Frederick Copeland v. Healthsouth/Methodist Rehabilitation Hospital, LP

12/20/2018
IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
May 31, 2018 Session Heard at Nashville1

FREDERICK COPELAND v. HEALTHSOUTH/METHODIST
REHABILITATION HOSPITAL, LP ET AL.

Appeal by Permission from the Court of Appeals
Circuit Court for Shelby County
No. CT-000196-16 Rhynette N. Hurd, Judge
___________________________________

No. W2016-02499-SC-R11-CV
___________________________________

A rehabilitation hospital hired a medical transportation company to take a patient
to a doctor’s appointment. Before the transport, the company’s driver required the
patient to sign an agreement that, in part, released the company from any liability.
After the appointment, the patient fell as he was getting into the company’s van.
He sued the medical transportation company, which moved to dismiss based on the
exculpatory provisions of the agreement. The trial court and the Court of Appeals
ruled that the exculpatory provisions were enforceable. We hold that to determine
the enforceability of an exculpatory agreement, a court should consider the totality
of the circumstances and weigh these non-exclusive factors: (1) relative bargaining
power of the parties; (2) clarity of the exculpatory language, which should be clear,
unambiguous, and unmistakable about what the party who signs the agreement is
giving up; and (3) public policy and public interest implications. We hold that the
exculpatory provisions in the agreement between the medical transportation
company and the patient are unenforceable based on the unequal bargaining power
of the parties, the overly broad and unclear language of the agreement, and the
important public interest implicated by the agreement. Thus, the exculpatory
language in the agreement does not, as a matter of law, bar the patient’s claim. We
vacate the judgment of the trial court, reverse the judgment of the Court of
Appeals, and remand this case to the trial court for further proceedings.

1
We heard oral argument on the campus of Lipscomb University in Nashville, Davidson County,
Tennessee, as part of the American Legion Auxiliary Volunteer Girls State S.C.A.L.E.S (Supreme Court
Advancing Legal Education for Students) project.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals
Reversed; Judgment of the Trial Court Vacated; Remanded to the
Trial Court

SHARON G. LEE, J., delivered the opinion of the Court, in which JEFFREY S. BIVINS,
C.J., and CORNELIA A. CLARK, HOLLY KIRBY, and ROGER A. PAGE, JJ., joined.

Donald K. Vowell, Knoxville, Tennessee, and David E. Gordon and Erin L.
Hillyard, Memphis, Tennessee, for the appellant, Frederick Copeland.

Diana M. Comes, Memphis, Tennessee, for the appellee, MedicOne Medical
Response Delta Region, Inc.

OPINION

I.

Frederick Copeland was a patient at HealthSouth Rehabilitation Hospital
North Memphis (HealthSouth or the hospital) after having knee replacement
surgery. On December 2, 2014, Mr. Copeland had an appointment to see his
orthopedic surgeon. The hospital had contracted with MedicOne Medical Response
Delta Region, Inc. (MedicOne), a medical transportation company, to provide
transportation services for its patients, including Mr. Copeland.

On the day of Mr. Copeland’s appointment at his orthopedic surgeon’s
office, a MedicOne employee driving a wheelchair van2 arrived at the hospital to
take Mr. Copeland to and from the appointment. After the driver pushed Mr.
Copeland in a wheelchair from his room to the entrance of the hospital, Mr.
Copeland got out of the wheelchair, walked to the van using a walker, and climbed
into the front passenger seat. Before leaving HealthSouth, the MedicOne driver
gave Mr. Copeland a pre-printed two-sided document that contained on one side a
Wheelchair Van/Transportation Run Report (Run Report) and on the other side a
Wheelchair Van Transportation Agreement (Agreement). The Run Report
provided that HealthSouth was responsible for MedicOne’s charges. The
Agreement consisted of nine single-spaced paragraphs, including three paragraphs

2
The MedicOne wheelchair van had no seats in the rear compartment, but was equipped with a
mechanical wheelchair lift and safety restraints to secure the wheelchair and its occupant after being
loaded into the van. The only seats in the van were the driver’s seat and the front passenger seat.

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of exculpatory language. The exculpatory language provided that Mr. Copeland
was releasing MedicOne from any and all claims arising from or in any way
associated with any transportation services provided by MedicOne. After Mr.
Copeland signed the Run Report and the Agreement, the MedicOne driver took
him to his doctor’s appointment.

After the appointment, the MedicOne driver returned to the doctor’s office
to take Mr. Copeland back to the hospital. As Mr. Copeland was getting into the
van, he lost his footing on the running board, fell, and was injured.

Mr. Copeland sued MedicOne for negligence in the Shelby County Circuit
3
Court. MedicOne moved to dismiss or, in the alternative, for summary judgment
based on the exculpatory language in the Agreement. The trial court granted
summary judgment in favor of MedicOne.4 The trial court found that the
Agreement was not a contract of adhesion and that the services provided by
MedicOne were not professional services, but merely transportation services, and
so, the exculpatory provisions were enforceable. The Court of Appeals affirmed,
finding that the case involved non-professional transportation services and
presented no significant public interest considerations. Copeland v.
HealthSouth/Methodist Rehab. Hosp., LP, No. W2016-02499-COA-R3-CV, 2017
WL 3433130, at *3, *5 (Tenn. Ct. App. Aug. 10, 2017).

II.

The issue here is the validity of the exculpatory language in the Agreement
signed by Mr. Copeland releasing MedicOne from any liability. We review the
trial court’s summary judgment ruling on this question of law de novo with no
presumption of correctness. Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477
S.W.3d 235, 250 (Tenn. 2015) (citing Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.
1997)); Circle C Constr., LLC v. Nilsen, 484 S.W.3d 914, 917 (Tenn. 2016) (citing

3
Mr. Copeland also sued HealthSouth, which is not a party to this appeal.
4
MedicOne supported its motion with an affidavit of its records custodian and copies of the Run
Report and the Agreement. The parties also relied on excerpts of the MedicOne driver’s deposition
testimony. The trial court treated the motion as a motion for summary judgment. Under Tennessee Rule
of Civil Procedure 12.02, if a motion to dismiss based on 12.02(6) is supported by matters outside the
pleading and those matters are not excluded by the court, the court treats the motion as one for summary
judgment.

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Hamblen Cnty. v. City of Morristown, 656 S.W.2d 331, 335–36 (Tenn. 1983))
(stating that contract interpretation is a question of law).

There is a natural tension between Tennessee’s public policy that favors
allowing parties to have freedom to contract5 and the public policy that disfavors
allowing a party to escape the consequences of the party’s negligence. In Olson v.
Molzen, 558 S.W.2d 429 (Tenn. 1977), we adopted factors to be considered when
determining the enforceability of an exculpatory agreement. Olson involved an
agreement, signed by a patient before a medical procedure, releasing the doctor
from “any present or future legal responsibility associated with” the procedure. Id.
at 429–30. The procedure was unsuccessful, and the patient sued the doctor. The
trial court dismissed the lawsuit based on the agreement. Id. at 429. The Court of
Appeals affirmed the dismissal. Id.

On review, we acknowledged that parties may agree that one party will not
be liable for negligence to the other party, subject to certain exceptions. Id. at 430
(citing Moss v. Fortune, 340 S.W.2d 902 (Tenn. 1960)). This Court recognized a
line of Tennessee cases upholding such agreements,6 but none involving a
physician, who is a “professional person operating in an area of public interest and
pursuing a profession subject to licensure by the state.” Id. at 430. We
distinguished between “tradesmen in the market place” and those “experts” who
were practicing state regulated professions. Id. This Court noted that because
certain relationships require of one party “‘greater responsibility than that
required of the ordinary person,’” an exculpatory agreement between such parties
is “‘peculiarly obnoxious.’” Id. (quoting Williston on Contracts § 1751 (3d ed.
1972)). To guide the analysis, this Court adopted a series of factors from Tunkl v.
Regents of University of California, 383 P.2d 441 (Cal. 1963), to be considered in
determining whether a transaction affected the public interest:

a. It concerns a business of a type generally thought suitable for
public regulation.

5
Adams v. Roark, 686 S.W.2d 73, 75 (Tenn. 1985); Empress Health & Beauty Spa, Inc. v.
Turner, 503 S.W.2d, 188, 190 (Tenn. 1973); Trailmobile, Inc. v. Chazen, 370 S.W.2d 840, 844 (Tenn. Ct.
App. 1963); Moss v. Fortune, 340 S.W.2d 902, 903–04 (Tenn. 1960).
6
These prior cases included Empress, 503 S.W.2d 188; Trailmobile, 370 S.W.2d 840; and Dixon
v. Manier, 545 S.W.2d 948 (Tenn. Ct. App. 1976).

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 b. The party seeking exculpation is engaged in performing a service
of great importance to the public, which is often a matter of
practical necessity for some members of the public.

c. The party holds himself out as willing to perform this service for
any member of the public who seeks it, or at least for any member
coming within certain established standards.

d. As a result of the essential nature of the services, in the economic
setting of the transaction, the party invoking exculpation possesses
a decisive advantage of bargaining strength against any member of
the public who seeks his services.

e. In exercising a superior bargaining power the party confronts the
public with a standardized adhesion contract of exculpation, and
makes no provision whereby a purchaser may pay additional fees
and obtain protection against negligence.

f. Finally, as a result of the transaction, the person or property of the
purchaser is placed under the control of the seller, subject to the
risk of carelessness by the seller or his agents.

Olson, 558 S.W.2d at 431. Noting that not all of these factors must be present for
the exception to apply, we found that all the factors were present in Olson and held
that the exculpatory agreement was unenforceable. Id. at 431–32.

After our decision in Olson, there was some confusion about whether the
Olson factors applied only to exculpatory agreements involving professional
services. In two cases, the Court of Appeals determined that the Olson analysis did
not apply because the cases did not involve contracts for professional services. In
Schratter v. Development Enterprises, Inc., 584 S.W.2d 459, 461 (Tenn. Ct. App.
1979), the Court of Appeals upheld an exculpatory provision in a residential lease,
based in part on its determination that this Court had limited application of the
Olson factors to professional service contracts.7 Likewise, in Parton v. Mark Pirtle
Oldsmobile-Cadillac-Isuzu, Inc., 730 S.W.2d 634, 636 (Tenn. Ct. App. 1987)
(citing Olson, 558 S.W.2d at 430), the Court of Appeals declined to apply the
7
This Court later expressly overruled Schratter in Crawford v. Buckner, 839 S.W.2d 754, 760
(Tenn. 1992).

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Olson factors to a contract for automobile repair because it concluded that this
Court did not intend for the Olson analysis to apply to tradesmen in the market
place.8 By the same token, in Petty v. Privette, 818 S.W.2d 743 (Tenn. Ct. App.
1989), the Court of Appeals applied the Olson factors to exculpatory language in a
will that was intended to protect the attorney who had drafted the will. Finding
only two of the Olson factors were present, the Court of Appeals held that this was
insufficient to render the exculpatory clause in the will unenforceable as against
public policy. Id. at 746.9

Yet the Court of Appeals in other cases applied the Olson factors when
ruling on the enforceability of exculpatory provisions in contracts not involving
professional services. In Childress v. Madison County, 777 S.W.2d 1 (Tenn. Ct.
App. 1989), the Court of Appeals analyzed an exculpatory release for participation
in the Special Olympics. The intermediate appellate court held that the release did
not fall under the exception provided by Olson based on the lack of any business
motivations, citing the references in Olson to “‘business, bargaining strength in
economic settings, purchasers, and payment of additional fees, to obtain protection
against negligence’” and concluded that “the rule was intended to operate primarily
in the marketplace.” Id. at 4 (quoting Olson, 558 S.W.2d at 431). The Court of
Appeals in Smith v. Peoples Bank of Elk Valley, No. 01A01-9111-CV-00421, 1992
WL 117061, at *5 (Tenn. Ct. App. June 3, 1992), analyzed an exculpatory
provision in a safe deposit box rental contract using the Olson factors. The
intermediate appellate court held that the exculpatory provision was unenforceable
because all factors were present – safe deposit box rental was regulated by statute
and involved a service of great importance to the public; banks hold themselves out
as willing to perform this service for any member of the public able to pay the
rental fees; banks have greater bargaining power because most people cannot
provide that type of protection for their valuables; it was a standardized contract of
adhesion not open to negotiation; and the customer’s property was placed under
the control of the bank. Id. at *4.

8
The Parton court held the agreement unenforceable on other grounds, finding that the
exculpatory language hidden in fine print did not fall within the parties’ “circle of assent” and thus did not
relieve the defendant from liability. 730 S.W.2d at 638.
9
Although the Court of Appeals did not find the exculpatory clause unenforceable under Olson, it
remanded the case so the trial court could determine whether the clause was included because of undue
influence, overreaching, or abuse of fiduciary relationship on the part of the attorney who drafted the will.
818 S.W.2d at 746–48.

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 In still other post-Olson cases, the Court of Appeals did not mention the
Olson factors or any professional services requirement but relied on the language
of the contract to determine the enforceability of the exculpatory provisions. In
Hays v. Ernesto’s, Inc., 1987 WL 11119, at *2 (Tenn. Ct. App. May 19, 1987), the
Court of Appeals found that exculpatory language in a release signed by a party
before riding a mechanical bull was enforceable because parties may contract for a
release from liability and an assumption of the risk incident to negligence.
Similarly, in Buckner v. Varner, 793 S.W.2d 939, 941 (Tenn. Ct. App. 1990), the
Court of Appeals upheld a waiver of liability signed by the plaintiff before
participating in horseback riding.

After Olson, this Court upheld contractual provisions limiting liability to a
sum certain. In Affiliated Professional Services v. South Central Bell Telephone
Co., 606 S.W.2d 671, 672 (Tenn. 1980), the Court declined to apply the Olson
analysis to a provision in a contract with a telephone company that limited the
company’s liability for errors or omissions in yellow pages advertisements to the
cost of the advertisement. Citing Smith v. Southern Bell Telephone & Telegraph
Co., 364 S.W.2d 952 (Tenn. 1962) and noting that nearly every appellate court that
had considered this frequently litigated issue had upheld the limitation of liability
in these contracts with telephone companies, the Court found that the case did not
fall within the purview of Olson and upheld the agreement. Affiliated Prof’l Servs.,
606 S.W.2d at 672. Later, in Houghland v. Security Alarms & Services, Inc., 755
S.W.2d 769, 773 (Tenn. 1988), this Court upheld a clause limiting the liability of a
company providing security alarm monitoring to a sum certain, citing cases from
other jurisdictions and noting that such limitations of liability have generally been
upheld in these types of cases against providers of alarm monitoring services. The
Court in Houghland mentioned Olson, observing that agreements such as the one
examined there would be unenforceable if licensed professional personnel were
involved. Id. (citing Olson, 558 S.W.2d 429). Houghland and its progeny involved
limitations of liability and liquidated damages provisions, and thus were
distinguishable from the agreement in Olson. In addition, the alarm monitoring
company in Houghland did not present the contract on a “take-it-or-leave-it” basis,
but offered the customer the opportunity to pay more for the services in return for
the company assuming greater liability. Id.; see also Underwood v. Nat’l Alarm
Servs., Inc., No. E2006-00107-COA-R3-CV, 2007 WL 1412040 (Tenn. Ct. App.
May 14, 2007); E.B. Harvey & Co., Inc. v. Protective Sys., Inc., 1989 WL 9546
(Tenn. Ct. App. 1989).

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 In another post-Olson case, Adams v. Roark, 686 S.W.2d 73, 75 (Tenn.
1985), this Court did not reference the Olson factors in finding that a release signed
by a participant in a motorcycle race was enforceable in a claim for ordinary
negligence.10 Instead, the Court noted that the public policy of Tennessee favors
freedom to contract and that releases from liability in motor racing events are
expressly permitted by statute in Tennessee.11 Id. at 75–76.

This Court next considered the applicability of the Olson factors to a
nonprofessional services contract in Crawford v. Buckner, 839 S.W.2d 754 (Tenn.
1992). Analyzing an exculpatory clause in a residential lease contract, the Court
found that the landlord-tenant relationship satisfied all of the Olson factors, and
thus the exculpatory clause in the lease was unenforceable because it was contrary
to public policy. Id. at 758–59. The Court explained “where there is no declaration
in the Constitution or the statutes, and the area is governed by common law
doctrines, it is the province of the courts to consider the public policy of the state
as reflected in old, court-made rules.” Id. at 759. Thus, “the exception to the
freedom of contract rule for exculpatory [provisions] affecting the public interest is
also a judicial declaration of public policy.” Id.

The Court in Crawford expressly overruled Schratter and other prior
inconsistent decisions, noting Schratter’s conclusion that the Olson factors applied
only to contracts involving professional services. Id. at 760. The Court held that
“under the facts here,” the exculpatory clause in the lease was against public
policy. Id. This limiting language appears to have added to the confusion about the
applicability of the Olson factors because even after Crawford, the inconsistency in
application continued.

In some post-Crawford cases, the Court of Appeals determined that the
Olson factors did not apply because the agreement did not involve professional
services. Petry v. Cosmopolitan Spa Int’l, Inc., 641 S.W.2d 202, 203 (Tenn. Ct.
App. 1982) (stating that “Olson did not overrule Empress” because spas are not
“businesses ‘of a type generally thought suitable for regulation’”) (quoting Olson,

10
The Court found that there was a genuine issue of material fact as to the plaintiff’s allegations
of gross negligence, and remanded the case to the trial court for a determination of that issue. 686 S.W.2d
at 74.
11
“The practice of participants in motor racing events of releasing the promoters thereof from
liability and of assuming liability for any injuries sustained is expressly approved.” Tenn. Code Ann.
§ 55-22-105 (1968) (now Tenn. Code Ann. § 55-22-103 (2015)).

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558 S.W.2d at 431); Floyd v. Club Sys. of Tenn., Inc., No. 01-A-01-9807-CV-
00399, 1999 WL 820610, at *4 (Tenn. Ct. App. July 20, 1999) (finding, based on
Petry, that the Olson test did not apply to health club contracts); Henderson v.
Quest Expeditions, Inc., 174 S.W.3d 730, 732–33 (Tenn. Ct. App. 2005)
(upholding an exculpatory waiver for whitewater rafting because it did not involve
a professional trade affecting the public interest); Thrasher v. Riverbend Stables,
LLC, No. M2008-02698-COA-RM-CV, 2009 WL 275767, at *3 (Tenn. Ct. App.
Feb. 5, 2009) (quoting Russell v. Bray, 116 S.W.3d 1, 6 (Tenn. Ct. App. 2003))
(upholding an exculpatory provision in a contract for boarding and training horses
because the Olson test applied only to agreements involving a professional person).

Yet in other post-Crawford cases, the Court of Appeals applied the Olson
analysis to contracts that did not involve professional services. Lomax v. Headley
Homes, No. 02A01-9607-CH-00163, 1997 WL 269432, at *7–9 (Tenn. Ct. App.
May 22, 1997) (holding an exculpatory provision in a home construction loan
agreement unenforceable under the Olson analysis); Hancock v. U-Haul Co. of
Tenn., No. 01-A-01-9801-CC-00001, 1998 WL 850518, at *4–5 (Tenn. Ct. App.
Dec. 10, 1998) (concluding an exculpatory provision was enforceable in a
self-storage facility contract because although three of the Olson factors were
present, the “important questions” of state regulation, reasonable alternatives for
the plaintiff, and control over the plaintiff’s property were lacking); Lane-Detman,
L.L.C. v. Miller & Martin, 82 S.W.3d 284, 293–94 (Tenn. Ct. App. 2002)
(applying the Olson analysis to a contract with a law firm to provide background
checks and holding that the contract was enforceable because “at most” three of the
Olson factors were present, both parties to the contract were sophisticated
commercial entities, and the services provided were not subject to regulation);
Tompkins v. Helton, No. M2002-01244-COA-R3-CV, 2003 WL 21356420, at *4
(Tenn. Ct. App. June 12, 2003) (applying the Olson factors to uphold a waiver
signed at a racetrack because races are not of great importance to the public or a
practical necessity; there was no disparity in bargaining power; and because the
activity was voluntary, the plaintiff had not been placed under the control of the
racetrack owner); Maxwell v. Motorcycle Safety Found., Inc., 404 S.W.3d 469,
474–75 (Tenn. Ct. App. 2013) (citing Henderson, 174 S.W.3d at 733; Tompkins,
2003 WL 21356420 at *1) (determining that a release for a motorcycle safety
course was enforceable under the Olson analysis because it was a voluntary
activity much like a motor speedway race or whitewater rafting).

In other post-Crawford cases, the Court of Appeals found that exculpatory
provisions were unenforceable and against public policy under the Olson analysis
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specifically because the cases involved professional services or services that
affected the public interest in a way analogous to a professional services contract.
In Russell v. Bray, 116 S.W.3d 1, 6 (Tenn. Ct. App. 2003) (citing Olson, 558
S.W.2d at 430; Parton, 730 S.W.2d at 636), the Court of Appeals stated that the
Olson analysis should be “limited to situations involving a contract with a
professional person, rather than a tradesman.” The Russell court found that an
exculpatory provision in a home inspection contract was suitable for analysis under
the Olson test because unlike tradesmen, home inspectors do not perform hands-on
tasks but sell their expert analysis and opinions. Id.; see also Carey v. Merritt, 148
S.W.3d 912 (Tenn. Ct. App. 2004) (holding an exculpatory clause in a home
inspection contract unenforceable based on the holding in Russell). In Maggart v.
Almany Realtors, Inc., No. M2005-02532-COA-R3-CV, 2007 WL 2198204 at *5
(Tenn. Ct. App. July 26, 2007) (quoting Olson, 558 S.W.2d at 430–31), aff’d on
other grounds, 259 S.W.3d 700 (Tenn. 2008), the Court of Appeals analogized an
exculpatory agreement between employer and employee to exculpatory provisions
in business contracts with consumers, observing that the relationship was one
requiring greater responsibility on the part of the employer, which would render an
exculpatory release in favor of the employer “obnoxious.”

There are also post-Crawford cases in which the Court of Appeals did not
mention Olson, but relied solely on the common law of contracts and the language
of the agreement to determine the enforceability of an exculpatory provision. Pettit
v. Poplar-Union Extended Mini-Storage, 1995 WL 30602, at *2 (Tenn. Ct. App.
Jan. 26, 1995) (holding an exculpatory provision in a self-storage contract
enforceable because the language was unambiguous); Burks v. Belz-Wilson Props.,
958 S.W.2d 773, 777 (Tenn. Ct. App. 1997) (citation omitted) (finding a release
for participation in a work-sponsored athletic event unenforceable because the
wording was ambiguous and thus construed against the drafter); Fleming v.
Murphy, No. W2006-00701-COA-R3-CV, 2007 WL 2050930, at *14 (Tenn. Ct.
App. July 19, 2007) (citing Ouzts v. Womack, 160 S.W.3d 883, 885 (Tenn. Ct.
App. 2004)) (“Under the common law of contracts, we interpret exculpatory
clauses according to the plain meaning of their terms.”); Gibson v. Young Men’s
Christian Ass’n of Middle Tenn., No. M2015-01465-COA-R9-CV, 2016 WL
2937320, at *2–3 (Tenn. Ct. App. May 16, 2016) (applying the rules of contract
interpretation and looking at the plain meaning of the words to find the exculpatory
provision enforceable where the agreement was clear and the plaintiff was injured
while using the facilities as contemplated by the parties).

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 Federal courts have followed suit by inconsistently applying Olson. See
Teles v. Big Rock Stables, L.P., 419 F. Supp. 2d 1003, 1008–09 (E.D. Tenn. 2006)
(analyzing a contract with a horse stable under the Olson test and finding that it did
not fall under the Olson exception prohibiting exculpatory provisions, although
there was a genuine issue of material fact as to gross negligence that precluded
summary judgment); Farris v. KTM N. Am., Inc., No. 3:04-CV-354, 2006 WL
73618, at *3 (E.D. Tenn. Jan. 11, 2006) (quoting Olson, 558 S.W.2d at 430) (citing
Olson in support of enforcing an exculpatory waiver for test driving motorcycles
because it did not involve a service of great importance to the public, but noting
that application of the Olson factors is typically limited to a contract for
professional services).

This Court has not addressed the enforceability of exculpatory agreements
since Crawford in 1992.12 Because of the inconsistency in how these agreements
have been reviewed, we take this opportunity to restate the proper analysis to be
applied to these agreements.

III.

Although courts throughout the country have taken numerous and varied
approaches to exculpatory agreements, there are some common principles.13 First,
a party may not, for public policy reasons, exempt itself from liability for gross
negligence, reckless conduct, or intentional wrongdoing. Restatement (Second) of

12
This Court granted permission to appeal in Stewart v. Chalet Village Properties, Inc., No.
E2007-01499-COA-R3-CV, 2008 WL 836136 (Tenn. Ct. App. Mar. 31, 2008). In Stewart, the Court of
Appeals applied the Olson analysis, holding that an exculpatory clause in a short-term vacation rental
agreement was unenforceable because it affected the public interest and was contrary to public policy. Id.
at *6. This Court, in an opinion designated not for publication under Tennessee Supreme Court Rule 4,
agreed that an analysis under Olson was appropriate, but reversed and remanded the case to the trial court
because the trial court had failed to apply the Olson factors and this Court’s application of the Olson
factors was hampered by an incomplete record. Stewart v. Chalet Vill. Props., Inc., No. E2007-01499-SC-
R11-CV, 2009 WL 3616611, at *1 (Tenn. Nov. 3, 2009).
13
In two states, exculpatory agreements are unenforceable in personal injury cases. In Louisiana,
agreements excluding or limiting liability for personal injuries are void and unenforceable by statute. La.
Civ. Code Ann. art. 2004 (1985). Similarly, in Virginia, parties may contract for the release of liability
and indemnification of third parties for property damage, but not for personal injury. Hiett v. Lake
Barcroft Cmty. Ass’n, 418 S.E.2d 894, 895–96 (Va. 1992).

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Contracts § 195 (1981); Maxwell, 404 S.W.3d at 476 (citing Buckner, 793 S.W.2d
at 941).

Second, exculpatory provisions in contracts involving common carriers are
unenforceable on the grounds of public policy and disparity of bargaining power.
14 Am. Jur. 2d Carriers § 853 (Nov. 2018 update) (noting that public policy
forbids relieving carriers of responsibility based on their position of advantage over
members of the public who are compelled to deal with them); see also Trailmobile,
Inc. v. Chazen, 370 S.W.2d 840, 841–42 (Tenn. Ct. App. 1963); Moss, 340 S.W.2d
at 904. The same rule applies to inns and airports that assume “a duty of public
service” to certain segments of the public. 1A Stuart M. Speiser et al., American
Law of Torts § 5:39 (Mar. 2018 update).14

Third, although exculpatory agreements are generally enforceable, in many
states they are disfavored. See 8 Williston on Contracts § 19:25 (4th ed. 1993).15

14
See also Maxwell Operating Co. v. Harper, 200 S.W. 515 (Tenn. 1918); Ellerman v. Atlanta
Am. Motor Hotel Corp., 191 S.E.2d 295, 296 (Ga. Ct. App. 1972) (observing that the public does not have
equal bargaining power when dealing with innkeepers, who are in a position to deny needed services);
Northwest Airlines, Inc. v. Alaska Airlines, Inc., 351 F.2d 253, 256 (9th Cir. 1965) (quoting Restatement
(Second) of Contracts § 575(1)) (noting that exemption from liability for negligence is unenforceable if
one of the parties has a duty to the public for which it is to be compensated and the agreement relates to
negligence in the performance of that public duty).

15
Exculpatory provisions are not disfavored in Tennessee. See, e.g., Trailmobile, 370 S.W.2d at
844. In other states, exculpatory agreements are disfavored and strictly construed against the party
seeking enforcement. See Kissick v. Schmierer, 816 P.2d 188, 191–92 (Alaska 1991); Salt River Project
Agric. Improvement and Power Dist. v. Westinghouse Elec. Corp., 694 P.2d 198, 213 (Ariz. 1984),
abrogated in part on other grounds by Phelps v. Firebird Raceway, Inc., 111 P.3d 1003, 1010–11 & n.5
(Ariz. 2005); Plant v. Wilbur, 47 S.W.3d 889, 893 (Ark. 2001); Am. Auto. Ins. Co. v. Seaboard Sur. Co.,
318 P.2d 84, 87–88 (Cal. Dist. Ct. App. 1957); Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467
(Colo. 2004); Hanks v. Powder Ridge Rest. Corp., 885 A.2d 734, 739 (Conn. 2005); Sanderson v.
Firestone Tire & Rubber Co., Civ. A. No. 89C-MR-212, 1994 WL 807899 (Del. Super. Ct. July 28,
1994); Zinz v. Concordia Props., Inc., 694 So. 2d 120, 121 (Fla. Dist. Ct. App. 1997); Fujimoto v. Au, 19
P.3d 699, 738 (Haw. 2001); Jesse v. Lindsley, 233 P.3d 1, 6 (Idaho 2008); Hawkins v. Capital Fitness,
Inc., 29 N.E.3d 442, 447 (Ill. App. Ct. 2015); Belger Cartage Svc., Inc. v. Holland Constr. Co., 582 P.2d
1111, 1119 (Kan. 1978); Cumberland Valley Contractors, Inc. v. Bell Cnty. Coal Corp., 238 S.W.3d 644,
649 (Ky. 2007); Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 923 (Minn. 1982); Turnbough v. Ladner,
754 So. 2d 467, 469 (Miss. 1999); Warren v. Paragon Techs. Grp., Inc., 950 S.W.2d 844, 845 (Mo.
1997); Agric. Aviation Eng’g Co. v. Bd. of Clark Cnty. Comm’rs, 794 P.2d 710, 713 (Nev. 1990); Barnes
v. N.H. Karting Ass’n, 509 A.2d 151, 154 (N.H. 1986); Stelluti v. Casapenn Enters., LLC, 1 A.3d 678,
688–90 (N.J. 2010); Princetel, LLC v. Buckley, 944 N.Y.S.2d 191, 193 (N.Y. App. Div. 2012); Hyatt v.

- 12 -
 Fourth, most courts require that the exculpatory language be unequivocal
and clear. Williston § 19:22. An exculpatory clause must “clearly, unequivocally,
specifically, and unmistakably” state the intention to exempt one of the parties
from liability for its own negligence. Id. § 19:25; see also, e.g., Parton, 730
S.W.2d at 638 (holding an exculpatory clause invalid based on a lack of evidence
that it had been pointed out to the plaintiff or that “a person of ordinary intelligence
and experience” would understand that the agreement relieved the defendant of all
liability); Sirek v. Fairfield Snowbowl, Inc., 800 P.2d 1291, 1295 (Ariz. Ct. App.
1990) (stating that exculpatory language should alert the party signing the release
that “it is giving up a very substantial right”); Sanislo v. Give Kids the World, Inc.,
157 So. 3d 256, 261 (Fla. 2015) (holding exculpatory agreements enforceable if the
language is “so clear and understandable that an ordinary and knowledgeable
person will know what he or she is contracting away”).

Fifth, most jurisdictions do not enforce exculpatory provisions that are
contrary to public policy. There is no bright line rule defining when a provision is
contrary to public policy, but Williston suggests that whether an exculpatory
agreement is void as against public policy depends on:

all of the facts and circumstances surrounding the making of the
agreement; society’s expectations; the identity and nature of the
parties involved, including their relative education, experience,
sophistication, and economic status; and the nature of the transaction
itself, including the subject matter, the existence or absence of
competition, the relative bargaining strength and negotiating ability of
the economically weaker party, and the terms of the agreement itself,
including whether it was arrived at through arm’s length negotiation
or on terms dictated by the stronger party and on an adhesive, take-it-
or-leave-it basis.

Williston § 19:22.

Mini Storage on the Green, 763 S.E.2d 166, 169 (N.C. Ct. App. 2014); Konrad ex rel. McPhail v.
Bismarck Park Dist., 655 N.W.2d 411, 413 (N.D. 2003); Schmidt v. United States, 912 P.2d 871, 874
(Okla. 1996); Mann v. Wetter, 785 P.2d 1064, 1066 (Or. Ct. App. 1990); Fisher v. Stevens, 584 S.E.2d
149, 152 (S.C. Ct. App. 2003); Housing Vermont v. Goldsmith & Morris, 685 A.2d 1086, 1089 (Vt.
1996); Atkins v. Swimwest Family Fitness Ctr., 691 N.W.2d 334, 338 (Wis. 2005).

- 13 -
 This Court adopted the Olson factors based on the Tunkl analysis. Tunkl,
however, is the minority approach, with only five other states currently relying on
the Tunkl factors to determine the enforceability of exculpatory provisions.16
Courts in several states have observed that the factors fail to consider the totality of
circumstances and, as a result, are overly rigid and arbitrary. See Wolf v. Ford, 644
A.2d 522, 527 (Md. 1994) (declining to adopt Tunkl because of concern that the six
fixed factors may be too rigid and arbitrary); Schlobohm v. Spa Petite, Inc., 326
N.W.2d 920, 924 (Minn. 1982) (noting that although a number of courts cite Tunkl
with approval, post-Tunkl cases generally consider disparity in bargaining power
and whether the agreement involves a public or essential service); Hanks v.
Powder Ridge Rest. Corp., 885 A.2d 734, 744 (Conn. 2005) (stating that public
interest cannot adequately be defined within the four corners of a formula, and thus
the analysis should be guided but not limited by the Tunkl factors).

After reviewing precedent in this state and across the country, we conclude
that the public policy in Tennessee has historically favored freedom of contract.
Thus, contracts exempting one party from liability for negligence are not
disfavored and are generally enforceable. Olson, 558 S.W.2d at 430. That said, not

16
See Morgan v. S. Cent. Bell Tel. Co., 466 So. 2d 107, 117 (Ala. 1985); City of Santa Barbara v.
Superior Court, 161 P.3d 1095, 1099–1102 (Cal. 2007); Bodyslimmer, Inc. v. Sanford, 398 S.E.2d 840,
841 (Ga. Ct. App. 1990); Glassford v. Brickkicker, 35 A.3d 1044, 1050 (Vt. 2011); Vodopest v.
MacGregor, 913 P.2d 779, 786 (Wash. 1996). Courts in other states have cited Tunkl and applied the
Tunkl factors in certain cases without adopting them. See Cudnik v. William Beaumont Hosp., 525
N.W.2d 891, 895 (Mich. Ct. App. 1994) (citing Tunkl as the leading case addressing an exculpatory
agreement between a hospital and a patient, and finding that the agreement at issue fulfilled all of the
Tunkl criteria); Schutkowski v. Carey, 725 P.2d 1057, 1060 (Wyo. 1986) (citing the four-part test adopted
by the Colorado Supreme Court and applying the Tunkl factors to determine whether a private
recreational business involved a public duty or was a matter of great necessity as required by that
four-part test); Banfield v. Louis, 589 So.2d 441, 446 (Fla. Dist. Ct. App. 1991) (quoting Bituminous Cas.
Corp. v. Williams, 17 So.2d 98, 102 (Fla. 1944)) (applying the Tunkl factors in finding that the plaintiff
had failed to show sufficient evidence to invalidate an exculpatory agreement based on “‘great prejudice
to the dominant public interest’”). Several other states use the Tunkl factors to guide their analysis of
public policy or the public interest as one part of a multi-part test. See Jones v. Dressel, 623 P.2d 370, 376
(Colo. 1981) (using the Tunkl factors to determine whether the public interest prong of Colorado’s
four-part test has been met); Courbat v. Dahana Ranch, Inc., 141 P.3d 427, 438–39 (Haw. 2006)
(determining the public interest element of Hawaii’s three-part test by application of the Tunkl factors);
Berlangieri v. Running Elk Corp., 76 P.3d 1098, 1109–10 (N.M. 2003) (adopting the Tunkl factors for
guidance, but noting that they are only “indicators” helpful to determine “the larger question of whether
enforcement of the release would be unjust”); Pearce v. Utah Athletic Found., 179 P.3d 760 (Utah 2008)
(adopting the Tunkl factors to determine whether the public interest prong of Utah’s two-part test has been
met), abrogated in part on other grounds by Penunuri v. Sundance Partners, Ltd., 423 P.3d 1150 (Utah
2017).

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all exculpatory agreements should be enforceable, and courts should determine
their enforceability by consideration of the circumstances of the parties, the
language used in the agreement, and the public interest. While the factors adopted
in Olson remain instructive and may be considered when relevant, the Olson
approach is too rigid, fails to consider all the relevant circumstances, and is
followed by only a handful of jurisdictions.

We, therefore, need to restate our approach to determining the validity of
exculpatory agreements. After surveying the factors adopted by courts in other
states17 and considering Tennessee precedent, we hold that the enforceability of an

17
See Plant v. Wilbur, 47 S.W.3d 889, 893–94 (Ark. 2001) (three factors: public interest
considerations; equality of bargaining power; clarity of language); Jones v. Dressel, 623 P.2d 370, 376
(Colo. 1981) (four factors: existence of a duty to the public (determined by the Tunkl factors); the nature
of the service performed; whether the agreement was fairly entered into; clear and unambiguous
language); Moore v. Waller, 930 A.2d 176, 181–83 (D.C. 2007) (three factors: whether the exculpatory
language is clear and unambiguous; bargaining power, specifically including whether the contract
involves a necessary service; public policy); Sanislo, 157 So.3d at 260 (two factors: unambiguous
language; public policy); Courbat v. Dahana Ranch, Inc., 141 P.3d 427, 438–39 (Haw. 2006) (three
factors: not violative of a statute; public interest (defined by Tunkl); equality of bargaining power); Jesse
v. Lindsley, 233 P.3d 1, 6 (Idaho 2008) (two factors: bargaining power; existence of a public duty);
Hawkins v. Capital Fitness, Inc., 29 N.E.3d 442, 446–47 (Ill. App. Ct. 2015) (three factors: disparity in
bargaining power; public policy; social relationship between the parties that “militates against upholding
the clause”); McAdams v. Foxcliff Estates Cmty. Ass’n, 92 N.E.3d 1144, 1150 (Ind. Ct. App. 2018) (four
factors: bargaining power; unconscionability; whether the contract affects public interest; public policy);
B.J.’s Wholesale Club, Inc. v. Rosen, 80 A.3d 345, 351–52 (Md. 2013) (three factors: clear and specific
language; bargaining power; whether the contract affects the public interest); Xu v. Gay, 668 N.W.2d 166,
171–73 (Mich. 2003) (two factors: whether the release was fairly and knowingly made; explicit and
unambiguous language); Schlobohm, 326 N.W.2d at 923 (two factors: bargaining power; whether the
contract affects the public interest); Turnbough v. Ladner, 754 So. 2d 467, 469 (Miss. 1999) (two factors:
whether the agreement was “fairly and honestly negotiated and understandingly entered into”; clear and
precise language); Stelluti v. Casapenn Enters., LLC, 1 A.3d 678, 689 (N.J. 2010) (four factors: whether
the agreement affects the public interest; existence of a legal duty to perform the service; no public utility
or common carrier is involved; bargaining power/unconscionability); Princetel, LLC v. Buckley, 944
N.Y.S.2d 191, 193 (N.Y. App. Div. 2012) (three factors: no contravening public policy; clear,
unequivocal language; the existence of a special relationship between the parties “such that an overriding
public interest prohibits enforcement”); Hyatt v. Mini Storage on the Green, 763 S.E.2d 166, 169 (N.C.
Ct. App. 2014) (three factors: not violative of a statute; bargaining power; public interest); Schmidt v.
United States, 912 P.2d 871, 874 (Okla. 1996) (three factors: clear and unambiguous language; bargaining
power; public policy); Topp Copy Prods., Inc. v. Singletary, 626 A.2d 98, 99 (Pa. 1993) (four factors:
public policy; the contract relates entirely to the parties’ private affairs; bargaining power; clear and
unambiguous language); K.N. v. Life Time Fitness, Inc., No. 2:16-cv-39, 2018 WL 1472483 at *6 (D.
Utah March 23, 2018) (citing Pearce v. Utah Athletic Found., 179 P.3d 760 (Utah 2008)) (two factors:
clear and unambiguous language; public interest). Roberts v. T.H.E. Ins. Co., 879 N.W.2d 492, 501–02
(Wis. 2016) (three-factor public policy analysis: exculpatory language must not be overly broad and
all-inclusive; adequate notice of the waiver’s nature and significance; bargaining power); Massengill v.

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exculpatory agreement should be determined by considering the totality of the
circumstances and weighing these non-exclusive factors: (1) relative bargaining
power of the parties; (2) clarity of the exculpatory language, which should be clear,
unambiguous, and unmistakable about what the party who signs the agreement is
giving up; and (3) public policy and public interest implications. The totality of the
facts and circumstances of each case will dictate the applicability of and the weight
to be given to each of these factors. The factors need not be weighed equally in any
given case – rather, the analysis should involve balancing each of these
considerations given the facts and circumstances surrounding the formation of the
agreement. In addition, we hold that there is no “professional services criterion”
that restricts application of this analysis to contracts for professional services.
Therefore, we overrule Parton, 730 S.W.2d 634; Petty, 818 S.W.2d 743; Petry,
641 S.W.2d 202; Floyd, 1999 WL 820610; Henderson, 174 S.W.3d 730; Thrasher,
2009 WL 275767; Russell, 116 S.W.3d 1; Carey, 148 S.W.3d 912; and any other
previous decisions to the extent these cases conflict with our holding.

We next turn to defining these factors to provide additional guidance in their
application to the facts and circumstances of each case.

Relative bargaining power. Although there is no precise rule by which to
define sufficient disparity in bargaining power between the parties to invalidate an
exculpatory agreement, two key criteria are the importance of the service at issue
for the physical or economic well-being of the party signing the agreement and the
amount of free choice that party has in seeking alternate services. Schmidt v.
United States, 912 P.2d 871, 874 (Okla. 1996). For example, a standardized form
offered on a take-it-or-leave-it basis may be invalid if there was great disparity of
bargaining power, no opportunity for negotiation, and the services could not
reasonably be obtained elsewhere. Schlobohm, 326 N.W.2d at 924.18

S.M.A.R.T. Sports Med. Clinic, P.C., 996 P.2d 1132, 1136 (Wyo. 2000) (four factors: the existence of a
duty to the public; the nature of the service performed; whether the agreement was fairly entered into;
clear and unambiguous language).
18
See also Hyatt v. Mini Storage on the Green, 763 S.E.2d 166, 171 (N.C. Ct. App. 2014)
(quoting Hall v. Sinclair Ref. Co., 89 S.E.2d 396, 398 (N.C. 1955)) (defining disparity in bargaining
power sufficient to invalidate an exculpatory agreement as bargaining power unequal to the extent that the
releasing party must either accept the agreement or forgo a service important to him that is, for all
practical purposes, not obtainable elsewhere); Crowell v. Hous. Auth. of Dallas, 495 S.W.2d 887, 889
(Tex. 1973) (concluding that if one party is at such a disadvantage in bargaining power that he is
practically compelled to sign the release, it will be unenforceable).

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 Clarity of language. The language of an exculpatory agreement must clearly
and unequivocally state a party’s intent to be relieved from liability, and the
wording must be “so clear and understandable that an ordinary and knowledgeable
person will know what he or she is contracting away.” Sanislo, 157 So. 3d at 260–
61.19 The language must also alert the party agreeing to the exculpatory provision
that the provision concerns a substantial right. Sirek, 800 P.2d at 1295. The
language in the agreement should not be so broad as to relieve the exculpated party
from liability for any injury for any reason. Burks, 958 S.W.2d at 777 (holding
exculpatory provision relieving the defendant “from any and all liability . . .
relating to participation in these events” unenforceable as overly broad and
ambiguous); Roberts v. T.H.E. Ins. Co., 879 N.W.2d 492, 503 (Wis. 2016) (citing
Richards v. Richards, 513 N.W.2d 118, 121 (Wis. 1994)).20 Ambiguous language
will be construed against the party that drafted the agreement. Burks, 958 S.W.2d
at 777.

Public policy and the public interest. The third factor, public policy and the
public interest, is the most difficult to articulate. Public policy has been defined as
“‘that principle of law under which freedom of contract or private dealings is
restricted by law for the good of the community.’” Roberts, 879 N.W.2d at 501–02
(quoting Atkins v. Swimwest Family Fitness Ctr., 691 N.W.2d 334, 339 (Wis.
2005)). A private contract violates public policy if it conflicts with the constitution,
statutes, or judicial decisions of this state or tends to be harmful to the public good,
public interest, or public welfare. Spiegel v. Thomas, Mann & Smith, P.C., 811
S.W.2d 528, 530 (Tenn. 1991). As this Court explained in Crawford, without a
declaration in the constitution or the statutes of Tennessee, a judicial declaration of
public policy is within the province of the courts. 839 S.W.2d at 759. Public policy
is also determined by societal expectations that are flexible and change over time.
See Wolf, 644 A.2d at 527–28 (“The ultimate determination of what constitutes the

19
See also Turnbough v. Ladner, 754 So. 2d 467, 469 (Miss. 1999) (stating that the intention to
release one party from liability for negligence must be expressed in “clear and unmistakable language”
and “should express as clearly and precisely as possible the extent to which a party intends to be absolved
from liability”).
20
See also Turnbough, 754 So. 2d at 469 (“We do not sanction broad, general, ‘waiver of
negligence’ provisions, and strictly construe them against the party asserting them as a defense.”);
Richards v. Richards, 513 N.W.2d 118, 122 (Wis. 1994) (finding that the overly broad language of the
release “raised questions about its meaning and demonstrate[d] its one-sidedness” as unreasonably
favorable to the released party). But see Huber v. Hovey, 501 N.W.2d 53, 54–55 (Iowa 1993) (upholding
broad release from “any and all” loss, damage, or claim whether caused by negligence or otherwise).

- 17 -
public interest must be made considering the totality of the circumstances of any
given case against the backdrop of current societal expectations.”).

Whether the public interest is affected may be determined by considering
whether a party to the transaction has a public service obligation, such as a public
utility, common carrier, or innkeeper. Wolf, 644 A.2d at 526. This analysis also
includes transactions that are not as readily defined, but are so important to the
public good that an exculpatory clause would be contrary to society’s expectations.
Id. (quoting Md.-Nat’l Capital Park & Planning Comm’n v. Wash. Nat’l Arena,
386 A.2d 1216, 1228 (Md. 1978)); see also Hanks v. Powder Ridge Rest. Corp.,
885 A.2d 734, 744 (Conn. 2005) (citations omitted) (agreeing with the Maryland
and Vermont Supreme Courts that the public interest must be determined based on
the totality of the circumstances and that the analysis, guided but not limited by
Tunkl, “is informed by any other factors that may be relevant given the factual
circumstances of the case and current societal expectations”); Williston § 19:22.

In determining whether the service involved is a public or essential service,
courts should consider whether it is a type of service generally considered suitable
for public regulation. Schlobohm, 326 N.W.2d at 925–26. And in deciding whether
enforcement of an exculpatory provision would be against public policy, courts
should consider whether the services involved are of great importance to the
public, which are a practical necessity for some members of the public. Id.; see
also Plant v. Wilbur, 47 S.W.3d 889, 893 (Ark. 2001) (upholding release signed by
a spectator at a car race because that activity involved a narrow segment of the
public, unlike a public utility, common carrier, or “a similar entity connected with
the public interest”).

IV.

In applying this restated analysis to the facts before us, we take the strongest
legitimate view of the evidence in favor of Mr. Copeland as the non-moving party
for summary judgment and allow all reasonable inferences in his favor. B & B
Enters. of Wilson Cnty., LLC v. City of Lebanon, 318 S.W.3d 839, 844–45 (Tenn.
2010); Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008) (citing
Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000)).

We begin with the first factor – disparity in bargaining power. Mr. Copeland
was a seventy-seven-year-old hospital patient recovering from knee replacement
surgery who needed to go to a follow-up appointment at his doctor’s office. Mr.
- 18 -
Copeland did not select, hire, or pay MedicOne. Instead, the hospital where Mr.
Copeland was a patient arranged for his transportation with MedicOne. The
MedicOne driver presented Mr. Copeland with a pre-printed, two-sided document
containing two different forms – the Run Report and the Agreement – which Mr.
Copeland had limited time to review and sign before being transported to his
doctor’s appointment. The Agreement consisted of nine single-spaced paragraphs,
including three paragraphs of exculpatory language. The MedicOne driver spent
only nineteen minutes at the hospital, which began with his arrival, and included
going to Mr. Copeland’s room, pushing Mr. Copeland in a wheelchair to the
hospital entrance, getting him into the van, loading his walker into the back of the
van, and having Mr. Copeland review and sign the two forms.

The MedicOne driver presented the Agreement to Mr. Copeland on a
take-it-or-leave-it basis with the expectation that he would sign it. The driver did
not understand the implications of the Agreement, could not have explained it if
asked, had no authority to alter it, and would not have transported Mr. Copeland to
his appointment if he had not signed the document.

Mr. Copeland had a practical necessity to get to his medical appointment. He
had the difficult choice of signing the Agreement or delaying or forgoing his
medical care that day. Mr. Copeland’s situation was analogous to the difficult
choice presented to the plaintiff in Wofford v. M.J. Edwards & Sons Funeral
Home, Inc., 490 S.W.3d 800 (Tenn. Ct. App. 2015). There, a funeral home
presented the plaintiff with a contract for funeral services after her father’s body
had been embalmed. Relying on Buraczynski v. Eyring, 919 S.W.2d 314 (Tenn.
1996), the Wofford court ruled that the arbitration clause in the contract was
unenforceable because it was a contract of adhesion, offered on a take-it-or-leave-it
basis, and the plaintiff’s failure to sign the agreement would have interrupted the
rendition of services and caused delay, resulting in a “difficult choice.” 490
S.W.3d at 824. Recognizing that the Buraczynski analysis rests on the critical
finding of a unique relationship built on trust (such as the doctor-patient
relationship in Buraczynski), the Wofford court found that the plaintiff had no
realistic choice other than to sign the contract, and that asking her to stop the
funeral services at that point would be like asking her “to swap horses midstream.”
Id. at 816. Mr. Copeland may not have had a preexisting relationship with
MedicOne that was “unique and built on trust,” but he did have a hospital-patient
relationship with HealthSouth, the entity that had arranged for his transportation by
MedicOne. Mr. Copeland also faced the same kind of difficult choice – refusing to
sign the Agreement, offered on a take-it-or-leave-it basis that would have
- 19 -
potentially interrupted and caused a delay in his medical care by requiring him to
reschedule his appointment or, as the Court of Appeals suggested, calling a taxi. In
our view, asking Mr. Copeland to make such a choice would be like asking him to
“swap horses in midstream.” Id. There is ample evidence in the record of relative
disparity in the parties’ bargaining power.

We now turn to the second factor – the clarity of the Agreement’s
exculpatory language. Much of the exculpatory language appears in bold print and
all capital letters. Even so, although portions of paragraphs three and four purport
to limit the exculpatory language in those paragraphs to simple negligence by
expressly excluding gross negligence and willful misconduct, this limiting
language begins by stating, “WITHOUT LIMITATION OF THE FOREGOING
. . . .” The “foregoing” in paragraph three reads:

Client does hereby release and forever discharge MedicOne . . . from
any and all claims, suits, rights, interests, demands, actions, causes of
action, liabilities, accident, injury (including death), costs, fees,
expenses and any and all other damages or losses of any kind
whatsoever, whether to person or property . . . arising out of,
incidental to, associated with, or in any way related to any
transportation services provided to Client by MedicOne.

Similarly, the “foregoing” in paragraph four reads:

CLIENT WILL INDEMNIFY, DEFEND AND HOLD HARMLESS
MEDICONE RELATED PARTIES FROM AND AGAINST ANY
AND ALL CLAIMS ASSERTED BY CLIENT, ANY PERSON OR
ENTITY RELATED TO CLIENT OR ASSERTING A CLAIM BY
OR THROUGH CLIENT, OR ANY OTHER THIRD PARTIES OR
ENTITIES WHICH, IN ANY WAY, ARISE OUT OF, ARE
INCIDENTAL TO, ASSOCIATED WITH, OR IN ANY WAY
RELATED TO ANY TRANSPORTATION SERVICES PROVIDED
TO CLIENT BY MEDICONE.

Paragraph six contains no limitation for claims of gross negligence or willful
misconduct, but purports to release MedicOne from “any liability, damage or
expense arising out of any claim in any way associated with or relating to any
transportation services provided to Client by MedicOne.”

- 20 -
 Courts in many jurisdictions, including Tennessee, have found such
unlimited language to be so overly broad as to render the provisions unenforceable.
See Burks, 958 S.W.2d at 777 (holding release “from any and all liability claims,
demands, actions or causes of action whatsoever, arising out of or any injury,
illness loss or damage including death relating to participation in these events”
unenforceable because it would “extend its exculpation to unbounded limits”);
Fisher v. Stevens, 584 S.E.2d 149, 152–53 (S.C. Ct. App. 2003) (finding a waiver
signed at a racetrack to be overly broad and unenforceable based on public policy
because the waiver released from liability “any persons in any restricted area”);
Jesse v. Lindsley, 233 P.3d 1, 7–8 (Idaho 2008) (holding exculpatory clause in a
residential lease unenforceable because it purported to release the landlord from
liability “for any occurrence of any nature”); Alack v. Vic Tanny Int’l of Mo., Inc.,
923 S.W.2d 330, 337–38 (Mo. 1996) (finding exculpatory clause unenforceable
based on its ambiguity because the clause did not specifically state that the
customer was releasing the health club from liability for negligence and used
words like “any” and “all” injuries and claims, which could include intentional or
grossly negligent conduct that cannot be excluded from liability); Roberts, 879
N.W.2d at 503 (holding waiver unenforceable because it was too broad and
all-inclusive, ambiguous about whether it covered injury while waiting in line for
the activity, and was a standard pre-printed form with no opportunity to negotiate).

We find the exculpatory language in the Agreement to be overly broad and
ambiguous. Although the Agreement also contains a severability clause,21 the three
paragraphs containing broad, all-encompassing exculpatory language combined
with the severability paragraph do not make it clear and unmistakable what Mr.
Copeland was giving up by signing the Agreement, especially during the limited
time he was given to read and comprehend the document.

21
The severability clause appears in paragraph 5 of the Agreement:

5. The invalidity or unenforceability of any particular provision of this
Agreement shall not affect any other provision hereof, and in the event that any provision
hereof is found by a proper authority to be invalid or unenforceable, this Agreement shall
be construed in all respects as if such invalid or unenforceable provision had never
comprised a part hereof and the remaining provisions hereof shall remain in full force and
effect and shall not be affected by the invalid or unenforceable provision or by its
severance here from. Furthermore, in lieu of such invalid or unenforceable provision,
there shall be automatically hereto and as a part hereof a provision as similar in terms and
intent to such invalid and unenforceable provision as may be possible and be legal, valid
and enforceable.

- 21 -
 Finally, we turn to the third factor – public policy and public interest
implications. Mr. Copeland’s appointment with his doctor was a medical necessity.
That practical necessity distinguishes this case from those involving purely
voluntary or recreational activities, which generally do not affect the public interest
or raise public policy concerns. Maxwell, 404 S.W.3d at 475; Henderson, 174
S.W.3d at 733. Although public policy and the public interest are difficult concepts
to define, some relationships require greater responsibility of one of the parties.
Olson, 558 S.W.2d at 430. MedicOne was in a position of greater responsibility
when it undertook to transport Mr. Copeland to and from his doctor’s office. Mr.
Copeland had limited time to read and comprehend the overly broad and
ambiguous Agreement and the Run Report. Under these circumstances, it is not
reasonable to conclude that Mr. Copeland could have just called a taxi or
rescheduled his appointment. Our public policy protects patients and clients of
professionals, residential tenants, employees, bank customers, and homebuyers
from exculpatory provisions. It only makes sense that our public policy should also
protect a hospital patient under the circumstances faced by Mr. Copeland when he
signed the Agreement. Based on the circumstances of the parties, including
contemporary societal expectations, we conclude that enforcement of the
Agreement against a member of the public in Mr. Copeland’s position would be
contrary to the public interest.

V.

In sum, after considering the totality of the circumstances and weighing the
inequality in the relative bargaining power of the parties, the lack of clarity of the
exculpatory language, and the public policy and public interest implications, we
hold that, as a matter of law, the exculpatory provisions in the Agreement signed
by Mr. Copeland are unenforceable and do not bar his claim against MedicOne.
We vacate the judgment of the trial court, reverse the judgment of the Court of
Appeals, and remand to the trial court for further proceedings consistent with this
opinion. We tax the costs of this appeal to MedicOne Medical Response Delta
Region, Inc., for which execution may issue if necessary.

_________________________________
SHARON G. LEE, JUSTICE

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