By Doyice Cotten
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Most sport, recreation, and fitness professionals have an idea (though they are often incorrect) of what constitutes ordinary negligence. Many understand that
ordinary negligence is the failure to exercise the level of care that someone of ordinary prudence would have exercised under the same circumstances. Many understand that negligence is indicated by inattention, irresponsibility, and actions that are careless.
A California federal court (Kabogoza v. Blue Water Boating, Inc., 2019) was recently tasked with the job of determining if Blue Water Boating’s actions were ordinary or gross negligence. This is an important distinction because liability waivers usually protect providers from liability for their ordinary negligence, but, in California and most other states, waivers do not provide protection when the action causing the injury involved gross negligence.
Gross negligence is defined by California courts as “the want of even scant care or an extreme departure from the ordinary standard of conduct.” It is sometimes described as carelessness or reckless disregard for the safety or lives of others; others say it is conduct that is extreme when compared with ordinary negligence.
In Kabogoza, Kabogoza and a friend rented stand-up paddleboards from Defendant Blue Water Boating. He had rented paddleboards previously. He signed a rental agreement which contained several general and specific safety rules and a waiver of liability. He received an intermediate level paddleboard, a belt flotation device, and the option of a paddleboard leash, which he refused. While using the board in Santa Barbara Harbor, the wind picked up and the water became choppy. He fell from the board, lost control of the board, and drowned. He had the belt-pack flotation device on backwards, making it ineffective. It was revealed that Kabogoza was a non-swimmer and did not inform Blue Water.
Kabogoza’s wife sued alleging gross negligence. Blue Water claimed protection from the liability waiver and from the assumption of risk doctrine. Assumption of risk did not bar the suit because admiralty law (which applied in this event) does not recognize assumption of risk as a bar. The waiver protected Blue Water for any negligence on their part, but the allegation was that Blue Water was grossly negligent. Kabogoza argued that the following errors constitute gross negligence:
- Failing to ask Kabogoza about his swimming abilities before renting him a paddleboard;
- Failing to warn Kabogoza of the danger of using and/or misusing the paddleboard and belt-pack flotation device;
- Failing to ensure that Kabogoza was leashed to the paddleboard while using it; and
- Failing to ensure that Kabogoza knew how to use the paddleboard and belt-pack flotation device.
The job of the court was to determine if Blue Water was grossly negligent. Take a moment, look back at the definitions given above, and see what you think — Ordinary Negligence or Gross Negligence?
If Blue Water was guilty of ordinary negligence, the waiver protects and they are not liable.
If Blue Water was guilty of gross negligence, the waiver does not protect and the case would go to trial.
Reasoning of the Court
Even when accepted as true, Plaintiff’s allegations do not state a plausible gross negligence claim. The court responded to the claims of gross negligence by noting:
- Since Kobogoza had rented paddleboards on three previous occasions, the defendants knew that Kabogoza had safely engaged in paddleboarding before. Defendants had no reason to know that Kabogoza was at an increased risk of harm.
- Defendants equipped all of their customers with safety information and safety equipment regardless of their skill level.
- Defendants made sure that each renter signed a rental agreement that included clear safety instructions about the products it rented.
- Defendants gave each of their customers flotation devices to protect against the inherent and inevitable risk of falling into the ocean.
- They also made paddleboard leashes available to all their customers even though nine out of ten renters opted not to use them.
The court noted that Plaintiff makes much of the fact that Defendants 1) did not ask about each customer’s swimming abilities; 2) did not require each customer to use a leash; 3) did not specifically work with its customers to ensure they were correctly using the flotation devices.
The court responded by agreeing that rental companies could do more to ensure that their customers have the safest possible experience – and when those companies’ rentals involve a high risk, they probably should. But the court clarified by saying that their job in this case was to answer the question of whether Defendants acted with “a ‘want of even scant care’ or ‘an extreme departure from the ordinary standard of conduct;’ or did Defendants ‘exercise the level of care that someone of ordinary prudence would have exercised under the same circumstances.’”
The court stated: These omissions, when viewed in light of the circumstances surrounding this incident, might give rise to a colorable negligence claim had Kabogoza not released Defendants of liability. The court added that they do not reach the level of culpability required for gross negligence.
Author’s Note: One is reminded of the saying, “Two wrongs do not make a right.”
In this case, “Two (or even 4 ) acts of ordinary negligence do not make Gross Negligence”.
Sometimes, plaintiffs name eight or 10 separate alleged negligent acts thinking that, when added together, they constitute gross negligence. Generally, gross negligence must involve an extreme departure from the ordinary standard of conduct such as carelessness or reckless disregard for the safety or lives of others.
Photo Credit: Thanks to Mike Baird via Flickr.