By Doyice Cotten
Note: This is the third consecutive post (involving law in three states in three types of activity) in which assumption of risk has played a major role.
20-Year-old Erik Downes, college student at Oglethorpe University, drowned in the Pacific Ocean while he was in Costa Rica attending a study-abroad program. His parents brought a wrongful death suit against the university alleging negligence and gross negligence. Oglethorpe argued that 1) it owed no legal duty to Downes; 2) the negligence claim was barred by the liability waiver signed by Downes and there is no evidence of gross negligence, and 3) that Downes assumed the risk of swimming in the ocean. The trial court granted Oglethorpe’s motion for summary judgment.
The trial court granted summary judgment in favor of the university. This is the appeal. (Downes v. Oglethorpe University, Inc., 2017 Ga. App. LEXIS 336). Click here for the entire case.
Five students registered for the course. Two professors accompanied them. Each student, including Downes, claimed to be a good swimmer. They were accompanied by a Costa Rican guide and a driver. On January 4, the group arrived at a hotel and then drove to a nearby beach recommended by the hotel. There were other people on the beach, but no warning signs, life guards, or rescue equipment.
When Downes got into trouble, another student shouted for help and got to within 10 feet of Downes when he went under and was not seen again. The beach was a “pocket beach”, a type of beach associated with “rip currents” which are known to be particularly dangerous on the Pacific beaches of Costa Rica.
The court addressed appellant’s contention that Downes assumed the risk of drowning when he swam in the ocean. The court responded based on Georgia case law (Citations are omitted.)
- The affirmative defense of assumption of the risk bars a plaintiff from recovering on a negligence claim if it is established that he[,] without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not.
- A defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks. The knowledge requirement does not refer to a comprehension of general, non-specific risks. Rather, the knowledge that a plaintiff who assumes the risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury.
- It is well established under Georgia law that “[t]he danger of drowning in water is a palpable and manifest peril, the knowledge of which is chargeable to [persons] in the absence of a showing of want of ordinary capacity.”
The court added that the perils of deep water are instinctively known; it stated that while Downes was unaware of the presence of rip currents, he did know the risk of drowning in deep, unknown waters.
- As Downes was a competent adult, he was necessarily aware of the risk of drowning when he voluntarily entered the Pacific Ocean.
Appellants further contended that that Oglethorpe had a duty to exercise ordinary care in the planning and execution of the trip. Because Downes went into the water voluntarily does not relieve the university of the duty to exercise ordinary care to minimize the risk of drowning. In fact, appellants contend, Oglethorpe created the dangerous situation by taking Downes to the beach without 1) investigating its dangers, 2) adopting an emergency preparedness plan, 3) ensuring the professors in charge had adequate training, 4) establishing procedures for supervising swimming students, and 5) supplying safety equipment.
- Even if a defendant is negligent, a determination that a plaintiff assumed the risk or failed to exercise ordinary care for [his] own safety bars recovery for the resulting injury suffered by the plaintiff, unless the injury was wilfully and wantonly inflicted.
The court agreed with the appellants’ contention that “a decedent’s decision to enter a body of water with awareness of the physical circumstances is not necessarily determinative of whether the decedent assumed the risk of drowning.” However, the court determined that the appellants did not show
- that Oglethorpe was under a statutory or common law duty to provide safety equipment to its students during an excursion to the beach;
- that Oglethorpe became an insurer for the safety of its students by undertaking a study-abroad program;
- that Oglethorpe was responsible for the peril encountered by Downes in that it transported him to the beach
Because Downes was a competent adult, he “would have appreciated the specific risk of drowning posed by entering a body of water so inherently dangerous as the Pacific Ocean. As Downes voluntarily did so, Oglethorpe established that he assumed that risk. Although Downes’s death was undeniably tragic, we are constrained to conclude that the trial court correctly granted Oglethorpe’s motion for summary judgment.”
Since summary judgment was granted based on assumption of risk, whether the waiver of liability signed by Downes was enforceable was not addressed.
Photo Credit: Thanks to Pedrik on Flickr.