author: RONALD R. HOLLIGER, Presiding Judge.

text:
    CMR CONSTRUCTION & ROOFING, LLC, Appellant, v. DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. WD 64916.
    Missouri Court of Appeals, Western District.
    Nov. 1, 2005.

      Burton Donald Garland, Jr., Charles H. Morgan, III, St. Louis, for Appellant.
    Marilyn Gail Green and Ninion Riley, Jefferson City, for Respondent.
   RONALD R. HOLLIGER, Presiding Judge.

CMR Construction appeals a Labor and Industrial Relations Commission decision dismissing CMR’s appeal from the Division of Employment Security as untimely. Because the record indicates that the Commission failed to consider whether the Division may have received a timely motion to set aside a dismissal of CMR’s appeal to the Appeals Tribunal, we find insufficient evidence to support the Commission’s decision. Reversed and remanded.

Facts

This is a direct appeal from the Labor and Industrial Relations Commission pursuant to Section 288.210, RSMo 2000. The case originates from CMR Construction’s (CMR) attempt to appeal a determination made by the Division of Employment Security (the Division) to the Division’s Appeal’s Tribunal. CMR’s appeal to the Tribunal was dismissed when CMR failed to appear at a hearing on the matter. CMR then appealed the Tribunal’s decision to the Labor and Industrial Relations Commission (“the Commission”), which denied review as untimely. Much of the evidence contained in filings before the Commission was disputed and the parties have imper-missibly tried to supplement that record in this court. Because of the unusual procedural posture of this case we will first discuss the evidence and record that is apparently undisputed and that was before the Commission.

In June of 2004, the Division issued a Notice of Liability to CMR. The Notice stated that CMR was an employer subject to Missouri Employment Security Law and, therefore, required to pay unemployment insurance taxes and comply with various reporting requirements. CMR filed an appeal of that determination by letter to the Division’s Appeals Tribunal. After an initial postponement, the Division set the matter for hearing on August 19, 2004.

The Division sent a notice of the August 19 hearing to CMR on August 9, 2004. CMR failed to appear at the hearing, and the Division’s Appeals Tribunal dismissed the appeal. On August 24, 2004, the Division sent a copy of its decision dismissing the appeal by mail to CMR. A direct appeal to the Industrial Commission as provided in Section 288.200 was not filed until October 27, 2004. Because it was filed more than 30 days after the decision, the appeal was dismissed as untimely. Section 288.200.1, RSMo 2000.

Beyond those bare facts the parties have virtually no agreement. CMR asserted in filings before the Commission that on August 9, when the notice of hearing was mailed by the Division, it was in the process of moving to a different location and was having its mail forwarded. Government mail, CMR asserts, is not forwarded by the Postal Service and, consequently, the August 9 notice of hearing was never received. CMR claims that the Division resent notice of hearing on August 16, 2004, to CMR’s new address. CMR asserts that it did not receive this second hearing notice until the day of the hearing, after the scheduled hearing time.

CMR also claims that, the day after receiving notice of the August 19 hearing on August 19, they sent a fax to the Division. CMR claims that this fax indicated that a Division employee had notified CMR by telephone that the appeal had been dismissed because of CMR’s failure to appear. The fax also stated that CMR had not received notice of the hearing until the day of, and requested further relief.

CMR now appeals arguing that the fax constituted a valid notice of appeal to the Commission. Both parties have filed motions during the pendency of this appeal. The Division filed a motion to dismiss on jurisdictional grounds. CMR’s motion seeks attorney fees pursuant to Section 536.087. Both motions were taken with the case.

Standard of Review

We review the decision of the Labor and Industrial Relations Commission. Section 288.210, RSMo 2000. The Commission made no findings in dismissing CMR’s application for review as untimely. This court may modify, reverse, remand for rehearing, or set aside the decision of the Commission upon the following limited grounds:

(1) That the commission acted without or in excess of its powers;
(2) That the award was procured by fraud;
(3) That the facts found by the commission do not support the award;
(4) That there was not sufficient competent evidence in the record to warrant the making of the award.

Section 288.210(1) — (4), RSMo 2000. “A court must examine the whole record to determine if it contains sufficient competent and substantial evidence to support the award, i.e., whether the award is contrary to the overwhelming weight óf the evidence.” Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003). Whether an award is supported by competent and substantial evidence is judged by examining the evidence in the context of the whole record. Id. When the facts are undisputed, albeit their significance can be viewed in different ways, the case involves primarily the application of the law to facts, and the court of appeals gives no deference to the Labor and Industrial Relations Commission; rather, the review is de novo. Stover Delivery Sys., Inc. v. Div. of Employment Sec., 11 S.W.3d 685, 688 (Mo.App.1999).

Discussion

The essential aspect of this dispute turns on what effect, if any, CMR’s August 20, 2004, fax transmission would have on preserving CMR’s right to review before the Commission. Generally, a timely appeal to the Commission from the Appeals Tribunal must be filed within 30 days “following the date of notification or mailing of such decision.” Section 288.200.1, RSMo 2000. An application for review to the Commission may be filed by fax with the Division and must be signed by the claimant, an authorized agent of the claimant, or the claimant’s attorney. 8 C.S.R. Section 20-4.010(l)(A)-(C). However, if a party files a motion to reconsider with the Division Appeals Tribunal, and it is not granted, that motion is automatically treated as an application for review to the Commission. 8 C.S.R. Section 10-5.040(5)(A).

No hearing was held before the Commission, and the record we review consists only of what was before the Commission at the time of its decision. This record includes the August 20, 2004, fax sent by CMR and the exhibits presented with CMR’s formal October 27, 2004, appeal to the Commission. That appeal was deemed untimely because it was filed in excess of 30 days after the mailing of the Appeals Tribunal decision dismissing CMR’s appeal. Among the exhibits attached to CMR’s formal appeal to the Commission is the original notice of hearing from the Division that CMR contends it did not receive because it had moved to a new address. Also attached is an envelope postmarked August 16, 2004, that CMR claims contained the re-sent notice of hearing that did not arrive until the day that CMR was supposed to appear. Also included is CMR’s fax transmission requesting reconsideration of its appeal and claiming that CMR received inadequate notice of the hearing. The Division challenged none of this evidence until here on appeal.

The Division now attacks the validity of CMR’s fax in several ways arguing, essentially, that its legal effect is a nullity. Because of the procedural posture of this case, we treat only CMR’s factual assertions as true in determining whether, if proven, they would affect the disposition by the Commission. First, the Division asserts that it did not receive the fax and further asserts that, even had it been received, its contents would not have been adequate to rise to the level of an appeal to the Commission because it was not signed. The Division additionally argues that, had CMR’s fax been received, it could not constitute an appeal to the Commission because it was sent (August 20) prior to the date of the mailing of the decision (August 24). Therefore, the Division claims, the only attempted appeal to the Commission by CMR was on October 27, 2004, well after the deadline for a timely appeal.

First we address the Division’s assertion that the contents of CMR’s fax could not constitute a valid appeal to the Commission because the fax was not signed. 8 CSR 20-4.010(1) requires that an application for review to the Commission of a decision by the appeals tribunal be signed. The Division points out that in Haislar v. Haislar Construction Co., 142 S.W.3d 210, 212 (Mo.App.2004), the Eastern District of this court held that a signed application for review was jurisdictional. We also note that 8 CSR 10-5.010(3), governing initial appeals to the appeals tribunal requires a signed appeal. The Division has, however, adopted special rules for dismissal of appeals, including where a party fails to appear for a hearing as in the case at bar. 8 CSR 10-5.040. Subsection 3(C) of 8 CSR 10-5.040 provides that, if a request is made or on the hearing officer’s own motion, the order of dismissal can be set aside. If the dismissal is set aside in such a manner, the hearing officer shall first determine whether the appellant had good cause for faffing to appear and, if shown, the hearing officer must rule on the merits of the appeal. 8 CSR 10-5.040(2)(B) & 3(C). Significantly in our view, the regulation requires a written request to set aside or reconsider the dismissal but says nothing about a signature. 8 CSR 10-5.040(3)(C). The regulation then provides that if a written request (again no mention of signature) is not granted the request shall be treated as an application for review to the Labor and Industrial Relations Commission. 8 C.S.R. Section 10-5.040(5)(A). Again, significantly in our view, 8 CSR 10-5.050 provides that a signed written communication received by the appeals tribunal expressing disagreement with a decision reached on the merits is treated as an application to the Commission. But that regulation specifically holds that it does not supersede the regulation regarding orders of dismissal.

We believe that the Regulations clearly do not require a written request to set aside or reconsider a dismissal (as opposed to a formal appeal) to be signed, and that sound reasons exist as to why the Regulations would make such a distinction. The provisions requiring signature all deal with formal appeals from one level of the division to another. In such situations there are valid reasons for ensuring the validity of an appeal and demanding formality. CMR’s initial appeal that began the Division’s appellate process was signed. Once the issues have been joined by formal appeal, the concerns regarding validity are largely dissipated and a requirement of a signature (particularly as a jurisdictional matter) makes little sense and could well work substantial injustice on litigants. Thus, assuming arguendo that the Division received the fax, the fax would be a written request to set aside a dismissal and, when not granted, it must be treated as an application for review to the Commission even though it was unsigned. Id.

Similarly, the Division’s argument that CMR’s fax was premature is also contrary to the evidence before the Commission. Section 288.200 explicitly allows an appeal to the Commission to be filed within 30 days of “notification or mailing” of an adverse decision. RSMo 2000 (Emphasis added). The fax itself indicates that a Division employee had notified CMR of an adverse decision on its appeal. If a party can appeal after notification of an Appeals Tribunal decision and need not wait for a mailing, then a party is certainly afforded the same right with regard to moving the Division Appeal’s Tribunal to reconsider.

This leaves the only unresolved issue to be a fact question of whether the fax, or motion to reconsider, was actually received by the Division and what the consequence is if it was not. The Commission did not consider this question nor did it consider the evidence of the fax in the record. The Commission only considered the formal appeal of October 27, 2004, and denied it as untimely being filed more than 30 days after the Appeal’s Tribunal decision was mailed. Whether the fax was received is an open dispute between the parties. Both sides attempt to introduce evidence on the issue here on appeal, yet this evidence was not before the Commission and, thus, we cannot consider it here. Since there was no hearing held before the Commission and no evidence presented by the Division, we cannot say, as the Division contends, that it did not receive CMR’s fax transmission. In the event that it was received it must be considered a motion to set aside the dismissal that the Division did not rule upon and, therefore, a timely application for review to the Commission of the issues presented in the motion. 8 C.S.R. Section 10-5.040(5).

In sum, the record before the Commission consists of the fax indicating that CMR had not received adequate notice and asking the Division to reconsider, and other evidence tending to support that position. Thus, there is insufficient evidence to support the Commission’s decision to dismiss the appeal as untimely. As the record is insufficient for us to make an adequate determination about whether CMR’s request to set aside the dismissal was received by the Division, we remand the matter back to the Commission for a determination on whether the motion was received and, if so, for a determination on whether CMR received adequate notice of the hearing before the Appeals Tribunal and had good cause for failing to appear for the hearing.

The Division’s motion to dismiss is, therefore, denied. CMR’s motion for attorney fees pursuant to Section 536.087 is also denied as premature. See Hutchings v. Roling, 151 S.W.3d 85, 91 (Mo.App.2004) (“while a fee application is properly filed prior to a final judgment, it is held in abeyance until the adversarial proceeding becomes final”).

The decision of the Commission is reversed and remanded for further proceedings consistent with this opinion.

ROBERT G. ULRICH, Judge, and JOSEPH M. ELLIS, Judge, concur.

      . Both parties submit affidavits purporting to support their respective positions; yet, these affidavits were sworn after the decision by the Commission and, therefore, not part of the record before the Commission. Thus, they cannot be considered part of the record on appeal, and we decline to consider them here.

      . The bottom of the fax contains a salutation ("sincerely”) and the typewritten name of an authorized agent of CMR.

      . Obviously to allow the Commission to review the determination whether, in a case such as this, good cause was shown for failing to appear for a hearing and whether the dismissal should be set aside.


source: Caselaw Access Project

license: Public Domain

text:
    Kenneth D. WARREN, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64904.
    Missouri Court of Appeals, Western District.
    Nov. 1, 2005.
    Susan L. Hogan, Appellate Defender Office, Kansas City, for Appellant.
    Jeremiah W. (Jay) Nixon, Attorney General, Shaun Mackelprang and Evan J. Buchheim, Office of Attorney General, Jefferson City, for Respondent.
    Before LISA WHITE HARDWICK, Presiding Judge, PATRICIA A. BRECKENRIDGE, Judge, and PAUL M. SPINDEN, Judge.
   ORDER

Kenneth D. Warren appeals the circuit court’s judgment denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. We affirm. Rule 84.16(b).


author: PER CURIAM.

text:
    Deborah Kay SULLINS, Appellant, v. CASS COUNTY DISTRICT 124 SCHOOL, Defendant, State of Missouri Division of Employment Security, Respondent.
    No. WD 65271.
    Missouri Court of Appeals, Western District.
    Nov. 1, 2005.
    Appellant appears pro se.
    Alan J. Downs, Jefferson City, MO, for Respondent.
    Before ROBERT G. ULRICH, P.J., JAMES M. SMART, JR., and PATRICIA A. BRECKENRIDGE, JJ.
   Order

PER CURIAM.

Deborah Sullins appeals the Labor and Industrial Relations Commission’s judgment that she is disqualified from receiving unemployment benefits because she refused an offer of suitable employment without good cause. She contends that the Commission erroneously interpreted Missouri employment security law.

Having carefully considered the contentions on appeal, we find no grounds for reversing the decision. Publication of a formal opinion would not serve jurisprudential purposes or add to understanding of existing law. The judgment is affirmed. Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Danny BROWN, Appellant.
    No. WD 62900.
    Missouri Court of Appeals, Western District.
    Nov. 1, 2005.
    Jeremiah W. (Jay) Nixon, Attorney General, Shawn L. Naccarato, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Dimitra Y. Massey, Appellate Defender, Kansas City, MO, for Appellant.
    Before SMITH, C.J., and LOWENSTEIN and ELLIS, JJ.
   Order

PER CURIAM.

Danny Brown appeals the judgment of his convictions, following a jury trial in the Circuit Court of Jackson County, for first-degree burglary, in violation of § 569.160.1(3); stealing, in violation of § 570.030; forcible rape, in violation of § 566.030; and second-degree murder, in violation of § 565.021.1(2). As a result of his convictions, the appellant was sentenced, as a prior and persistent offender, § 558.016, to consecutive prison terms in the Missouri Department of Corrections of life in prison for second-degree murder, thirty years for first-degree burglary, 100 years for forcible rape, and one year for stealing.

The appellant raises one point on appeal. He claims that the trial court erred in allowing, over his objection, the testimony of Detective Ron Russell at trial because it was inadmissible as being “wholly duplica-tive” of another witness’ testimony and “only served to unfairly highlight” the inconsistent statements that the appellant gave to the police.

We affirm pursuant to Rule 30.25(b).


text:
    Ronald BLEWETT, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64745.
    Missouri Court of Appeals, Western District.
    Nov. 1, 2005.

      Jeannie Willibey, Assistant Appellate Defender, Kansas City, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Attorney General, Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before SPINDEN, P.J., and HOWARD and HOLLIGER, JJ.
   Order

PER CURIAM.

Ronald Blewett appeals from a judgment denying his Rule 29.15 motion for post-conviction relief without an evidentia-ry hearing. Blewett claims that the motion court clearly erred in not granting an evidentiary hearing on his claims that his trial counsel was ineffective: (1) for failing to move for a mistrial after Kansas City television newscasts reported Blewett’s prior conviction and described him as a sex offender; and (2) for precluding Blewett from testifying in his own defense.

Having reviewed the record, we find that the motion court did not clearly err in denying Blewett’s Rule 29.15 motion without an evidentiary hearing. A written opinion would serve no jurisprudential purpose. However, we have provided the parties with a memorandum setting forth the reasons for our decision.

Affirmed. Rule 84.16(b).


author: HERSCHEL PICKENS FRANKS, P.J.,

text:
    Nathan & Brandy HENDERSON, v. QUEST EXPEDITIONS, INC.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    April 4, 2005 Session.
    June 8, 2005.
    Permission to Appeal Denied by Supreme Court Oct. 24, 2005.

      H. Franklin Chancey, Cleveland, Tennessee, for appellants.
    Gary A. Cooper, Chattanooga, Tennessee, for appellee.
   OPINION

HERSCHEL PICKENS FRANKS, P.J.,

delivered the opinion of the court,

in which CHARLES D. SUSANO, JR., J., and D. MICHAEL SWINEY, J„ joined.

In this action for personal injuries allegedly due to defendant’s negligence, the Trial Court granted defendant summary judgment on the grounds that plaintiffs had executed a Waiver and Release of Liability which was required by defendant prior to plaintiffs’ participation in white water rafting. Plaintiffs have appealed, insisting the Release is void as against the public policy of this State. We affirm.

Plaintiffs’ Complaint alleged that Henderson was injured while on a white water rafting expedition operated by defendant. The Complaint alleged that defendant “ferries rafters to and from the Ocoee River by means of a series of dilapidated school buses.”, and that after Henderson had completed his rafting trip, he and other rafters were put on a bus, and then told to get on another bus, and when disembarking from the first bus he slipped and fell, sustaining severe personal injuries. Plaintiffs further alleged that defendant’s negligence was the proximate cause of his injuries.

Defendant in its Answer admitted that Henderson had participated in a rafting trip sponsored by defendant, and among its defenses raised was waiver, because plaintiff had signed a ‘Waiver and Release of Liability”, which defendant attached to its Answer.

In their Answers to Requests for Admissions, plaintiffs admitted that the waiver in question had been signed by Henderson. Defendant then filed a Motion for Summary Judgment, which plaintiffs opposed and Henderson filed his Affidavit which stated that Henderson had no previous white-water rafting experience, and was given a pre-printed document to sign prior to the excursion which was not reviewed with him by an employee of defendant. He further stated that he was not advised whether there were any other rafting companies who would allow him to go rafting without having to sign a waiver, or whether he could pay additional money to not have to sign the waiver.

The Trial Court determined that the waiver in this case did not affect the public interest, and thus the waiver was not void as against public policy. The court noted that Olson v. Molzen, 558 S.W.2d 429 (Tenn.1977) did not apply to this situation and he was guided by the rule adopted in California, which states that “exculpatory agreements in the recreational sports context do not implicate the public interest.” Citing Allan v. Snow Summit, Inc., 51 Cal.App.4th 1358, 59 Cal.Rptr.2d 813, 823 (Ca.App.1996).

Plaintiffs on appeal insist the Waiver is void against public policy, and in the alternative, that the Waiver was void on the grounds it was too excessive in scope.

Plaintiffs concede that if the Waiver is enforceable then this action is barred, but argue the waiver violates the public policy of this State.

As our Supreme Court has explained:

It is well settled in this State that parties may contract that one shall not be hable for his negligence to another but that such other shall assume the risk incident to such negligence.... 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.

Empress Health and Beauty Spa, Inc. v. Turner, 503 S.W.2d 188 (Tenn.1973).

An exception to this rule was recognized by the Supreme Court in Olson v. Molzen, wherein the Court held that certain relationships required greater responsibility which would render such a release “obnoxious”. Olson, at p. 430. The Court adopted the opinion of the California Supreme Court in Tunkl v. Regents of University of California, 60 Cal.2d 92, 32 Cal. Rptr. 33, 383 P.2d 441 (Ca.1963), which held that where the public interest would be affected by' an exculpatory provision, such provision could be held invalid. Olson, at p. 431.

Our Supreme Court adopted the six criteria set forth in Tunkl as useful in determining when an exculpatory provision should be held invalid as contrary to public policy. See Olson. These criteria are:

(a.) It concerns a business of a type generally thought suitable for public regulation.
(b.) The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public.
(c.) The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.
(d.) As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services,
(e.) In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.
(f.) Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.

Olson, at p. 431.

In Olson, the Supreme Court invalidated a contract between a doctor and patient which attempted to release the doctor from liability for his negligence in the performance of medical services. Also see Carey v. Merritt, 148 S.W.3d 912 (Tenn.Ct.App.2004) and Russell v. Bray, 116 S.W.3d 1 (Tenn.Ct.App.2003). In Russell, this Court refused to enforce an exculpatory contract between home buyers and the home inspectors who were hired by the buyers, because the Court found that the home inspectors were professionals whose services affected the public interest, and thus the contracts were offensive to public policy, based on the factors enumerated in Olson. In Carey, this Court made clear that not all of the factors had to be present in order to invalidate an exculpatory agreement, but generally, the factors were limited to circumstances involving “a contract with a profession, as opposed to ‘tradesmen in the marketplace’.” Carey, at p. 916; cf. Parton v. Mark Pirtle Oldsmobile-Cadillac-Isuzu, Inc., 730 S.W.2d 684 (Tenn.Ct.App.1987) (auto repair shop is not “professional” as would qualify it as service affecting public interest in order to invalidate exculpatory contract).

This case is factually different from Olson, Carey, and Parton because the whitewater rafting service offered by defendant is not a “professional” trade, which affects the public interest. As discussed in factor number two quoted above, this is not a service of “great importance to the public, which is often a matter of practical necessity for some members of the public.” See Olson. There is no necessity that one go white-water rafting. In fact, many jurisdictions have recognized that such recreational sporting activities are not activities of an essential nature which would render exculpatory clauses contrary to the public interest. See Seigneur v. National Fitness Institute, Inc., 132 Md.App. 271, 752 A.2d 631 (2000) (health club services not essential for purposes of holding exculpatory clause unenforceable as offensive to public interest); Allan v. Snow Summit, Inc., 51 Cal.App.4th 1358, 59 Cal.Rptr.2d 813 (1996) (“voluntary participation in recreational and sports activities [siding] does not implicate the public interest”); Schutkowski v. Carey, 725 P.2d 1057 (Wyo.1986) (sky diving and other private recreational businesses generally do not involve services which are necessary to the public such that exculpatory contract would be invalidated).

Plaintiffs argue that the Release in this case does affect the public interest because the business involved, i.e. commercial white-water rafting, is subject to regulation. While this is true, the presence of this factor does not render this Release offensive to the public interest. In fact, recent legislation passed by the Tennessee Legislature “recognizes that the State has a legitimate interest in maintaining the economic viability of commercial white water rafting operations” because the State and its citizens benefit thereby. 2005 Tenn. Pub. Acts 169. This act states the legislative intent is to “encourage white water rafting by discouraging claims based on injury, death or damages resulting from risks inherent in white water rafting.” Id. Thus, the Tennessee legislature has evidenced that the public policy of this State is that commercial white water rafting companies be protected from claims for injuries to patrons.

Accordingly we affirm the Trial Court’s determination that the exculpatory contract in this case does not affect the public interest such that it should be invalidated pursuant to the Olson criteria.

Finally, appellants argue that the Release in this case should not operate as a bar to their claims because the injury suffered by Henderson was not within the “inherent risks” of the sport of white water rafting, and thus was not within the contemplation of the parties when the release was signed.

In the cases relied on by the plaintiffs regarding the scope of exculpatory provisions in the context of a sport, there are no provisions in those agreements which purport to release the defendant from its own negligence. For example, in Johnson v. Thruway Speedways, Inc., 63 A.D.2d 204, 407 N.Y.S.2d 81 (N.Y.App.Div.1978), the Court refused to uphold a grant of summary judgment based on a release signed by the plaintiff prior to the sporting event. The Court stated that language of the release (which was not quoted in the opinion) “could lead to the conclusion that it only applied to injuries sustained by a spectator which were associated with the risks inherent in the activity of automobile racing”. The plaintiff in that case was injured when he was hit by a maintenance vehicle not involved in the race. Id. at 205, 407 N.Y.S.2d 81. Thus, the Court held that this created a triable issue of fact as to whether the incident was of the type contemplated by the parties when the release was signed. Id.

Similarly, in the case of Larsen v. Vic Tanny International, 130 Ill.App.3d 574, 85 Ill.Dec. 769, 474 N.E.2d 729 (1984), the plaintiff was injured when he inhaled dangerous vapors created by the negligent mixing of cleaning compounds by the defendant health club’s employee. Plaintiff had signed a membership contract which contained exculpatory language regarding plaintiffs use of the facilities (but did not mention any negligence by defendant). Id. The Court stated this type of injury was arguably not foreseeable to plaintiff when he signed the release, and thus a fact question existed regarding the parties’ intent behind the exculpation clause, which precluded summary judgment. Id.

In another case where “negligence” is included in the release, Sweat v. Big Time Auto Racing, Inc., 117 Cal.App.4th 1301, 12 Cal.Rptr.3d 678 (2004), the plaintiff was injured when the pit-area bleachers collapsed. Plaintiff had signed a release before entering the pit area, which stated that he released the defendant from all liability “whether caused by the negligence of the releasees or otherwise while the undersigned is in or upon the restricted area and/or ... observing ... the event.” Id. at 680. The Court found that the release was ambiguous due to the “and/or” language used, and thus relied on extrinsic evidence in interpreting the release, such as the fact that anyone could enter the pit area without signing the release once the race was over. The Court concluded that the release was only intended to apply to the risks inherent in being in close proximity to a race, and was not intended to cover the type of incident which occurred when the bleachers collapsed due to defective construction/maintenanee. Id.

The majority view from sister states is that an exculpatory provision which specifically and expressly releases a defendant from its own negligence will be upheld, without regard to whether the injury sustained is one typically thought to be “inherent in the sport”. In fact, there seems to be a split of authority among the states regarding whether the word “negligence” is even required to be present in the exculpation clause for the provision to be construed as releasing the defendant from its own negligence. Cases from Connecticut, for example, have held that in order for an exculpatory provision to be construed as releasing a defendant from its own negligence, the provision must expressly mention negligence. The cases are equally clear, however, that if the provision does expressly release the defendant from its own negligence, then it will be upheld as written. See Hyson v. White Water Mtn. Resorts, 265 Conn. 636, 829 A.2d 827 (2003)(snowtubing); Brown v. Sol, 2004 WL 2165638 (Conn.Super.Ct. Aug.31, 2004)(racing school); Dimaggio v. Labreque, 2003 WL 22480968 (Conn.Super.Ct. Oct.9, 2003) (parachuting).

Most jurisdictions, including Tennessee, have held that if the exculpation contract sufficiently demonstrates the parties’ intent to eliminate liability for negligence, the absence of the word “negligence” is not fatal. See Krazek v. Mountain River Tours, Inc., 884 F.2d 163 (4th Cir.1989)(white water rafting); Saenz v. Whitewater Voyages, Inc., 226 Cal.App.3d 758, 276 Cal.Rptr. 672 (1991)(white water rafting); Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781 (Colo.1989) (horseback riding); Seigneur v. National Fitness Institute, Inc., 132 Md.App. 271, 752 A.2d 631 (2000) (health club); Petry v. Cosmopolitan Spa Intern., Inc., 641 S.W.2d 202 (Tenn.Ct.App.l982)(health club); Murphy v. North American River Runners, Inc., 186 W.Va. 310, 412 S.E.2d 504 (1991) (white water rafting); Schutkowski v. Carey, 725 P.2d 1057 (Wyo.1986) (skydiving). In these cases, the fact that the injury occurred during an activity that was not foreseeable or not associated with a risk “inherent in the sport” did not matter. See, e.g., Benedek (health club member injured when adjusting a television set above exercise machines which fell); Murphy (white water rafter injured when her raft tried to engage in rescue of another raft), and Petry (patron of health club injured when exercise machine she was sitting on collapsed).

In this case, the Release in question does specifically and expressly release defendant from any liability for its negligence or that of any employees, owners, agents, etc. In the matter of contract interpretation, this Court has previously explained:

The cardinal rule in the construction of contracts is to ascertain the intent of the parties. West v. Laminite Plastics Mfg. Co., 674 S.W.2d 310 (Tenn.App.1984). If the contract is plain and unambiguous, the meaning thereof is a question of law, and it is the Court’s function to interpret the contract as written according to its plain terms. Petty v. Sloan, 197 Tenn. 630, 277 S.W.2d 355 (1955). The language used in a contract must be taken and understood in its plain, ordinary, and popular sense. Bob Pearsall Motors, Inc. v. Regal Chrysler-Plymouth, Inc., 521 S.W.2d 578 (Tenn.1975). In construing contracts, the words expressing the parties’ intentions should be given the usual, natural, and ordinary meaning. Ballard v. North American Life & Cas. Co., 667 S.W.2d 79 (Tenn.App.1983). If the language of a written instrument is unambiguous, the Court must interpret it as written rather than according to the unexpressed intention of one of the parties. Sutton v. First Nat. Bank of Crossville, 620 S.W.2d 526 (Tenn.App.1981). Courts cannot make contracts for parties but can only enforce the contract which the parties themselves have made. McKee v. Continental Ins. Co., 191 Tenn. 413, 234 S.W.2d 830, 22 A.L.R.2d 980 (1950).

Bradson Mercantile, Inc. v. Crabtree, 1 S.W.3d 648, 652 (Tenn.Ct.App.1999).

The Contract under consideration is clear and unambiguous, and states that plaintiffs agreed to release defendant from any and all liability, including defendant’s own negligence. Moreover, the Contract specifically mentions that plaintiffs are being furnished and participating in white water rafting and “bus or van transportation” provided by the defendant. The Contract states that plaintiffs realize that they could be injured due to dangers from the rafting as well as the use of white water equipment, forces of nature, or even due to the negligence of defendant’s employees and other rafters. The Contract states that defendant is being relieved of any liability caused by its own negligence in no less than four places, the last of which is in bold print above the signature line. This Contract is plain, and enforceable as written. We conclude the Trial Court properly granted summary judgment to defendant on plaintiffs’ negligence claims.

The Trial Court’s Judgment is affirmed, , and the cost of the appeal is assessed to plaintiffs Nathan and Brandy Henderson.

      . The Court noted the result would have been different if plaintiff's injuries stemmed from a slip and fall in an area adjacent to a swimming pool, citing its previous decision in Owen v. Vic Tanny Enterprises, 48 Ill.App.2d 344, 199 N.E.2d 280 (1964).


author: PATRICIA J. COTTRELL, J„

text:
    Ernest TARPLEY, et al. v. Bert M. HORNYAK, et al.
    Court of Appeals of Tennessee, at Nashville.
    July 7, 2003 Session.
    March 15, 2004.

      Justin D. Pitt, Lebanon, Tennessee, for the appellants, Bert M. Hornyak and wife, Dorothy E. Hornyak.
    Henry Clay Barry, Lebanon, Tennessee, for the appellees, Ernest Tarpley and wife, Mary Nell Tarpley.
   OPINION

PATRICIA J. COTTRELL, J„

delivered the opinion of the court,

in which WILLIAM C. KOCH, JR., and WILLIAM B. CAIN, JJ., joined.

Landowners sued to abate a nuisance claiming that a concrete causeway, built over a creek by an adjoining landowner, caused water to flood their property. After hearing from one witness, the trial judge discouraged further proof and instead chose to visit the plaintiffs’ land at the next flooding. He subsequently found the causeway to be a nuisance and ordered it removed. We reverse because trial court based its decision solely on its personal observations.

I. The Facts

This dispute involves a structure variously described in the pleadings as a bridge, a concrete causeway, and a crossover, built by Wilson County landowners Bert and Dorothy Hornyak. Their upstream neighbors, Ernest and Mary Nell Tarpley, claimed that the drainage culverts under the structure were inadequate to carry the volume of water flowing down the creek in wet and rainy times, causing the Tarpleys’ fields to flood and become marshy and uncultivatable.

The Tarpleys filed a Complaint to Abate Nuisance in the Chancery Court of Wilson County alleging that because of its faulty construction, the bridge essentially functioned as a dam for creek waters. The plaintiffs asked the court to order the structure removed, to order the Hornyaks to remove rocks and materials they allegedly deposited on the Tarpleys’ land during the construction of the causeway, and to award them a judgment of up to $10,000 for the damages they allegedly suffered because of flooding.

The Hornyaks filed an Answer, admitting they had constructed a concrete bridge, but denying that they had created a nuisance or that they had deposited materials on the plaintiffs’ land. In an amended answer, they alleged that they had merely resurfaced a long-existing crossover.

A trial was begun. The record does not contain a transcript of the trial, or of any other proceedings in this case, except for a one-page transcript of the hearing on the Motion for New Trial. Thus, the only evidence in the record of what went on during any other proceedings are two Statements of the Evidence filed by the parties. Neither Statement of the Evidence was explicitly approved by the trial court, see Tenn. R.App. P. 24(e), but they complement rather than contradict each other and are consistent with the trial court’s written orders. The following account is derived from both statements.

The attorneys for both parties presented their opening statements, after which Ernest Tarpley was called to the stand. He testified on direct that the causeway caused flooding on his property during times of heavy rain, and that his hay crop had been damaged by the flooding. On cross-examination, the Hornyaks’ attorney asked Mr. Tarpley what evidence existed to prove his alleged damages, other than his own testimony. During this line of questioning, the chancellor interrupted, telling the attorneys he wanted them in his chambers. He then ordered a recess.

According to the plaintiffs’ Statement of the Evidence only (the defendants’ statement concluded with the declaration of the recess), the judge announced in chambers that he would be happy for the parties to put on all the proof they wanted, but that from their opening statements, it appeared they were going to testify in direct contradiction to each other on the question of whether the bridge caused flooding. The judge reasoned that a continuance of the case would not cause either party any harm, and declared that he did not want to make a decision until he or the Clerk and Master had the opportunity to witness the flooding in person. He accordingly instructed the plaintiffs’ attorney to contact the Clerk and Master when and if flooding occurred again, at which time one of them would proceed to the site. The court’s ruling was memorialized in a July 5, 2001 order, which states:

It appears that the Court is not in a position to determine the validity of the Complaint filed herein. The Court must determine whether or not the nuisance complained of, to wit, that water flows over the bank onto Plaintiffs property as a result of a certain crossover constructed by Defendant.
Therefore, this Court reserves judgment until sufficient proof has been offered by the Plaintiff. Therefore, this matter shall be and is hereby continued until the Court or the Clerk and Master has an opportunity to witness the flow of water.
All other matters are reserved.

Eight months after the trial began, the Tarpleys reported an incident of flooding following heavy rains the night before. Their attorney notified the Clerk and Master of the flooding. After conferring with the Chancellor, the Clerk and Master called the attorneys for both parties and announced that the Chancellor was going to witness the event, with both parties and their attorneys welcome to attend. At the time, the Hornyaks were in Florida. Their attorney stated that he had a conflict and would be unable to appear, but he had no objection to the matter proceeding without him. He also notified Dee Hutchi-son, the Hornyaks’ adult daughter.

The Clerk and Master and the Chancellor drove to the site, as did the Tarpleys’ attorney. Ernest Tarpley and Dee Hutch-ison were also present. The Chancellor spent about half an hour viewing the creek and the flooding which was occurring in the fields adjoining the creek. According to the affidavit of Dee Hutchison, the Chancellor also talked to Ernest Tarpley and his attorney about the flow of water on the property. The Chancellor then returned to the Wilson County Courthouse.

The Chancellor subsequently placed a three-way call between himself and the two attorneys, in which he announced his judgment. He said that he saw the water backed up by the obstruction, and that as a result the plaintiffs’ fields were being flooded, with the flooding extending into the fields of the defendants as well. He declared that the bridge was a nuisance, ordered its removal, and stated that he would hold all other matters in abeyance pending a party setting a hearing on the issue of damages and attorney fees. The court’s subsequently entered written judgment stated:

Both parties appeared in person and represented by counsel, whereupon it appeared to the Court that the issue in this common law nuisance suit was whether or not the concrete bridge with culverts, which the Defendants had built across a stream caused their neighbors, the Plaintiffs, who own the property immediately upstream from the bridge, to flood, if so, the bridge represents a nuisance. If not, then it does not. The Plaintiff testified that the bridge caused his property to flood and the Defendant denied the same. Therefore, the Court reasoned that it should continue the case, until the next substantial rain, so that this Court or the Clerk and Master could have an opportunity to witness the flow of the water, and determine whether or not the same flooded the Plaintiffs property.
Thereafter, the Court received a phone call asking it to come and view the stream. The Court traveled to States-ville and viewed the stream, whereupon it appeared to the Court that the bridge did in fact, back up the waters and caused the Plaintiffs’, as well as the Defendants’, property to flood. It therefore appeared to the Court that the bridge did, in fact, represent a common law nuisance.

The defendants filed a Motion for New Trial, which was heard on May 9, 2002. The one page-transcript shows that the Hornyaks’ new attorney objected to the fact that neither the defendants nor their attorney were present during the viewing of the creek, that there were private communications between the judge and the plaintiff at that time, and that the Horn-yaks were not given the opportunity to present a defense. The trial court denied the motion for a new trial. This appeal followed.

II. Issue On Appeal

The standard of review on appeal is well-settled. We review the trial court’s findings de novo, with a presumption of the correctness of the factual findings of the trial court, unless the evidence preponderates otherwise. Tenn. R.App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001).

The trial court found, after its view or inspection of the property, “it appeared to the court that the bridge did in fact back up the waters and caused the ... property to flood.” The record clearly shows that the trial court reached its conclusions on the basis of its personal observation of the property. Because it is impossible for us to review what the trial judge saw, this court cannot perform its duty to review any facts gleaned during the view and any findings based thereon under Tenn. R.App. P. 13.

In most situations, the inadequacy of an appellate record will be attributed to the appellant, whose responsibility it is to prepare a record that is adequate for a meaningful appellate review. Tenn. R.App. P. 24(b); State v. Bunch, 646 S.W.2d 158, 160 (Tenn.1983); McDonald v. Onoh, 772 S.W.2d 913, 914 (Tenn.Ct.App.1989). The result is generally that where factual issues are raised, without an appellate record containing the facts, this court cannot perform a de novo review or determine the preponderance of the evidence. Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn.Ct.App. 1992). Therefore, in such cases, we usually assume that the record, had it been preserved, would have contained sufficient evidence to support the trial court’s factual findings. Id.; McDonald, 772 S.W.2d at 914; Gotten v. Gotten, 748 S.W.2d 430, 432 (Tenn.Ct.App.1988); Irvin v. City of Clarksville, 767 S.W.2d 649, 653 (Tenn.Ct. App.1989).

However, the general rule should not be applied in this case for a number of reasons. First, although the Hornyaks consented to the judge viewing the property, they did not affirmatively waive their right to put on evidence. Consequently, we will not attribute the inadequacy of the record to them. Second, the issues raised by the Hornyaks on appeal are not direct challenges to the sufficiency of the evidence; they are instead challenges to the procedures used in the view and the use of the judge’s observations to the exclusion of other evidence. Third, we think the real issue in this case is whether a trial court, sitting without a jury, can base its judgment solely on personal observations made during a view or inspection of the locus in quo. This is a question of law, which we review de novo. ' See American Family Mutual Insurance Company v. Shannon, 120 Wis.2d 560, 356 N.W.2d 175, 177-78 (1984).

III. The “View” By The Judge

As far as we can tell, the issues created by the court’s view in the case before us, including the problem of effective or meaningful appellate review, have not been addressed in Tennessee. They have, however, been the subject of opinions elsewhere. Jurisdictions vary in how they treat judge or jury views. They are split as to whether the information gathered on an inspection is actually considered evidence or merely an aid to understanding evidence presented in court, but less divided on the related issue of the extent to which information gained in an inspection or view can be used in reaching the ultimate decision in a case.

A. Aüre The Things ObseRved Evidence?

Some courts have found that the information obtained in a view or visual inspection of the site is evidence. See, e.g., Bene-duci v. Valadares, 73 Conn.App. 795, 812 A.2d 41, 47 (2002) (holding that information obtained in a visual inspection is “just as much evidence as any other evidence in a case”); State v. Pauline, 100 Hawaii 356, 60 P.3d 306 (2002) (holding that a jury view has status of independent evidence and does not serve merely to illustrate testimony). Where that rule prevails, a few courts have gone so far as to hold that conclusions by a trial judge based on evidence obtained in a visual inspection are “entitled to great weight on appeal ... and are subject to review only for clear error.” Beneduci, 812 A.2d at 47.

Although federal courts have seldom considered the issue, see EEOC v. Mercy Hosp. & Medical Ctr., 709 F.2d 1195, 1199 (7th Cir.1983) (noting there is “surprisingly little” federal court authority regarding the conduct of a view by the trial court in a bench trial), the United States Supreme Court expressed its view on the subject stating:

We find it of no moment that the judge in this case described the view as evidence. The Supreme Judicial Court of Massachusetts has said of a view that ‘its chief purpose is to enable the jury to understand better the testimony which has or may be introduced’ ... even so, its inevitable effect is that of evidence, no matter what label the judge may choose to give it.

Snyder v. Massachusetts, 291 U.S. 97, 121, 54 S.Ct. 330, 338, 78 L.Ed. 674 (1934), overruled on other grounds, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964).

In Lillie v. United States, 953 F.2d 1188 (10th Cir.1992), the Court of Appeals for the Tenth Circuit acknowledged that jurisdictions varied as to whether a view is evidence or simply an aid to understanding evidence otherwise in the record, and stated that such a distinction is “only semantic, because any kind of presentation to the jury or the judge to help the fact finder determine what the truth is and assimilate and understand the evidence is itself evidence.” Id. at 1190.

Wigmore takes the position that observations made by the fact finder, whether judge or jury, obtained by inspection in the courtroom or on a view to the site are evidence. The object or site viewed is “real evidence,” as compared with testimonial and circumstantial evidence. 4 John Henry Wigmoee, Evidence in Trials at Common Law § 1150 (James H. Chadbourn rev.1972). Where the object in question, or the real evidence, cannot be brought into court, it is appropriate for the fact finder to go to the object and observe it there. Id. §§ 1162 and 1169. This process of a “view” has long been used, and generally lies within the discretion of the trial court. Id. §§ 1162 and 1164. Wig-more dismissed the theory that a fact finder’s view does not involve the obtaining of evidence. Id. § 1168.

However, it must be noted that Wig-more’s discussion of real evidence in this context was limited to those matters that can be directly perceived and do not require that any inference be drawn from the evidence. “This source differs from the other two in omitting any step of conscious inference or reasoning, and in proceeding by direct self-perception, or autopsy.” Id. § 1150. Consequently, Wigmore described presentation of the thing itself that proved a proposition as “autoptic preference.” Id.

Therefore, any consideration of observations at a view of the locus in quo, and their status as evidence, must include consideration of the facts that can be discerned by physical inspection versus those that can only be inferred from the observations. In the case before us, the only fact that was provable by the view was that the property was flooded on the day of the view. That flooding did not directly prove that the property had flooded at other times and certainly did not prove causation. The trial court’s conclusions on those issues could only have been the result of inferences the judge made based on his view. When used as the basis for inferences, observations lose their nature as autoptic proference. Consequently, reliance on Wigmore for the proposition that observations or views are real evidence is misplaced without examination of what the view could directly prove.

In many jurisdictions, we think a majority, the rule has developed that a judge’s or juror’s personal observations of the site are not considered evidence of facts. See Tid Bit Alley, Inc. v. Erie County, 103 Pa.Cmwlth. 46, 520 A.2d 70, 76 (1986) (reaffirming that “a view cannot replace testimony and the visual observations of the trier of fact cannot be substituted for testimony”). In McDowell v. Schuette, 610 S.W.2d 29, 40 (Mo.Ct.App.1980), the reviewing court found unpersuasive the appellants’ arguments that exclusion of counsel and court reporter prevented objection to and preservation of evidence at the view and that the jury view improperly allowed lay opinion on matters requiring expert testimony. The reason the court rejected these arguments was because the jury view was not evidence since a view was proper only for the purpose of helping the fact finder understand the evidence and a view cannot constitute evidence in a case.

This approach is exemplified by the statement that the “only legitimate purpose of an inspection is to illustrate the evidence and provide a base for understanding and comprehending testimony upon the record.” Tid Bit Alley, 520 A.2d at 76, quoting Cowan v. Bunting Glider Co., 159 Pa.Super. 573, 49 A.2d 270, 271 (1946). See also Gilbert v. City of Caldwell, 112 Idaho 386, 732 P.2d 355, 367 (1987) (stating that although the subject of debate, generally a view is not characterized as evidence because unlike real, testimonial, and documentary evidence, it cannot be included in the record).

It appears to us that the preferred rule that has developed regarding views or inspections of a location involved in a lawsuit is that stated in 89 C.J.S. Trial § 1036 (2000):

While personal inspections of property are permissible and proper as an aid to a better understanding by the judge of the evidence, the issues, what the witnesses have testified to, the weight of the evidence, and its proper application, such views are limited to that purpose and the judge’s personal observations of the site are not considered evidence of facts.

A number of courts have followed this rule. For example, in Russell v. Bartlett, 139 So.2d 770 (La.App.1961), the plaintiff homeowner sought a remedy for the faulty installation of a new roof. The roofing company claimed the installation of the roof was proper. Expert witnesses testified for both sides, but the testimony of the plaintiffs experts was in “irreconcilable conflict” with the testimony of the four experts for' the defendant. Since the plaintiffs experts said the defects in the roof could be discerned by visible inspection and that a layman could observe their existence, the trial judge decided he had to go to the house and inspect the roof himself, after which he rendered a judgment for the plaintiff. The appeals court affirmed, stating that

“[a] trial judge has a perfect right in a proper case such as this to take into consideration his ocular observations made outside the courtroom ... not for the purpose of supplying new evidence, but with the hope of determining, where the evidence is conflicting, just what testimony in the record is worthy of belief.”

Id. at 775.

As referenced earlier, in Tid Bit Alley, the court considered a judge’s decision to make his own observations of an alleged nuisance and stated:

Triers of fact, be they judges, jurors, viewers, board or commissions, may always visit and inspect the locus in quo to secure a better understanding of the evidence and to enable them to determine the relative weight of conflicting testimony. But a view cannot replace testimony; the visual observations of the trier cannot be substituted for testimony; and the only legitimate purpose of an inspection is to illustrate the evidence and provide a base for understanding and comprehending testimony upon the record.

520 A.2d at 76, quoting Cowan v. Bunting Glider Co., 159 Pa.Super. 573, 575-76, 49 A.2d 270, 271 (1946).

We tend to agree with the Lillie court’s observation that the question of whether a view is considered as evidence or as an aid to understanding evidence is largely one of semantics. The cases and principles discussed above demonstrate that, although some courts have described observations from a view as not constituting evidence, courts have been more concerned with the purpose of the view, i.e., not to obtain new or independent evidence. Thus, courts stating observations from a view are not evidence are often actually stating that such observations cannot be used as evidence or as competent evidence. In other words, because a view cannot be properly used to gather new evidence, appellate courts will not consider observations from a view in their review of the evidence. Thus, the important question is what use a judge can make of information gathered at a view.

B. Reliance On Obseevations Foe Ruling

There are numerous other cases which affirm the right of a judge to make an out-of-court site visit for a better understanding of testimony and evidence presented in court, but not for the purpose of creating new evidence. These cases vary a little in their statement of the rule limiting the purpose of a view or inspection by the trial court. See, e.g., Clinton National Bank v. City of Camanche, 251 N.W.2d 248, 251 (Iowa 1977) (holding that while a judge has a right to view premises for a better understanding of the testimony, the appellate court could not consider the judge’s observations as evidence); Scroggins v. Solchaga, 552 N.W.2d 248, 252 (Minn.App.1996) (holding that a factfinder may not gather its own evidence on a view). However, they are essentially uniform in precluding the use of observations made in such a view as the basis for the judgment.

In Cox v. Moore, 805 So.2d 277 (La.App. 2001), the trial judge visited the scene of a motor vehicle accident, and the reviewing court held that it was permissible for a trial judge to make such a visit, not for the purpose of gathering new evidence, but for determining “when the evidence regarding such site is in hopeless conflict, which version is worthy of belief.” Id. at 281. After reviewing the trial court’s reasons for its judgment, the appellate court concluded that the judge had not “create[d] additional evidence.” Id. The parties had introduced pictures of the site and established the layout of the site through testimony. Consequently, the court found no abuse of discretion because the “visit to the site did nothing more than establish a clearer picture in his mind of what was already in evidence and help him decide between the directly conflicting opinions of the expert witnesses.” Id.

Similarly, in American Family Mutual Ins., the court considered a view by a judge by referring to a statute about jury views. As in a jury view, a view by a judge is justified if it enables the judge to better understand, correctly weigh, and assess the respective credibility of the evidence. However, the court held:

A view and the facts or information thereby derived must not be considered as evidence independent of that produced in the course of the trial. The correct purpose of the view is to aid the judge to better understand and weigh the evidence, not to obtain new evidence or to independently determine credibility. The judge should consider the sufficiency of the other evidence and the availability of alternatives to viewing the scene.

356 N.W.2d at 179.

In Belmont Nursing Home v. Illinois Dept, of Public Aid, 108 Ill.App.3d 660, 64 Ill.Dec. 260, 439 N.E.2d 511 (1982), the trial judge visited a nursing home involved in an administrative decision not to renew the facility’s Medicaid certification and a request for a temporary restraining order staying the enforcement of that decision. The judge viewed the facility and talked to the residents, asking them if they wanted to leave and how they were being treated. The appellate court reiterated the rule that facts gained from a judge’s personal observations during a view cannot be considered in evidence. Because the stay order entered by the trial judge was clearly the product of his observations and investigation, the appellate court found that the decision was based on other than competent evidence and required reversal. Id. at 514.

As these cases make clear, the rule that a view is only proper to help understand or reconcile other evidence necessarily implies the existence of such other evidence. Regardless of whether it is more proper to characterize the observations made at a view as evidence, or as an aid to understanding the evidence, we believe that it is the degree to which the fact finder relies on observations made during the view, as compared with evidence appearing in the record, that is the basis for the rulings and principles that have developed on the issue.

A view of the site may not supply a want of evidence or serve as the basis of a verdict. Gilbert, 732 P.2d at 367. A constituent fact may not be determined by a view of the premises alone. Adams v. Lindberg, 125 Ariz. 441, 610 P.2d 75, 76 (1980). And, a trial court may not conduct a view of the site to obtain extrinsic evidence not included in the record. O’Sullivan v. Scott, 25 Wash.App. 430, 607 P.2d 1246,1247 (1980).

A number of courts have held that where a trial court bases its judgment on facts acquired from a view of the locus in quo as well as facts proved by evidence introduced at trial, that judgment must be reversed unless there is other evidence of record sufficient to support the judgment. See Hammond v. Carlyon, 96 So.2d 219, 222 (Fla.1957); Atlantic Coast Line R. Co. v. Hendry, 112 Fla. 391,150 So. 598 (1933); Russell v. Bartlett, 139 So.2d 770, 774 (La.App.1961) (recognizing the general rule that although a judge may not formulate an opinion based solely on a personal view of the locus in quo, and that a judgment based on a view that is contrary to the evidence in the record would be reversed, but holding that a judge may inspect a location and take those observations into consideration for the purpose of determining what testimony in the record is worthy of belief). See also Eisenbrandt v. Finne gan, 156 Ill.App.3d 968, 109 Ill.Dec. 198, 509 N.E.2d 1037,1039 (1987), (holding that because the judge used the view to help understand items already admitted into evidence, in a case where the issue in dispute was flooding of the plaintiffs land which was allegedly caused by construction activity of an adjoining landowner, and because the record stated that photographs already admitted in evidence were the basis of the trial court’s ruling, the trial court did not improperly consider its observations at the view).

The venerable lineage of this rule is demonstrated by the case of First National Bank of Clifton v. Clifton Armory Co. et. al., 14 Ariz. 360, 128 P. 810 (1912). In dealing with the question of whether a particular building should be considered a temporary structure or a fixture for mortgage purposes, the trial judge declared that he had personally viewed the premises, and that he had taken his observations into consideration in determining the outcome. The Arizona Supreme Court reversed. Critical to this reversal was the fact that the trial court decided the building was a fixture “solely by autoptic inspection.” Id. at 812.

Assuming that the trial judge had discretion to make a view of the property in order to clear up the evidence otherwise presented to the court, the Arizona Supreme Court was not prepared to hold that the case could be determined by the view alone. The Court stated, “[t]hat a presiding judge cannot give judgment on his personal and privage (sic) knowledge is a doctrine as old as Chief Justice Gascoigne, and has at all times been regarded as good law.” The court also found that legal questions involved in the case, e.g., the relationship between the parties claiming ownership, could not be determined by a mere view of the property. We think both these principles are relevant to the trial court’s ruling in the case before us.

These cases and others which limit the use a judge may make of his or her observations are based, in part, on the principle that a judge cannot be a witness in a cause which is on trial before him or her. See Tenn. R. Evid. 605. The relationship between reliance on personal observations, as opposed to evidence preserved in the record, and the various iterations of the rules regarding views of a locus in quo is explained in several cases. These cases deal with an improper view, that is one taken without consent or notice to the parties or the opportunity to be present, and with extrajudicial investigations by the judge. Thus, they differ in important respects from the case before us. Nonetheless, they are instructive in understanding the problems caused when a judge conducts a view and relies on his or her observations to resolve the case.

In Price Bros. v. Philadelphia Gear Corp., 649 F.2d 416 (6th Cir.1981), the trial judge sent his law clerk to observe the operation of a machine at the center of the lawsuit. The appellate court held that a trial judge presiding in a bench trial may not, directly or indirectly, conduct an investigation outside the record and use the results of that investigation in determining the facts of a case. Id. at 419. This principle is based on the fairness requirement that facts be determined only upon the evidence properly presented on the record as well as the court’s duty to protect both the fact and appearance of impartiality. Id.

The court noted that it had earlier remanded for a hearing on the law clerk’s observation and report to the judge including “most importantly, what use the trial judge made in deciding the case of whatever the law clerk had observed.” Id. at 420. The court concluded that the purpose of the law clerk’s observation was to describe it to the judge so that the judge might be better able to understand the evidence produced at trial and also held there was no indication that the trial judge considered the law clerk’s report as evidence. Because the trial court’s factual findings were not based on the off-the-record clerk’s inspection, the court held that the improper view did not result in prejudice. Id. at 420-21.

Although the court in Price Bros, was dealing with an improper inspection, and the parties in the case before us were given notice of the judge’s view and the opportunity to attend, the court’s comments in Price Bros, regarding views are relevant to the issues raised in the case before us. The court stated:

A view by the fact finder of places or objects related to a lawsuit does not per se destroy the fact finder’s impartiality. Where the purpose of a view is to assist the fact finder to better understand evidence properly introduced, and the view itself is not considered as evidence, then the potential for prejudice to a party not present at the view is minimized. In contrast, where the fact finder’s observations upon a view are used as evidence to determine the facts, then the procedural safeguards of a trial, including the rules of evidence and the participation of the parties must apply.

Id. at 419.

Similarly, the primary issues in Lillie, supra, were whether a trial court judge committed error when, without providing counsel the opportunity to attend, he visited the scene where the plaintiff tripped down steps and fell and, if it was error, did that conduct require reversal. The court recognized that most authorities agreed that it is error for a judge to take a view without providing an opportunity for counsel to attend. Lillie, 95B F.2d at 1190. After a thorough analysis of cases dealing with the effect of such error, the court determined that: (1) in cases affirming the trial court, the appellate court had found no indication that the trial court relied on the view in making its factual determination; and (2) in cases where the trial court was reversed, the appeal court had generally found that the trial court’s findings did rely on the improper view. After noting potential problems that may result when counsel is excluded from a view, the court went on to discuss a fundamental problem:

When a judge engages in off-the-record fact gathering, he essentially becomes a witness in the case. The presiding judge “may not testify in that trial as a witness.” Fed.R.Evid. 605. Thus, when an improper view is taken the evidence obtained is admitted in contravention of the Federal Rules of Evidence. See also Fed.R.Civ.P. 43 (testimony “shall be taken orally in open court, unless otherwise provided”). "When there is an improper view the parties have no opportunity to cross-examine, to object to the introduction of the evidence, or to rebut the evidence. “The fair and impartial administration of justice demands that facts be determined only upon evidence properly presented on the record.” Price Bros., 649 F.2d at 419. Furthermore, because there is no record of the view, the litigants may effectively be denied any means of challenge on appeal.

953 F.2d at 1191.

These same concerns have been expressed by the Tennessee Supreme Court in a case where a trial judge relied on personal extrajudicial observations in his ruling. In Vaughn v. Shelby Williams of Tennessee, Inc., 813 S.W.2d 132 (Tenn.1991), our Supreme Court reversed a workers’ compensation award because the trial judge based his disability determination in part on pre-trial observations he made of the plaintiff at a mall and in the courthouse parking lot. The Supreme Court ruled that “a judge is not permitted to make an investigation of a case, even an inadvertent one, off of the record, and then base a holding on the information obtained incident thereto.” Id. at 134. The court reasoned that reliance on such an investigation was objectionable because,

... by observing a party outside of the judicial proceedings, and then basing a decision on those observations, the judge becomes a source of evidence, in effect, a witness. Rule 605 of the Tennessee Rules of Evidence clearly prohibits a judge presiding over a trial from serving as a witness, and for good reason. Perhaps the most obvious one is that the system of justice does not appear to be impartial if the judge charged with the duty of adjudicating the litigation also acts as a source of evidence. Additionally, when the trial judge becomes a source of information, the parties may not be willing to cross-examine vigorously the judge whose goodwill is perceived to be important to the outcome of the case. Worse yet, the parties may not even get the opportunity to cross-examine the judge to begin with.

Id. at 133 (citations omitted).

The case before us does not involve personal observations of a judge outside of the litigation before him; it is clear in this case that the judge only went to inspect the property and the flooding to gain information to help him reach a decision in this case. However, that distinction does not eliminate all the problems created where a judge’s personal observations are used as the evidence upon which the ruling rests. As the Vaughn Court observed,

... when a judge becomes a source of evidence, appellate courts are put in an awkward position in that the character of the evidence obtained through private inquiry or observation, as well as its probative value, is not shown in the record, making an evaluation of the information on appeal difficult, if not impossible.

Id. at 133.

The concerns expressed in these cases confirm our conclusion that the appropriate rule in Tennessee is that applied in a majority of other jurisdictions. We therefore hold that a trial judge has the inherent discretion to take a view of the site of a property dispute, a crime, an accident, or any other location, where such a view will enable the judge to assess the credibility of witnesses, to resolve conflicting evidence, or to obtain a clearer understanding of the issues. However, the view cannot be made to obtain additional evidence or to replace the requirement that evidence be produced at trial with the judge’s personal observations of the site. Thus, the proper purpose of a view is to enable the judge to better understand the evidence that has been presented in court, not as a substitute for such evidence. Any determination of factual issues in a case where a judge has taken an on-site view must be supported by significant and material evidence in the record. Appellate courts will review such evidence appearing in the record under Tenn. R.App. P. 13, and where the evidence independent of the judge’s personal observations preponderates against the finding, it is subject to being reversed on appeal.

Applying those principles to the case before us, it is clear that the judgment of the trial court must be reversed. The trial court’s finding that the bridge or crossover caused the property to flood is unsupported by any evidence in the record other than Mr. Tarpley’s one conelusory statement, and his cross-examination was cut short. The record gives us no basis to conclude that Mr. Tarpley was qualified to assess causation or the reasons why he reached that conclusion. It also provides no evidence regarding the situation before the construction or other factors that relate to causation. After the trial court’s inspection, the parties were not given the opportunity to present evidence as to causation.

Instead, the trial court reached its own conclusion after simply viewing one instance of flooding. We are given no insight into the trial court’s reasoning in this regard other than the judgment wherein the trial court found that after its inspection, “it appeared to the court that the bridge did in fact back up the waters and caused the ... property to flood.” Even if we were to consider the trial court’s observations as evidence, the only issue it could have proved was that the land in question was flooded on the day of the visit. That flooding could not be used as a basis for an inference that the property flooded at other times. It certainly provided no basis for a conclusion as to causation. See Champion Dyeing & Finishing Co., Inc. v. Centennial Insurance Co., 355 N.J.Super. 262, 810 A.2d 68, 75-76 (2002) (holding that trial court could not use site visit to decide that a party ignored the need for insurance as it had ignored its housekeeping responsibilities and that the court impermissibly relied on matters outside the record and “on inferences that lacked any basis whatsoever”).

Because a view cannot supply new or independent evidence, there is no evidence in the record to support the trial court’s decision. We are particularly troubled by the trial court’s determination of causation without any competent evidence, relying instead only on his own observations and expertise, neither of which appears in the record. The parties were unable to question those observations, that expertise, or the source of that expertise, and this court is unable to review them or the soundness of the conclusions reached. The procedure used herein implicates the fundamental principles governing trials that (1) the case is to be decided only on the basis of evidence presented in court and subjected to appropriate rules and to cross-examination, and (2) that a judge cannot preside over a trial and be a witness in it.

IV. The Question of Waiver

The Tarpleys argue that any objections that the Hornyaks might have had to irregularities in the trial court’s actions were waived by their acquiescence to those actions. The Hornyaks’ current attorney concedes on appeal that their former attorney did not raise an objection to, the trial judge’s announcement that he would be going out to the site to personally investigate the flooding. Nor did the attorney object to the judge and the opposing party making their site visit on a day when neither he nor his clients could be present.

Rule 36(a) of the Rules of Appellate Procedure sets out the nature of the relief the appellate courts of this state are authorized to grant, and states that “[n]othing in this rule shall be construed as requiring relief be granted to a party responsible for an error or who failed to take whatever action was reasonably available to prevent or nullify the harmful effect of an error.” The Tarpleys accordingly argue that even if we regard the trial court’s actions as erroneous, we are not obligated to reverse for the benefit of parties who took no steps to prevent the trial court from falling into error in the first place. We agree with this general principle, but we do not believe the Horn-yaks waived all their objections.

It is clear that the parties had notice of the judge’s intent to view the property and the opportunity to attend. These circumstances remove a direct challenge to the view itself as improper. In addition, the Hornyaks through counsel waived any objection to the trial court’s visit to the location. That waiver, however, cannot be interpreted as an agreement that the trial court make its decision solely on the basis of his personal observations at the view. See Champion Dyeing, 810 A.2d at 75-76 (holding that a party’s consent to the inspection by the judge was not an agreement to have issues decided on the basis of that inspection).

The Hornyaks argue that they were deprived of the opportunity to defend the lawsuit against them because, among other things, they were not allowed to put on proof about the flooding or the construction. We agree that evidence relevant to the case would include the occurrence or frequency of flooding before and after the construction at issue, the pre-existing structures, the construction or modifications performed by the Hornyaks on those structures, and the actual cause of the flooding. The Hornyaks claim that they were denied due process by the trial court’s actions in denying the opportunity to testify or put on proof.

Due process requires that parties be given an opportunity to be heard. That is, they must be allowed to present their claims or defenses at a meaningful time and in a meaningful manner. Baggett v. Baggett, 541 S.W.2d 407 (Tenn.1976); Case v. Shelby County Civil Service Merit Bd., 98 S.W.3d 167, 172 (Tenn.Ct.App.2002); State v. AAA Aaron’s Action Agency Bail Bonds, Inc., 993 S.W.2d 81, 85 (Tenn.Crim. App.1998).

A waiver is a voluntary relinquishment or renunciation of some right. Baird v. Fidelity-Phenix Fire Ins. Co., 178 Tenn. 653, 162 S.W.2d 384 (1942). A waiver of a legal right must be evidenced by a clear, unequivocal and decisive act of the party showing such a purpose. Stovall of Chattanooga, Inc. v. Cunningham, 890 S.W.2d 442 (Tenn.Ct.App.1994). For the waiver of a fundamental constitutional right to be effective, the record must contain evidence of an intentional relinquishment of a known right. Team Design v. Gottlieb, 104 S.W.3d 512, 528 (Tenn.Ct.App.2002). Based upon the record before us, we cannot conclude that the Hornyaks waived their right to defend the lawsuit against them by presenting evidence. In addition, we have already determined that the trial court’s use of its personal observations as the sole basis for its judgment requires reversal.

The other issue raised by the Hornyaks, i.e., that the trial court engaged in ex parte communications with Mr. Tarpley and his counsel during the visit to the property is pretermitted by our resolution of the appeal on the basis of the trial court’s reliance on the view for its decision. However, we note that conducting the view on the record, at least insofar as any communication to the court is concerned, would have eliminated this issue and any concern by the parties as to the substance of those communications.

Y. Conclusion

The judgment of the trial court is reversed, and this case is remanded to the Chancery Court of Wilson County for further proceedings consistent with this opinion. Tax the costs on appeal to the appel-lees, Ernest and Mary Nell Tarpley.

      . As to other evidence in the record, Mr. Tarpley testified that the crossway caused flooding on his property during times of heavy rain and that his hay crop had been damaged by the flooding. Cross examination of this witness was apparently cut short by the court’s decision to talk to the lawyers in chambers. The record also includes a collection of 19 photographs of a bridge, shown both in wet weather and in dry. A notation on the back of the last photo identifies the collection as exhibit 1 to the testimony of Ernest Tarpley. The Certificate of Appellate Record indicates that the exhibit was either "authenticated by trial judge or as provided by T.R.A.P. Rule 24(f).” There is nothing in the record to indicate that Mr. Tarpley was ever questioned about them and, consequently, no identification of the photographs or description of what they depict.

      . The Court of Criminal Appeals has examined whether the procedures used in transporting a jury to the scene of the crime prejudiced the defendant. State v. Remus, No. W1999-01448-CCA-R3-CD, 2000 WL 279911 (Tenn.Crim.App. March 8, 2000) (no Tenn. R.App. P. 11 application filed).

      . In his well-known example of this kind of evidence, Wigmore explains that if the question is whether the accused has lost his right hand and wears an iron hook in its place, the testimony of a witness could be the source of a belief on the issue, as could a mark left on an object grasped by the accused. The third source of belief is simply an inspection of the accused’s arm by the fact finder. Id. The following passage explains:
      There are indeed genuine cases of inference by the tribunal from things perceived to other things unperceived — as, for example, from a person’s size, complexion, and features, to his age; these cases of a real use of inference can be later more fully distinguished. But we are here concerned with nothing more than matters directly perceived — for example, that a person is of small height or is of dark complexion; as to such matters, the perception by the tribunal that the person is small or large, or that he has a dark or a light complexion, is a mode of acquiring belief which is independent of inference from either testimonial or circumstantial evidence. It is the tribunal’s self-perception, or autopsy, of the thing itself.

        Id. § 1150.

      . Most states and the federal government provide for juries of view in eminent domain and similar cases. See, e.g., Tenn.Code Ann. §§ 29-16-101 et seq., 29-17-101 et seq, and 54-14-101 et seq. Those statutory procedures are separate from and not included in the general rule on views.

      . In addition, even where observations are considered as providing evidence, the conditions observed can only constitute real evidence where they prove a fact without the necessity of further inference. Thus, the trial court's use of its observations to support a finding must be tested by whether the matter at issue is provable solely by the physical object or locality.

      . There are holdings that are somewhat inconsistent. In South Santa Clara Valley Water Conservation District v. Johnson et al, 231 Cal.App.2d 388, 41 Cal.Rptr. 846 (1964), the trial judge viewed the site where defendant allegedly impounded water in derogation of plaintiff’s right to collect that water behind its own dam. The reviewing court in that case declared that when the view of the trial judge is with the consent of the parties, his observations are of "equal dignity” with the other evidence in the case, and can support a judgment even when all that other evidence indicates an opposite result. Id. at 853. Interestingly, however, the court distinguished those matters that can be decided by a layman (the judge) as opposed to those requiring expert testimony. The court stated, "in the present case the physical criteria for finding the existence or nonexistence of a watercourse-namely, channel, bed and sides or banks-were clearly visible to the judge at the time of his visit.” Id. at 853. See also Fowler v. Fayco, 290 Ala. 237, 275 So.2d 665 (1973) (holding that where a fact finder is presented with sharply contradicting evidence and takes a view of the site, the appellate court cannot reverse because it does not have before it all the evidence that may have influenced the trial court). In both cases, however, there was evidence in the record separate from the judge's view.

      . The justice mentioned here is undoubtedly Sir William Gascoigne, (c. 1350-1419), who was Chief Justice of England during the reign of King Henry IV. He was known for courageous advocacy of the principle that even the head of state is subject to law, and is considered to be the inspiration for the character of the Chief Justice in Shakespeare’s Henry TV, Part II.

      . The defendant asserted it had not had prior notice of the clerk’s trip to observe the machine, had no opportunity to be present at the viewing, and had no opportunity to review or rebut the clerk’s report to the judge.

      . The Lillie court concluded that the trial court had relied on its improper view for at least one finding. Because the court considered the trial judge's observations during his inspection to be evidence, which was improperly admitted because the view was improper, it applied the general rule that erroneous admission of evidence is harmless only if other competent evidence is sufficiently strong to permit the conclusion that the improper evidence had no effect on the decision. Because the court could not make that determination, it reversed the trial court. Id. at 1192.

      . We note that in the case before us, the judge’s personal observations were the only evidence he relied on, while in Vaughn, the trial court’s decision was based only in part on his personal observations of the plaintiff prior to trial.

      . The Tarpleys’ statement of the evidence includes parts of the judge’s comments in the three-way conference with the parties' attorneys. It attributes to the judge statements that "he saw the creek backed up by the obstruction and saw that as a result of the same, the Plaintiffs' fields were being flooded.” Obvious issues of judge as witness are raised by this procedure.

      . We note that a view taken without notice to the parties, the opportunity to be present, or the opportunity to have a court reporter present would seriously jeopardize any ruling where the view was considered and would raise issues regarding procedural safeguards necessary to any court proceeding. See American Family Mut. Ins., 356 N.W.2d at 180 (holding that when a view is considered appropriate procedural safeguards should be employed so that accuracy and reliability are not sacrificed.) Without notice, the view becomes an extrajudicial investigation or off-the-record fact gathering by the judge.

      . The Tarpleys argue that the Hornyaks waived any rights to put on additional proof. They claim that during the conference in chambers the judge said that he would be happy for the parties to put on all the proof they wanted to, but that the appellants declined to take him up on his offer. It appears to us, however, that the Tarpleys’ own Statement of the Evidence as well as the order entered by the court support an inference that the trial judge was determined to view the situation on the ground for himself. After the site visit, the judge simply announced his decision, without giving either party a prior opportunity to present any evidence or argument that might have led him to reach a different conclusion.