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.

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

State: Mississippi

Plaintiff: Michael Turnbough

Defendant: Janet Ladner

Plaintiff Claims: negligence in planning and supervising dives

Defendant Defenses: Release

Holding: for the Plaintiff

Year: 1999

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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Turnbough v. Ladner, 754 So. 2d 467; 1999 Miss. LEXIS 375

Turnbough v. Ladner, 754 So. 2d 467; 1999 Miss. LEXIS 375

Michael Turnbough v. Janet Ladner

NO. 97-CT-01179-SCT

SUPREME COURT OF MISSISSIPPI

754 So. 2d 467; 1999 Miss. LEXIS 375

December 9, 1999, Decided

PRIOR HISTORY: [**1] COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 09/04/1997. TRIAL JUDGE: HON. KOSTA N. VLAHOS.

Original Opinion of December 18, 1998, Reported at: 1998 Miss. App. LEXIS 1011.

DISPOSITION: REVERSED AND REMANDED.

CASE SUMMARY:

COUNSEL: ATTORNEYS FOR APPELLANT: JOE SAM OWEN, ROBERT P. MYERS, JR.

ATTORNEYS FOR APPELLEE: ROBERT M. FREY, MICHAEL E. McWILLIAMS.

JUDGES: McRAE, JUSTICE. SULLIVAN AND PITTMAN, P.JJ., BANKS AND WALLER, JJ., CONCUR. MILLS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY PRATHER, C.J., SMITH AND COBB, JJ.

OPINION BY: MCRAE

OPINION

[*468] ON WRIT OF CERTIORARI

NATURE OF THE CASE: CIVIL – PERSONAL INJURY

EN BANC.

McRAE, JUSTICE, FOR THE COURT:

P1. 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 [**2] 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

P2. 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 [**3] air involves certain inherent risks: decompression sickness [and others]. . . .

P3. 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.

P4. 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 [**4] 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 [*469] 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.

P5. 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, [**5] and dismissed the case.

P6. 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

P7. [HN1] 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, 189 N.E.2d 693, 695, 239 N.Y.S.2d 337 (N.Y. 1963) (“clear and unequivocal terms”). “Clauses [HN2] 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. [**6] ” Farragut v. Massey, 612 So. 2d 325, 330 (Miss. 1992) (quoting 17 Am. Jur. 2d Contracts § 297, at 298 n.74 (1991).

P8. [HN3] 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).

P9. [HN4] 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 [**7] 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 [*470] previous dives. This is important because nitrogen builds up in the body while underwater and, with too much nitrogen, the “bends” and permanent [**8] 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 any instructor of novice students.

P10. We have held in Quinn that [HN5] 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.” Quinn v. Mississippi State Univ., 720 So. 2d 843, 851 (Miss. 1998) (citation omitted). 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. See Leach v. Tingle, 586 So. 2d at 801; State Farm Mut. Auto. Ins. Co. v. Scitzs, 394 So. 2d at 1372. [**9]

P11. 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.

CONCLUSION

P12. We therefore reverse the judgment of the Court of Appeals and the trial court’s summary judgment and we remand this case to the trial court for further proceedings consistent with this opinion.

P13. REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.

SULLIVAN AND PITTMAN, P.JJ., BANKS AND WALLER, JJ., CONCUR. MILLS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY PRATHER, C.J., SMITH AND COBB, JJ.

DISSENT BY: MILLS

DISSENT

MILLS, JUSTICE, DISSENTING:

P14. The majority finds that summary judgment was not appropriate in this case, and therefore reverses and remands for a trial. Because the trial court was correct in granting summary judgment, I respectfully dissent.

P15. We must determine the validity of an unambiguous release dealing with admittedly hazardous activities signed [**10] with full awareness of all the risks and dangers by Turnbough in favor of Ladner. The record shows that Turnbough consulted a fellow classmate who also happened to be an attorney. Turnbough’s classmate gratuitously informed him that such releases were unenforceable. 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.

P16. Directly addressing the facts of this case, the release in question states in pertinent part:

I, Michael Turnbough, hereby affirm that I have been advised and thoroughly informed of the inherent dangers of skin diving and scuba diving.

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

I understand and agree that neither my instructor(s) Janet Ladner [nor the Yacht Cub or other participants] may [*471] be held liable or responsible in any way for any injury, death, or other damages to me or my family, [**11] heirs, or assigns that may occur as a result of my participation in this diving class or as a result of the negligence of any party, including the Released Parties, whether passive or active.

P17. In my opinion such unambiguous releases comport with the public policy of the State of Mississippi and should be enforced. The failure to enforce such releases when dealing with obviously risky activities, such as scuba diving, will have a chilling effect on the numerous sporting activities and other events of obvious danger. We should allow reasonable adults to assume such risks when they choose to engage in activities of greater than usual danger.

P18. Releases are not only meant to save the party in whose favor it is executed from being held ultimately liable, but are also intended to allow such a party to avoid the costs and anxiety of having to fully litigate the matter. Summary judgment is the appropriate mechanism to do just that. Summary judgment may be granted “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled [**12] to a judgment as a matter of law.” M.R.C.P. 56(c). “A ‘material’ fact tends to resolve any of the issues, properly raised by the parties.” Mississippi Road Supply Company, Inc. v. Zurich-American Insurance Company, 501 So. 2d 412, 414 (Miss. 1987) (quoting Pearl River County Board of Supervisors v. South East Collections Agency, Inc., 459 So. 2d 783, 785 (Miss.1984)).

P19. 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. 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.

P20. I respectfully dissent.

PRATHER, C.J., SMITH AND COBB, JJ., JOIN THIS OPINION.


Arbitration clause in a release is upheld in Mississippi, but only because it was “fair”

Larger issue is should you use arbitration and if you should, when?

Daniels v. Virginia College at Jackson; 478 Fed. Appx. 892; 2012 U.S. App. LEXIS 13037

State:

Plaintiff: Mississippi, United States Court of Appeals for the Fifth Circuit

Defendant: Virginia College L.L.C.; Education Corporation of America; Willis-Stein and Partners

Plaintiff Claims: negligence, conversion, embezzlement, and unjust enrichment

Defendant Defenses: Mandatory arbitration as found in the release which was part of the enrolment agreement

Holding: for the defendant

Year: 2012

The facts of this case are unknown. What is known is the plaintiff enrolled in the defendant college. To enroll she had to sign an Enrollment and Tuition Agreement. The Enrollment and Tuition Agreement (Enrollment form) had a mandatory arbitration clause.

Arbitration is a cross between mediation and a trial. Arbitration is usually done by a member of the American Arbitration Association or by a neutral party picked by both sides. Arbitration is a lot cheaper and faster than going to trial. In many states, an arbitrator cannot award all the types of damages that a jury or judge could. Arbitrators rarely award as much money in damages as a jury does.

Arbitration is supported by state law, which limits damages, compels arbitration and encourages and forces parties to an arbitration clause to arbitrate.

In this case, the plaintiff objected the required arbitration required in the contract. That arbitration was required by the trial court, and the plaintiff appealed to the United States Court of Appeals for the Fifth Circuit. The Fifth circuit court upheld the mandatory arbitration.

Summary of the case

The discussion in this case is fairly simple. The plaintiff was unhappy about how the defendant school had retained portions of the federal financial aid she had received. She sued claiming the arbitration clause was void because it was unconscionable.

Under Mississippi law unconscionability:

…is proven by oppressive contract terms such that there is a one-sided agreement whereby one party is deprived of all the benefits of the agreement or left without a remedy for another party’s nonperformance or breach.

The plaintiff argued that the enrollment agreement was unconscionable because it limited damages, had a jurisdiction and venue clause and awarded the defendant attorney fees if it won its case. To overcome some of the issues, the defendant in its written argument to the appellate court considered the attorney fee’s clause stating the clause allowed any winning party to recover its attorney fees.

Consequently, the arbitration clause was not found to be unconscionable in this situation applying Mississippi law.

So Now What?

The real issue to look at in this case is, should you use arbitration if you run an outdoor recreation business or program and if so when.

Probably, if you are an outdoor recreation activity in a state that supports the use of a release, and you have a well-written release, then no, do not require arbitration. The reason is simple; arbitration does not allow motions for summary judgment, which is a quick and final ending to the litigation.

Arbitration will allow the parties to go to arbitration and allow the plaintiff to have their day in court. Usually, a motion for summary judgment is faster, simpler and cheaper.

The only places I would consider arbitration in an outdoor recreation business setting would be those states that do not allow the use of a release, if those states support mandatory arbitration. At the time of the writing of this article, those states are: Louisiana, Montana, and Virginia (although Virginia attorneys continuously tell me lower courts uphold releases?).

Possibly Alaska, Hawaii, New York, Arizona, New Mexico, and West Virginia for some activities were the state legislature or the courts have held that releases are not valid for those activities. However, in all of those states, you must investigate the statute and make sure arbitration works the way you need as well as limits the damages that can be awarded by an arbitrator.

See States that do not Support the Use of a Release

Arbitration is not a cover up for having a bad release. If your release is bad, an arbitration clause is not going to provide any greater protection. Besides if you have a bad release, you probably have a bad arbitration clause also.

Of note, is the court looked at the over-all fairness of the agreement and the arbitration clause. Without a finding of fundamental fairness, the court might have voided the arbitration clause. In  

For an article on failed arbitration see: Complicated serious of cases created to defend against a mountaineering death.

What do you think? Leave a comment.

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Daniels v. Virginia College at Jackson; 478 Fed. Appx. 892; 2012 U.S. App. LEXIS 13037

Daniels v. Virginia College at Jackson; 478 Fed. Appx. 892; 2012 U.S. App. LEXIS 13037

Natifracuria, Plaintiff-Appellant, Virginia College L.L.C.; Education Corporation of America; Willis-Stein and Partners, Defendants-Appellees,

No. 11-60861 Summary Calendar

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

June 26, 2012, Filed

NOTICE: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

PRIOR HISTORY: [**1]

Appeal from the United States District Court for the Southern District of Mississippi. USDC No. 3:11-CV-496.

DISPOSITION: The district court’s judgment is AFFIRMED.

COUNSEL: For NATIFRACURIA DANIELS, Plaintiff – Appellant: Precious Tyrone Martin, Sr., Esq., Precious Martin, Sr. & Associates, P.L.L.C., Jackson, MS.

For VIRGINIA COLLEGE, L.L.C., EDUCATION CORPORATION OF AMERICA, Defendants – Appellees: Ollie Ancil Cleveland, III, Esq., Peter Sean Fruin, Attorney, Maynard, Cooper & Gale, P.C. Birmingham, AL.

For WILLIS-STEIN AND PARTNERS, Defendant – Appellee: Robert Lewis Gibbs, Esq., Gibbs Whitwell, P.L.L.C., Jackson, MS.

JUDGES: Before REAVLEY, SMITH, and PRADO, Circuit Judges.

OPINION

[*893] PER CURIAM:*

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

Plaintiff-Appellant Natifracuria Daniels appeals the district court’s order compelling arbitration of her state-law tort and restitution claims against Defendants-Appellees Virginia College at Jackson, Virginia College, L.L.C., Education Corporation of America, and Willis-Stein and Partners (collectively “Virginia College”). Virginia College moved [**2] to compel arbitration in order to enforce an arbitration clause in the “Enrollment and Tuition Agreement,” which Daniels signed before enrolling as a student at Defendant Virginia College at Jackson (individually, “the College”). On appeal, Daniels contends that the Agreement’s arbitration clause does not cover her tort claims, and she contends that the arbitration clause is unconscionable.

We AFFIRM.

The Enrollment Agreement’s arbitration clause requires arbitration of any claim “arising out of or relating to [the Agreement], together will all other claims . . . of any nature whatsoever arising out of or in relation to [Daniels’s] enrollment and participation in courses at the College . . . .” Daniels alleges that the College unlawfully retained the portion of her federal financial aid monies that should have been disbursed to Daniels to cover her cost of living. She brings state-law claims sounding in negligence, conversion, embezzlement, and unjust enrichment. Because these claims arose “in relation to [Daniels’s] enrollment and participation in courses at the College,” the district court was correct in finding them subject to the arbitration clause.

[HN1] Under Mississippi law,1 substantive [**3] unconscionability “is proven by oppressive contract terms such that there is a one-sided agreement whereby one party is deprived of all the benefits of the agreement or left without a remedy for another party’s nonperformance or breach.” Covenant Health and Rehab. of Picayune, LP v. Estate of Moulds, 14 So. 3d 695, 699-700 (Miss. 2009) (internal citation and quotation marks omitted). In Covenant Health, the Mississippi Supreme Court found that a contract containing an arbitration clause “coupled with a multitude of unconscionable provisions,” including asymmetrical limitations on liability, choice of forum, and other matters, was unenforceable in its entirety. Id. at 703. Daniels argues that the Enrollment Agreement is similarly laden with unconscionable provisions.

1 The Enrollment Agreement has an Alabama choice-of-law provision. But no party raises this provision, and they have relied on Mississippi law throughout their briefing on appeal and before the district court.

First, there is language in the arbitration clause that allows the College, but not Daniels, to seek injunctive relief in court. [HN2] An agreement that requires only one party to submit its claims to arbitration is unconscionable [**4] under Mississippi law,2 but the language at issue here merely allows the College to seek a preliminary injunction to halt a student’s ongoing breach of the Enrollment Agreement. The College must seek all other relief though arbitration. An asymmetric exception so limited in scope does not make an arbitration clause unconscionable. Sawyers v. Herrin-Gear Chev. Co., 26 So. 3d 1026, 1035 (Miss. 2010) (arbitration clause between car dealer and purchaser enforceable notwithstanding exception allowing car dealer to bring an action to repossess the car in court).

2 Covenant Health, 14 So. 3d at 700 (citing Pridgen v. Green Tree Fin. Servicing Corp., 88 F. Supp. 2d 655, 658 (S.D. Miss. 2000)).

[*894] Daniels also points to the arbitration clause’s language prohibiting the arbitrator from awarding any damages not “measured by the prevailing party’s actual compensatory damages.” [HN3] Ostensibly bilateral limitations on punitive damages are unconscionable under Mississippi law if they are one-sided in practical effect due to the weaker party’s being “much more likely to be justified in seeking punitive damages.” Vicksburg Partners, L.P. v. Stephens, 911 So.2d 507, 523-24 (Miss 2005) (ostensibly bilateral punitive-damages [**5] limitation in contract of adhesion between nursing home and occupant unenforceable against occupant), overruled on other grounds by Covenant Health, 14 So. 3d at 706 (Miss. 2009). However, as Virginia College concedes in its brief, the arbitration clause does not bar the arbitrator from awarding damages in excess of compensatory damages. It merely requires that the amount of such damages be based on the prevailing party’s compensatory damages. Sawyers, 26 So. 3d at 1036 (interpreting nearly identical language as requiring only that the parties be “limited as to the amount of punitive damages which might be awarded, since such an award would have to be ‘measured by the prevailing party’s actual damages'”). Such provisions are not unconscionable. Id.

Daniels next points to the Enrollment Agreement’s asymmetric liquidated damages provision, which she contends would leave her without any remedy for the wrongs she alleges because its language limits her recovery to “an amount equal to any non-refunded tuition payments . . . .” [HN4] Contractual provisions intended to exculpate a party of liability for its own tortious conduct are particularly suspect under Mississippi law. See Turnbough v. Ladner, 754 So.2d 467, 469 (Miss. 1999)). [**6] As Virginia College concedes, however, the liquidated damages provision in the Enrollment Agreement applies only to breach-of-contract damages, and would not affect recovery for Daniels’s claims.

Finally, a provision of the agreement permits the college to recover attorney’s fees against Daniels if it prevails in any action or arbitration that is “permitted” by the Enrollment Agreement or that “aris[es] out of [the Agreement] and the subject matter contained [there]in.” However, while the Enrollment Agreement is silent with respect to Daniels’s recovering fees if she prevails, Virginia College disavows any interpretation of it that would preclude Daniels from recovering attorneys’ fees to which she might otherwise be entitled under the arbitration rules. Given Virginia College’s concessions regarding the meaning of its provisions, enforcing the Enrollment Agreement’s arbitration clause is not unconscionable under Mississippi law.

The district court’s judgment is AFFIRMED.


News May 27, 2013

Rundown of weekly news that might be of interest!

 

Legal

The age that minors become adults.

I am constantly writing about the different legal issues of minors, here you can check on what that means for your state.

The age when a minor becomes an adult is currently 18 in 47 states. Alabama and Nebraska state law says an adult is someone who is 19 or older and Mississippi an adult is 21 or older.

There are exceptions for all the laws on minority in each state. A minor can become an adult if they marry, if they are emancipated or by special statutory exceptions.

See http://rec-law.us/13YGKFq

 

Against the law now for kids to not pay attention?

Parents sue because kids were playing. Group of kids on a YMCA outing to a miniature golf course were playing around. One kid hit another in the mouth with a golf club and injured the girl. The parents are suing for inadequate supervision.

How many adults would you have to have to keep kids from playing around? 10 kids, 20 adults? The only result of these suits is kids are not going to be taken care of by adults except their parents.

See http://rec-law.us/11s9pNV

 

Commercial whitewater fatality on the Kenai Peninsula‘s Six Mile Creek.

See http://rec-law.us/11qnIm6

 

 

Skiing

Vail just got bigger!

Vail resorts just signed a 50 year lease to run The Canyons in Utah. This will make the Vail Season pretty amazing. Nine resorts (the PR forgot about #A-Basin) will be available to season pass holders in three states: CO, UT and CA.

See http://rec-law.us/159gWWI

 

Is resort a fake? Town is

New 23 lift resort has been approved in #BC Canada. Approval was granted by a town council of a town that does not exist…..

See http://rec-law.us/11yCD3F

 

Paddlesports

Rituals v. Habits

Great article about how commercial boatman, sometimes pick up habits that become rituals in the Grand Canyon.

See http://rec-law.us/13SNq7U

 

If you can call water flowing between concrete walls on a concrete floor a river……

The Los Angeles River is now open to the public again. Or at least 2.5 miles of it.

See http://rec-law.us/15iCm3b

 

Training

Future Career or future disability

Training kids too hard to early does not create great athletic prodigies, only injuries.

See http://rec-law.us/124vKIG

#Nike has stopped its support for #LiveStrong.

See http://rec-law.us/10xQPsb

 

Mountaineering

Climb meaning sitting in you easy chair with a beer

New iOs App allows you to climb Mtn Everest.

See http://rec-law.us/18om8tK

 

One way to get down

Video of a base jump? Paraglide off Mt. Everest

See http://rec-law.us/10MdBJm

 

Overachievers!

Not satisfied to climb Mt #Everest once, David Liano Gonzalez climbed it twice, in the same season, once from the South Side (Nepalese) and once from the North Side (Chinese).

See http://rec-law.us/13nZV9j

 

It’s still climbing….right?

Companies are considering putting a ladder on the Hilliary Step on Mt. Everest. There is already a ladder on the North side.

See http://rec-law.us/ZcpsTx

Nepal demanding payment for summit broadcast

There are actually rules for climbing Mt. #Everest. One of those is you cannot #broadcast from sacred areas. The summit is a sacred area. Now Nepal wants paid for a broadcast.

See http://rec-law.us/146m6Qi

 

OR Business

Things change

#Nike has stopped its support for #LiveStrong.

See http://rec-law.us/10xQPsb

 

OR Life

Animals are amazing

Video of amazing ways that animals defend themselves.

See http://rec-law.us/13YGCWv

Oh, I’m a survivor

What happens after 400 years under a #glacier and the glacier retreats? Well if you are a #Moss you start to grow again.

See http://rec-law.us/13YGExx

 

This is just so wrong

10 Apps for Enjoying the Great Outdoors

See http://rec-law.us/159rmWq

 

 

Environment

With Glaciers retreating the mountains are coming down also.

See http://rec-law.us/16sM4o9

 

Cycling

Infographic for cycling pre-ride checklist.

See http://rec-law.us/133kAka

 

Mind the Ride

A bike riding group, Denver Cruisers (http://rec-law.us/17t1bOD) which rides every Wednesday night around downtown Denver has created a bicycle awareness campaign.

The campaign is pretty stark, very good and great for a group just not to promote themselves.

See http://rec-law.us/18z1SDb

 

 

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

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If you like this let your friends know or post it on FB, Twitter or LinkedIn

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The age that minors become adults.

I am constantly writing about the different legal issues of minors, here you can check on what that means for your state.

The age when a minor becomes an adult is currently 18 in 47 states. Alabama and Nebraska state law says an adult is someone who is 19 or older and Mississippi an adult is 21 or older.

There are exceptions for all the laws on minority in each state. A minor can become an adult if they marry, if they are emancipated or by special statutory exceptions.

Age of Majority

State

Statute

Age of adulthood

Alabama

Ala. Code tit. § 26-1-1 (age 19) and § 26-10A-2 § 27-14-25, § 27-14-5 (contract for insurance at age 15), § 30-4-16 (18 to get married).

19

Alaska

Alaska Stat. §  25.20.010(1977).

18

Arizona

Ariz. Rev. Stat. §  1-215 (1973).

18

Arkansas

Ark. Stat. Ann. §  57-103 (Supp. 1977).

18

California

Cal. Civ. Code §  25 (West Supp. 1978).

18

Colorado

Colo. Rev. Stat. §  13-22-101 (1973)

18

Connecticut

Conn. Gen. Stat. Ann. §  1-1d (West Supp. 1978)

18

Delaware

Del. Code tit. 6 §  2705 (Revised 1974)

18

Florida

Fla. Stat. Ann. §  743.07 (West Supp. 1978)

18

Georgia

Ga. Code Ann. §  74-104 (Revision 1973)

18

Hawaii

Haw. Rev. Stat. §  577-1 (Supp. 1975)

18

Idaho

Idaho Code §  29-101 (1967), §  32-101 (Supp. 1978)

18

Illinois

Ill. Ann. Stat. ch. 3 §  131 (Smith- Hurd 1978)

18

Indiana

Ind. Code Ann. §  34-1-2-5.5 (Burns Supp. 1977)

18

Iowa

Iowa Code Ann. §  599.1 (West Supp. 1978)

18

Kansas

Kan. Stat. Ann. § 38-101 (1973).

18

Kentucky

Ky. Rev. Stat. Ann. §  2.015 (Baldwin 1975)

18

Louisiana

La. Civ. Code Ann. art. 1782 (West 1952), art. 37 (West Supp. 1978)

18

Maine

Me. Rev. Stat. tit. 1 §  73 (Supp. 1973)

18

Maryland

Md. Com. Law Code Ann. §  1-103(a) (1975)

18

Massachusetts

Mass. Ann. Laws. ch. 4, §  7(48) (Michie/Law Coop Supp. 1978)

18

Michigan

Mich. Comp. Laws Ann. §  722.52 (Supp. 1978)

18

Minnesota

Minn. Stat. Ann. §  645.45(14) (West Supp. 1978)

18

Mississippi

Miss. Code Ann. §  1-3-27 (1972) However in other statutes defines minors as over 18 § 81-5-61 (minors may rent safety deposit boxes), § 93-3-11 (homestead exemption), § 93-19-1 (real estate), § 97-37-13 (illegal to give a minor weapons, under age 18),

21

Missouri

Mo. Ann. Stat. §  431.055 (Vernon Supp. 1978)

18

Montana

Mont. Rev. Codes Ann. §  64-101 (Supp. 1977)

18

Nebraska

Neb. Rev. Stat. §  38-101 (Reissue 1974)

19

Nevada

Nev. Rev. Stat. §  129.010 (1977)

18

New Hampshire

N.H. Rev. Stat. Ann. §  21-B:1 (Supp. 1977)

18

New Jersey

N.J. Stat. Ann. §  9:17B-3 (West 1976)

18

New Mexico

N.M. Stat. Ann. § § 12-2-2 (K); 28-6-1 (1978 Replacement Vol.)

18

New York

N.Y. Gen. Oblig. Law §  3-101 (McKinney 1978)

18

North Carolina

N.C. Gen. Stat. § 48A-2 (1976 Replacement Vol.)

18

North Dakota

N.D. Cent. Code §  14-10-01 (1971 Replacement Vol. Supp. 1977)

18

Ohio

Ohio Rev. Code Ann. §  3109.01 (Page Supp. 1977)

18

Oklahoma

Okla. Stat. Ann. tit. 15 § §  11, 13 (West 1972)

18

Oregon

Or. Rev. Stat. § 109.510 (1977 Replacement Vol.)

18

Pennsylvania

73 Pa. Cons. Stat. §  2021 (Purdon Supp. 1978)

18

Rhode Island

R.I. Gen. Laws §  15-12-1 (Supp. 1977)

18

South Carolina

S.C. Const. art. 17 §  14 (1973, amended 1975)

18

South Dakota

S.D. Codified Laws Ann. 26-1-1 (Revision 1976)

18

Tennessee

Tenn. Code Ann. §  1-313 (Supp. 1977)

18

Texas

Tex. Rev. Civ. Stat. Ann. art. 5923b (Vernon Supp. 1978)

18

Utah

Utah Code Ann. §  15-2-1 (Supp. 1977)

18

Vermont

Vt. Stat. Ann. tit. 1 §  173 (Supp. 1978)

18

Virginia

Va. Code § 1-13-42 (1973 Replacement Vol.)

18

Washington

Wash. Rev. Code §  26.28.015 (1976)

18

West Virginia

W. Va. Code §  2-3-1 (Supp. 1978)

18

Wisconsin

Wis. Stat. Ann. §  990.01(20) (West Supp. 1978)

18

Wyoming

Wyo. Stat. §  8-3-103 (a) (i) & (a) (iv), §  16-3-101 (1977)

18

Like everything, statutes change when legislators decide something needs corrected. Although this list is probably fairly stagnant, you should make sure you are aware of the age of adulthood in each of the states where you operate.

What do you think? Leave a comment.

If you like this let your friends know or post it on FaceBook, Twitter or LinkedIn

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Buck, v. Camp Wilkes, Inc. 906 So. 2d 778; 2004 Miss. App. LEXIS 1141

Buck, v. Camp Wilkes, Inc. 906 So. 2d 778; 2004 Miss. App. LEXIS 1141

Debbie Buck, as mother and natural guardian of Jamie Buck, Appellant, v. Camp Wilkes, Inc.; Girl Scouts of Gulf Pines Council, Inc.; and Deborah Boozer, Appellees.

NO. 2003-CA-01065-COA

COURT OF APPEALS OF MISSISSIPPI

906 So. 2d 778; 2004 Miss. App. LEXIS 1141

December 14, 2004, Decided

PRIOR HISTORY: [**1] COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT. DATE OF TRIAL COURT JUDGMENT: 4/17/2003. TRIAL JUDGE: HON. JERRY O. TERRY, SR. TRIAL COURT DISPOSITION: TRIAL JUDGE GRANTED SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS DEBORAH BOOZER AND GIRL SCOUTS OF GULF PINES COUNCIL, INC. AND DISMISSED APPELLANTS’ CLAIM WITH PREJUDICE.

DISPOSITION: AFFIRMED.

COUNSEL: ATTORNEYS FOR APPELLANT: JAMES CLAYTON GARDNER, DAVID C. FRAZIER, and WILLIAM L. DENTON.

ATTORNEYS FOR APPELLEES: DORRANCE DEE AULTMAN, ROGER T. CLARK, PATRICK R. BUCHANAN, KIMBERLY DAWN SAUCIER ROSETTI, and SAMUEL TRENT FAVRE.

JUDGES: BEFORE KING, C.J., LEE, P.J., AND IRVING, J. KING, C.J., BRIDGES AND LEE, P.JJ., CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. MYERS, J., NOT PARTICIPATING.

OPINION BY: IRVING

OPINION

[*779] NATURE OF THE CASE: CIVIL – PERSONAL INJURY

IRVING, J., FOR THE COURT:

P1. Debbie Buck filed a personal injury action on behalf of her minor daughter, Jamie, against Camp Wilkes, Girl Scouts of Gulf Pine Council, Inc., and troop leader Deborah Boozer, for injuries sustained when the child fell out of a bunk bed at camp. In her complaint, Buck alleged that the defendants’ negligent conduct caused Jamie to sustain multiple damages. [**2] In response, Boozer filed a motion for summary judgment, and Girl Scouts filed a joinder, adopting Boozer’s motion. On April 17, 2003, after a hearing on the matter, the trial judge granted Boozer and Girl Scouts’s motion and found that Buck failed to show that the defendants’ actions caused or contributed to Jamie’s fall. On May 14, Buck filed a notice of appeal of the judge’s grant of Boozer and Girl Scouts’s motion.

P2. On May 28, Camp Wilkes filed a motion for summary judgment. The trial court entered a final judgment of dismissal, granting Camp Wilkes’s motion, and Buck again filed a notice of appeal. Buck’s first and second appeal were consolidated.

P3. In this appeal, Buck seeks review of whether the trial court committed reversible error (1) in failing to follow existing standards in granting the defendants’ motions for summary judgment, (2) in finding no merit to Buck’s argument that a causal relationship existed between Boozer’s temporary absence at the time of the accident and Jamie’s falling from the bed, and in applying the wrong standard when considering Boozer and the Girl Scouts’s lack of supervision, and (3) in ruling as a matter of law that a bunk bed is [**3] not a dangerous instrumentality and that Appellees’ use of bunk beds did not amount to a failure on their part to use reasonable care in providing Jamie a reasonably safe place to sleep.

[*780] P4. We find no reversible error; therefore, we affirm the trial court’s grant of summary judgment in favor of the Appellees.

FACTS

P5. In June 2000, thirteen-year-old Jamie Buck attended a Girl Scouts camping trip with her troop at Camp Wilkes. The chaperones for the trip were troop leader, Deborah Boozer, and assistant leader, Jenny White. Upon arriving at the camp, Jamie’s mother helped Jamie set up Jamie’s bed. 1 The next day, however, the troop moved to another cabin because their refrigerator was not working. 2 That night, all of the girls decided to sleep on the top bunks, and everyone, except Jamie, pulled their beds together to make a single bed. The following night, Jamie was asleep on the top bunk when she rolled out of her bed and sustained injuries to her face. Boozer was not present at the time of the accident because she had gone to retrieve supplies but had left the troop’s assistant leader with the girls while she was gone. Additional facts will be related during our discussion [**4] of the issues.

1 The camp furnished bunk beds for the girls to sleep on. The beds did not have any guard rails.

2 The second cabin had a similar layout as the first cabin and also had bunk beds for the girls to sleep on.

DISCUSSION AND ANALYSIS OF THE ISSUES

(1)Standard of Review

P6. Buck first contends that by granting the defendants’ summary judgment motions, the trial judge failed to view the facts and issues in the light most favorable to her.

P7. The law is well established with respect to the grant or denial of summary judgments. [HN1] A summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). “All that is required of an opposing party to survive a motion for summary judgment is to establish a genuine issue of material fact by the means available under [**5] the rule.” Lowery v. Guaranty Bank and Trust Co., 592 So. 2d 79, 81 (Miss. 1991) (citing Galloway v. Travelers Ins. Co., 515 So. 2d 678, 682 (Miss. 1987)). [HN2] “In determining whether the entry of summary judgment [is] appropriate, [the appellate court] reviews the judgment de novo, making its own determination on the motion, separate and apart from that of the trial court.” Lowery, 592 So. 2d at 81. “The evidentiary matters are viewed in the light most favorable to the nonmoving party.” Id. “If after this examination, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, then summary judgment is affirmed, but if after examining the evidentiary matters there is a genuine issue of material fact, the grant of summary judgment is reversed.” Lowery, 592 So. 2d at 81 (citing Newell v. Hinton, 556 So. 2d 1037, 1041 (Miss. 1990)).

P8. A thorough examination of the record reveals that Buck failed to meet her burden of producing significant evidence to rebut the defendants’ showing that no genuine issue of material fact existed. Buck also produced [**6] no evidence to show that the defendants’ breached the established standard of care and that such breach was the cause of Jamie’s injuries. As a result, the trial judge appropriately granted the defendants’ summary judgment motions.

[*781] (2) Breach of Duty

P9. Buck argues that the trial court erred in finding that there was no causal relationship between Boozer’s temporary absence at the time of the accident and Jamie’s falling from the bed. Buck also argues that Boozer and Girl Scouts failed to properly supervise Jamie and the other minor children by not requiring the children to sleep on the bottom bunks, or at least, on bunk beds with side rail protectors. 3

3 Buck argues that the beds were donated by the U.S. Navy, and therefore the beds were designed for adults, not minors.

P10. [HN3] “In this negligence action, [Buck] bears the burden of producing evidence sufficient to establish the existence of [a] duty, breach, proximate causation, and damages.” Simpson v. Boyd, 880 So. 2d 1047, 1050 [**7] (P 12) (Miss. 2004) (citing Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So. 2d 790, 794 (Miss. 1995)).

P11. At the conclusion of the motion hearing, the trial judge found that Buck did not produce any evidence to indicate negligence by Boozer or Girl Scouts. We agree with the trial judge’s findings. However, assuming arguendo that Boozer was negligent in leaving the troop with the assistant troop leader, Buck has failed to demonstrate how Boozer’s absence contributed to Jamie’s injuries.

P12. Similarly, Buck has presented no authority that would substantiate her claim that the troop should not have been allowed to sleep on the beds without guard rails, or at least should have been made to sleep on the bottom bunks. Therefore, this argument is without merit.

(3) Dangerous Instrumentality

P13. Buck’s next allegation of error concerns the trial judge’s failure to find that a bunk bed constituted a dangerous instrumentality. The trial judge, relying on the New York case of Rueben v. Olympic Resort, Inc., 24 Misc. 2d 131, 198 N.Y.S. 2d 408 (N.Y. 1960), coupled with Buck’s lack of proof, found no merit in Buck’s contention [**8] that a bunk bed is a dangerous instrumentality. In Reuben, a six-year-old child was vacationing with her family at a hotel when she fell out of the top bunk and was injured. Id. at 409. The bunk bed had no guard rails. Id. Although the court denied the child’s parents recovery on other grounds, it commented that:

This Court is not prepared to state that a bunk bed without a guard rail is a dangerous instrumentality in and of itself. Such a bed, even with a guard rail, might be very dangerous to a child six months of age. Without a guard rail such a bed may be entirely safe for a child of fourteen years. It is for the parents of the child to determine what equipment is necessary or suitable for their own children. The hotel keeper cannot be presumed to know.

Id. at 409-10.

P14. We, like the trial judge and the Reuben court, [HN4] are not prepared to say that a bunk bed being used by a thirteen-year old without guard rails is a dangerous instrumentality. As noted by Camp Wilkes, Buck has failed to show any defect in the design of the bed or offered any evidence that the bed failed to comply with applicable standards, regulations, or guidelines. [**9] Buck even testified in a deposition that she knew what type bed her daughter was sleeping on and that she had no concerns about her daughter sleeping on the top bunk. Buck further stated that she did not inform anyone that she did not want her daughter sleeping on the top [*782] bunk. For the forgoing reasons, we find this issue to be without merit.

P15. Buck also argues that Camp Wilkes, by its use of bunk beds, failed to use reasonable care in providing a safe place for Jamie to sleep and also failed to adequately maintain and inspect its premises in a reasonably prudent manner. Buck further contends that Camp Wilkes failed to warn Jamie of a dangerous condition which the camp knew, or should have known, existed on their premises.

P16. [HN5] Camp Wilkes properly advances that it owed Jamie, as an invitee, the duty of exercising reasonable care to keep its premises safe, or to warn Jamie of any hidden or concealed perils of which it knew, or should have known, in the exercise of reasonable care. Lucas v. Buddy Jones Ford Lincoln Mercury, Inc., 518 So. 2d 646, 648 (Miss. 1988) (citing Downs v. Corder, 377 So. 2d 603, 605 (Miss. 1979)). However, Camp [**10] Wilkes argues that a bunk bed is an item normally encountered on the business premises of camps like Camp Wilkes and that a bunk bed is not a hidden or concealed peril.

P17. We have already found that a bunk bed is not an inherently dangerous instrumentality. We now find that Buck has failed to demonstrate or show that the bunk bed in question was in any way defective. Therefore, we find no merit in Buck’s argument that Camp Wilkes, by its use of bunk beds, failed to use reasonable care in providing a safe place for Jamie to sleep.

P18. Finally, Buck asserts that the Appellees’ actions constituted negligence per se because Jamie was less than fourteen years old at the time of the accident. The record reveals that Buck failed to cite any case law in support of this proposition. [HN6] “Issues cannot be decided based on assertions from the briefs alone.” Pulphus v. State, 782 So. 2d 1220, 1224 (Miss. 2001) (P 15) (citing Robinson v. State, 662 So. 2d 1100, 1104 (Miss. 1995)). Similarly, a failure to cite legal authority in support of a proposition precludes this Court from considering the issue on appeal. Grey v. Grey, 638 So. 2d 488, 491 (Miss. 1994) [**11] (citing Matter of Estate of Mason v. Fort, 616 So. 2d 322, 327 (Miss. 1993)).

P19. However, notwithstanding Buck’s failure to supply any authority in support of her proposition that allowing a thirteen-year old to sleep in a bunk bed not equipped with guard rails constitutes negligence per se, we refuse to embrace such a proposition. Therefore, we affirm the decision of the trial court granting summary judgment to the Appellees.

P20. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., BRIDGES AND LEE, P.JJ., CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. MYERS, J., NOT PARTICIPATING.