Comments Needed to Stop Development at the Grand Canyon South Rim & Loss of more Water

How to comment

The scoping process for the town of Tusayan’s roadway and utility easement application will run through June 2. To submit a comment online visit comments-southwestern-kaibab with “Tusayan Roadway Easements” in the subject line.

The Forest Service also will hold three public scoping meetings:

  • May 18 from 5 p.m. to 8 p.m. at Williams Elementary School Auditorium, 601 N. 7th Street, Williams
  • May 19 from 5 p.m. to 8 p.m. Grand Canyon Squire Inn, 100 Highway 64, Tusayan
  • May 20 from 5 p.m. to 8 p.m. Doubletree Hotel, 1175 Route 66, Flagstaff

or

you can write to:

Michael Williams, Forest Supervisor

Kaibab National Forest

Williams Ranger District

742 S Clover RD

Williams, AZ 86046

Your own comments are usually better than a talking points form letter. I would suggest you express your concerns about impacts on the GC National Park, including but not limited to night sky, water, wildlife, traffic. You might question the need for such a project as well as better definitions of the scope of the project beyond the easements.

The cumulative effects should be considered. Irreparable and irreversible damage could be done with out a complete and thorough EIS. Insist on one.

Naturally, you will want to comment on the national and international significance of the Grand Canyon Canyon .

Your comments thoughts and frustrations will not be considered if you do not make them formally known.

For those in the area, try to attend one of the public scoping meetings. If you do attend and do comment at more than one meeting, do not repeat yourself, alter your presentation.

 


River Runner’s Hall of Fame May 15th, Green River Utah


Kindrich III et al., v. Long Beach Yacht Club et al., 167 Cal. App. 4th 1252; 84 Cal. Rptr. 3d 824; 2008 Cal. App. LEXIS 1705

Kindrich III et al., v. Long Beach Yacht Club et al., 167 Cal. App. 4th 1252; 84 Cal. Rptr. 3d 824; 2008 Cal. App. LEXIS 1705

Carl Kindrich III et al., Plaintiffs and Appellants, v. Long Beach Yacht Club et al., Defendants and Respondents.

G038290

COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION THREE

167 Cal. App. 4th 1252; 84 Cal. Rptr. 3d 824; 2008 Cal. App. LEXIS 1705

October 28, 2008, Filed

COUNSEL: Brunick, McElhaney & Beckett and Steven K. Beckett for Plaintiffs and Appellants.

Cogswell Nakazawa & Chang, Christina L. Owen and Dena S. Aghabeg for Defendants and Respondents.

JUDGES: Opinion by Rylaarsdam, J., with Sills, P. J., concurring. Dissenting opinion by Bedsworth, J.

OPINION BY: Rylaarsdam [*1255]

OPINION

[**825] RYLAARSDAM, J.–Plaintiff Carl Kindrich III was injured while disembarking from a boat after participating in casting his late father’s ashes [**826] into the ocean. He sued defendants Long Beach Yacht Club, the owner of the boat and the dock, and Charles Fuller, the boat’s skipper, alleging they had been negligent in their use and maintenance of both the boat and the dock–specifically because they failed either to have someone on the dock to assist in tying off the boat when it returned, or to ensure that the portable steps, previously used in boarding the boat, would be available for his use when he attempted to disembark. Carl’s wife, Barbara, and son, Michael, also sued. Barbara claimed loss of consortium, and Michael claimed emotional distress suffered as an aural percipient witness to his father’s injury. (Because [***2] all three plaintiffs have the same last name, we will refer to them by their first names to avoid confusion and not out of disrespect.)

The trial court granted summary judgment to defendants, reasoning the doctrine of primary assumption of risk applied to Carl’s decision to jump off the boat onto the dock. All plaintiffs appeal, contending the court improperly concluded that the act of jumping onto the dock was an activity subject to the complete defense of primary assumption of risk. We agree that the court’s analysis was incorrect. Carl was not engaged in the type of sporting event where the doctrine of primary assumption of risk should be applied. At most Carl may have assumed risks, categorized as secondary assumption of risk, which are subsumed in contributory negligence. Whether he was contributorily negligent and, if so, how his negligence compares with that of defendants, if any, are questions of fact to be resolved by the trier of fact.

Defendants also contend summary judgment was properly granted because they were not negligent. But this is another question of fact and not subject to summary judgment. Defendants’ additional issues, whether Barbara suffered damages and whether [***3] Michael’s awareness of his father’s accident qualifies him as a “bystander” entitled to recover on a theory of negligent infliction of emotional distress, also raise questions of fact.

We therefore reverse the summary judgment.

FACTS AND PROCEDURAL HISTORY

The complaint alleges that plaintiffs and some of their relatives and friends gathered at the Yacht Club to participate in a “burial at sea” of the ashes of Carl’s late father. The Yacht Club arranged for the attendees to be taken to the burial site on a boat it owned and maintained and assigned Fuller to pilot that boat. The Yacht Club provided portable stairs on the dock to assist the [*1256] attendees in boarding. Plaintiffs contend that, when the boat returned to the dock, the portable steps were no longer in place. According to the complaint, Fuller told Carl to tie off the boat; there was no one on the dock waiting to do so. As Carl “started to jump from the side of the boat onto the dock … , the boat and dock moved relative to each other causing [Carl] to fall and injure himself.”

Plaintiffs allege causes of action for Carl’s personal injury, Barbara’s loss of consortium, and emotional distress suffered by Michael when he witnessed [***4] his father’s accident.

Defendants moved for summary judgment. They argued that Carl’s claim failed as a matter of law because (1) he assumed any risk of injury from his voluntary decision to jump onto the dock from the boat; and (2) they did not breach any duty of care they might have owed him and had no actual or constructive notice that the portable stairs may not have been in place when the boat returned to the [**827] dock. They also asserted that Barbara’s claim failed as a matter of law, both because it was derivative of Carl’s claim and because her discovery responses revealed no loss of consortium damages. Finally, defendants maintained Michael’s claim failed as a matter of law because it was derivative of Carl’s and because Michael was not actually aware of his father’s injury until after it had occurred.

These are the relevant undisputed facts offered in support of the motion: Carl’s father, a member of the Yacht Club before he died, had expressed the wish to be “buried at sea.” The Yacht Club agreed to assist with such a burial and permitted the Kindrich family to use one of its boats, without charge, for the ceremony. The Yacht Club also agreed to let Fuller, one of its long-standing [***5] members and a good friend of Carl’s father, pilot the boat for the ceremony.

Carl, Barbara, and Michael, along with other family members, used portable steps located on the dock to board the boat for the ceremony. After the ceremony was over, Carl and Michael were up on the bridge with Fuller, who piloted the boat back to the dock. According to Carl’s testimony, “[a]fter the burial, we were bringing the boat in and … not too far from the dock, [Fuller] looked to me and says ‘We have to tie up the boat, and someone else will have to help.’ And Michael and I were the only two on the bridge … . And so Michael said that he would help … . [¶] … When [Fuller] turned the boat into the dock and we had gotten up to the dock and we were getting ready to get off the boat, Mike, my son, jumped to the dock. We didn’t see the steps. The steps weren’t there. And then after Mike jumped off, I jumped off, also … .” [*1257]

Carl stated that at the moment he jumped off the boat, it was hit by the wake from another boat, causing it to “go up as he stepped off the boat and when he came down onto the deck, he broke his leg.” The boat used for the burial ceremony does not require more than two [***6] people to tie it up when it reaches the dock–one person to operate the boat and one person on the dock to tie the lines.

Plaintiffs opposed the summary judgment, arguing this was not a proper case for applying the doctrine of primary assumption of the risk, and the case could not be summarily adjudicated on the basis that defendants acted with reasonable care as a matter of law. Plaintiffs argued there were numerous factual disputes relating to whether defendants satisfied the duty of care they owed to the passengers on their boat, and those issues must ultimately be resolved by a jury.

At the hearing, the court explained its initial thinking in favor of granting the summary judgment: “We have some conflicts in the facts as to whether he jumped, or stepped, or lowered himself, or whatever, but that doesn’t matter. What didn’t happen was he wasn’t pushed. He wasn’t ordered. He voluntarily undertook an activity that was inherently dangerous; namely, disembarking from a moving boat obviously onto the dock and he hurt himself. [¶] I believe that without really much hesitation that … primary assumption of the risk applies and the motions should be granted for summary judgment.”

Although [***7] plaintiffs’ counsel attempted to persuade the court that Fuller directed Carl to assist in tying up the boat, and thus his decision to jump from the boat should not be regarded as voluntary, the court did not agree. “[Carl] assumed the risk of something in this recreational activity going wrong. [¶] It did go wrong. The precise wrong is irrelevant. One way or the other he voluntarily disembarked the boat … with the idea of going onto [**828] the dock, and this was an unsafe thing to do.”

The formal order granting the motion cited two bases. First, the court found that “even if the portable steps were actually missing when the vessel … arrived back at dock after the burial at sea, [d]efendants had no notice, constructive or actual, of their absence. … [¶] The Court additionally finds that [d]efendants are entitled to summary adjudication on their Fourth Affirmative Defense because when [p]laintiff … made the deliberate and conscious decision to jump from the vessel … to the dock, he, with full knowledge thereof, knowingly and voluntarily assumed the risk of sustaining injury. (See Meintsma v. United States [(9th Cir. 1947)] 164 F.2d 976 … ; see also DeRoche v. Commodore Cruise Line, Ltd. (1994) 31 Cal.App.4th 802, 810 [46 Cal. Rptr. 2d 468] [***8] (‘[It] is settled that there is no duty to warn of a danger that is as obvious to the injured party as to the defendant.’).)” [*1258]

The order granted summary judgment against Barbara and Michael as well, concluding Barbara’s claim for loss of consortium was derivative as a matter of law and that any distinct claim for emotional distress was precluded by the fact she did not actually witness Carl’s injury. As to Michael’s claim, the court concluded that a bystander’s recovery for extreme emotional distress was dependent upon a determination the injury he witnessed was negligently inflicted. Since Carl’s negligence claim failed, Michael’s did as well.

DISCUSSION

Primary Versus Secondary Assumption of Risk

(1) Even were we to conclude that Carl’s decision to jump off the boat was a voluntary one, and that therefore he assumed a risk inherent in doing so, this is not enough to provide a complete defense. [HN1] Because voluntary assumption of risk as a complete defense in a negligence action was abandoned in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 829 [119 Cal. Rptr. 858, 532 P.2d 1226], only the absence of duty owed a plaintiff under the doctrine of primary assumption of risk would provide such a defense. But that doctrine does not come [***9] into play except when a plaintiff and a defendant are engaged in certain types of activities, such as an “active sport.” That was not the case here; plaintiff was merely the passenger on a boat. Under Li, he may have been contributorily negligent but this would only go to reduce the amount of damages to which he is entitled.

Before Li, contributory negligence and voluntary assumption of risk were distinct and complete defenses in an action for negligence. Under certain circumstances, the “last clear chance” doctrine provided relief from the harshness of the rules. Li changed all that. It adopted the doctrine of comparative negligence and held that “[t]he [HN2] doctrine of last clear chance is abolished, and the defense of assumption of risk is also abolished to the extent that it is merely a variant of the former doctrine of contributory negligence; both of these are to be subsumed under the general process of assessing liability in proportion to negligence.” (Li v. Yellow Cab Co., supra, 13 Cal.3d at p. 829.)

Li recognized that there are at least two distinct forms of assumption of risk. “As for assumption of risk, we have recognized in this state that this defense overlaps that of contributory [***10] negligence to some extent and in fact is made up of at least two distinct defenses. ‘To simplify greatly, it has been observed … that in one kind of situation, to wit, where a plaintiff unreasonably undertakes to encounter a specific known risk imposed by a defendant’s negligence, [**829] plaintiff’s conduct, although he may encounter that risk in a prudent manner, is in reality a form of contributory negligence … . [*1259] Other kinds of situations within the doctrine of assumption of risk are those, for example, where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him. Such a situation would not involve contributory negligence, but rather a reduction of defendant’s duty of care.’ [Citations.] We think it clear that the adoption of a system of comparative negligence should entail the merger of the defense of assumption of risk into the general scheme of assessment of liability in proportion to fault in those particular cases in which the form of assumption of risk involved is no more than a variant of contributory negligence. [Citation.]” (Li v. Yellow Cab Co., supra, 13 Cal.3d at pp. 824-825.)

(2) So, [HN3] to the extent that “‘”a plaintiff unreasonably [***11] undertakes to encounter a specific known risk imposed by a defendant’s negligence,”‘” he or she is subject to the defense of comparative negligence but not to an absolute defense. (Knight v. Jewett (1992) 3 Cal.4th 296, 305-306 [11 Cal. Rptr. 2d 2, 834 P.2d 696].) This type of comparative negligence has been referred to as ” ‘secondary assumption of risk.’ ” (Id. at p. 308.) Assumption of risk that is based upon the absence of a defendant’s duty of care is called ” ‘primary assumption of risk.’ ” (Ibid.) “First, in ‘primary assumption of risk’ cases–where the defendant owes no duty to protect the plaintiff from a particular risk of harm–a plaintiff who has suffered such harm is not entitled to recover from the defendant, whether the plaintiff’s conduct in undertaking the activity was reasonable or unreasonable. Second, in ‘secondary assumption of risk’ cases–involving instances in which the defendant has breached the duty of care owed to the plaintiff–the defendant is not entitled to be entirely relieved of liability for an injury proximately caused by such breach, simply because the plaintiff’s conduct in encountering the risk of such an injury was reasonable rather than unreasonable.” (Id. at p. 309.)

Primary assumption [***12] of risk, “‘”where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him”‘” (Knight v. Jewett, supra, 3 Cal.4th at p. 306), remains as a complete defense. That defense was not fully developed until our Supreme Court decided Knight v. Jewett. There, Knight sued Jewett for negligence and assault and battery after she was injured when Jewett knocked her over and stepped on her finger during a touch football game. In affirming summary judgment for the defendant, the court held that under the doctrine of primary assumption of risk, the defendant did not owe the plaintiff a duty. It “conclude[d] that a participant in an active sport breaches a legal duty of care to other participants–i.e., engages in conduct that properly may subject him or her to financial liability–only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.” (Id. at p. 320, fn. omitted.) [*1260]

(3) Knight shifted the focus of assumption of risk from a plaintiff’s “subjective knowledge and awareness” of the risk to the nature of the activity in question. (Knight v. Jewett, supra, 3 Cal.4th at p. 313.) [***13] [HN4] “In cases involving ‘primary assumption of risk’–where, by virtue of the nature of the activity and the parties’ relationship to the [**830] activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury–the doctrine continues to operate as a complete bar to the plaintiff’s recovery.” (Id. at pp. 314-315.) Knight justified maintaining the defense in a sports setting because there “conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself” (id. at p. 315), and imposing liability “might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule” (id. at p. 319). The focus of the questions should consider the nature of the activity and the relationship of the parties to the activity. (Id. at p. 315.)

There are situations other than active sports where under the doctrine of primary assumption of risk a plaintiff is held to agree to relieve a defendant of an obligation of reasonable conduct toward him or her. For example, Knight stated, “In addition to the sports [***14] setting, the primary assumption of risk doctrine also comes into play in the category of cases often described as involving the ‘firefighter’s rule.’ [Citation.] In its most classic form, the firefighter’s rule involves the question whether a person who negligently has started a fire is liable for an injury sustained by a firefighter who is summoned to fight the fire; the rule provides that the person who started the fire is not liable under such circumstances. [Citation.] Although a number of theories have been cited to support this conclusion, the most persuasive explanation is that the party who negligently started the fire had no legal duty to protect the firefighter from the very danger that the firefighter is employed to confront. [Citations.] Because the defendant in such a case owes no duty to protect the firefighter from such risks, the firefighter has no cause of action even if the risk created by the fire was so great that a trier of fact could find it was unreasonable for the firefighter to choose to encounter the risk.” (Knight v. Jewett, supra, 3 Cal.4th at pp. 309-310, fn. 5.)

Other examples of primary assumption of risk are the so-called veterinarian’s rule (e.g., Priebe v. Nelson (2006) 39 Cal.4th 1112, 1121, fn. 1 [47 Cal. Rptr. 3d 553, 140 P.3d 848]) [***15] or where the plaintiff is hired to undertake a particular, dangerous job (e.g., Farnam v. State of California (2000) 84 Cal.App.4th 1448, 1455 [101 Cal. Rptr. 2d 642]; Herrle v. Estate of Marshall (1996) 45 Cal.App.4th 1761, 1765 [53 Cal. Rptr. 2d 713]). But for purposes of this case, we need only consider whether Carl’s injuries occurred while he was engaged in an “active sport,” which relieved defendants of a duty of care. [*1261]

There are more than 100 published cases defining what is and what is not an “active sport” qualifying for application of the doctrine of primary assumption of risk. “Since the decision in Knight, which involved a recreational game of touch football, our state Supreme Court and appellate courts have examined the applicability of the primary assumption of the risk defense in a wide variety of cases involving sports and recreational activities. In Ford[ v. Gouin (1992)] 3 Cal.4th 339 [11 Cal. Rptr. 2d 30, 834 P.2d 724], the companion case to Knight, the Supreme Court expanded the doctrine and applied it to the noncompetitive, nonteam sporting activity of waterskiing. The Supreme Court has applied the doctrine to other sports, including intercollegiate baseball (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161 [**831] [41 Cal. Rptr. 3d 299, 131 P.3d 383]), swimming (Kahn[ v. East Side Union High School Dist. (2003)] 31 Cal.4th [990,] 1004-1005 [4 Cal. Rptr. 3d 103, 75 P.3d 30] [***16] [examining coach’s relationship to sport]), and snow skiing (Cheong v. Antablin (1997) 16 Cal.4th 1063, 1067-1068 [68 Cal. Rptr. 2d 859, 946 P.2d 817] …). [Citation.] The Courts of Appeal have applied the primary assumption of the risk rule in cases involving snow skiing (Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8 [45 Cal. Rptr. 2d 855]), ‘off-roading’ with a motorcycle or ‘dune buggy’ (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1255, 1259-1265 [102 Cal. Rptr. 2d 813]), skateboarding (Calhoon v. Lewis (2000) 81 Cal.App.4th 108, 115-117 [96 Cal. Rptr. 2d 394]), figure ice skating (Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1632-1636 [53 Cal. Rptr. 2d 657]), and long-distance group bicycle riding (Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1218-1223 [130 Cal. Rptr. 2d 198]), to name a few.” (Truong v. Nguyen (2007) 156 Cal.App.4th 865, 878-879 [67 Cal. Rptr. 3d 675] [primary assumption of risk applied to bar action for injury to passenger on jet ski].)

In Record v. Reason (1999) 73 Cal.App.4th 472 [86 Cal. Rptr. 2d 547], the court held that where the plaintiff was injured when he fell off an inner tube while being towed behind a motor boat, primary assumption of risk applied. In doing so, the court considered the issue of whether a particular activity was a “sport” such that the doctrine should be applied. [***17] After reviewing a substantial number of cases applying primary assumption of risk to a variety of activities, the court concluded that “[c]ompiling all of the distinguishing factors, it appears that an activity falls within the meaning of ‘sport’ if the activity is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury.” (Id. at p. 482.) Although we agree with the result in Record its reliance on a plaintiff’s subjective reasons for participating in a sport seems inconsistent with Knight‘s test, which focuses on whether imposing liability would “alter fundamentally the nature of the sport by deterring participants from” vigorous participation. (Knight v. Jewett, supra, 3 Cal.4th at p. 319.) [*1262]

(4) Stimson v. Carlson (1992) 11 Cal.App.4th 1201, 1205 [14 Cal. Rptr. 2d 670] applied primary assumption of risk to sailing where the plaintiff was one of the crew operating the boat; the court noted that sailing involves swinging booms and physical participation of crew. But in our case, plaintiff was not a participant in the “sport” of boating or in any “active sport.” He was a passenger. Thus [HN5] this activity does not fall within [***18] the test set out in Knight, i.e., that to hold defendants owed no duty to plaintiffs would “alter fundamentally the nature of [a] sport by deterring participants from” vigorous participation. (Knight v. Jewett, supra, 3 Cal.4th at p. 319.)

This case is more analogous to Shannon v. Rhodes (2001) 92 Cal.App.4th 792 [112 Cal. Rptr. 2d 217]. There a six-year-old child and her siblings sued the owner and operator of a ski boat for negligence arising from injuries sustained by the child when she fell from the boat into the boat’s propeller. The Court of Appeal reversed summary judgment, holding that primary assumption of risk did not apply. The court noted, “Our analysis begins by examining with what activity the Knight court was concerned. In Knight, the court came to the commonsense conclusion that when two people are playing a sport together one should not be liable to the other for injuries sustained while playing that sport [**832] absent some recklessness or intentional misconduct. [Citation.] The parties in Knight were engaged in a recreational game of football, clearly a physical activity and ‘sport’ within any common understanding of the word.” (Id. at p. 796.) Shannon held that the defense did not apply where [***19] the plaintiff was merely a passenger in the ski boat. (Id. at p. 801.)

Shannon distinguished Ford v. Gouin, supra, 3 Cal.4th 339, the waterskiing case, by noting that in Ford, our Supreme Court “explicitly used the language ‘noncompetitive but active sports activity’ in applying the doctrine to waterskiing. [Citation.] A review of the reasoning set forth in Ford makes clear that the court focused on the physical skill and risk involved in the waterskiing itself to conclude that the activity of waterskiing was a sport, and the boat driver a coparticipant in that sport. [Citation.] The same certainly cannot be said of a mere passenger in a boat … .” (Shannon v. Rhodes, supra, 92 Cal.App.4th at p. 798.)

(5) Here, the trial court characterized the activity in which plaintiff engaged as “jumping” rather than boating. We disagree that [HN6] we must surgically separate an activity’s constituent parts apart from the general activity in which the plaintiff was engaged. Carl was engaged in boating, not in jumping. If he had been a jumper, in the sense of one who competes in athletic events, our conclusion would be different. But he was disembarking from the boat; his method of doing so, be it leaping, jumping, stepping off, or walking the gangplank, [***20] did not turn his activity into an “active sport.” [*1263]

We therefore conclude that the doctrine of primary assumption of risk does not bar plaintiffs’ action.

Defendants’ Remaining Arguments

(6) We need not expend a great deal of time dealing with the rest of defendants’ arguments. Although these were not the basis for the grant of summary judgment, we will comment briefly. Defendants contend they acted with reasonable care. But this argument should be made not to us but to the trier of facts. [HN7] Whether reasonable care has been exercised is normally a question of fact. (Butigan v. Yellow Cab Co. (1958) 49 Cal.2d 652, 656 [320 P.2d 500].) Even if defendants were not responsible for the removal of the steps, and they contend the steps were there, this would only be one possible theory of liability. And, in light of the conflicting evidence, it is not for us to decide whether the steps were removed and, if so, by whom.

(7) As to defendants’ argument that Carl’s wife, Barbara, did not sustain damages to support her loss of consortium claim, the contention rests on the absence of evidence of physical injuries. But, as plaintiffs point out, “[a]lthough [HN8] loss of consortium may have physical consequences, it is principally a form [***21] of mental suffering.” (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 401 [115 Cal. Rptr. 765, 525 P.2d 669].)

(8) Defendants’ final argument is equally specious. [HN9] Whether or not Carl’s son, Michael, had such a contemporaneous sensory awareness of the accident as to satisfy the requirements of Thing v. La Chusa (1989) 48 Cal.3d 644, 668-669 [257 Cal. Rptr. 865, 771 P.2d 814] is again a question of fact, not to be resolved by us.

DISPOSITION

The judgment is reversed. Appellants shall recover their costs.

Sills, P. J., concurred.

DISSENT BY: BEDSWORTH

DISSENT

BEDSWORTH, J., Dissenting.–“No good deed goes unpunished” has become a truism of modern life. Today, [**833] by allowing suit against a yacht club that tried to help one of the sons of a member in his time of grief, only to be sued when he hurt himself intruding into their conduct of the good deed, my colleagues give this sad commentary on modern society the force of law. I respectfully dissent from that.

Carl Kindrich III was injured when he jumped off a boat and onto a dock. He did so voluntarily, after he knew his adult son, Michael, had already [*1264] gotten onto the dock to assist in tying off the boat. There is absolutely no evidence that anyone suggested, let alone required, that Kindrich himself must get off the boat prior [***22] to the time the stairs were put into place on the dock for the egress of passengers. Nonetheless, Kindrich, along with his wife and son, sued both the Long Beach Yacht Club and Charles Fuller, the Yacht Club member who captained the boat, alleging they were responsible for his injuries.

The trial court granted summary judgment to defendants, and I would affirm that judgment. I believe the trial court properly concluded that Kindrich’s specific act of “jumping onto the dock,” rather than the more generic and sedate “boating” was the relevant “activity” for purposes of assessing his assumption of risk. In my view, jumping or stepping some two and one-half or three feet off the side of a boat onto a dock–merely because portable steps had not yet been put into place–is no more an integral part of “boating” than diving out a window–because no one has yet opened the door–is an integral part of visiting a house.

This was not an outing or an excursion. It was not a leisurely sail. The trip was made to dispose of the ashes of Kindrich’s father. The injury in question was not the result of “boating.” Kindrich was not swept off the boat by a wave or hit by a jib. He jumped off the [***23] boat at the conclusion of the trip before the boat had been tied up. His injury was the result of his sudden decision he would leap off the boat rather than waiting for his son to finish tying it off and ensuring debarkation could be safely accomplished.

It is undisputed that defendants did not expect, let alone require, that passengers would have to jump off this particular boat as part of the “boating” experience. To my mind, the existence of portable stairs, which had been used by these passengers when boarding the boat, and were intended to be kept on the dock for the passengers to use in both getting on and off the boat, rather conclusively establishes the lack of any such expectation. And Kindrich’s own testimony demonstrates that even he did not consider jumping off the side of the boat onto the dock to be a normal part of this boat ride, let alone an integral part of the activity of “boating” in general. As Kindrich explained it, he not only did not expect that anyone else on the boat would be jumping off, he believed them unable to do it. 1

1 As Kindrich explained in his deposition, “Jim, my brother, has a back to where he can’t do a lot of jumping; Mary Ann would not be capable [***24] of doing it; Lisa wouldn’t be capable of doing it; my grandsons would not be capable of doing it. And the other two gentlemen would not be capable of doing it.”

Moreover, there is no evidence that anyone–either Fuller or the Yacht Club–imposed some special obligation on Kindrich to jump off the boat and [*1265] be on the dock while it was being tied up. Instead, Kindrich’s own testimony establishes that (1) Fuller merely stated (either directly to Kindrich or generally to him and his son) that it was necessary to tie up the boat, and “someone else” would have to assist; (2) Kindrich’s son immediately volunteered to do that; and (3) Kindrich was aware his son [**834] had already jumped onto the dock for the purpose of tying off lines before his own ill-fated attempt to follow suit. Even assuming it was actually necessary for “someone” to be on the dock–a fact disputed below–it is uncontested that need had been met prior to Kindrich’s jump.

Under these facts, it is clear that jumping off the boat before the stairs were in place was not a requirement placed generally on those who were passengers on the boat, and it was not a requirement placed specifically on Kindrich by any defendant. 2 Hence, [***25] Kindrich’s decision to do so was simply an optional, and entirely voluntary act, which must be distinguished, for analytical purposes, from any normal aspect of “boating.”

2 Of course, I do not mean to suggest Kindrich necessarily thought through these events with the specificity I have just employed. Presumably, he just figured if Fuller needed help getting the boat tied onto the dock, he was willing to do whatever he could to assist. But that instinct is the essence of volunteerism: “Somebody ought to do it, might as well be me” is not the same thing as being specifically assigned a task. And the fact Fuller might even have appreciated having two people on the dock is not the same thing as concluding he actually directed Kindrich to get onto the dock–by whatever means possible–as soon as the boat arrived. Based upon the evidence in this case, the trial court correctly determined Kindrich was acting voluntarily when he jumped off the boat.

As my colleagues seem to concede, when Kindrich’s activity is construed not as an integral part of “boating” but rather as simply an impetuous act of “jumping off the boat,” it falls within the scope of “athletic” endeavors, which includes those [***26] noncompetitive activities requiring some level of “physical skill and risk,” and thus primary assumption of the risk would apply. (See Ford v. Gouin (1992) 3 Cal.4th 339, 345 [11 Cal. Rptr. 2d 30, 834 P.2d 724]; Shannon v. Rhodes (2001) 92 Cal.App.4th 792, 798 [112 Cal. Rptr. 2d 217].) Because I see it that way, I would apply that doctrine, and grant the summary judgment.

But I should also note that I disagree with the majority’s analysis for an additional reason. As they explain, they considered Kindrich’s situation to be more analogous to Shannon v. Rhodes, supra, 92 Cal.App.4th 792, in which the injured plaintiff, a six-year-old child, was merely a passenger when she fell out of a boat that lurched unexpectedly, than to Stimson v. Carlson (1992) 11 Cal.App.4th 1201 [14 Cal. Rptr. 2d 670], in which the court applied primary assumption of the risk to a plaintiff who was injured while serving as a crewmember on a sailboat. If that is the analysis, it would lead me to the opposite conclusion. After all, a cornerstone of Kindrich’s theory of liability [*1266] is the assertion he had agreed to help with the docking of the boat, which is why–unlike the other passengers–he could not simply wait for the stairs to be put in place before getting onto the dock. If we accept [***27] his view, it seems clear that at the time of the accident, Kindrich had assumed the role of “crew,” rather than remaining a mere passenger. That would bring him within the majority’s characterization of Stimson. For that reason as well, I would affirm the judgment.

My colleagues have expanded civil liability beyond previous decisional law and beyond my ability to sign on. This ship will have to sail without me.

Respondents’ petition for review by the Supreme Court was denied February 11, 2009, S168902. Werdegar, J., did not participate therein.


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Forman v. Brown, d/b/a Brown’s Royal Gorge Rafting, 944 P.2d 559; 1996 Colo. App. LEXIS 343

Forman v. Brown, d/b/a Brown’s Royal Gorge Rafting, 944 P.2d 559; 1996 Colo. App. LEXIS 343

Sue Forman, Plaintiff-Appellant, v. Mark N. Brown, d/b/a Brown’s Royal Gorge Rafting, Brown’s Fort and Greg Scott, Defendants-Appellees.

No. 95CA1380

COURT OF APPEALS OF COLORADO, DIVISION B

944 P.2d 559; 1996 Colo. App. LEXIS 343

November 29, 1996, Decided

SUBSEQUENT HISTORY: [**1] Released for Publication October 23, 1997.

Rehearing Denied February 6, 1997.

PRIOR HISTORY: Appeal from the District Court of Fremont County. Honorable John Anderson, Judge. No. 93CV123.

DISPOSITION: JUDGMENT AFFIRMED

COUNSEL: Gregory J. Hock, Colorado Springs, Colorado, for Plaintiff-Appellant.

Hall & Evans, L.L.C., Alan Epstein, Denver, Colorado, for Defendants-Appellees.

JUDGES: Opinion by JUDGE NEY. Pierce *, J. concurs. Tursi *, J. concurs in part and dissents in part.

* Sitting by assignment of the Chief Justice under provisions of the Colo. Const. art. VI, Sec. 5(3), and § 24-51-1105, C.R.S. (1996 Cum. Supp.).

OPINION BY: NEY

OPINION

[*560] Opinion by JUDGE NEY

Plaintiff, Sue Forman, appeals from a summary judgment entered in favor of defendants, Mark N. Brown d/b/a Brown’s Royal Gorge Rafting and Brown’s Fort, and Greg Scott. We affirm.

Plaintiff participated in a rafting trip conducted by defendants. During the trip, defendant Scott, the river guide, pulled the raft off the river for a rest break and suggested [*561] that the participants take a swim in the river. Scott led some of the participants, including plaintiff, to a large boulder near the river and instructed them on the proper method [**2] to enter the water. Plaintiff injured her ankle when she jumped into the river.

Plaintiff brought this action alleging negligence, willful and wanton conduct, and breach of contract. Defendants moved for partial summary judgment on the grounds that the exculpatory agreement executed by plaintiff before the trip absolved them from liability for negligence as a matter of law. The trial court granted defendant’s motion for partial summary judgment, and later granted defendants’ motion for summary judgment on plaintiff’s remaining claims. This appeal followed.

I.

Plaintiff argues that summary judgment was improper because a genuine issue of fact existed as to whether she was mentally competent when she signed the exculpatory agreement. We disagree.

[HN1] Summary judgment is proper when the pleadings, affidavits, depositions, and admissions show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56; Civil Service Commission v. Pinder, 812 P.2d 645 (Colo. 1991).

The moving party has the burden to show that there is no issue of material fact. Once the moving party has met its initial burden, the burden then [**3] shifts to the nonmoving party to establish that there is a triable issue of material fact. Mancuso v. United Bank, 818 P.2d 732 (Colo. 1991).

In determining whether summary judgment is proper, the nonmoving party must receive the benefit of all favorable inferences that may reasonably be drawn from the undisputed facts. Mancuso v. United Bank, supra. Summary judgment is proper if reasonable persons could not reach differing conclusions. Morlan v. Durland Trust Co., 127 Colo. 5, 252 P.2d 98 (1952).

In their motion for summary judgment, defendants attached the exculpatory agreement, which was signed by plaintiff, entitled “Agreement to Participate (Acknowledgment of Risks),” and an agreement entitled “On River Prohibitions,” also signed by plaintiff, which listed rules that rafting participants were required to follow while on the rafts. Defendants also included plaintiff’s admissions that she signed the exculpatory agreements and that she was advised concerning the hazards involved in the raft trip. With this evidence, defendants established both the scope of the exculpatory agreement and the fact that plaintiff signed the agreement, and thus the burden shifted to plaintiff to establish [**4] triable issues of fact. Mancuso v. United Bank, supra.

Plaintiff admitted in her response to the summary judgment motion that she had signed the exculpatory agreement and she attached to her response an affidavit in which she stated:

I believe I am an intelligent woman and I

understand the (prohibition.) My failure to read the Agreement to Participate was related to my mental condition.

. . . .

Although I was not incompetent when I signed the on-river prohibitions and the Agreement to Participate, I do feel I lacked competency in the skills of independent decision-making and that I had mental impairment on relying on what Mr. Scott had advised.

Plaintiff also averred that she had been in therapy for several years before the incident, and included extensive documentation of the diagnosis and in-patient treatment of her emotional and mental condition that she underwent six months after the rafting incident. However, plaintiff’s complaint did not state any allegations of her impaired mental capacity.

Plaintiff filed a supplementary response to the summary judgment motion which included an affidavit from the therapist who had been treating her for several years prior to the rafting [**5] incident wherein the therapist stated that, at the time of the rafting trip, plaintiff was suffering from a mental impairment, “including a mental and/or emotional disability related to psychiatric problems, her [*562] inability to handle stress, emotional illness and severe psychiatric difficulties and serious emotional disturbances which prevented her from fully assessing the consequences of risks or prohibited conduct related to jumping into the river.” The therapist further opined that plaintiff had a tendency “to be quite vulnerable following the direction of someone she was trusting as well as to following the actions of those with whom she desired to be a part.”

Plaintiff also supplemented her response with an affidavit from a therapist who began treating her a year after the rafting incident in which the therapist averred that, at the time of the rafting incident, plaintiff’s need to be liked and accepted was likely to have caused her to suspend her own judgment in deference to others.

The trial court held that, even under the most favorable interpretation of the evidence, plaintiff did not show that she was incompetent to enter into a binding contract. Relying on plaintiff’s [**6] specific assertion that she was not incompetent when she signed the exculpatory agreements, the court found that plaintiff’s assertions of mental impairment, such as her need to belong to a group and her need to trust and follow the river guide, did not at all relate to her execution of a binding contract.

We agree with the trial court and find that the relevant evidence established, as a matter of law, that plaintiff was not, under principles of competency applicable to contracts in general, incompetent at the time she signed the exculpatory agreement.

[HN2] Every person is presumed by the law to be sane and competent for the purpose of entering into a contract. Hanks v. McNeil Coal Corp., 114 Colo. 578, 168 P.2d 256 (1946). A party can be insane for some purposes and still have the capacity to contract. Davis v. Colorado Kenworth Corp., 156 Colo. 98, 396 P.2d 958 (1964).

A person is incompetent to contract when the subject matter of the contract is so connected with an insane delusion as to render the afflicted party incapable of understanding the nature and effect of the agreement or of acting rationally in the transaction. Hanks v. McNeil Coal Corp., supra. Therefore, under this [**7] rule, it follows that emotional distress or severe mental depression generally is insufficient to negate the capacity to contract. See Drewry v. Drewry, 8 Va. App. 460, 383 S.E.2d 12 (Va. App. 1989)(severe mental depression did not render party to separation agreement legally incompetent where there was no evidence that party did not understand the nature and consequences of her acts).

Moreover, a contract may not be voided when, as here, the alleged incompetence arose after the execution of the contract. Competency to contract is determined by a party’s mental state at the time of execution of the agreement. See Hanks v. McNeil Coal Corp., supra.

[HN3] Where a party has failed to present sufficient evidence to make out a triable issue of material fact, the moving party is entitled to summary judgment. See Continental Air Lines Inc. v. Keenan, 731 P.2d 708 (Colo. 1987).

Plaintiff admitted that she was not incompetent at the time she signed the exculpatory agreement, that she was “an intelligent woman,” and that she understood the “prohibition.” Additionally, none of plaintiff’s evidence of her psychological diagnosis and treatment showed that, at the time she signed the exculpatory agreements, she was [**8] suffering under an insane delusion that prevented her from understanding the nature and effect of the agreements or of acting rationally in the transaction.

Nor do we agree with plaintiff’s claim that her impaired mental capacity caused her to fail to read the Agreement to Participate. As noted above, plaintiff admitted that she was not incompetent when she signed the exculpatory agreements; therefore, her failure to read the Agreement to Participate precludes her from arguing that she is not bound by it. See Rasmussen v. Freehling, 159 Colo. 414, 412 P.2d 217 (1966)(in the absence of fraud, one who signs a contract without reading it is barred from claiming she is not bound by what she has signed); Cordillera Corp. v. Heard, 41 Colo. App. 537, 592 P.2d 12 (1978), aff’d, 200 Colo. 72, 612 [*563] P.2d 92 (1980)(party signing an agreement is presumed to know its contents).

We conclude, therefore, that plaintiff failed to establish a triable issue of fact concerning her capacity to execute a contract at the time she signed the exculpatory agreement.

II.

Plaintiff also argues that the exculpatory agreement was invalid and ambiguous as to whether it applied to the activity in which she was [**9] injured. We disagree.

[HN4] The determination of the sufficiency and validity of an exculpatory agreement is a matter of law for the court to determine. Jones v. Dressel, 623 P.2d 370 (Colo. 1981).

The validity of an exculpatory agreement must be determined by the following four criteria: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language. Jones v. Dressel, supra.

Only the fourth factor is at issue here, and as to this factor, the supreme court has held that in order for an exculpatory agreement to shield a party from liability, the intent of the parties to extinguish liability must be clearly and unambiguously expressed. Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781 (Colo. 1989).

The Agreement to Participate provided in relevant part:

I am aware that the activities I am participating in, under the arrangements of Brown’s Fort family recreation center; its agents, employees, and associates, involves certain inherent risks. I recognize that white water rafting, . . . and other activities, scheduled or unscheduled [**10] have an element of risk which combined with the forces of nature, acts of commission, or omission, by participants or others, can lead to injury or death.

I also state and acknowledge that the hazards include, but are not limited to the loss of control, collisions with rocks, trees and other man made or natural objects, whether they are obvious or not obvious, flips, immersions in water, hypothermia, and falls from vessels, vehicles, animals, or on land.

I understand that any route or activity, chosen as a part of our outdoor adventure may not be the safest, but has been chosen for its interest and challenge. . . . I . . . understand and agree that any bodily injury, death or loss of personal property, and expenses thereof, as a result of my . . . participation in any scheduled or unscheduled activities, are my responsibility. I hereby acknowledge that I and my family . . . have voluntarily applied to participate in these activities. I do hereby agree that I and my family . . . are in good health with no physical defects that might be injurious to me and that I and my family are able to handle the hazards of traffic, weather conditions, exposure to animals, walking, riding, and all [**11] and any similar conditions associated with the activities we have contracted for.

. . . .

I and my family . . . agree to follow the instructions and commands of the guides, wranglers, and others in charge at Brown’s Fort recreation center with conducting activities in which I and my family are engaged.

Further, and in consideration of, and as part payment for the right to participate in such trips or other activities . . . I have and do hereby assume all the above risks and will hold Brown’s Fort . . . its agents, employees, and associates harmless from any and all liability, action, causes of action, debts, claims, and demands of any kind or nature whatsoever which I now have or which may arise out of, or in connection with, my trip or participation in any other activities.

The terms of this contract shall serve as a release and assumption of risk for my heirs, executors and administers and for all members of my family, including any minors accompanying me. . . .

I have carefully read this contract and fully understand its contents. I am aware [*564] that I am releasing certain legal rights that

I otherwise may have and I enter into this contract in behalf of myself and my family [**12] of my own free will.

Plaintiff was engaged in an apparently unscheduled activity that had an element of risk which, combined with the forces of nature and acts of others, resulted in an injury. The language of the Agreement to Participate specifically addressed a risk, collision with boulders, that adequately described the circumstances of plaintiff’s injury, and by executing the Agreement to Participate, plaintiff was specifically made aware of and agreed to assume this risk. See Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781 (broad language in a release interpreted to cover all negligence claims); Barker v. Colorado Region–Sports Car Club of America, Inc., 35 Colo. App. 73, 532 P.2d 372 (1974) (in absence of duty to public, exculpatory agreements are valid when fairly made and may be enforced to preclude recovery for injury sustained by patrons of recreational facilities).

Therefore, we agree with the trial court that the Agreement to Participate unambiguously released defendants from liability for injuries occurring during associated scheduled or unscheduled activities such as the swimming activity here at issue.

III.

Plaintiff’s final contention is that the trial court erred in [**13] dismissing her claim of willful and wanton conduct against defendant Scott. We disagree.

[HN5] An exculpatory agreement does not bar an action based upon injuries sustained by a defendant’s willful and wanton conduct. Barker v. Colorado Region-Sports Car Club of America, Inc., supra. Willful and wanton conduct is purposeful conduct committed recklessly that exhibits an intent consciously to disregard the safety of others. Such conduct extends beyond mere unreasonableness. Terror Mining Co. v. Roter, 866 P.2d 929 (Colo. 1994) (applying definition of willful and wanton conduct to parental immunity doctrine); see also § 13-21-102(1)(b), C.R.S. (1987 Repl. Vol. 6A)(for purposes of exemplary damages, willful and wanton conduct means conduct purposefully committed which the actor must have realized as dangerous and which was done heedlessly and recklessly, without regard to the consequences, or of the rights and safety of others, particularly the plaintiff).

[HN6] Although the issue of whether a defendant’s conduct is purposeful or reckless is ordinarily a question of fact, Wolther v. Schaarschmidt, 738 P.2d 25 (Colo. App. 1986), if the record is devoid of sufficient evidence to raise a factual [**14] issue, then the question may be resolved by the court as a matter of law. See Continental Air Lines, Inc. v. Keenan, supra.

Plaintiff’s complaint alleged only that defendant Scott “beached the raft with Plaintiff and other guests, subsequently inviting, encouraging and directing Plaintiff and other guests to jump into the river and take a swim, directing them to a point of jumping that Scott represented as being safe for entry.” Plaintiff also gave a statement in which she said that, prior to the swim, defendant Scott reinforced the possibility of being hurt while jumping into the river but that he instructed the group on the proper manner of entry to avoid injury, and talked and stood close to the participants while they jumped.

Additionally, plaintiff stated in one of her affidavits:

Scott was with all of us monitoring the entry into the river. He gave brief instructions that we should try to jump with our feet up and keep our feet downstream and paddle to the shore. Although the possibility of being hurt existed, this clearly related to after we went downstream and tried to negotiate the river current and swim to the side of the river. I did not believe there were any safety [**15] problems in entering the water at the place he designated, nor could I see any submerged rocks.

. . . .

A couple jumped in before me and everything worked out fine. Their experience was consistent with what Scott had stated that if we followed his direction we would not get hurt.

. . . .

[*565] I feel that Scott was negligent in his suggesting the jumping and his preparing us and instructing us for that exercise.

Plaintiff’s evidence is insufficient to establish a factual question as to whether defendant Scott acted in a willful and wanton manner. Plaintiff’s statements that Scott instructed the participants on the proper manner to enter the water to avoid injury indicates that Scott did not consciously and willfully disregard the safety of the participants. Furthermore, plaintiff does not allege, nor does the record indicate, that Scott recklessly forced the participants to jump in the river or otherwise intentionally disregarded the participants’ safety. Rather, plaintiff states in her affidavit that Scott acted negligently. Negligence is not the same as willful or wanton conduct. Pettingell v. Moede, 129 Colo. 484, 271 P.2d 1038 (1954).

Therefore, the court properly entered summary [**16] judgment in defendant Scott’s favor. See Mancuso v. United Bank, supra.

The judgment is affirmed.

JUDGE PIERCE concurs.

JUDGE TURSI concurs in part and dissents in part.

CONCUR BY: TURSI (In Part)

DISSENT BY: TURSI (In Part)

DISSENT

JUDGE TURSI concurring in part and dissenting in part.

I concur in Parts I and III of the majority opinion and dissent as to Part II.

This matter is before us on summary judgment. The majority adequately sets forth the rules governing review of summary judgments. However, as to Part II, it misapplies them.

In Part II, the majority concludes that the documents which defendant had plaintiff execute were unambiguous. I disagree.

Plaintiff was presented with two documents by the defendants and was required to execute them simultaneously. These are the Agreement to Participate, quoted at length in the majority opinion, and the On River Prohibitions, which although mentioned, are not quoted.

It is axiomatic that if simultaneously executed agreements between the same parties and relating to the same subject matter are contained in more than one instrument, the documents must be construed together. Bledsoe v. Hill, 747 P.2d 10 (Colo. App. 1987).

The On River Prohibitions [**17] contained a prohibition that stated: “No diving or jumping into the river. (There are rocks under the surface of the river).”

By affidavit and by a statement appended to defendant’s motion for summary judgment, facts were presented that the guide had instructed plaintiff to “jump in” the river. In plaintiff’s affidavit (referred to by the majority), plaintiff further stated that the guide “indicated that we should jump into the water at that point.”

Plaintiff correctly argues that she was confronted with the requirement that she follow the instruction of the guide as required by the Agreement to Participate, but that this conflicted with a specific provision of the On River Prohibitions. The patently conflicting provision was, at a minimum, ambiguous and placed plaintiff in a situation that gave rise to a genuine issue of material fact. See Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781; Jones v. Dressel, 623 P.2d 370.

Clearly, the provision in the Agreement to Participate stating that participants “agree to follow the instruction . . . of the guides” creates a conflict when a participant is instructed by the guide to violate the specific prohibition against jumping into the river. Under [**18] these circumstances, an ambiguity arises which creates a genuine issue of material fact and thus, renders the entry of summary judgment reversible error.

Finally, after giving the entire agreement a fair reading, I am unable to comprehend how the majority can conclude that a prohibited activity is a foreseeable “unscheduled” [*566] activity. See Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781.

Therefore, in view of the ambiguity that arose under the documents based upon the material facts herein, I would reverse and remand to the trial court to proceed on the issues addressed in Part II of the majority opinion.


The basics of winning a negligence claim is having some facts that show negligence, not just the inability to canoe by the plaintiff

Plaintiff’s rented a canoe and sued when they did not make the takeout and became stuck. The plaintiff’s took 4 hours to paddle 2.5 miles

Ferrari v. Bob’s Canoe Rental, Inc., 2014 N.Y. Misc. LEXIS 3768; 2014 NY Slip Op 32209(U)

State: New York, Supreme Court of New York, Suffolk County

Plaintiff: Kathleen Ferrari, as Administratrix of the Estate of Dennis Ferrari, and Kathleen Ferrari, Individually

Defendant: Bob’s Canoe Rental, Inc.

Plaintiff Claims: negligent in permitting them to rent the canoe and launch so close in time to low tide, and in advising them that it was safe to begin their canoe trip when the defendant knew or should have known it was unsafe to do so.

Defendant Defenses: Assumption of the Risk and Release

Holding: Defendant

Year: 2014

The facts are pretty simple, even if expanded by the plaintiffs. The plaintiff wanted to rent a canoe on the Nissequogue River in Suffolk, New York. The Nissequogue River is affected by tides. At low tide, the river disappears and the ocean rushes in. The plaintiff/deceased/husband had canoed the river several times before. The plaintiff/husband and wife contacted the defendant the day before and arrived the day of the incident in the morning. However, the defendant was not at the put in, but located at the takeout. The plaintiff’s drove to the take out where they left their car and were taken back to the put in by the defendant where they started canoeing.

Prior to starting the trip each plaintiff signed a release, and the wife signed a rental agreement for the canoe.

A canoe livery if you are not familiar with one is really a rental operation like a car rental operation where you rent a car and go anywhere you want. A canoe livery you rent the canoe and paddle down a specific section of a specific river. At the end of the trip, the livery picks you up and takes you back to your car. Some liveries start by taking you upriver where you paddle down to your car.

Generally, courts look at canoe liveries as outfitters, not as rental shops. Consequently, liveries are held to a slightly higher degree of care for their guests because of their control over the boat, the river and transportation.

The time prior to putting in, the husband questioned the employee of the defendant about whether they had enough time to canoe the river before the low tide. The employee confirmed they did.

From the put in to the take out is a distance of five miles. Witnesses and the defendant testified it could easily be canoed in 2.5 hours.

After 4 hours of canoeing, the plaintiffs on the day in question had made it 2.5 miles. The tide went out leaving them stranded. According to the wife, the pair started drinking the vodka and wine they had with them to stay warm.

Eventually, they were found and treated for hyperthermia.  

The plaintiff sued for basically not stopping them from renting the canoe. The court also looked at their complaint and defined one of their allegations as a negligent misrepresentation claim.

At the time of the trial, the husband had died; however, his death was not part of this case or caused by the facts in this case.

Analysis: making sense of the law based on these facts.

The court looked at the degree of care the defendant owed to the plaintiff and found the plaintiff was voluntarily participating in a sporting or recreational activity. As such, the participants “consent to the commonly appreciated risks that are inherent in and arise out of, the nature of the sport generally and flow from participation therein.” Consequently the participants consent to injury caused by events which are “known, apparent, or reasonably foreseeable risks of the participation.”

If the plaintiff fully comprehends the risks, then the plaintiff consents to them. Stated another way “the duty of the defendant is to protect the plaintiff from injuries arising out of unassumed, concealed, or unreasonably increased risks…”

The court found the defendant husband was an experience canoeist and understood the tides, and the risks presented by both. Therefore, the plaintiff’s assumed the risk of injury.

The court then looked at the releases.

It must appear absolutely clear that the agreement extends to negligence or other fault of the party. “That does not mean that the word ‘negligence’ must be employed for courts to give effect to an exculpatory agreement; however, words conveying a similar import must appear”

Under New York law once the defendant has presented the release, and it has passed the test to exclude negligence the plaintiff must produce evidence, admissible at trial, “sufficient to require a trial of the material issues of fact.”

Here the plaintiff had not submitted any evidence other than the testimony of the plaintiff’s. More importantly the court wanted to know why it took four hours to go half way on the trip.

The court then looked at the remaining allegations and determined those sounded like a claim of negligent misrepresentation. To prevail on a negligent misrepresentation claim the plaintiff must prove “a special relationship existing between the parties, that the information provided by plaintiff was incorrect or false, and that the plaintiff reasonably relied upon the information provided

Here the court found that no evidence had been submitted by the plaintiff to prove the information supplied by the defendant was false.

The plaintiff’s complaint was dismissed.

So Now What?

This case was short but very interesting. The plaintiff did not attack the releases. The court even commented about the fact the plaintiff did not try to have the releases thrown out or voided. Additionally, the plaintiff simply tried to say that the defendant was liable because they got stuck. This is a belief that many plaintiffs have now days. I suffered an injury; therefore, you must be liable.

To win a negligence claim you must prove negligence. Here the plaintiff had not argued there was a breach of the duty owed to them.

There are several abnormally that make this interesting. The first is the standard of care applied to this case is significantly lower than normally that a canoe livery must meet. However, that same standard of care was only at issue on a small part of the claim so the claim would have failed anyway.

The second is the experience of the husband as a canoeist was held to prevent the plaintiff wife from her claims also. Normally, assumption of the risk must be known and understood by each injured plaintiff.  Here, because there were two people in the canoe both working together, the court applied the experience and knowledge of one party in the canoe to the other party in the canoe.

The court did not rely on the release or any other document to make this decision as to the wife assuming the risk that caused their injuries.

Granted, the defendants should have clearly won this case. Whenever in a deposition, the plaintiff argues, they did not start drinking until after they had run out of water to canoe, to stay warm, you should be a little suspect.  

What do you think? Leave a comment.

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Schoeps v. Whitewater Adventures LLC; 136 Fed. Appx. 966; 2005 U.S. App. LEXIS 13181

Schoeps v. Whitewater Adventures LLC; 136 Fed. Appx. 966; 2005 U.S. App. LEXIS 13181

Hubert Schoeps; Christiane Schoeps, as heirs and beneficiaries of Sandra Schoeps, deceased, Plaintiffs – Appellants, v. Whitewater Adventures LLC; Mark Gholson, Defendants – Appellees.

No. 03-17071

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

136 Fed. Appx. 966; 2005 U.S. App. LEXIS 13181

June 15, 2005**, Submitted, San Francisco, California

** This panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

June 29, 2005, Filed

JUDGES: Before: TALLMAN, BYBEE, and BEA, Circuit Judges.

OPINION

[*967] MEMORANDUM *

* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

Hubert and Christiane Schoeps brought a diversity jurisdiction wrongful death action against Whitewater Adventures and its managing owner, Mark Gholson, alleging negligence, breach of contract, and intentional misrepresentation arising from the death of their daughter, Sandra Schoeps, during a whitewater rafting trip organized by the defendants. The district court granted the defendants summary [**2] judgment on all claims. The Schoeps appeal only the dismissal of their negligence claim against Whitewater Adventures. [HN1] We review de novo the grant of summary judgment. Buono v. Norton, 371 F.3d 543, 545 (9th Cir. 2004).

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. The district court correctly concluded that California law precludes recovery for Sandra’s personal injuries because she expressly assumed the risk of harm when she signed Whitewater Adventures’ liability release form before participating in the whitewater rafting activity. See Sweat v. Big Time Auto Racing, Inc., 117 Cal. App. 4th 1301, 12 Cal. Rptr. 3d 678, 681 (Cal. Ct. App. 2004) (citation omitted). On the whole, the release is in plain language, contains a clear and comprehensive outline of the kinds of harm that may occur, and has [**3] the clear import of relieving Whitewater Adventures of liability for negligence or other harms. See Saenz v. Whitewater Voyages, Inc., 226 Cal. App. 3d 758, 276 Cal. Rptr. 672, 676-77 (Cal. Ct. App. 1990).

Moreover, we conclude that the liability release was not unconscionable. See Ilkhchooyi v. Best, 37 Cal. App. 4th 395, 45 Cal. Rptr. 2d 766, 774-75 (Cal. Ct. App. 1995) (noting that [HN2] unconscionability has “procedural and substantive elements, both of which must be present to invalidate a clause”). Substantively, it is not unreasonable or unexpected for an organizer of adventure sports to reallocate risk to the participants through a liability waiver. See, e.g., Ford v. Gouin, 3 Cal. 4th 339, 11 Cal. Rptr. 2d 30, 834 P.2d 724, 728 (Cal. 1992). Procedurally, there were no hidden terms in the liability release, and the most oppressive aspect of the situation was that if Sandra refused to sign it she could not go with the group on the river and might be stuck without transportation in an isolated area. But this was not caused by any action or inaction On Whitewater Adventures’ part; nor is there any evidence in the record that Denyse Caven, who had driven Sandra to the meeting point, would have been unwilling to [**4] leave with Sandra or to let Sandra drive herself, nor that no other transportation was available. The district court recognized that Sandra had only a few minutes to decide whether to sign the release and would have lost her pre-paid ticket price had she refused to sign. However, this is not sufficient to constitute oppression or lack of meaningful choice, particularly insofar as Sandra had been given a brochure before the rafting trip in which Whitewater Adventures stated: “we require all trip participants to sign a liability release [*968] waiver before embarking on your trip.” See Ilkhchooyi, 45 Cal. Rptr. 2d at 775.

[HN3] We may affirm on any ground supported by the record, San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1030 (9th Cir. 2004), and therefore do not reach the issue of whether recovery is also barred under the primary assumption of risk doctrine. See Ferrari v. Grand Canyon Dories, 32 Cal. App. 4th 248, 38 Cal. Rptr. 2d 65, 67-68 (Cal. Ct. App. 1995).

The Schoeps’ maritime jurisdiction claim was not presented to the district court and so we do not consider it here. See United States v. Flores-Payon, 942 F.2d 556, 558 (9th Cir. 1991). [**5]

AFFIRMED.


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