Olson v. Molzen

CourtSupreme Court of Tennessee
Writing for the CourtHENRY; COOPER
Citation558 S.W.2d 429
PartiesJanet H. OLSON, Petitioner, v. Bob J. MOLZEN, Respondent.
Decision Date21 November 1977

Page 429

558 S.W.2d 429
Janet H. OLSON, Petitioner,
v.
Bob J. MOLZEN, Respondent.
Supreme Court of Tennessee.
Nov. 21, 1977.

Sidney W. Gilreath, Robert E. Pryor, Knoxville, for petitioner.

F. Graham Bartlett, McCampbell, Young, Bartlett & Hollow, Knoxville, for respondent.

OPINION

HENRY, Justice.

The sole question before the Court is whether a Doctor of Osteopathy may defend a negligence action on the basis of an exculpatory agreement executed by his patient prior to the rendition of services.

Plaintiff's suit was dismissed pursuant to a Motion for Summary Judgment under Rule 56, Tenn.R.Civ.P. The action of the trial judge was affirmed by the Court of Appeals, which held that the agreement was valid in all respects, and not against public policy.

I.

On September 17, 1973, Janet H. Olson, a pregnant, twenty-three year old unmarried woman, contacted Bob J. Molzen, at the time a practicing osteopath in Knoxville, and engaged his services for the performance of an abortion. On September 21, 1973, when she returned to Molzen's clinic, and prior to his performance of the abortion, she was required to execute a release, the pertinent portions of which read as follows: 1

I am aware of the minor risks and hazards, and realize that this type of surgical operation is no different than any other kind of surgical operation and has attending complications that may be beyond the control of the surgeon. I, therefore, release Doctor Molzen and his staff from

Page 430

responsibility associated with any complications that may come up, or be apparent, in the next twelve (12) months.

And, finally, I completely release Doctor Molzen and his staff from any present or future legal responsibility associated with performing an abortion on myself.

The abortion was then performed and two weeks later she returned to the Doctor's office for a check-up. She testified that she told him she "had been experiencing this nausea and that I didn't feel good." He gave her a vaginal examination and told her "that everything was fine."

About the middle of November she consulted a Knoxville gynecologist who advised her that she was pregnant and it was too late to perform an abortion. The child was born on April 9, 1974.

II.

The courts of Tennessee have long recognized that, subject to certain exceptions, parties may contract that one shall not be liable for his negligence to another. Moss v. Fortune, 207 Tenn. 426, 340 S.W.2d 902 (1960). In Moss the plaintiff rented a horse, equipped with bridle and saddle. After he had ridden a short distance the left stirrup strap broke, causing plaintiff to fall to the ground and inflicting serious injuries. In connection with the rental, plaintiff signed a release as follows:

I am hiring your horse to ride today and all future rides at my own risk. 207 Tenn. at 428, 340 S.W.2d at 903.

The Court held that "the plain intent of this agreement was that plaintiff assumed the risk incident to the hiring and riding of the horse, including the risk which caused the injuries sued for." Id. The Court accordingly affirmed the demurrer entered by the plaintiff to defendant's plea based upon the release.

Empress Health and Beauty Spa, Inc. v. Turner, 503 S.W.2d 188 (Tenn.1973), involved personal injuries sustained by a patron of Empress when a belt connected to a vibrator broke. The patron had executed a release which, among other things, provided for the assumption of the risk of injury and indemnification from "any and all liability attributable to the Spa. . . . " Following Moss, supra, this Court upheld the release and, relying upon Trailmobile, Inc. v. Chazen, 51 Tenn.App. 576, 370 S.W.2d 840, 844 (1963), held that "the public policy of Tennessee favors freedom to contract against liability for negligence." 503 S.W.2d at 190.

The last pertinent reported case in Tennessee is Dixon v. Manier, 545 S.W.2d 948 (Tenn.App.1976). There the Court, relying upon Moss and Chazen, supra, upheld the validity of a release from liability for negligence in a suit wherein a customer at a cosmetology school sustained injuries during a hair straightening treatment.

III.

While these cases are relevant and make it clear that as a general rule a party may contract against his or her own negligence, they do not afford a satisfactory solution in a case involving a professional person operating in an area of public interest and pursuing a profession subject to licensure by the state. The rules that govern tradesmen in the market place are of little relevancy in dealing with professional...

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62 practice notes
  • Hanks v. Powder Ridge Restaurant Corp., No. 17327.
    • United States
    • Supreme Court of Connecticut
    • November 29, 2005
    ...interest adversely and, thus, violate public policy. See, e.g., Anchorage v. Locker, 723 P.2d 1261, 1265 (Alaska 1986); Olson v. Molzen, 558 S.W.2d 429, 431 (Tenn.1977); Wagenblast v. Odessa School District, 110 Wash.2d 845, 851-52, 758 P.2d 968 (1988). Other states have developed their own......
  • Cooper v. Mrm Investment Co., No. 02-5702.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 3, 2004
    ...to the risk of carelessness by the seller or his agents. Russell v. Bray, 116 S.W.3d 1, 5-6 (Tenn.Ct.App.2003) (applying Olson v. Molzen, 558 S.W.2d 429, 431-32 (Tenn.1977)); see also Childress v. Madison Cty., 777 S.W.2d 1, 4 (Tenn.Ct.App.1989) (applying Olson The Russell court found that ......
  • Rutherford v. Talisker Canyons Fin., Co., No. 20140917
    • United States
    • Supreme Court of Utah
    • June 27, 2019
    ...(1990) (applying Tunkl public interest factors but holding that release was "invalid as a matter of public policy"); Olson v. Molzen , 558 S.W.2d 429, 432 (Tenn. 1977) (analyzing release under "public interest" factors but holding that release was "contrary to public policy").7 To address s......
  • City of Santa Barbara v. Superior Court, No. S141643.
    • United States
    • United States State Supreme Court (California)
    • July 16, 2007
    ...1981) 623 P.2d 370, 376-378; Porubiansky v. Emory University (1980) 156 Ga.App. 602, 275 S.E.2d 163, 167-169; Olson v. Molzen (Tenn.1977) 558 S.W.2d 429, 7. We observed: "[0]bviously no public policy opposes private, voluntary transactions in which one party, for a consideration, agrees to ......
  • Request a trial to view additional results
61 cases
  • Hanks v. Powder Ridge Restaurant Corp., No. 17327.
    • United States
    • Supreme Court of Connecticut
    • November 29, 2005
    ...interest adversely and, thus, violate public policy. See, e.g., Anchorage v. Locker, 723 P.2d 1261, 1265 (Alaska 1986); Olson v. Molzen, 558 S.W.2d 429, 431 (Tenn.1977); Wagenblast v. Odessa School District, 110 Wash.2d 845, 851-52, 758 P.2d 968 (1988). Other states have developed their own......
  • Cooper v. Mrm Investment Co., No. 02-5702.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 3, 2004
    ...to the risk of carelessness by the seller or his agents. Russell v. Bray, 116 S.W.3d 1, 5-6 (Tenn.Ct.App.2003) (applying Olson v. Molzen, 558 S.W.2d 429, 431-32 (Tenn.1977)); see also Childress v. Madison Cty., 777 S.W.2d 1, 4 (Tenn.Ct.App.1989) (applying Olson The Russell court found that ......
  • Rutherford v. Talisker Canyons Fin., Co., No. 20140917
    • United States
    • Supreme Court of Utah
    • June 27, 2019
    ...(1990) (applying Tunkl public interest factors but holding that release was "invalid as a matter of public policy"); Olson v. Molzen , 558 S.W.2d 429, 432 (Tenn. 1977) (analyzing release under "public interest" factors but holding that release was "contrary to public policy").7 To address s......
  • City of Santa Barbara v. Superior Court, No. S141643.
    • United States
    • United States State Supreme Court (California)
    • July 16, 2007
    ...1981) 623 P.2d 370, 376-378; Porubiansky v. Emory University (1980) 156 Ga.App. 602, 275 S.E.2d 163, 167-169; Olson v. Molzen (Tenn.1977) 558 S.W.2d 429, 7. We observed: "[0]bviously no public policy opposes private, voluntary transactions in which one party, for a consideration, agrees to ......
  • Request a trial to view additional results
1 books & journal articles

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