Mississippi Supreme Court makes it almost impossible to write a release that is enforceable because the court does not give direction as to what it wants.Posted: May 16, 2016 Filed under: Mississippi, Release (pre-injury contract not to sue), Scuba Diving | Tags: #scuba, Bends, MISSISSIPPI, negotiation, Open Water Dive, Release, scuba diving Leave a comment
Dissent slams the majority and rightly so for ignoring the fact the plaintiff was drunk before his scuba accident and signed the release fraudulently.
Turnbough v. Ladner, 754 So. 2d 467; 1999 Miss. LEXIS 375
Plaintiff: Michael Turnbough
Defendant: Janet Ladner
Plaintiff Claims: negligence in planning and supervising dives
Defendant Defenses: Release
Holding: for the Plaintiff
This is a simple case with disastrous results for providers of recreation activities in Mississippi.
The plaintiff was certified as a scuba diving in the 80’s. He wanted to start diving again so he took another scuba course from the defendant. Before taking the course the plaintiff was given a release to sign.
The plaintiff leaned over to another student in the class who was an attorney and asked the attorney if the release was enforceable. The attorney said no.
Upon learning from Ladner that all 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 class was over six weeks. At the end of the six weeks, there were four open water dives. The first two dives were from a beach. The plaintiff’s first beach dive was cut short because his tank was leaking. The plaintiff had no problems on the second dive.
The next day the open-water dives were from a boat. The dives were supposed to be to a depth of 60’. However, boat had problems so the first dive was only to 48’. The second dive went to 60′, and the dive instructor calculated the dive was to last 38 minutes.
On the way home that night the plaintiff started to experience the bends. The plaintiff spent five days attempting to get in touch with the dive instructor who when reached on Friday, told him to call a dive hotline. The hotline told him to get to a dive hospital, in New Orleans. The plaintiff got to the hospital and seems to have recovered from the bends but was told he could never dive again.
The plaintiff sued. The trial court dismissed the complaint based upon a motion for summary judgment filed by the defendant based upon the release. The appellate court upheld that decision, and the plaintiff appealed the decision to the Mississippi Supreme Court which issued this opinion.
Analysis: making sense of the law based on these facts.
The court first looked at the law of releases in Mississippi. The first statement, laws are looked upon with disfavor in Mississippi, was actually a true statement in this case by this court. (A first.) “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.”
The court then continued and laid out the requirements for a release to be valid, which at best are lost enough to make any release difficult to determine if it might even be valid.
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. “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.
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. Failing that, we do not sanction broad, general “waiver of negligence” provisions, and strictly construe them against the party asserting them as a defense.
Deciphering the Supreme Court statements, a release in Mississippi must:
· The intention must be expressed in clear and unmistakable language.
· The limitation in the release is fair and honestly negotiated.
· The language must be clear and precisely written that absolves a party of liability.
Meaning you must use the term negligence in a release in Mississippi, and that negligence must refer specifically to the actions of the defendant that are intended to be precluded. Those actions must specifically include the actions the plaintiff is complaining of. The language stating the defendant is not liable must be clear and precisely written.
The court then muddied the waters further with this statement: “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.”
The court then justified its reasoning with this equally confusing and muddled statement.
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.
The court then went back to explain what was required in a release in Mississippi.
We have held in Quinn that contracts attempting to limit the liabilities of one of the parties would not “be enforced unless the limitation is fairly and honestly negotiated and understood by both parties.”
As we saw in Oregon (See Oregon Supreme Court finds release signed at ski area is void as a violation of public policy.) the requirements for negotiation are almost fatal. The guest must have the opportunity to change the terms or the release or negotiate a way to avoid the release by paying more money or other such opportunity.
Then the court reinforced the requirements that the release be negotiated.
In this case, Turnbough signed a pre-printed contract, the terms of which were not negotiated. Since the contract was not negotiated and contained a broad waiver of negligence provision, the terms of the contract should be strictly construed against the party seeking to enforce such a provision.
The court concluded:
Although waivers are commonly used and necessary for some activities and the attendant risks and hazards associated with them, those who wish to relieve themselves from responsibility associated with a lack of due care or negligence should do so in specific and unmistakable terms. The agreement in this case fails to do that.
There was a dissent in this case, which brought out several factual issues seemingly ignored by the rest of the Supreme Court and looked at the legal issues in a different way.
The first was a brilliant analysis of the facts from the stand point of contract law. The plaintiff signed a contract with no intention of fulfilling the contract.
Turnbough then proceeded to sign the release but he now seeks to have the release invalidated on the basis that such releases are unenforceable. Turnbough’s conduct in this matter shows that he entered into a binding contract with no intention of honoring it and every intention of breaking it at a later time should it become convenient.
Signing a contract without the intention of fulfilling the contract is fraud and subjects the fraudulent party with being forced to uphold the contract and in some cases pay damages for the fraudulent acts.
The dissent then went through the release and pointed out the places in the release that the requirements the majority insist upon were in the release.
The final issue was the plaintiff had consumed several alcoholic beverages right before his dive contrary to the instruction of the dive instructor.
Finally, the record in this case indicates that Turnbough, after signing a release he did not intend to honor, admittedly consumed several alcoholic beverages at a local cabaret just hours before his dive in violation of clear warnings given to him by Ladner.
Finally, the dissent sort of let the majority have it.
Today’s majority opinion favors those who recklessly ignore sober warnings, intentionally sign agreements that they have no intention of fulfilling and then throw themselves upon the mercy of the Courts to reward their dishonest and reckless behavior. This Court should not reward such conduct. I would therefore affirm the trial court’s grant of summary judgment in favor of Ladner.
So Now What?
As much as you may want to cheer the dissent in this opinion both for the clarity of the decision and the truthfulness that he brings to the opinion, the majority rules and releases, if at all possible, to write in Mississippi will be difficult to enforce.
First releases in Mississippi must have a long list of the risks which the release might cover to be valid. The release must contain more than the legalese needed in most other states. The injuries the plaintiff might complain of, must be something the plaintiff read about in the release.
The secret handshake that basically removes Mississippi from a state supporting release law is the “fair and honest negotiation” clause. That means the parties must negotiate for the release to be valid. Explained another way, the plaintiff must be presented with the opportunity to take the class or do the activity without signing a release.
So if you offer the opportunity to take the scuba class in this case for $500 by signing a release, you can take the class without signing a release for $1000.00.
However, most insurance policies for outdoor recreation activities and all for scuba lessons require the scuba instructor to use a release. So in Scuba and most other recreational activities the defendant is caught between a rock and a hard place. Make the release valid under Mississippi law and do so without insurance or maintain insurance, temporarily until your insurer finds out your release is invalid.
This requirement is almost doomed to stop releases in Mississippi.
One option, which probably won’t work in Mississippi, that you could write into a release, which I have used for several years, is a breach of contract clause. If you sign the contract and then attempt to breach the contract you are subject to greater damages. However, this is a tricky clause. Doing so without it appearing to be indemnification, which is not allowed by most states, and enforceable requires understanding the law and the language.
However, that still pales in front of the requirement to negotiate the release.
Another issue in this case that the dissent argued that in other cases might go differently is signing the release having no intention of fulfilling the contract. Meaning signing the release and intending to sue if you were injured. Although the dissent felt this was a fraudulent act which should void the release. In many other states, this might be ignored unless the language of the release was specific in stating that the parties or signor intended to fulfill the contract and understood that failure to enforce the agreement would create damages.
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