## Facts

- Michael Turnbough enrolled in a six-week scuba-diving course taught by instructor Janet Ladner to obtain open-water certification.
- As a condition of participation, Ladner required students to sign a pre-printed “Liability Release and Express Assumption of Risk,” which referenced inherent risks of scuba diving, including decompression sickness.
- Turnbough signed the release after consulting a fellow student (an attorney) who told him such releases were unenforceable.
- During required “check-out dives” in Florida, Turnbough completed beach dives on July 23, 1994, and two boat dives on July 24, 1994, including a second dive to about 60 feet with a planned maximum time of 38 minutes.
- After the dives, Turnbough developed symptoms consistent with decompression sickness (“the bends”) and later received medical advice that a dive was too long and that a decompression stop should have occurred.
- Turnbough sued Ladner for negligence, alleging negligent planning and supervision of the dives that exposed him to decompression injury.
- Turnbough offered expert testimony that Ladner negligently planned dive depths and times and failed to require safety stops, increasing the risk of decompression sickness.

## Issues

1. Whether the signed “Liability Release and Express Assumption of Risk” clearly and unambiguously exculpated the instructor from liability for the negligence alleged in the complaint.
2. Whether, given the scope of the release and the evidence of negligence and causation, summary judgment for the instructor was proper.

## Decision

- The Mississippi Supreme Court reversed the Court of Appeals and the trial court and remanded for further proceedings.
- The court held the release did not clearly exclude liability for the type of negligence alleged (negligent planning and supervision causing decompression sickness).
- Because the release did not bar the claim as a matter of law, summary judgment for Ladner was error.

## Legal Principles

- Exculpatory clauses, especially in pre-printed, non-negotiated forms, are strictly construed against the party seeking to enforce them.
- A release will not bar negligence claims unless the intent to relieve a party from liability for its own negligence is stated clearly, specifically, and unequivocally.
- Contract language describing “inherent risks” of an activity may support assumption of ordinary risks, but it does not necessarily waive claims that the defendant’s negligence increased or created risk beyond what is inherent.
- Where a release is ambiguous as to whether it covers the negligence asserted, courts resolve the ambiguity against the drafter and will not extend the release to claims not plainly covered.
- If the release does not clearly bar the claim and there are factual disputes on negligence and causation, summary judgment is improper.

## Conclusion

The court held that a scuba-diving participation release referencing inherent risks, including decompression sickness, did not clearly waive claims based on the instructor’s alleged negligent planning and supervision; the negligence action therefore could proceed on remand.


Turnbough v. Ladner, 754 So. 2d 467 (Miss. 1999)