Are Hold Harmless Agreements Enforceable In Tennessee?

Hold harmless agreements are used quite often. Go into an adventure park, amusement park, or engage in a sport or activity, and you’ll likely be faced with a hold harmless agreement. Are these agreements enforceable in Tennessee?

What is a Hold Harmless?

A hold harmless agreement is your agreement not to sue, should you be injured while on someone’s property, or while engaging in a particular activity or sport.

Generally, Tennessee courts have held these agreements enforceable. The logic is that if you want to engage in an activity, or be on someone’s property, and you agree to the hold harmless, that is your right, and courts are not willing to interject, or impede parties’ right to enter into a contractual agreement.

Courts Not Enforcing All Hold Harmless Agreements

But Tennessee courts have gotten a bit more lenient, and paved the way for victims who are injured on someone else’ property, or because of someone else’s negligence, to sue for damages. A hold harmless agreement will be enforceable so long as:

1. There is equal (or somewhat equal) bargaining power between the parties
2. The language in the contract that waives the right to sue, is clear, and unambiguous; it cannot be hidden or buried in a larger contract
3. Public policy favors enforcement (or not enforcing) the hold harmless

Of course, these are pretty vague and don’t provide clear guidance on when a hold harmless will or will not be held to be enforceable or not.

What Do These Mean?

Bargaining power will often depend on how vital the service is. For example, there is likely very equal bargaining power between you and an ice skating rink—nobody is forcing you to sign the hold harmless, and you can always opt not to sign, and not to ice skate.

On the other hand, a hold harmless for, say, a nursing home, would likely be unenforceable, as this is a vital service that people need, putting the nursing home in a much more powerful position than the resident.

The language of the agreement cannot be so broad, that it waives absolutely anything, no matter what happens. Agreements that excuse a party “from any liability,” would likely be too broad to be enforceable. Language cannot be ambiguous, and should specify whose negligence is being excused (for example, the business itself, or negligence caused by third parties)?

Public policy will weigh a lot of factors. Public services, like a hospital, day care, public transportation, or services that affect a large number of people, likely would not be able to contract away all liability. But fun or recreation, will likely not have any public policy effect, meaning that waivers for these activities will likely be considered to be just fine.

Question about your injury or accident?  Call the Tennessee personal injury attorneys at Fox Willis Burnette, PLLC, today to see if you have a personal injury case.