Release did not bar suit against scuba diving instructor for failure to follow basic safety guidelines

Law Reporter, Apr 2000

Turnbough v. Ladner, _ So. 2d -, No. 97-CT-01179SCT, 1999 WL 1126591 (Miss. Dec. 9, 1999).

The Mississippi Supreme Court held that a scuba diving student-who had executed a release-did not waive his right to recover for injuries caused by his diving instructor's failure to follow basic safety guidelines.

Here, a man suffered decompression sickness after participating in a certification scuba dive. He filed suit against the scuba instructor, alleging that she was negligent in planning and supervising the dive.

The trial court granted defendant summary judgment based on the anticipatory release that plaintiff had signed.

An intermediate appellate court affirmed.

Reversing, the state high court noted that plaintiff's expert testified that defendant negligently planned the depths of the dives and failed to make safety stops, which significantly increased the risk of decompression illness, especially in a student class. The court found that, assuming plaintiff was aware of the inherent risks in scuba diving, it does not reasonably follow that he intended to waive his right to recover from defendant for failing to follow the most basic industry safety standards.

The court also noted that plaintiff had signed a preprinted contract, the terms of which were not negotiated, and that the contract contained a broad waiver of negligence. As such, the court found that the terms of the contract should be strictly construed against the party seeking to enforce it. 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 here failed to do so, the court said.

Plaintiff's Counsel

*Joe S. Owen, Gulfport, Miss.

*Robert P. Myers Jr., Gulfport, Miss.

Comment: For other scuba cases, see Lambert v. Aaron's Dive Shop, Inc., 37 ATLA L. Rep. 349 (Nov. 1994), and Andrewartha v. Rawlins, 38 ATLA L. Rep. 60 (Mar. 1995). *Patrick F. McTernan and *Paul F. Cronin, both of Honolulu, Haw., represented plaintiffs in Lambert. Plaintiff in Andrewartha was represented by Rob Davis, Coolangatta, Queensl., Austl.

Documents in Lambert and Andrewartha are available through the Court Documents section in the back of this issue, courtesy of plaintiffs' counsel.