Stand Up Paddleboard case. Rental company was not liable for the death of renter who could not swim.

Release and assumption of the risk were both used to defeat the plaintiff’s claims.

Citation: Kabogoza v. Blue Water Boating, Inc., et al

State: California, United States District Court, E.D. California

Plaintiff: Mary Bacia Kabogoza, on behalf of herself and the Estate of Davies Khallit Kabogoza

Defendant: Blue Water Boating, Inc., Skip Abed and ten “Roe” defendants

Plaintiff Claims: wrongful death, negligence, and gross negligence

Defendant Defenses: Assumption of the Risk and Release

Holding: For the Defendant

Year: 2019

Summary

A renter of a stand-up paddleboard drowned after falling off his board. He did not use the free leash and wore his inflatable PFD incorrectly so it did not work.

The court found the plaintiff assumed the risk and had signed a release preventing his survivors from suing.

Facts

In April 2017, Davies Kabogoza and his friend, Laura Tandy, rented stand-up paddleboards from Defendant Blue Water Boating. Kabogoza had rented paddleboards from this rental company before. He was familiar with the staff, but had never told them that he could not swim.

Kabogoza and Tandy signed a rental agreement before taking out the paddleboards. The one-page agreement included several general and SUP-specific safety rules, along with a release of liability. Upon signing the agreement, the rental company-per Kabogoza’s request-gave him and Tandy intermediate-level paddleboards and belt-pack flotation devices. Regular life vests were also available, but Defendants allow their customers to choose between the two options. Belt-pack flotation devices are “very popular” among paddle boarders, but customers often wear them incorrectly, with the flotation portion of the device facing backwards. Id. Plaintiff alleges that Kabogoza was wearing his incorrectly at the time of the accident.

Defendants also gave its customers the option of using a paddleboard leash. Defendant Skip Abed, the owner of Blue Water Boating, told an investigator that 9 out of 10 times, customers do not want a leash. Neither Kabogoza nor Tandy used a leash while paddleboarding.

Shortly after Kabogoza and Tandy began using their paddleboards in the Santa Barbara Harbor, the wind increased, and the water became choppy. Tandy was in front of Kabogoza when she heard a splash behind her. When she turned around, she saw that Kabogoza had fallen off his board, and was struggling to keep his head above water. Tandy was unable to reach Kabogoza and prevent him from drowning. A dive team later found his body at the bottom of the ocean in about 30 feet of water. Id. When the divers found him, Kabogoza’s flotation device was attached to his waist, but in the backwards position. An inspection revealed that the device was in “good working order.”

The defendants filed a motion to dismiss, which was granted by the district court.

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

The court first looked at the gross negligence claim of the plaintiffs. Under California law, gross negligence is defined as “the want of even scant care or an extreme departure from the ordinary standard of conduct.” The court then went on to reiterate the California Supreme Court issue of disposing of gross negligence claims that do not meet the definition.

The court then looked at the defense of assumption of the risk. The plaintiffs plead admiralty and state law claims in this lawsuit. Each has different types of claims and different defenses and defenses to state law claims do not work in admiralty cases and vice versa. The court waded through the differences in each of the defenses presented by the defendant.

Assumption of the risk is not a defense to an admiralty law claim. Assumption of the risk is a defense to state law claims. The court then went back to the gross negligence claim and found the facts pleaded by the plaintiff did not rise to the level of gross negligence.

The next claim of the plaintiffs was a wrongful death claim. A wrongful death claim is a claim of the survivors of the deceased. However, any defense to a claim by the deceased is a bar to a wrongful death claim.

Because the rental agreement signed by the deceased included release language, it was a bar to the wrongful death claim of the deceased survivors.

So Now What?

First, this is a stand-up paddleboard rental; however, the court did not treat it any differently than the rental of any other boat.

The knowledge that renters might wear their PFDs incorrectly is disconcerting. I would counsel clients to at least post a sign or something showing people the proper way to wear their PFDs.

I also think a leash would be required to make sure the boards come back. Fall off your board and the currents will send it away faster than you can swim and the rental company has lost another SUP.

However, tragic this accident, legally the result was correct I believe.

James H. “Jim” Moss

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers, avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Outdoor Recreation Insurance, Risk Management, and Law

Jim is the author or co-author of six books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management, and Law.

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

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