied in the strong shift toward enforcing parental liability waivers in

other jurisdictions since Childress. See Hohe v. San Diego Unified School Dist., 224 Cal.App.3d

1559 (Cal. App. 1990); Zivich v. Mentor Soccer Club, Inc, 696 N.E.2d 201(Ohio1998); Fischer

v. Rivest, 2002 WL 31126288 (Conn. Super. Ct. 2002); Sharon v. City of Newton, 769 N.E.2d

738, 749 (Mass. 2002); Lehmann v. Har-Con Corp. , 76 S.W.3d 555 (Tex. App. 2002); Osborn v.

Cascade Mountain, Inc. , 655 N.W.2d 546 (Wi. Ct. App. 2002); Quirkv. Walker 's Gymnastics &

Dance, 2003 WL 21781387 (Mass. Super. July 25, 2003); Saccente v. LaFlamme, 2003 WL

21716586 (Conn. Super. Ct. July 11 , 2003); Kondrad v. Bismarck Park Dist. , 655 N.W.2d 411

(N.D. 2003); Kelly v. U S. , 809 F. Supp. 2d 429 (E.D. N.C. 2011); BJ's Wholesale Club, Inc. v.

Rosen, 80 A.3d 345 (Md. Ct. App. 2013).

Further, as described in detail in in Section III(C) of Sky High Nashville' s principal

Brief, and summarized infra, Sky High Nashville' s position in this case does not conflict with

this Court's interest in protecting minors and would, therefore, not be a dramatic shift in public

policy, as the Appellant now asserts.

c. Enforcing The Liability Waiver Would Not Create New Tennessee Public Policy As The Appellant Suggests.

In her Reply, the Appellant challenges Sky High Nashville' s assertion that enforcing the

liability waiver in this case would otherwise conflict with existing Tennessee law and public

policy. (See Reply pp. 11-12 (arguing that, because Mr. Blackwell has a financial interest in this

case, . traditional rules of public policy favoring the protection of minors should apply here as

they do in other contexts)). This is incorrect for the two reasons described below.

15

First, the Appellant emphasizes that Mr. Blackwell has a financial interest in suing Sky

High Nashville, and, therefore, Ms. Blackwell should not be allowed to prospectively waive that

interest before any injury occurs. (Reply p. 11.) Ultimately, the Appellant's position in this

regard is rooted in the requirement that court approval is required for settling a minor's existing

tort claim. See Tenn. Code Ann. § 29-34-105. The Appellant' s position is incorrect and her

emphasis on the fact that a minor has a financial interest in a lawsuit is simply misplaced.

This is because the policy for disallowing parents from settling their children' s existing

tort claims is rooted in the concern that a parent might put her interests over the interests of her

child. See Busby v. Massey, 686 S.W.2d 60, 63 (Tenn. 1984); Wade v. Baybarz, 660 S.W.2d 493

(Tenn. Ct. App. 1983). In other words, the reason why court approval of minor settlements is

required is due to the fact that a parent has a direct financial interest in settling her child' s

existing lawsuit. See Angeline Purdy, Scott v. Pacific Mountain Resort: Erroneously

Invalidating Parental Releases of A Minor' s Future Claim, 68 WASH. L. REV. 457, 474 (1993)

(T.R. Vol. 5 at 626).

Therefore, the assertion that Mr. Blackwell had a financial interest in potentially suing

Sky High Sports on the day Ms. Blackwell signed the liability waiver is a non-issue. Indeed,

what is important is whether there was any reason for Ms. Blackwell to place her interests before

Mr. Blackwell' s interests when she executed the liability waiver in this case on July 3, 2012 -

almost a year be(ore Mr. Blackwell was allegedly injured and his claims in this case arose.

Clearly, Ms. Blackwell' s financial interests were identical to Mr. Blackwell ' s on the day she

executed the liability waiver. Stated simply, Ms. Blackwell had nothing to gain financially from

waiving Mr. Blackwell's right to sue Sky High Nashville, which is the precise concern forming

the basis of requiring court approval for a minor' s existing claim. Accordingly, the fundamental

16

constitutional presumption that Ms. Blackwell was acting in Mr. Blackwell' s best interests when

she executed the liability waiver remains intact. Respectfully, a Tennessee court cannot intrude

upon her decision in this case.

Second, the Appellant has inexplicably argued in her Reply, for the first time, that she did

not read the liability waiver so it should not be enforced. Not only is there zero evidence in the

record related to this position - indeed, the Appellant did not even submit this argument to the

trial court - but it is clearly contrary to well-settled Tennessee law. Dixon v. Manier, 545

S.W.2d 948, 949 (Tenn. Ct. App. 1976). Moreover, even if there was evidence supporting this

position - which there is not - Mr. Blackwell should not be entitled to rely on his mother' s lack

of judgment in this regard. Such a result would be contrary to the fundamental presumption that

"parents possess what a child lacks in maturity, experience, and capacity for judgment required

for making life's difficult decisions." Parham v. JR. , 442 U.S. 584, 602 (1979). Respectfully, a

Tennessee court may not replace its own subjective notions of a child' s best interests, even if the

court believes a "better" decision could have been made. Troxel, 530 U.S. at 58, 72-73.

Accordingly, enforcing the liability waiver in this case would not be contrary to

Tennessee public policies as the Appellant suggests. Rather, for all of the reasons outlined in

Sky High Nashville' s Principal Brief, such a decision would fall squarely within Tennessee's

recognition of the importance of protecting a parent' s fundamental rights to act as a parent.

Accordingly, Sky High Nashville respectfully submits that Ms. Blackwell ' s authority to execute

the liability waiver prevails over Tennessee's parens patriae interests in this case.

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D. Appellant Cites No Authority Supporting The Position That This Court Should Not Review And Modify Its Previous Decision In Childress Based On New Precedent.

Finally, the Appellant briefly suggests that enforcing the liability waiver in this case

would essentially be the Court acting on matters which should be left to the legislature and/or the

Tennessee Supreme Court. (Reply p. 10 (citing Woodman v. Kera, LLC, 785 N.W.2d 1 (Mich.

2010)). In other words, relying on the Woodman case, the Appellant is suggesting that this Court

cannot now interject in areas touching on Tennessee public policy. The Appellant' s assertion in

this regard is misplaced for several important reasons.

First, Woodman is not instructive because the Michigan Supreme Court decided that case

when no other Michigan court had ruled on whether a parent may execute an enforceable

prospective liability waiver on her child's behalf. See Woodman , 785 N.W.2d at 28 (Markman,

J. , dissenting) ("The trial court held that the preinjury waiver here was enforceable, specifically

noting the absence of 'any Michigan case which says that a parent who signs a waiver like this

one prior to a child engaging in an activity is engaging in an act which is a legal nullity."') In

other words, Woodman does not stand for the proposition that a Court cannot review its previous

decision and arrive at a different result nearly 30 years later - as the Appellant ostensibly

suggests somehow it does. Rather, the Appellant cites no authority supporting its contention that

this Court should now refrain from reviewing its previous decision in Childress in this case,

especially in light of new constitutional authority and shift in public policies.

Moreover, the existence of the Childress decision itself respectfully signifies this Court' s

interest in deciding the precise matter now before this Court. Indeed, this Court did not decide

Childress based exclusively on judicial restraint - it was ultimately based upon the relevant

18

precedent m Tennessee and other jurisdictions at the time, and existing Tennessee public

policies.5

Therefore, Sky High Nashville submits that this Court should ultimately undertake the

same analysis originally applied in Childress and, with the instruction from additional

constitutional and persuasive authority from other jurisdictions, arrive at a different conclusion

than it did then. Stated simply, such a decision would not in any way represent this Court's

intrusion into matters that should only be addressed by the Tennessee Supreme Court or the

Legislature.

IV. Alternatively, Ms. Blackwell May Not Seek Her Claim For Mr. Blackwell's Pre-Majority Medical Expenses.

Sky High Nashville relies upon the arguments contained in its principal Brief regarding

the trial court' s denial of the Appellant's Motion to Amend Complaint. Notwithstanding, Sky

High Nashville respectfully submits that a brief analysis as to several of the arguments tendered

by the Appellant in her Reply would aid this Court' s determination on this issue.

A. Argument Regarding an Alleged "Potential Subrogation Claim" Against Mr. Blackwell Is As Improper As It Is Incorrect.

The Appellant asserts that if this Court affirms the trial court' s Order restricting Ms.

Blackwell from asserting claims on Mr. Blackwell' s behalf for pre-majority medical expenses,

Mr. Blackwell would nevertheless "be subject to a potential subrogation claim[.]" (Reply p.

Sky High Nashville would further submit that, based on Tennessee law and public policies at the time - including the fact that not a single jurisdiction had enforced a parental waiver - this Court's astute reasoning in Childress was not flawed. Rather, it is the post-Childress precedent available to this Court in this case which now merits a different result than that reached in Childress. To be clear, in Childress this Court stated that it should refrain from changing the well-settled law that "a guardian cannot settle an existing claim apart from court approval or statutory authority," and the Legislature or the Tennessee Supreme Court would be the appropriate forum for such an issue. Childress v. Madison County, 777 S.W.3d l , 6, 7-8 (Tenn. Ct. App. 1989) ("The law is clear that a guardian cannot [settle an existing claim] on behalf of an infant or incompetent" ... and "[i]fthis rule of law is other than as it should be, we feel the remedy is with the Supreme Court or the legislature.") However, as stated supra, this case now poses a different question than that which was posed in Childress. Specifically, this Court now has nearly 27 years of developing authority regarding the fundamental privacy interests parents enjoy in making parenting decisions - along with a strong shift in other jurisdictions favoring the enforcement of parental liability waivers - that was simply not available at the time Childress was decided.

19

13.). First, the Appellant's assertion in this regard is entirely improper and should be excluded

from this Court's consideration in toto. In that regard, not only is such a contention entirely

irrelevant to the question posed to this Court - specifically, the enforceability of a clause which

waives the right to bring a claim for medical expenses - but the Appellant has not once presented

any argument and/or evidence supporting its contention until the filing of its Reply Brief.

Second, the Appellant's assertion in this regard is flatly incorrect. To be clear, "[i/n the

context o(insurance, subrogation allows the insurer to 'stand in the shoes' of the insured and

assert the rights the insured had against a third partv." York v. Sevier Cty. Ambulance Auth. , 8

S.W.3d 616, 619 (Tenn. 1999) (emphasis added) (citing Wimberly v. American Casualty Co.,

584 S.W.2d 200, 203 (Tenn. 1979)). In other words, if Mr. Blackwell does not have a

cognizable claim for medical expenses against Sky High Nashville, any alleged subrogation

claim related thereto would be non-existent. Id. Moreover, any insurer who allegedly paid

expenses on Mr. Blackwell' s behalf would likewise not be entitled to recover against Mr.

Blackwell if his claim for medical expenses was extinguished under any reimbursement theory.

Id at 618-19 (the terms "subrogation" and "reimbursement" are not synonymous). Indeed, it is

well-settled that an insurer is not entitled to reimbursement for medical expenses made on behalf

of the insured "when the insured has not been made whole for his or her losses, even where a

' right of reimbursement' provision is contained in the insurance policy." Id. at 617-18 (citing

Wimberly, 584 S.W.2d at 203)). Accordingly, suggesting that Mr. Blackwell would somehow be

"prejudiced" by having to face a claim for subrogation and/or reimbursement brought by an

insurance company is objectively incorrect based on well-settled Tennessee law and improper.

20

B. No Claim For Medical Expenses Ever Existed In This Case.

Finally, the Appellant asserts that this case "falls right in line with this Court's holding in

Wolfe." (Reply p. 13.) This is also incorrect. Indeed, the principle stated in Wolf is simple: "A

parent may waive or be estopped to assert his [existing/ right to recover ... and permit the child

to recover the full amount to which both would be entitled." Wolfv. Vaughn, 152 S.W.2d 631 ,

633 (Tenn. 1941) (emphasis added). Here, Ms. Blackwell was never entitled to recover any

medical expenses allegedly paid on Mr. Blackwell's behalf. Accordingly, for this reason, and for

all of the reasons emphasized in Sky High Nash ville ' s principal Brief, the case before this Court

is entirely different than the principles espoused in the Wolfe case, and Smith v. King, 1984 WL

586817 (Tenn. Ct. App. Sept. 21, 1984) and its progeny. Indeed, Ms. Blackwell extinguished

her claim for medical expenses before it ever existed and she may not now attempt to recover

such expenses derivatively through Mr. Blackwell.

CONCLUSION

Based upon the foregoing, this Court should reverse the trial court's denial of Sky High

Nashville's Motion to Enforce the Contract Between the Parties. In the alternative, this Court

should affirm the trial court's ruling on Ms. Blackwell's Motion to Amend Complaint.

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Respectfully submitted,

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

Attorneys for the Appellee, Sky High Sports Nash ville 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 31st day of August, 2016:

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

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