Petry v. Cosmopolitan Spa Intern., Inc.

• Decision Date: 25 June 1982
• Citation: 641 S.W.2d 202
• Parties: Shirley PETRY, Appellant, v. COSMOPOLITAN SPA INTERNATIONAL, INC., and Holiday Spa of Tennessee, Inc., Appellees. 641 S.W.2d 202
• Court: Tennessee Court of Appeals

Page 202

641 S.W.2d 202

Shirley PETRY, Appellant, v. COSMOPOLITAN SPA INTERNATIONAL, INC., and Holiday Spa of Tennessee, Inc., Appellees.

641 S.W.2d 202

Court of Appeals of Tennessee Eastern Section.

June 25, 1982.

Permission to Appeal Denied by

Supreme Court Sept. 13, 1982.

Generally, contractual rights can be assigned.

Richard A. Schulman of Reingold, Powers, Schulman & Robbins, Chattanooga, for appellant.

Samuel F. Robinson, Jr., of Robinson, Stanley & Burnette, Chattanooga, for appellees.

OPINION

PARROTT, Presiding Judge.

On August 8, 1978, appellant Shirley Petry contracted with Appellee, Cosmopolitan Spa International, Inc. (Cosmopolitan), for a membership in its spa which was to include "processing, program counseling and facilities usage...." The written contract contained the following exculpatory clause:

"Member represents that he or she is in good physical condition and able to use the equipment provided and to take the exercises recommended by Cosmopolitan. Member fully understands and agrees that in participating in one or more of the courses, or using the facilities maintained by Cosmopolitan, there is the possibility or [sic] accidental or other physical injury. Member further agrees to assume the risk of such injury and further agrees to indemnify Cosmopolitan from any and all liability to Cosmopolitan by either the member or third party as the result of the use by the member of the facilities and instructions as offered by Cosmopolitan."

On or about January 1, 1980, appellee, Cosmopolitan, sold the spa to appellee, Holiday Spa of Tennessee, Inc. (Holiday). On February 25, 1980, appellant injured or reinjured her back when she sat on an exercise machine and it collapsed under her. Appellant brought this suit on January 14, 1981, in the Circuit Court of Hamilton County against appellees for damages for personal injuries resulting from appellees' alleged negligence in maintaining the exercise machine in a dangerous condition.

Appellees moved for summary judgment based largely on the argument that the exculpatory clause in the membership contract barred appellant's claim. The trial judge granted appellees' motion, holding that the exculpatory clause was good, that the contract was enforceable by both Cosmopolitan as principal and by Holiday as either assignee or agent, and that appellant's action was therefore barred. Appellant now appeals to this Court. We affirm the trial judge in his summary judgment decision.

The exculpatory clause in this case was clearly enforceable, and the contract containing it was assignable to Holiday. Appellant's suit is barred as a matter of law and was properly dismissed by summary judgment.

The Supreme Court of Tennessee held in Empress Health and Beauty Spa, Inc. v. Turner, 503 S.W.2d 188 (Tenn.1973), that an exculpatory clause of almost the exact type and wording as the one in this case was valid and enforceable. That case is both factually and legally on point with this one. The trial judge below correctly recognized this in his summary judgment opinion. Like the court below, we are compelled by the doctrine of stare decisis to follow this holding. Empress is a clear and unambiguous decision by the highest court of this state and has never been altered or overruled. It controls in this case.

Appellant contends that our Supreme Court's decision in Olson v. Molzen, 558 S.W.2d 429 (Tenn.1977), compels that the exculpatory clause in this case be struck down as against public policy. We disagree. Olson adopted the criteria for assessing exculpatory clauses used in Tunkl v. Regents of University of California, 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441 (1963). Olson did not overrule Empress. Health spas are not businesses "of a type generally thought suitable for public regulation." It does not appear that the policy considerations established in Olson would change the result in Empress, which, as has been stated, is directly applicable to this case. Therefore, the exculpatory clause in question is valid in Tennessee.

Appellant also contends that even if the exculpatory clause is valid, it does not protect appellee, Holiday, from liability because it could not be assigned. Again, we must disagree. The exculpatory clause in this contract was a right of appellee Cosmopolitan. Generally, contractual rights can be assigned:

"(2) A contractual right can be assigned unless

(a) the substitution of a right of the assignee for the right of the assignor would materially change the duty of the obligor, or materially increase the burden or risk imposed on him by his contract, or materially impair his chance of obtaining return performance, or...