Ben M. Rose talks recreation business liability, recent Court of Appeals decision

Ben. M. Rose, founder of the Law Offices of Ben M. Rose in Brentwood, is serving as counsel for Sky High Nashville in Blackwell v. Sky High Sports Nashville Operations.

The Tennessee Court of Appeals ruled earlier this month that liability waivers signed on behalf of minors are likely unenforceable, but also that minors cannot pursue medical expenses in liability cases in which their parents have signed such a waiver.

Read the full Court of Appeals decision here.



Post reporter Stephen Elliott spoke with Rose about the Blackwell case in particular and liability in general.





What are some of the major potential concerns facing those businesses that offer physical entertainment (everything from firearms shooting facilities to laser tag to wave pools)?

In my opinion, the biggest concern is that many of these facilities remain unregulated by government agencies or rules promulgated by private associations. Every member of these industries should be concerned about safety first. That has certainly been my experience with the indoor trampoline industry here in Tennessee.

Any trends you've observed regarding this issue?

Yes. I think there is too much knee jerk reaction to adverse events, primarily by government agencies. If someone is hurt — typically because they did not follow the rules or even common sense — we have too much of a tendency to pile on and react without thinking. Instead, we should be proactively thinking about how to make these industries safe and grow them for everyone's enjoyment.

What is your take on the zip line businesses and the lawsuits they have faced?

I have only limited information, other than what I read in the media from time to time. However, the better operators in Tennessee appear to have formalized their operations to emphasize safety first. Assuming that they do so, in my opinion it is up to the customers to decide whether they want to participate in some kind of hazardous activity.

The Blackwell case involved a parent who had signed a waiver on behalf of their child. Could you talk about the implications of that decision?

I cannot comment on the specific case because it is currently pending in the appellate court system. But generally, it is our opinion that the law in Tennessee has developed significantly in this area since the last case on the subject in the late 1980s. Back then, the authorities seemed to suggest that it was better for the government to decide whether your child could partake in these kinds of activities — even something as innocuous as playing dodgeball. The world has changed a lot since the 1980s. A number of other states have more recently found that this is a decision ultimately for parents to make.

What should people know about waivers? And what should parents know about signing waivers on behalf of their children?

There appears to be a common misconception in Tennessee, at least, that signing a waiver for your child prevents the child from filing a lawsuit if they are injured. That is not correct and has not been since the late 1980s. Most recently in Blackwell, the Tennessee Court of Appeals confirmed this to be true. However, the court also ruled that in most cases where a parent signs a waiver for their child, it will extinguish the child's claim for medical expenses. That is new. Without a medical expense claim, the value of these types of cases will be significantly decreased in my view.