concurring in part and dissenting in part.
I concur in the majority opinion insofar as it grants summary judgment in favor of Cosmopolitan Spa International, Inc., the original signator to the contract containing the exculpatory clause.
I do, however, respectfully dissent as to the dismissal of the assignee, Holiday Spa of Tennessee, Inc. Notwithstanding the statement of this Court in Trailmobile, Inc. v. Chazen, 51 Tenn.App. 576, 370 S.W.2d 840 (1963), I do not believe that exculpatory clauses are or — perhaps more accurately— should be favored. It is my view such clauses should be strictly construed and the protection afforded thereby not assignable unless expressly authorized.
There is also a more narrow ground which I believe would justify a reversal. I am of the opinion that there is a disputed fact whether the Plaintiff comes within the exception set out in Subsection (a) of the Restatement cited in the majority opinion, in that both her affidavit and that of her mother show that she was induced to sign the agreement in part because of the representations of the personnel of the original contractor that they had had experience in the rehabilitative procedures that she sought in connection with her prior back injury. I believe it could be inferred that a change in personnel occurred from the time the assignment was made on January 1, 1980, until the accident happened on February 25, and that, absent a showing that the personnel of the assignee corporation was equally skilled in supervising the Plaintiff’s exercise and in maintaining the equipment, reasonable minds could differ as to whether the Plaintiff’s risk was materially increased.
Finally, it is arguable that the supplemental affidavit of the President of Cosmopolitan Spa International, Inc., which is made “to the best of the affiant’s knowledge, information, and belief,” rather than upon “personal knowledge” as required by Rule 56.05 of the Tennessee Rules of Civil Procedure, does not meet the evidentiary requirements necessary to sustain a summary judgment. However, I am disinclined to rest the dissent on this ground in light of the unquestioned authenticity of the contract.