WA Zip line lawsuit dismissed because the plaintiff admitted he should have understood the riskPosted: July 9, 2012 Filed under: Washington, Zip Line | Tags: Negligence per se, Ropes course, zip line, Zip-line Leave a comment
Oldja v. Warm Beach Christian Camps and Conference Center, 793 F. Supp. 2d 1208; 2011 U.S. Dist. LEXIS 67966
Outcome of the lawsuit would be very different today because zip lines must be licensed in WA.
The defendant won this case not based on defenses they had but because the plaintiff did not plead a case that was supported by the law. Like having to prove the four components of negligence, when arguing a statute, you must meet the definitions in the statute. The statute must be written to protect or incorporate theclaims you are pleading.
The plaintiff was at a camp and conference center when he, and his wife decided to ride the zip line. The plaintiff watched his wife ride the zip line then he rode the line. Between the time, he was cleared to ride the zip line and when he shoved off, he wrapped his fingers around one of the ropes. When he placed his weight on the rope it severely injured his fingers.
The plaintiff sued the camp under several theories of negligence, product liability, and negligence per se. The defendant filed a motion for summary judgment which the court upheld. The basis of the motion was the allegations of the plaintiff failed to meet the statute or the definition of the claim. The product liability claim was waived by the plaintiff and dismissed by the court without argument.
The first issue the court reviewed was the duty of care (negligence claim) owed by the defendant to the plaintiff. The plaintiff argued that the care owed was to keep the premises reasonably safe for the use by the business invitees. That is the duty of a land owner to a business invitee. The defendant argued that the duty was a duty to disclose.
Under that theory, the duty to disclose, the defendant is liable if the defendant:
a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.
Amount of care owed to the business invitee is very different based on what duty of care is applied to the case. Here, because the accident occurred in the air on a zip line and not on the ground, a different duty was owed.
The plaintiff argued this section did not apply because the accident occurred on the land. The court disagreed and held the zip line was chattel, moveable, and not part of the land, so therefore the duties of the defendant were not as high as if the accident had occurred on the land. The court agreed and found the zip line was a chattel and as such a lesser degree of care was owed to the plaintiff. The plaintiff could not prove their claim, and the claim was dismissed.
The court also looked at the deposition testimony of the plaintiff were he admitted that if he had thought about it, he would have known of the risk of wrapping his fingers around the rope.
Q. Did you know that if you wrapped the rope around your fingers and then you put weight on the rope, that that would tighten and cinch around your fingers?
A. The thought did not cross my mind.
Q. Okay. You didn’t think about that correct?
Q. But if you had thought about it, you would have been able to figure that out, correct?
A. If someone asked me?
There is no duty to disclose if the plaintiff knew or should have known of the risk.
The next argument was the zip line must have been licensed, and because it was not, the injury was a negligence per se claim. Negligence per se is a violation of a state statute or a regulation created to protect people. A negligence per se claim does not allow many defenses and usually voids a release. Negligence per se claims are nasty.
The argument was the zip line was supposed to be licensed, and because it was not licensed the statute was violated. The injury then was a result of the failure to license the zip line. In this case, zip lines did not have to be licensed until several years after the accident so therefore there could not be any negligence per se. The regulation was not violated because there was not regulation at the time of the accident.
If the zip line had been required to be licensed and was not, then there would not have been a lawsuit, only the process of writing a check. Being held liable under a claim of negligence per se does not provide a defendant with much if any defenses.
The final argument made by the plaintiff was the standard of care owed should be that of a common carrier (negligence claim). A common carrier owes the highest degree of care to the public. The plaintiff pointed to cases in California that held that amusement rides were held to the standard of a common carrier.
Here the court looked at the Washington statute and the California statute defining a common carrier. The court found the Washington statute was very narrow in its definitions, and the definitions did not include a zip line. A zip line did not qualify as a common carrier.
The court upheld the defendant’s motion for summary judgment and dismissed the claims.
So Now What?
This case has several interpretations of state statutes that made the decision of the court easy. Both the statute defining what activities needed to be licensed as amusement rides and the state common carrier statutes were very narrowly written, and a zip line did not, at the time of the accident, fall into either definition.
The next issue is the plaintiff admitted understanding, if he thought about it, that his hand would be injured based on what he did. As such, the plaintiff provided the defense of assumption of the risk, which was not used in this case because the claims were statutory in nature.
When you run an outdoor recreation business, you need to consult an attorney to make sure that you are not violating any statute of the state. Not just the obvious ones.
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