*1 PETRY, Shirley Appellant, SPA
COSMOPOLITAN INTERNATION INC., Holiday
AL, Spa Inc., Appellees.
Cоurt of 25, 1982. Denied by A. Richard Schulman of Reingold, Pow- Sept. ers, Robbins, & Schulman Chattanooga, for Robinson, Jr., Robinson, F.
Samuel Burnette, Stanley Chattanooga, & for ap- pellees.
OPINION PARROTT, Presiding Judge. 8, 1978, August On Shirley Pe- try Appellee, contracted Cosmopolitan Inc. (Cosmopolitan), for a spa in its which was to include program “processing, counseling and facili- ” usage.... ties The written contract con- following tained еxculpatory clause: represents “Member that he or she is in physical condition good and able to use provided equipment and to tаke the recommended by exercises Cosmopolitan. fully Member understands and agrees participating in that in one or more of the courses, using the facilities maintained there by Cosmopolitan, is the possibility accidental other physical [sic] agrees Member further to assume the injury risk of such and further agrees to Cosmopolitan indemnify from any and all liability to by either the party member or third as the result of member use facilities by Cоsmopoli- and instructions offered tan.” or about appellee,
On
mopolitan,
appellee,
sold the
Tennessee, Inc.
Spa оf
(Holiday).
Feb-
On
*2
203
injured
or rein- Cal.2d
32
ruary
Cal.Rptr.
decision. of a substitution right of the assignee assignor for the сlause in this case was exculpatory The materially change the duty of the would enforceable, and the contract con- cleаrly materially or increase the burden obligor, assignable to taining Holiday. Ap- it was contract, him by on his or imposed risk as a is barred matter of law рellant’s materially impair his chance of obtaining dismissed by summary properly and was performance, materially reduce return him, or its value Supreme The Tennessee is (b) assignment by forbidden Empress Beauty Spa, Health and held in inoperative or is otherwise on statute Turner, (Tenn.1973), S.W.2d 188 503 Inc. v. poliсy, or public grounds clause of exculpatory almost that an validly precluded (c) assignment wording as the and one in this type exact contrаct.” enforceable. That case valid case was (Second) 317(2) of Contracts factually legally point § on with Restatement is both judge (1981). trial bеlow correctly one. The this this in his
recognized summary judgment exceptions assigna- the above None of below, court Like the we are com opinion. successfully raised as to this bility can be doctrine of by the stare decisis to pelled Appellant exculpatory clause. contends holding. Empress is a clear and this follow was invalid because the highest decision unambiguous personal of a nature and that was contrаct never has been state and altered of this to the assignment. never consented We in this It controls case. overruled. unpersuasive. This cоntract was find use of that our for the facilities and primarily contends Appellant Molzen, this, personal Beyond in Olson v. nature. decision 558 not of a Court’s (Tenn.1977), compels can a only 429 clause viewed as S.W.2d in this case not appellees, appellant. Appellant clause be struck right public policy. We against right disa- to consent to a transfer of a down as had no the criteria for not adopted right assess- her own. gree. Appellant Olson contractual used exculpatory clauses in Tunkl v. ing that the contract contained lan- claims also University California, 60 Regents assignment. prohibited We do guage that ary 25, agree. only language that, The re- absent a showing that the a bar on motely suggests transfer deals assignee corporation of appellant’s spa transfer mem- either supervising skilled equally Plaintiff’s servicing or the- financial bership maintаining equipment, exercise contract. could minds differ as to reasonable whether Plaintiff’s risk was materially in- the judge It seems clear *3 creased. appellant’s in his decision correct against appellee Holiday barred be- arguable Finally, it is the supple- Cosmopolitan’s аssign- cause it affidavit mental President of Cosmo- case, being must affirm ee. That Inc., politan which is on this issue also. Let all of the “to the best affiant’s made knowl- taxed to costs be information, belief,” edge, rather than “personal knowledge” required upon SANDERS, J., concurs. of the Tennessee Rule 56.05 Rules of Civil Procedure, GODDARD, J., not meet does evidentiary dissents. necessary to sustain a requirements summa- GODDARD, Judge, concurring in part However, I am ry disinclined to dissenting part. ground dissent on in light rest the majority opinion I concur in the insofar authenticity of unquestioned the con- grants in favor as it tract. Spa Internаtional, Inc., signator the contract original containing clause. however, do, respectfully
I dissent as to of the assignee, dismissal Holiday Spa Tennessee, Inc. Notwithstanding the Trailmobile, of this Court in Inc.
statement
Chazen,
576,
Tenn.App.
v. not believe that (1963), I do GRAY, Jr., Trustee of The Paul Bimini more perhaps accurately— are сlauses or— Corporation, and State Farm Fire & my It view be favored. such should Company, Casualty Appellants, strictly construed clauses should thereby assignable afforded protection RIDGE, EAST East CITY OF authorized. expressly Department, Inc., Ridge Ralph Fire a more ground There is also narrow Pendergrass, Appellees. would justify I believe a reversal. I opinion that there is a disputed of the am the Plaintiff comes fact whether within the out in exception set Subsection 1982. cited the majority opinion, Restatement her affidavit and that of her in that Denied that she was show induced to sign mother Nov. Supreme Court in part agreement repre- because of the personnel original sentations had they experience had
contractor procedures rehabilitative prior with her in connection
sought it could be I believe inferred that a occurred from the time was made on happened the accident until on Febru-