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Turnbough v. Ladner

December 18, 1998

MICHAEL TURNBOUGH APPELLANT
v.
JANET LADNER APPELLEE



Before Bridges, C.j., Payne, And Southwick, JJ.

The opinion of the court was delivered by: Southwick, Jr.

DATE OF JUDGMENT: 09/04/1997

TRIAL JUDGE: HON. KOSTA N. VLAHOS

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - CONTRACT

TRIAL COURT DISPOSITION: SUMMARY JUDGMENT IN FAVOR OF DEFENDANT.

DISPOSITION: AFFIRMED - 12/18/98

¶1. Michael Turnbough suffered decompression sickness following a scuba dive. He filed suit against his instructor, Janet Ladner, alleging that she was negligent in planning the dive. Relying on a release that Turnbough had executed in favor of Ladner, the Harrison County Circuit Court granted Ladner's motion for summary judgment. Turnbough appeals asking that we declare the release to be against public policy. We do not.

FACTS

¶2. In the summer of 1994, Michael Turnbough enrolled in a scuba diving class offered through the Gulfport Yacht Club and instructed by Janet Ladner. Turnbough wanted to obtain open-water certification. He had previously been a certified scuba diver but by the mid-1980's his certification had expired. At the first meeting in 1994, Ladner informed prospective students that they must execute a release in order to participate in the class. After questioning a fellow student who was an attorney, Turnbough executed the document entitled "Liability Release and Express Assumption of Risk." The release purported to hold harmless Janet Ladner, Gulfport Yacht Club, and the certifying authority, Professional Association of Diving Instructors, from liability for any injuries arising out of participation in the course, including those resulting from the negligence of Ladner.

¶3. Following completion of the six-week course, the class traveled to Panama City, Florida, in order to perform their "check-out dives" and receive certification. On the morning of Sunday, July 24, 1994, the class met and boarded the dive boat. Ladner had scheduled two dives of sixty feet each; however, due to overcrowding by fishing boats and other dive groups, the first dive site was only forty-six to forty-eight feet deep. Based on a projected depth of sixty feet, Ladner calculated the maximum time allowable for the second dive as thirty-eight minutes.

¶4. That evening, on his way back to Gulfport, Turnbough began to feel the first effects of decompression sickness, commonly known as "the bends." At work on Monday, he suffered pain in his joints, a pain that he described as arthritic. He contacted Ladner on Tuesday and informed her of his symptoms. Upon her advice, he telephoned a diver's hotline and, after describing his symptoms, was instructed to visit a dive hospital. Turnbough received treatment for decompression sickness at the Joe Ellen Smith Hospital in New Orleans.

¶5. The instructor Ladner had descended before and ascended after every student during the dives in question. Neither she nor any other diver besides Turnbough reported suffering decompression symptoms. Turnbough stated in his deposition that he had perhaps three drinks the night before the dive, despite being instructed not to have alcohol "immediately before or after a dive." At one stage he had informed a friend that the alcohol might have had an impact on his decompression sickness. At the time of summary judgment there was no evidence proving a correlation between alcohol consumption several hours before a dive and Turnbough's illness.

ΒΆ6. Turnbough filed suit on February 10, 1995, alleging that Ladner was negligent in her supervision of him during the dive and in exposing him to decompression injury. Ladner filed a motion for summary judgment on October 27, 1995, asserting that Turnbough had previously released her from liability and expressly ...


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