Pre-Injury Liability Waivers in Mississippi
Likelihood of Enforcement: Low
In Mississippi, “[c]lauses limiting liability are given rigid scrutiny by the courts, and will not be enforced unless the limitation is fairly and honestly negotiated and understandingly entered into.” Farragut v. Massey, 612 So.2d 325, 330 (Miss.1992).
Mississippi courts do not sanction broad, general “waiver of negligence” provisions, and strictly construe them against the party asserting them as a defense. See Leach v. Tingle, 586 So.2d 799, 801 (Miss.1991); State Farm Mut. Auto. Ins. Co. v. Scitzs, 394 So.2d 1371, 1372 (Miss.1981). “In further determining the extent of exemption from liability in releases, [Mississippi courts have] looked to the intention of the parties in light of the circumstances existing at the time of the instrument's execution.” Farragut, 612 So.2d at 330. Here, “contracts attempting to limit the liabilities of one of the parties w[ill] not be enforced unless the limitation is fairly and honestly negotiated and understood by both parties.” Quinn v. Mississippi State Univ., 720 So.2d 843, 851 (Miss.1998). Furthermore, even if the bargaining process withstands this “rigid scrutiny,” the Mississippi Supreme Court has stated that a court must void an otherwise honestly negotiated exculpatory clause if it contravenes public policy. Cappaert, 413 So.2d at 382. Mississippi courts have ruled that the public policy of the state is “found in its constitution and statutes, ‘and when they have not directly spoken, then in the decisions of the courts and the constant practice of the government officials.’” Cappaert v. Junker, 413 So.2d 378, 380 (Miss.1982) (quoting State ex rel Knox v. Hines Lbr. Co., 150 Miss. 1, 48, 115 So. 598, 605 (1928)). Contracts that attempt to circumvent state statutes are “void ab initio on the ground that [they] violate the public policy of [the] state.” See Heritage Cablevision v. New Albany Elec. Power System of City of New Albany, 646 So.2d 1305, 1314-15 (Miss.1994); see also Lanier v. State, 635 So.2d 813, 816-17 (Miss.1994), overruled on other grounds by Twillie v. State, 892 So.2d 187 (Miss. 2004)).
Last updated: 12/2018
This assessment of the enforceability of waivers has been prepared by non-lawyer law students and does not constitute legal advice.