By Doyice Cotten
Quinn v. Mississippi State University (1998)
An important liability waiver case addressed by the Mississippi Supreme Court (Quinn v. Mississippi State University, 1998) involved a 12-year-old baseball player at a summer baseball camp. The father and the boy signed a pre-printed liability waiver. The Quinns paid an “admission fee” to have their son attend the baseball camp at Mississippi State University.
The university argued that the Quinns signed a document that acknowledged the risks associated with participating in the camp and agreed to accept those risks. The Quinns argued there was no meeting of the minds and that the validity of the release is an issue of fact which should be determined at trial by a jury. The release signed by the Quinns does not mention acts of the instructor leaving the question: “Was such an act contemplated by the parties when they signed the release?” (See the pertinent part of the waiver below.)
The undersigned applicant and parent/guardian understand that the applicant will be engaging in physical activity during the program which contains an inherent risk of physical injury and the undersigned assumes the risk, indemnifies, and releases Mississippi State Baseball Camp, its officers, Directors, Agents, and Employees from any and all liability for personal injury arising out of the applicant’s participation in the Camp program.
[Emphasis added; Note that there is no mention, directly or indirectly, of negligence by the provider.]
The Quinns assert that no parent would cast reason to the wind and assume the risk that their child could be injured by an instructor at a camp where the child was supposedly receiving instruction on how to improve his baseball skills.
The court, in construing the release against the university (the drafting party), held that reasonable minds could differ as to what types of risks the Quinns were assuming by signing the release.
Significantly, the Quinn court went on to say
“Even if the release was not ambiguous, the university would not be relieved of liability. Clauses that limit liability are given strict scrutiny by this Court and are not to be enforced unless the limitation is fairly and honestly negotiated and understood by both parties.” [Emphasis added.]
The court elaborated further saying that if the waiver were interpreted to absolve the university of all liability as the university wishes, the camper would be prevented from recovering from any possible injury sustained while attending the baseball camp. Such an interpretation “would be overreaching and allow unanticipated tortious acts to go without a remedy simply because a release had to be signed before a person could participate in an activity.”
The court stated language contained in the release could cause reasonable minds to differ as to what the inherent risks of physical injury of a baseball camp really are. Is it an inherent risk of a baseball camp that an instructor might hit a camper with a baseball bat? Hopefully not; yet, events occur, as here, and some remedy must exist for such events. Otherwise, it is doubtful parents would send their children to such camps, no matter how good the instruction might be. A jury should have been allowed to determine what the reasonable interpretations and contemplations of the parties were concerning the release. The Quinn jury held that there are genuine issues of material fact to which reasonable minds could differ. The court ruled to remand the case for trial.
Turnbough v. Ladner (1999)
In Turnbough, a scuba diving student suffered from decompression sickness, alleging that the instructor was negligent in planning the depths of the dives and in failing to make necessary safety stops during the dive. The court elected not to enforce the waiver saying
Assuming [the student] 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 [the instructor] for failing to follow . . . basic industry safety standards. (Turnbough) [Emphasis added.]
The Turnbough court found that the student “did not knowingly waive his right to seek recovery for injuries caused by the instructor’s failure to follow basic safety guidelines that should be common knowledge to any instructor of novice students.”
Of even more importance, the court held 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.” Since the contract was preprinted and not negotiated, the terms should be strictly construed against the relying party.
Rigby v. Sugar’s Fitness & Activity Center (2002)
In this Court of Appeals case, Rigby stepped on a piece of plastic when entering the steps of a pool and fell. Sugar’s claimed protection based on a pre-injury waiver signed by Rigby. Rigby testified that she did not remember signing a waiver.
The court stated that contracts must be fairly and honestly negotiated and understood by both parties.” Rigby did not recall any discussion of the waiver because she did not remember signing it; the court ruled that there was nothing in the record to indicate that the contract was ever fairly and honestly negotiated and understood. The waiver was not enforced, summary judgment for the defense was reversed, and the case was remanded for trial. [Emphasis added.]
Ghane v. Mid-South (2014)
The most recent case (Ghane v. Mid-South Institute of Self Defense Shooting, Inc., 2014) involved a SEAL Team member who was shot and killed in a live-fire, close-quarters combat training exercise that took place at the Mid-South shooting facility. Ghane was killed when bullets penetrated a wall that was supposed to be bullet-proof. This wrongful death claim alleged negligent design and construction on the part of Mid-South. Mid-South then moved for summary judgment based on the pre-printed, general waiver of liability signed by Ghane.
The Ghane trial court denied summary judgment and Mid-South appealed.
Mississippi 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” (Turnbough). Turnbough went on to say “[W]e do not sanction broad, general ‘waiver of negligence’ provisions, and strictly construe them against the party asserting them as a defense.”
The Supreme Court in Ghane agreed with the trial court’s denial of summary judgment for Mid-South. The court reasoned it is not reasonable that Ghane, an experienced Navy SEAL, intended to release the defendants from following even basic safety standards in the design of the ballistic wall.
It is clear that Mississippi courts do not favor liability waivers and strictly construe them in favor of the non-relying party. The courts do make clear, however, that waivers are enforceable in some circumstances and, indeed, have been enforced on occasion – though none of these four waivers were enforced.
Two points should be noted in the rulings:
1) The Court seems to rely somewhat upon whether it is reasonable that the plaintiff intended to agree to release the defendant from liability for certain types of negligence (e.g., violating basic safety standards; being injured by an instructor);
2) The Court specifies that the waiver must be fairly and honestly negotiated to be enforceable. This would seem to negate most liability waivers and would appear to liken Mississippi’s stance on waivers to Wisconsin’s stated requirement of negotiation.
Photo Credit: Thanks to Taddzilla at Flickr.