Empress Health and Beauty Spa, Inc. v. Turner
| Decision Date | 17 December 1973 |
| Parties | EMPRESS HEALTH AND BEAUTY SPA, INC., Petitioner, v. Ruth TURNER, Respondent. |
| Court | Tennessee Supreme Court |
Max Shelton, Memphis, for petitioner.
Walter Lee Bailey, Jr., Memphis, for respondent.
Ruth Turner was plaintiff and Empress Health & Beauty Spa, Inc. was defendant in the trial court, and they will be referred to herein in that status.
Plaintiff sued defendant for personal injuries, alleging that she had entered into a contract with the defendant, obligating it to give her instructions and provide weight reducing machinery that would cause her to reduce her weight; that she was instructed to use a vibrating machine on September 1, 1970, and 'that while plaintiff was using said machine the belt around plaintiff, connected to said machine, broke.'
The specific acts of negligence alleged were:
'1. Carelessly and negligently maintaining said vibrating machine allowing the belt to break causing plaintiff to fall and be injured.
2. Carelessly and negligently maintaining said vibrating machine in a dangerous and defective condition in that the belt was loose, worn and parts thereof broken away, causing said machine to be in a dangerous condition.'
Defendant answered, denying any act of negligence and asserting an exculpatory clause in the contract as a complete bar to the plaintiff's cause of action. Subsequently, defendant filed a motion for summary judgment, supported by the discovery deposition of plaintiff, wherein she identified the contract entered into with the defendant, acknowledged her signature thereon, and same is an exhibit to said deposition.
The provision in the contract urged by the defendant as a bar to plaintiff's action is as follows:
No counteraffidavits, depositions or other proof was presented by plaintiff in opposition to motion for summary judgment.
The trial court granted defendant's motion and dismissed the case.
The Court of Appeals reversed and remanded the case for 'such further proceedings as the law directs.' We granted defendants petition for the writ of certiorari and have heard oral argument.
The Court of Appeals held that the contractual provision relied upon by defendant was ambiguous and
It is well settled in this State that parties may contract that one shall not be liable for his negligence to another but that such other shall assume the risk incident to such negligence. Said rule was stated and applied in Moss v. Fortune, 207 Tenn. 426, 340 S.W.2d 902 (1960), where the agreement signed by plaintiff read, 'I am hiring your horse to ride today and all future rides at my own risk.'
Further, it is not necessary that the word 'negligence' appear in the exculpatory clause and the public policy of Tennessee favors freedom to contract against liability for negligence. See Trailmobile, Inc. v. Chazen, 51 Tenn.App. 576, 370 S.W.2d 840, at 844 (1963).
In its opinion, the Court of Appeals further said:
'The question presently before the Court is whether the true intent can be found from the terms of the contract heretofore quoted.'
We disagree.
The first duty of the Court is well stated in the following quote from ...
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