Turnbough v. Ladner, 97-CT-01179-SCT.

• Decision Date: 09 December 1999
• Docket Number: No. 97-CT-01179-SCT.,97-CT-01179-SCT.
• Parties: Michael TURNBOUGH v. Janet LADNER.
• Court: Mississippi Supreme Court

754 So.2d 467

Michael TURNBOUGH v. Janet LADNER.

No. 97-CT-01179-SCT.

Supreme Court of Mississippi.

December 9, 1999.

Rehearing Denied April 20, 2000.

Joe Sam Owen, Robert P. Myers, Jr., Gulfport, Attorneys for Appellant.

Robert M. Frey, Michael E. McWilliams, Jackson, Attorneys for Appellee.

EN BANC.

ON WRIT OF CERTIORARI

McRAE, Justice, for the Court:

¶ 1. Michael Turnbough suffered decompression sickness after participating in a certification scuba dive led by Janet Ladner. Turnbough subsequently filed suit against Ladner alleging she was negligent in planning and supervising the dive. Ladner filed a motion for summary judgment, which the Circuit Court of Harrison County granted based on an anticipatory release that Turnbough had signed in favor of Ladner. Turnbough appealed, the Court of Appeals affirmed, and we granted certiorari. We reverse the Court of Appeals, as well as the trial court, and remand for further proceedings consistent with this opinion. We hold that the release executed by Turnbough did not exclude from liability the type of negligence which forms the basis for Turnbough's complaint; and therefore, the trial court's grant of summary judgment was error.

FACTS

¶ 2. Michael Turnbough decided in 1994 that he wanted to obtain his open-water certification as a scuba diver. He had previously been certified as a scuba diver, but his certification had expired back in the 1980's. Turnbough enrolled in a scuba diving class offered by Gulfport Yacht Club and taught by Janet Ladner. Upon learning from Ladner that all of the participants would be required to execute a release in favor of her and the Gulfport Yacht Club in order to participate in the class, Turnbough questioned a fellow student who also happened to be an attorney. After Turnbough's classmate informed him that such releases were unenforceable, Turnbough then executed the document entitled "Liability Release and Express Assumption of Risk." The release, in pertinent part, stated

Further, I understand that diving with compressed air involves certain inherent risks: decompression sickness [and others]....

¶ 3. At the conclusion of the six-week course, the class convened in Panama City, Florida to perform the first of their "check-out dives" in order to receive certification. On Saturday, July 23, 1994, the class performed two dives from the beach. However, Turnbough's participation in the first dive was cut short by a leaking tank. He completed the second dive with no apparent problems. The next morning, Sunday, July 24, 1994, the class performed two dives from a dive boat. Two dives of sixty feet each were scheduled, but because the dive boat had engine problems, the first dive site was only forty-six to forty-eight feet deep. The second dive descended to sixty feet, and Ladner calculated the maximum time allowable for the second dive as thirty-eight minutes.

¶ 4. Turnbough began to feel the first effects of decompression sickness, commonly known as "the bends," on his way back to Gulfport that evening. The next day Turnbough began experiencing a pain that he described as "arthritic" in his joints. On Tuesday, Turnbough began attempting to contact Ladner to inform her of his symptoms. He continued to make attempts to contact her throughout the week, finally reaching her on Friday. Ladner advised Turnbough to call a diver's hotline, which in turn instructed him to seek medical attention at a dive hospital. Turnbough received treatment for decompression sickness at the Jo Ellen Smith Hospital in New Orleans. Turnbough states that he was told by the doctors at the hospital who ran the dive profile that the dive was too long, and there should have been a decompression stop before the divers surfaced. He further states that he was told that he could never dive again. Tom Ebro, an expert in water safety and scuba diving, opined that Ladner was negligent in planning the depths of the dives as well as in failing to make safety stops and that these errors significantly increased the risk that her students might suffer decompression illness.

¶ 5. On February 10, 1995, Turnbough filed suit against Ladner. In his complaint, Turnbough alleged that Ladner was negligent in her supervision of the dive and in exposing him to decompression injury. Ladner filed a motion for summary judgment on October 27, 1995, based on the release Turnbough had signed. The circuit court granted the motion, and dismissed the case.

¶ 6. Turnbough appealed, asserting that the release should be declared void as against public policy, and the case was assigned to the Court of Appeals. The Court of Appeals found that the release was a contract of a purely personal nature and did not violate Mississippi public policy because scuba diving does not implicate a public concern. We subsequently granted certiorari.

DISCUSSION

¶ 7. The law does not look with favor on contracts intended to exculpate a party from the liability of his or her own negligence although, with some exceptions, they are enforceable. However, such agreements are subject to close judicial scrutiny and are not upheld unless the intention of the parties is expressed in clear and unmistakable language. 57A Am.Jur.2d Negligence § 65, at 124 (1989); see also Willard Van Dyke Prods. Inc. v. Eastman Kodak Co., 12 N.Y.2d 301, 239 N.Y.S.2d 337, 189 N.E.2d 693, 695 (1963) ("clear and unequivocal terms"). "Clauses limiting liability are given rigid scrutiny by the courts, and will not be enforced unless the limitation is fairly and honestly negotiated and understandingly entered into." Farragut v. Massey, 612 So.2d 325, 330 (Miss.1992) (quoting 17 Am.Jur.2d Contracts § 297, at 298 n. 74 (1991)).

¶ 8. The wording of an exculpatory agreement should express as clearly and precisely as possible the extent to which a party intends to be absolved from liability. Bradley Realty Corp. v. New York, 54 A.D.2d 1104, 389 N.Y.S.2d 198, 199-200 (N.Y.App.Div.1976); Hertzog v. Harrison Island Shores, Inc., 21 A.D.2d 859, 251 N.Y.S.2d 164, 165 (N.Y.App.Div.1964). Failing that, we do not sanction broad, general "waiver of negligence" provisions, and strictly construe them against the party asserting them as a defense. See Leach v. Tingle, 586 So.2d 799, 801 (Miss.1991)

; State Farm Mut. Auto. Ins. Co. v. Scitzs, 394 So.2d 1371, 1372 (Miss.1981).

¶ 9. In further determining the extent of exemption from liability in releases, this Court has looked to the intention of the parties in light of the circumstances existing at the time of the instrument's execution. Farragut, 612 So.2d at 330. The affidavit of Tom Ebro, an expert in water safety and scuba diving, shows that the alleged negligent acts on which Turnbough's claim is based could not have been contemplated by the parties. Ebro stated that Ladner's instruction fell "woefully short" of minimally acceptable standards of scuba instruction. Specifically, he averred that Ladner negligently planned the depths of the dives and failed to make safety stops which significantly increased the risk of decompression illness, especially with a student class. Assuming Turnbough was aware of the inherent risks in scuba diving, it does not reasonably follow that he, a student, intended to waive his right to recover from Ladner for failing to follow even the most basic industry safety standards. This is especially true since Ladner, who held herself out as an expert scuba instructor and is presumed to have superior knowledge, is the very one on whom Turnbough depended for safety. In this case it appears that Ladner may have miscalculated the amount of time for the dive or may have failed to take into account previous dives. This is important because nitrogen builds up in the body while underwater and, with too much nitrogen, the "bends" and permanent damage including loss of life may occur. Surely it cannot be said from the language of the agreement that Turnbough intended to accept any heightened exposure to injury caused by the malfeasance of an expert instructor. Turnbough, by executing the release, did not knowingly waive his right to seek recovery for injuries caused by Ladner's failure to follow basic safety guidelines that should be common knowledge to...