|Hi Friends of the Colorado River!
HERE’S WHAT YOU NEED TO KNOW: WE ARE IN THE THICK OF THE FIGHT TO PROTECT THE COLORADO RIVER!
It may end up being one of the hottest, driest summers in Colorado River basin history as scorching temperatures are recorded from Denver all the way to Los Angeles. The river itself is under extreme stress with some of the “lowest flows in history” recorded in the Colorado River and its tributaries. But the dam builders are not slowing down, and so neither is Save The Colorado!
We’ve had a flurry of news coverage over the last month about our fights to stop proposed new dams in Wyoming, Utah and Colorado. Further, as the Colorado River declines, the questions continue to increase about the viability of Lake Powell and Glen Canyon Dam.
First, Aspen Journalism wrote a story about our lawsuit to stop the proposed “Windy Gap Firming Project” in Colorado which would drain a new nine billion gallons of water directly out of the Colorado River every year. Titled, “Court Battle Continues Over Windy Gap Firming Project“, the story quotes me as saying, “We are just trying to inject some sanity and stop the madness,” said Gary Wockner, director of Save the Colorado, an environmental nonprofit based in Ft. Collins that supports the Colorado River and is the lead petitioner in the case. “The Colorado River is the most dammed, drained, depleted river on the planet.”
Second, Wyofile, a non-profit news agency in Wyoming, wrote two stories about our work in Wyoming to stop proposed new dams and diversions, including the “Fontenelle Dam Expansion” which would take over twenty-five billion gallons out of the Green River every year which is a tributary to the Colorado River. One story titled “As Water Shortages Loom, Wyoming Seeks Water-Bank Bill” quotes me here: “In Fort Collins, a group called Save the Colorado has vowed to fight every new diversion and impoundment in the basin. Gary Wockner, the group’s president, said all entities are in a gold rush. “Everybody’s trying to get while they can still get,” he told WyoFile.”
Another story in Wyofile about three projects in the Green River basin titled, “Conflict Looms As Wyoming Seeks More Green River Water“, quotes me here: “Gary Wockner, president of the Save the Colorado conservation group, wants no new dams or diversions in the basin. His group is watchdogging the rip-rap project and two other water-storage efforts in Wyoming — the proposed $80 million dam on the West Fork of Battle Creek and a plan to expand the Big Sandy Reservoir. “We weighed in publicly on all three,” Wockner said in a phone interview from Fort Collins, Colorado. “The Colorado River is already one of the most dammed and diverted rivers. Zero water reaches the sea.”
Third, the Boulder Weekly in Boulder, Colorado, is turning into one of the lead news agencies about the Colorado River chaos. Over the last month, they’ve run three important stories, two of which highlight Save The Colorado’s work.
One, a May 31st Boulder Weekly article titled “Draining The Bathtub: Critics claim Fontenelle project will harm Colorado River Basin” quotes me here, “The Fontenelle Dam riprap would allow them to drain the reservoir and their water rights would allow them to drain it twice per year,” says Gary Wockner, president of Save the Colorado. “We oppose them reengineering this dam so they can drain 150,000 acre-feet of water out of the Green River every year. And that’s what it would give them the opportunity to do.”
Two, the front-page story on May 31st in the Boulder Weekly is an editorial taking direct, critical aim at the Walton Family Foundation (the WalMart heirs) and their funding of environmental groups, scientists, government agencies, and the media in the Colorado River basin. The long column is a good read for an insider’s view of what’s going on, and is titled: “The New Model For Saving The Colorado River Might Just Kill It“. Take a look at this story if you want a deep dive into some of the ‘dirty laundry’ of behind-the-scenes Colorado River motives and funding.
Three, on July 12, the Boulder Weekly printed another long front-page story titled “A Drop In The Bucket: Water Banking Pilot Program Finished, For Now” about the failed effort to save Lake Powell over the last three years. Save The Colorado is quoted heavily in the article because we’ve taken a lead voice in the fight to drain Lake Powell and tear down Glen Canyon Dam. I’m quoted here as saying, “This isn’t a temporary situation, this is ongoing and permanent,” Gary Wockner says. “They still haven’t even gotten remotely close to the root cause of the problem, which is climate change is real and every scientist indicates that it’s going to get worse and that Lake Powell is not sustainable.”
Wherever a proposal is moving forward to further dam, drain, divert, or deplete the river, Save The Colorado is in the face of the dam builders, in the media, in the courtroom, and in the state and federal agency’s eyes. We are an aggressive watchdog for the ecological health of the river — the proposed new dams and diversions must be stopped!
All of this work is made possible by your support! Thank you and stay tuned for more of the action!
Paddlesports Retailer, the official North American tradeshow of the paddlesports industry, has selected the Renaissance Oklahoma City Convention Center Hotel as the venue for the 2018 Paddlesports Industry Dinner, featuring the first ever Paddling Magazine Product & Industry Awards. The inaugural event will take place Wednesday, August 29 and will honor the innovative products, important people and best practices making vital contributions to the paddlesports industry.
The Paddling Magazine Product & Industry Awards is presented by Rapid Media and will be emceed by Founder and Publisher Scott MacGregor and Director of Marketing Cristin Plaice. “Paddlesports Retailer is more than a sales event and so our Paddling Magazine Product & Industry Awards will recognize outstanding work and will applaud excellence in the innovation and design driving today’s paddlesports industry,” says MacGregor. “We are putting the very best of paddlesports on stage at the Renaissance in Oklahoma City so that we can showcase it around the world.”
The Paddlesports Industry Dinner on the final evening of Paddlesports Retailer will create the perfect gathering for the industry to honor its own. The evening is a grand celebration convening in one place near the end of the busy summer season. “The Paddlesports Industry Dinner is intended to bring together hundreds of retail buyers and manufacturer reps to exchange local knowledge and principles of best practices on a global stage,” adds Paddlesports Trade Coalition Board Member and Kokatat’s Sales Manager Jeff Turner.
Retailers as well as paddlesports and outdoor media will receive access to this year’s New Product Showcase where they can preview all new 2019 products and vote for the Paddling Magazine Product & Industry Awards. Registered retailer attendees will receive complimentary tickets for Wednesday’s dinner and awards ceremony.
The Paddlesports Industry Dinner and Paddling Magazine Product & Industry Awards provides Paddlesports Retailer an additional marquee event to complement its on water Demo Day. The 2018 Demo Day takes place in the heart of Oklahoma City’s Boathouse District, at the $45 million whitewater course and flatwater training center.
Paddlesports Retailer has already registered 30 percent more exhibitor space and three times as many retailers as the 2017 show had at the same time last year. The show is 90 percent sold out and expects to be fully booked by June 1st.
Negligence Per Se is the violation of a law or regulation created to protect a group of people. If you are Negligent Per Se, you have no defenses.Posted: February 26, 2018
Defendant took plaintiffs on a guided personal watercraft tour with an employee/guide who had not been trained as required by Florida’s law.
State: Florida: United States District Court for the Southern District of Florida
Plaintiff: Ronald Tassinari, an individual, Sheila Silva, individually, and as next best friend of Ashley Silva
Defendant: Key West Water Tours, L.C., a Florida corporation, Defendant. Key West Water Tours, L.C., a Florida corporation, Third-Party Plaintiff
Third Party Defendant(s): Jeffrey Wilkerson, Third-Party Defendant
Plaintiff Claims: Negligence Per Se
Defendant Defenses: : (1) it is entitled to exoneration from liability because there is no evidence of negligence or unseaworthiness; (2) alternatively, it is entitled to have its liability limited to the value of the watercraft (approx. $ 3,000.00) because it was without privity or knowledge of any negligence or un-seaworthiness; (3) Florida statutory law does not apply; and (4) Plaintiff Tassinari’s claims are barred by the waiver and “hold harmless” provisions of the rental agreement.
Holding: For the Plaintiff
If there is a statute that applies to your business or activity, you must know and abide by the statute. Failure to do so can void all of your defenses and in some cases the claim may not be covered by your insurance policy.
Here the defendant rented personal watercraft to the plaintiffs without instructing the guests as required by Florida Statute. By not abiding by the statute, the defendant’s defenses were void and the defendant’s liability was decided by the court.
The plaintiff’s, husband, wife and daughter paid for a guided personal watercraft (PWC or formerly known as jet ski) tour. During the tour, another tour participant panicked and drove his PWC at a high rated of speed into the plaintiff’s.
The plaintiff’s sued the defendant PWC tour company. The PWC tour company sued the participant who drove the PWC into the plaintiff’s as third-party plaintiffs versus third party defendants.
The defendants relied on four defenses:
(1) it is entitled to exoneration from liability because there is no evidence of negligence or unseaworthiness;
(2) alternatively, it is entitled to have its liability limited to the value of the watercraft (approx. $ 3,000.00) because it was without privity or knowledge of any negligence or un-seaworthiness;
(3) Florida statutory law does not apply; and
(4) Plaintiff Tassinari’s claims are barred by the waiver and “hold harmless” provisions of the rental agreement.
The plaintiff argued that because the defendant did not hire or require it’s guides to meet educational requirements required by state law, the defendant was negligent per se.
Negligence per se is negligence that violates a law or regulation which was created for the purpose of protecting a group of people that were injured by the plaintiff.
The Florida statutes in question were:
Florida Statute § 327.39
§ 327.39. Personal watercraft regulated.
(b) 1. It is unlawful for the owner of any leased, hired, or rented personal watercraft, or any person having charge over or control of a leased, hired, or rented personal watercraft, to authorize or knowingly permit the watercraft to be operated by any person who has not received instruction in the safe handling of personal watercraft, in compliance with rules established by the commission.
The second statute was Florida Statute § 327.54
§ 327.54. Liveries; safety regulations; penalty.
(1) A livery may not knowingly lease, hire, or rent a vessel to any person:
(e) When the vessel is equipped with a motor of 10 horsepower or greater, unless the livery provides prerental or preride instruction that includes, but need not be limited to:
1. Operational characteristics of the vessel to be rented.
2. Safe vessel operation and vessel right-of-way.
3. The responsibility of the vessel operator for the safe and proper operation of the vessel.
4. Local characteristics of the waterway where the vessel will be operated.
Any person delivering the information specified in this paragraph must have successfully completed a boater safety course approved by the National Association of State Boating Law Administrators and this state.
The first statute required the person renting a PWC to instruct the renter on the use of the PWC. The second statute identified the instructions to be given and required the person giving the instructions to have successfully completed a boater safety course. The defendant’s employee in this case had not given the necessary instructions and had not completed a boater safety course.
Analysis: making sense of the law based on these facts.
Federal judiciary has a rule they apply to these situations called the Pennsylvania Rule. The Pennsylvania Rule states:
…when a ship at the time of an collision is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster and in such a case the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been.
Basically, the Pennsylvania rule shifts the burden of proof from the plaintiff, who normally has the burden to proof the defendant was at fault, to the defendant, requiring the defendant to prove, it was not at fault.
The next hurdle is the state law’s relationship to admiralty law. Admiralty law is a Federal law, in fact, a series of international laws, to control transportation of goods and people across borders and international travel. States can only make laws concerning admiralty issues if there is not federal law on the subject already. If the federal law conflicts with the state law, the federal law applies.
Applying the Pennsylvania rule, because Defendant violated statutory rules intended to prevent boat collisions, the Court presumes that Defendant’s fault caused the collision and the burden shifts to Defendant to show this violation could not have caused the accident.
There is no federal law concerning the rental of PWCs. So, the two Florida statutes were available to the plaintiff. Additionally, the Florida statutes were created to protect a specific group of people, and the plaintiffs were part of the group to be protected.
These statutes, under Chapter 327 Vessel Safety, were enacted to protect boater safety, including the prevention of collisions. Further, these statutes were enacted, in part, to protect the safety of renters of watercraft (see e.g. § 327.54), so Plaintiffs are among the class of persons intended to be protected by the statutes.
Side note: the defendant co-owner admitted he was not familiar with Florida’s statutes that were at issue. The court’s response was the classic you learn in law school, and you should learn in kindergarten. “…ignorance of the law is not a defense.”
The defendant argued that instruction would have changed the accident or prevented the accident. The court did not buy that argument.
However, greater knowledge often gives a greater sense of control. Therefore, it is possible that if Jeffrey Wilkerson had received proper instruction in handling the watercraft, he might not have panicked. Defendant has not shown that its violation of statutory rules “could not” have contributed to the accident. Therefore, Defendant’s fault is presumed.
For the defendant not to be liable, the must be completely free of fault, and the violation of the Florida statute created fault on the part of the defendant; consequently, the defendant was not free of fault.
The defendant then argued the limitation of liability under admiralty law applied. The limitation of liability states the defendant is liable to the value of the vessel after the accident. Here the defendant argued the extent of their liability was $3,000 because that was what the PWC was worth.
For the defendant to use this defense, required a two-step test:
(1) “the court must determine what acts of negligence or conditions of unseaworthiness caused the accident;” and (2) “the court must determine whether the ship owner had knowledge or privity of those same acts of negligence or conditions of unseaworthiness.
Since the defendants could have easily investigated whether their employee had taken a boater safety course, and they did not, they could not take advantage of the limitation of liability because the defendant should have had knowledge of the unseaworthiness of the PWC.
The next defense argued was the release signed by the plaintiff. Here the release was void because it violated public policy. The statute created a safety requirement on the part of the defendant. The statute was enacted to keep the public safe. Therefore, failing to keep the public safe was a public policy issue.
[A] clause in an agreement exempting a party from tort liability is unenforceable on grounds of public policy if the agreement would exempt a party from liability arising from that party’s failure to comply with a safety statute, as the safety obligation created by the statute for such purpose is an obligation owed to the public at large and is not within the power of any private individual to waive.”
In this case, the Florida statutes violated are boater safety statutes imposing a standard of conduct on owners and liveries of vessels. It would be against public policy to enforce contract clauses purporting to exempt liveries from liability for violating these statutes. While the release and waiver provisions in the rental contracts are sufficient to release Defendant from liability for ordinary negligence, the provisions are invalid as against public policy when applied to liability arising from violation of these statutes.
The defendant’s motion for summary judgement was denied. The plaintiff had filed a motion for summary judgment as to the liability of the defendant. That motion was granted. The sole remaining issue then was the amount of the liability, how much the defendant owed the plaintiff.
So Now What?
Releases are the best defense to lawsuits in most states. However, the most effective legal argument to void a release is to claim the defendant was Negligence Per Se. Here the court found that because the statutes were created for public policy reasons, the release violated public policy and thus was void.
Most state courts just void the release stating the release cannot prevent claims based on violation of a statute.
More importantly, any time a statute is created that applies to your business or activity, you must understand and follow the statute. Both statutes argued above had criminal penalties for violation of the statutes. Not only was the defendant liable in a lawsuit for violating the statutes, the defendants could be fined by the state.
Don’t get into business without knowing the law.
More articles on Negligence Per Se
Motion for Summary Judgment failed because the plaintiff’s claim was based upon a failure to follow a statute or rule creating a negligence per se defense to the release in this Pennsylvania sailing case.
Copyright 2018 Recreation Law (720) 334 8529
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I’ve just finished day one at the Paddlesports Retailer Tradeshow going on now in Madison Wisconsin. It is fantastic. I’m seeing old friends, many I’ve not seen for twenty years. I’m seeing boats that are beautiful and handcrafted that have disappeared from other tradeshows. I’m looking at accessories I did not know existed.
Over the past fifteen years the Paddlesports Industry has felt abandoned by the Outdoor Retailer Summer Tradeshow. During that period, the number of retailers attending Summer OR have continually dropped. This past show, there were probably about a dozen, but I did not count.
There are over 100 exhibitors here. People and products that I had forgotten about. An industry, paddlesports, with a big beating heart that loves water and helping people enjoy the water.
It is a feeling that I’ve not felt at tradeshows for a while, since Outdoor Retailer before it left Reno, NV. When people were excited to attend a tradeshow and looked forward to it. Maybe I’m being nostalgic or dreaming of days long gone and memories are always better than reality. But it just seems….
It is a little laid back, no one rushing down the aisles but that is possibly because you can get around easily, it is small. Larger than OR the first year it was at the Nugget in Reno, but still small. But everyone has a smile on their face. Everyone is happy to be here, and its a tradeshow.
I’ve seen orders being written. I’ve seen people showing lines after the beer came out. I’ve seen people working and product being bought. I can’t remember the last time I saw an order being written at a tradeshow other than in the Bison Designs booth at OR.
Walking from my hotel in Madison this morning I found myself walking with a retailer. OR came up and he said he had never attended OR. I asked why. He said timing, I would lose thousands to take time off when OR is held and I can’t afford it. Unsolicited by me. He was also a small Wisconsin retailer.
At the same time, I’ve not seen buyers form the big retailers like REI, etc., It’s a shame. If you believe that paddlesports is what shows up at OR, you are missing out on 90 exhibitors and their products you have not seen. Sure there is overlap, exhibitors, big ones, who attended OR and are here. However I think that is an indication of their support of the idea, rather than a fear of not being here.
The feelings I describe seem to be mirrored by everyone I have talked to at the show. No guarded answers on how things are going, how do you think this will work out or will you come back. All the answers were “this is great, awesome and yes.” People are happy here, people are taking orders and “writing paper” and paper are planning on attending the next one.
The paddlesports manufactures here like the association with other manufacturers in a small exhibit hall. It gives them the opportunity to learn and to shine. Several said it was nice to realize again, they where part of a larger industry.
This show would not have happened with out Darren Bush of Rutabega’s and Sutton Bacon of Nantahala Outdoor Center. Darren’s relationship in the community and knowledge of how conference center’s work, along with and I’m guessing his name and signature brought the show to life. Sutton Bacon rounded up the hitters to sign on the dotted line to attend.
Are there issues, you bet. You can’t get everything you need here. The other accessories that a paddlesports shop needs are not going to be here. No stoves (well one stove at the Point 65 booth by Liberty Mountain, no tents, no sleeping bags. None of those things that add up to more dollars spent at a store. And a lot of those manufacturers are not going to be able to split and do two or more shows. Someone is going to have to give and I suspect, like always it will be the retailers. However if the money item is boats for a retailer, the draw, then this tradeshow is where those retailers need to be.
I was not really thinking of attending, but so many people asked me about the show at OR or told me they were going, I figured it was a Can’t Miss opportunity. I was right.
I’m glad I’m here. I fly home tonight and now wish I had more time to walk and talk the show, to spend more time with old friends, to meet new friends and to enjoy the paddlesports industry.
A little rambling, but an honest evaluation of 24 hours at a new Paddlesports Retailer Tradeshow in Madison. Thanks Darren & Sutton the team you created to put this together.
To prove gross negligence under Washington State law you have to show intentional or reckless misconduct. Assumption of the risk prevents river tuber for suing for his injuries hitting a strainer.Posted: August 28, 2017
Washington defines assumption of the risk the same way most other courts do. However, the names they sue to describe assumption of the risk are different in some cases and confusing in others.
Here, assumption of the risk stopped claims both for negligence and gross negligence for this tubing case.
Assumption of the risk is growing again as a defense to different types of claims by plaintiffs. In this case, the plaintiff assumed the risk of his injuries for a tubing accident which barred his negligence claim and his gross negligence claim. The standard of proof needed to prove a claim that cannot be defeated by assumption of the risk in Washington is a much higher level of action on the part of the defendant.
Here the plaintiff failed to plead or allege that level of acts by the defendant.
Washington also uses different names for the types of assumption of the risk that are applied to cases, which can lead to greater confusion.
If you are a defendant, instead of attempting to understand what is or is not assumption of the risk. Spend your time educating your customers, so they know and assume the risk they may be facing.
State: Washington, Court of Appeals of Washington, Division Three
Plaintiff: Brian Pellham
Defendant: Let’s Go Tubing, Inc., et al.
Plaintiff Claims: presented sufficient evidence of gross negligence because Let’s Go Tubing chose the excursion lo-cation, knew of the existence of a hazard, and failed to warn Pellham of the hazard. He argues that the rental company’s gross negligence supersedes any release of liability and assumption of the risk contained in the form he signed.
Defendant Defenses: that summary judgment was appropriate because Pellham failed to establish a duty, the liability release disposes of the claim, and Pelham’s evidence does not create [**7] a genuine issue as to any fact material to establishing gross negligence.
Holding: For the Defendant
The plaintiff rented an inner tube from the defendant. The rental included delivery to the put in by the defendant. This is commonly described as a livery operation as compared to a pure rental where the renter takes the inner tube and goes wherever.
Upon arrival, the plaintiff signed a release and rented an inner tube. The plaintiff uses releases in his business, although what type of business was never discussed by the court.
The bus driver for the defendant told most of the tubers that upon entry they should push off to the far side of the river to avoid a tree that had fallen into the river immediately downriver but out of sight of the put in.
The plaintiff did not hear this warning. The plaintiff and four friends tied their inner tubes together. The current was swift and they quickly rounded the bend where they saw the tree across the river. The rental company gave each renter a Frisbee to use as a paddle. Everyone used the Frisbee to paddle away from the tree, but the plaintiff hit the tree. Falling into the river the plaintiff broke his ear drum. He went under the tree and upon resurfacing; he struck a large branch which gave him a whiplash.
The plaintiff swam to shore and ended his tubing trip. The plaintiff eventually underwent a neck fusion surgery.
The defendant was legally not allowed to remove the strainer from the river.
The plaintiff sued the defendant. The trial court granted the defendant’s motion for summary judgment, and the plaintiff appealed.
Analysis: making sense of the law based on these facts.
Washington has defined four types of assumption of the risk and has identified them slightly differently than most other states.
Washington law and most other states’ jurisprudence recognize four taxonomies of the assumption of risk doctrine: (1) express, (2) implied primary, (3) implied unreasonable, and (4) implied reasonable.
The first two, Express Assumption of the Risk and Implied Assumption of the Risk are still complete bars to a claim of negligence. The second two, Implied Unreasonable and Implied Reasonable have merged into contributory negligence and simply reduce the plaintiff’s damages.
Washington defines the types of assumption of the risk the same way most other states do.
Express assumption of risk arises when a plaintiff explicitly consents to relieve the defendant of a duty owed by the defendant to the plaintiff regarding specific known risks.
Implied primary assumption of risk follows from the plaintiff engaging in risky conduct, from which the law implies consent.
Implied unreasonable assumption of risk, by contrast, focuses not so much on the duty and negligence of the defendant as on the further issue of the objective unreasonableness of the plaintiff’s conduct in assuming the risk.
Implied reasonable assumption of risk is roughly the counterpart to implied unreasonable assumption of risk in that the plaintiff assumed a risk but acted reasonably in doing so.
Washington also names Implied Primary Assumption of the Risk as Inherent Peril Assumption of the Risk.
Inherent peril assumption bars a claim resulting from specific known and appreciated risks impliedly assumed often in advance of any negligence of the defendant. Plaintiff’s consent to relieve the defendant of any duty is implied based on the plaintiff’s decision to engage in an activity that involves those known risks. One who participates in sports impliedly assumes the risks inherent in the sport.
How the plaintiff was injured defines whether or not Inherent Peril Assumption of the Risk applies. The court went on to define the inherent peril assumption of the risk as:
One who engages in sports assumes the risks that are inherent in the sport. To the extent a risk inherent in the sport injures a plaintiff, the defendant has no duty and there is no negligence. A defendant simply does not have a duty to protect a sports participant from dangers that are an inherent and normal part of a sport.
Inherent peril assumption of the risk extends to water sports. One who plays in the water assumes the reasonably foreseeable risks inherent in the activity. Water sports include inner tubing and canoe rentals. Inherent risk applies because “Bodies of water often undergo change, and changing conditions in the water do not alter the assumption of risk. There is no duty to warn of the presence of natural transitory conditions.”
For the plaintiff to assume the risk, three elements must be found.
Inherent peril assumption, like express assumption of risk, demands the presence of three elements. The evidence must show (1) the plaintiff possessed full subjective understanding (2) of the presence and nature of the specific risk and (3) voluntarily chose to encounter the risk.
Washington also requires the plaintiff to understand the risk. “The rule of both express and inherent peril assumptions of risk requires a finding that the plaintiff had full subjective understanding of the presence and nature of the specific risk.”
However, that does not require knowledge of the specific issues that caused the injury, just knowledge that the injury could occur. Meaning, if the injured party knows that trees fall into rivers, would be enough. There is no requirement that the injured plaintiff knew that a tree fell into the river.
…Brian Pellham assumed the risks involved in river tubing, including the fallen tree. Pellham may not have precisely and subjectively known how the combination of a swift current, a bend in the river, and a fallen tree would produce his injury. Nevertheless, he knew of the potential of all factors. He may not have known of the location of any fallen tree in the river, but he knew of the potential of a fallen tree somewhere in the river.
However, even if the plaintiff assumed the risks, a plaintiff cannot assume the risk where the defendant unduly enhanced the risk.
While participants in sports are generally held to have impliedly assumed the risks inherent in the sport, such assumption of risk does not preclude a recovery for negligent acts that unduly enhance such risks.
This difference places a burden on the plaintiff, in what he or she has to prove to win their claim and a burden on the courts to define what is an increase in the level of danger.
Courts have struggled to properly distinguish between inherent peril assumption of risk (implied primary assumption of risk), which bars the plaintiff’s claim, and increased danger assumption of risk (implied unreasonable assumption of risk), which simply reduces the plaintiff’s damages.
However, here any negligence upon the part of the defendant did not increase the risk. The negligence occurred prior to the plaintiff entering the water. The danger was the tree in the river which the defendant could not do anything about.
When he noticed the risk, he lacked time to avoid the hazard. Pellham did not voluntarily proceed after knowing of the alleged negligence of Let’s Go Tubing. Any alleged negligence of Let’s Go Tubing occurred before Pellham entered the river. Therefore, increased danger assumption of risk does not apply.
The plaintiff also argued in this complaint, that the actions of the defendant were grossly negligent. Gross negligence in Washington is defined as failure to exercise slight care.
Gross negligence claims survive when a release has been signed. The issue before the court was whether gross negligence claims can be stopped if the plaintiff assumed the risk.
At the same time, gross negligence claims survive a release against liability. A sporting participant’s assumption of inherent risks effectively acts as a release from liability. Since gross negligence claims survive a release, gross negligence maybe should survive inherent peril assumption of risk.
The court then redefined how gross negligence was going to be reviewed in Washington applying an intentional reckless standard as the level required proving gross negligence when a plaintiff assumes the risk.
We join the other jurisdictions in imposing an intentional and reckless standard, rather than a gross negligence standard, when the plaintiff assumes the risks of inherent perils in a sporting or outdoor activity.
There is a difference between gross negligence and reckless misconduct under Washington’s law.
Gross negligence consists of the failure to exercise slight care. Reckless misconduct denotes a more serious level of misconduct than gross negligence. An actor’s conduct is in “reckless disregard” of the safety of another if he or she intentionally does an act or fails to do an act that it is his or her duty to the other to do, knowing or having reason to know of facts that would lead a reasonable person to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him or her.
Because reckless conduct is a higher burden to meet, assumption of the risk becomes a defense that can beat a gross negligence claim in some situations in Washington. The plaintiff never pleaded reckless conduct on the part of the defendant so the plaintiff’s gross negligence claim was also denied.
Brian Pellham does not allege that Let’s Go Tubing engaged in reckless conduct. No evidence supports a conclusion that the inner tube rental company bus driver purposely omitted a warning to Pellham with knowledge that Pellham would suffer substantial harm.
So Now What?
Understanding the different slight subtlest between the various forms of assumption of the risk is difficult. Comparing them between states does nothing but create a confusing group of definitions that cross one another and at best confuse one another.
Better, set up a system to educate your guests or clients on the risks they may encounter. That time spent educating the guests can pay dividends both in keeping you out of court and keeping your guests happy and coming back.
Copyright 2017 Recreation Law (720) 334 8529
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
By Recreation Law Recfirstname.lastname@example.org James H. Moss
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