By Doyice Cotten
This case has some similarities to the Swigart v. Bruno California case in last week’s post. Each case was determined by an assumption of risk and not by a waiver of liability.
Pellham participated in an inner tube float in which his tube struck a fallen log in the water. The plaintiff sued the rental company claiming that the defendants owed him a duty to warn about a fallen log in the river and for gross negligence (Pellham v. Let’s Go Tubing, Inc., 2017 Wash. App. LEXIS 1525). Click here to see the entire case.
He signed the following waiver of liability:
I, the renter of this rental equipment, assume and understand that river tubing can be HAZARDOUS, and that rocks, logs, bridges, plants, animals, other people, other water craft, exposure to the elements, variations in water depth and speed of current, along with other structures and equipment, and many other hazards or obstacles exist in the river environment. In using the rental equipment or any facilities or vehicles related thereto such dangers are recognized and accepted whether they are marked or unmarked. River tubing can be a strenuous and physically demanding activity. It requires walking, bending, lifting, paddling, swimming, and awareness of the outdoor environment. I realize that slips, falls, flips, and other accidents do occur and serious injuries or death may result and I assume full responsibility for these risks … . “IN CONSIDERATION FOR THIS RENTAL AND ANY USE OF THE FACILITIES, VEHICLES, OR ENVIRONMENT RELATED TO THE USE OF THIS EQUIPMENT, I HEREBY RELEASE HOLD HARMLESS AND INDEMNIFY LET’S GO TUBING, INC. ITS SUBSIDIARIES AND ITS AGENTS FROM ANY AND ALL CLAIMS AND LIABILITIES ARISING OUT OF OR IN CONNECTION WITH THE USE OF THIS RENTAL EQUIPMENT.”
Pellham and four others followed in a second group with their tubes tied together. As soon as the flotilla of five rounded the first bend in the river, they were swept by a fast current into a fallen tree extending halfway across the river. Many branches extended from the tree trunk. Pellham fell from his tube, striking the water and the tree, and suffered several serious injuries.
The trial court granted summary dismissal of all of Pellham’s claims .
The Washington Court of Appeals affirmed the ruling based on the inherent risks in river tubing. The court held that Pellham’s voluntary participation in the outdoor recreation activity meant that he assumed the risk of a fallen log and swift current; at the same time, the assumption of risk eliminated any duty to warn that Let’s Go Tubing might have had. The court did not address whether the waiver signed by Pellham bars his suit. In addition, since the defendant had no duty, the court did not address the gross negligence claim because Pellham needed to show intentional or reckless misconduct and failed to do so.
The court provided a very detailed discussion of the various facets of assumption of risk, many of which are beyond the scope of this article. It stated that two facets were important here. First, “Express assumption of risk arises when a plaintiff explicitly consents to relieve the defendant of a duty owed by the defendant to the plaintiff regarding specific known risks.” Second, the court attempted to clarify implied primary assumption of risk by renaming and redefining it. It used the terminology inherent peril assumption of risk, which ”bars a claim resulting from specific known and appreciated risks impliedly assumed often in advance of any negligence of the defendant. “
Inherent peril assumption of risk, like express assumption of risk, applies if three elements are present: “(1) the plaintiff possessed full subjective understanding (2) of the presence and nature of the specific risk and (3) voluntarily chose to encounter the risk.“ Whether inherent peril assumption of risk applies depends on whether the plaintiff was injured by an inherent risk of an activity.
The court referred to several concepts firmly established under Washington law: (citations omitted.)
- The participant must know that the risk is present, and he or she must further understand its nature; his or her choice to incur it must be free and voluntary.
- When inherent peril assumption of risk applies, the plaintiff’s consent negates any duty the defendant would have otherwise owed to the plaintiff
- Based on this premise of inherent peril assumption, the defendant should avoid liability for gross negligence.
- Gross negligence constitutes the failure to exercise slight care.
- The lack of duty resulting from inherent peril assumption should extend to an absence of any obligation to exercise slight care.
- Gross negligence claims survive a release against liability.
Further the court commented that express assumption of risk does not survive a gross negligence claim because a signed assumption of risks could result from unequal bargaining power; on the other hand, an inherent peril assumption of risk does survive a gross negligence claim because the plaintiff, without coercion, voluntarily assumes that risk because of the thrill and enjoyment of the activity. The court cited rulings in Washington and other jurisdictions.
The Washington appellate court affirmed the trial court ruling finding in favor of Let’s Go Tubing, Inc. As in the Swigart case in California, the ruling was a result of assumption of risk with the waiver of liability playing no significant part.
Photo Credit: Thanks to Virginia State Parks from Flickr.