754 So. 2d. 467 (Miss 1999)
PROCEDURAL HISTORY: Appellant, injured in a scuba accident, was granted certiorari to challenge affirmation of a summary judgment order from the Court of Appeals (Mississippi) which was granted based on an anticipatory release appellant signed in favor of appellee scuba instructor.
-Appellant suffered decompression sickness after taking a scuba class from appellee.
-Appellant had signed an anticipatory release of liability, but still sued appellee under negligence principles.
-Appellee received summary judgment dismissing, based on the release, appellant's claims.
-Appellant challenged, arguing the release was against public policy.
-The court found that contracts intending to release a party from liability for negligence were to be strictly construed against the party asserting the release as a defense, and such releases would not be enforced unless the limitation was fairly negotiated and understood by both parties.
-The court found the language of the release did not demonstrate that appellant intended to accept any heightened exposure to injury caused by the malfeasance of appellee in failing to follow basic safety guidelines.
Moreover, the release was a pre-printed form that appellant and appellee did not negotiate. Consequently, the release did not act to dismiss appellant's claims.
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.
CONCLUSION: The court reversed both the affirmation and grant of summary judgment, finding the release did not exclude from liability the type of negligence which formed the basis for appellant's complaint, and, therefore, the trial court's grant of summary judgment was error.
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