The Hills are presumed to have read and understood the agreement. Dixon v. Manier, 545 S.W.2d 948, 949 (Tenn.App. 1976). There is no proof in the record other than David Hill's bald assertions supporting the Hills' argument that they were fraudulently, induced into signing the Release.

Although the court did reject the buyer's argument that the first release was procurred by fraud because, under Tennessee law, the buyers were presumed to have read and understood the agreement they had signed. 801 F.2d at 222 ( citing Dixon v. Manier, 545 S.W.2d 948, 949 (Tenn.App. 1976)). In the instant case the plaintiffs have admitted execution of the release and the court will presume that they read and understood the agreement they signed.

To constitute consideration, "any benefit to one party and/or detriment to the other may be a sufficient consideration." Robinson v. Kenney, 526 S.W.2d 115, 119 (Tenn.Ct.App.1973); see also Dixon v. Manier, 545 S.W.2d 948, 950 (Tenn.Ct.App.1976). The changes in the new contract provided benefits to both the trustee and to Gibalski.

To guide the analysis, this Court adopted a series of factors from Tunkl v. Regents of University of California , 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441 (1963), to be considered in determining whether a transaction affected the public interest: These prior cases included Empress , 503 S.W.2d 188 ; Trailmobile , 51 Tenn.App. 576, 370 S.W.2d 840 ; and Dixon v. Manier , 545 S.W.2d 948 (Tenn. Ct. App. 1976).a. It concerns a business of a type generally thought suitable for public regulation.

er, have upheld exculpatory clauses in a series of cases involving recreational activities.See, e.g., Empress Health Beauty Spa, Inc., 503 S.W.2d at 191 (upholding a release from liability for injuries in favor of a health club); Moss, 340 S.W.2d at 429 (upholding a release from liability for injuries in favor of the operator of a horse-riding rental business); Henderson v. Quest Expeditions, Inc., 174 S.W.3d 730 (Tenn. Ct. App. 2005) (upholding a release from liability for injuries in favor of a white water rafting company), perm. app. denied (Oct. 24, 2005); Tompkins v. Helton, No. M2002-01244-COA-R3-CV, 2003 WL 21356420, *6 (Tenn. Ct. App. June 12, 2003) (upholding a release from liability for injuries in favor of the owners of a motor speedway); Burks v. Belz-Wilson Props., 958 S.W.2d 773, 776 (Tenn. Ct. App. 1997) (upholding a release from liability for injuries related to an employee's use of a "gymnastics pit" at an employer-sponsored event), perm. app. denied (Nov. 10, 1997); Dixon v. Manier, 545 S.W.2d 948 (Tenn. Ct. App. 1976) (upholding a release from liability for injuries arising from a hair-straightening treatment in favor of a cosmetology school and its operator). During the hearing before the trial court, the parties argued that the Olson factors weighed in their favor.

Tennessee courts have long recognized that, subject to certain exceptions, parties may contract that one shall not be liable for his negligence to another. See Empress Health Beauty Spa, Inc. v. Turner, 503 S.W.2d 188 (Tenn. 1973) (customer assumed the risk of injury from negligence of health spa); Chazen v. Trailmobile, Inc., 215 Tenn. 87, 384 S.W.2d 1 (1964) (commercial lease absolved both landlord and tenant from liability for loss resulting from fire); Moss v. Fortune, 207 Tenn. 426, 340 S.W.2d 902 (1960) (renter assumed the risk incident to injury from the hiring and riding of a horse); Dixon v. Manier, 545 S.W.2d 948 (Tenn. App. 1976) (cosmetology customer assumed the risk of injury of a hair-straightening treatment). One exception, for example, is that a common carrier cannot by contract exempt itself from liability for a breach of duty imposed on it for the benefit of the public.

Applying the same or similar criteria, courts in at least three jurisdictions have enforced exculpatory agreements against the patrons of cosmetology schools claiming to have been injured by the negligence of students. Henry v. Mansfield Beauty Academy, 353 Mass. 507, 510-11, 233 N.E.2d 22, 24 (1968); Wolinsky v. Queens Beauty Inst., Inc., 56 Misc.2d 596, 600, 289 N.Y.S.2d 647, 651 (N.Y.Civ.Ct. 1968); Dixon v. Manier, 545 S.W.2d 948, 950 (Tenn.App. 1976). Similar conclusions have been reached with respect to exculpatory agreements executed by patrons of health clubs and spas. E.g., Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 926 (Minn.

The failure of a party to read a release and waiver before signing, in the absence of fraud or duress, does not affect its validity. Dixon v. Manier, 545 S.W.2d 948, 949 (Tenn. App. 1976). While the case law and announced public policy of Tennessee favors freedom to contract against liability for negligence, Trailmobile, Inc. v. Chazen, 51 Tenn. App. 576, 370 S.W.2d 840, 844 (1963), it does not favor contracting against liability for gross negligence, and such an agreement is unenforceable. Restatement, Contracts 2d § 195, p. 65 (1981); 15 Williston on Contracts, § 1750A, p. 141 (3d ed. 1972); 6A Corbin on Contracts § 1472, p. 596-97 (1962).

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.

The mistake must be shown by "clear, cogent, convincing evidence." Lane v. Spriggs, 71 S.W.3d 286, 290 (Tenn. Ct. App. 2001) (citing Dixon v. Manier, 545 S.W.2d 948, 950 (Tenn. Ct. App. 1976)). No. M2006-01870-COA-R3-CV, 2007 WL 2827051, at *8 (Tenn. Ct. App. Sept. 28, 2007). "The equitable remedy of rescission is not enforceable as a matter of right but is a matter resting in the sound discretion of the trial court and the court should exercise the discretion sparingly."