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.

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.

Summary

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.

Pellham, v. Let’s Go Tubing, Inc., et al., 199 Wn. App. 399; 2017 Wash. App. LEXIS 1525

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

Year: 2017

Facts

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.

What do you think? Leave a comment.

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Pellham, v. Let’s Go Tubing, Inc., et al., 199 Wn. App. 399; 2017 Wash. App. LEXIS 1525

Pellham, v. Let’s Go Tubing, Inc., et al., 199 Wn. App. 399; 2017 Wash. App. LEXIS 1525

Brian Pellham, Appellant, v. Let’s Go Tubing, Inc., et al., Respondents.

No. 34433-9-III

COURT OF APPEALS OF WASHINGTON, DIVISION THREE

199 Wn. App. 399; 2017 Wash. App. LEXIS 1525

March 21, 2017, Oral Argument

June 27, 2017, Filed

SUMMARY:

WASHINGTON OFFICIAL REPORTS SUMMARY Nature of Action: A participant in an inner tube float on a river sought damages for personal injury incurred when his tube struck a fallen log. The plaintiff sued the company and its owners who rented him the inner tube and who selected the site where participants entered the river, claiming that the defendants owed him a duty to warn about a fallen log in the river that was hidden from but was near the entry site. The plaintiff also claimed that the defendants violated the Consumer Protection Act.

Nature of Action: A participant in an inner tube float on a river sought damages for personal injury incurred when his tube struck a fallen log. The plaintiff sued the company and its owners who rented him the inner tube and who selected the site where participants entered the river, claiming that the defendants owed him a duty to warn about a fallen log in the river that was hidden from but was near the entry site. The plaintiff also claimed that the defendants violated the Consumer Protection Act.

Superior Court: The Superior Court for Chelan County, No. 13-2-00663-9, Lesley A. Allan, J., on April 14, 2016, entered a summary judgment in favor of the defendants, dismissing all of the plaintiff’s claims.

Court of Appeals: Holding that the defendants did not have a duty to warn the plaintiff about the fallen log because the plaintiff assumed the risk of a fallen log and swift current by voluntarily participating in the activity, the court affirms the judgment.

HEADNOTES WASHINGTON OFFICIAL REPORTS HEADNOTES

[1] Negligence — Assumption of Risk — Sports — River Float — Assumed Risks — Fallen Trees — Swift Current. By voluntarily participating in a float on a wild river, one assumes the inherent risks of fallen trees in the water and a swift current. The assumption of risk may relieve the organizer of the activity of an actionable duty to warn about or to prevent injury from trees in the river.

[2] Negligence — Assumption of Risk — Sports — Nature of Assumed Risk. Assumption of risk in the context of participating in a sport is in reality the principle of no duty to warn of the hazards of the sport, in which case there can be no breach of duty and no actionable claim for negligence.

[3] Negligence — Duty — Necessity — In General. A cause of action for negligence will not lie absent the existence of a duty of care.

[4] Negligence — Assumption of Risk — Effect — Relief From Duty. The tort concept of duty overlaps with the contract and tort principles of assumption of risk. An assumption of risk can sometimes relieve a defendant of a duty.

[5] Negligence — Duty — Question of Law or Fact — In General. Whether a defendant owed a duty to a plaintiff is a question of law.

[6] Negligence — Assumption of Risk — Classifications. The term “assumption of risk” expresses several distinct common law theories, derived from different sources, that apply when one is knowingly exposed to a particular risk. The general rubric of assumption of risk does not signify a singular doctrine but, rather, encompasses a cluster of discrete concepts. The law recognizes four taxonomies of assumption of risk: (1) express, (2) implied primary, (3) implied unreasonable, and (4) implied reasonable.

[7] Negligence — Assumption of Risk — Effect — In General. Express assumption of risk and implied primary assumption of risk operate as complete bars to a plaintiff’s recovery. Implied unreasonable assumption of risk and implied reasonable assumption of risk are merely alternative names for contributory negligence and merely reduce a plaintiff’s recoverable damages based on comparative fault pursuant to RCW 4.22.005 and RCW 4.22.015.

[8] Negligence — Assumption of Risk — Express Assumption — What Constitutes — In General. Express assumption of risk arises when one explicitly consents to relieve another of a duty regarding specific known risks.

[9] Negligence — Assumption of Risk — Implied Primary Assumption — What Constitutes — In General. Implied primary assumption of risk follows from one’s engaging in risky conduct, from which the law implies consent.

[10] Negligence — Assumption of Risk — Implied Unreasonable Assumption — Focus of Inquiry. Implied unreasonable assumption of risk primarily focuses on the objective unreasonableness of one’s conduct in assuming a risk.

[11] Negligence — Assumption of Risk — Implied Reasonable Assumption — What Constitutes. Implied reasonable assumption of risk is roughly the counterpart to implied unreasonable assumption of risk in that one assumes a risk, but acts reasonably in doing so.

[12] Negligence — Assumption of Risk — Implied Unreasonable Assumption — Implied Reasonable Assumption — Comparison. The gist of implied reasonable and implied unreasonable assumption of risk is that a defendant performed conduct that increased the risk of an activity or situation beyond the inherent risks thereof and the plaintiff reasonably or unreasonably encountered the increased risk. The categories of implied unreasonable and implied reasonable assumption of risk hold no meaningful distinction since both reduce rather than bar a plaintiff’s recovery.

[13] Negligence — Assumption of Risk — Inherent Peril — Risk of Activity — Assuming the Dangers. Inherent peril assumption of risk–also known as implied primary assumption of risk–bars a plaintiff’s claim resulting from specific known and appreciated risks impliedly assumed, often in advance of any negligence by the defendant. A plaintiff’s consent to relieve a defendant of any duty is implied based on the plaintiff’s decision to engage in an activity that involves the known risks.

[14] Negligence — Assumption of Risk — Sports — Implied Assumption. One who participates in a sport impliedly assumes the risks inherent in the sport.

[15] Negligence — Assumption of Risk — Inherent Peril — Applicability — Sports — In General. Under the theory of inherent peril assumption of risk, a plaintiff assumes the dangers that are inherent in and necessary to a particular activity. To the extent a risk inherent in a sport injures a plaintiff, the defendant has no duty and there is no negligence. A defendant does not have a duty to protect a sports participant from dangers that are an inherent and normal part of the sport.

[16] Negligence — Assumption of Risk — Inherent Peril — Applicability — Sports — Water Sports. Inherent peril assumption of risk extends to water sports. One who engages in a water sport assumes the reasonably foreseeable risks inherent in the activity. This assumption of risk includes inner tubing on water. 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 in the water.

[17] Negligence — Assumption of Risk — Inherent Peril — Test. Inherent peril assumption of risk requires evidence that (1) the plaintiff possessed at least an understanding (2) of the presence and nature of the specific risk and (3) voluntarily chose to encounter the risk. In the usual case, a plaintiff’s knowledge and appreciation of a danger is a question of fact, but if it is clear that any person in the plaintiff’s position would have understood the danger, the issue may be decided by a court as a matter of law.

[18] Negligence — Assumption of Risk — Sports — Negligence Enhancing Assumed 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 recovery for the negligent acts of others that unduly enhance such risks.

[19] Negligence — Assumption of Risk — Inherent Peril — Limited Application. Inherent peril assumption of risk is the exception rather than the rule in assumption of risk situations.

[20] Negligence — Assumption of Risk — Increased Danger — What Constitutes. Increased danger assumption of risk–also known as implied unreasonable assumption of risk and implied reasonable assumption of risk–does not involve a plaintiff’s consent to relieve a defendant of a duty. In this type of assumption of risk, the defendant breached a duty that created a risk of harm, and the plaintiff chose to take that risk. Increased danger assumption of risk involves a plaintiff’s voluntary choice to encounter a risk created by a defendant’s negligence. Increased danger assumption of risk arises when a plaintiff knows of a risk already created by the negligence of the defendant, yet chooses voluntarily to encounter it. In such a case, the plaintiff’s conduct is not truly consensual, but is a form of contributory negligence, in which the negligence consists of making the wrong choice and voluntarily encountering a known unreasonable risk.

[21] Negligence — Assumption of Risk — Increased Danger — Applicability. Increased danger assumption of risk does not apply in circumstances where the defendant did not create and could not remove the risk and where the plaintiff did not voluntarily take the risk because the plaintiff did not know the precise nature of the risk beforehand and lacked time to avoid the risk once it became apparent.

[22] Negligence — Assumption of Risk — Inherent Peril — Knowledge of Risk — Warning — Statements in Written Release — Sufficiency. A recitation in a release of liability warning of dangers inherent in an activity can be sufficient to notify a person of the risks of the activity that may give rise to inherent peril assumption of risk where the person chooses to engage in the activity and sustains injury from such dangers.

[23] Negligence — Assumption of Risk — Inherent Peril — Scope of Defense — Gross Negligence — Intentional or Reckless Conduct. Inherent peril assumption of risk in a sporting or outdoor activity may allow a defendant to avoid liability for gross negligence but not for intentional or reckless conduct. A recklessness standard encourages vigorous participation in recreational activities, while still providing protection from egregious conduct. An actor’s conduct is in “reckless disregard” of the safety of another if the actor intentionally does an act or fails to do an act that it is the actor’s 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 the other. Fearing, C.J., delivered the opinion for a unanimous court.

COUNSEL: Richard D. Wall (of Richard D. Wall PS), for appellant.

Kristen Dorrity (of Andrews o Skinner PS), for respondents.

JUDGES: Authored by George Fearing. Concurring: Kevin Korsmo, Laurel Siddoway.

OPINION BY: George Fearing

OPINION

[*403] ¶1 Fearing, C.J. — This appeal asks: does an inner tube rental company owe a duty to warn a renter about a fallen log in a river when the log is hidden from but near the launch site, the river’s current draws the tuber toward the log, the company knows of the fallen log, the company warns other tubers of the log, and the company chooses the launch site? To answer this question, interests such as exhilarating and uninhibited outdoor recreation, retaining the natural environment, and freedom to contract compete with cautious business practices, full disclosure of risks, and compensation for injury. Based on the doctrine of inherent peril assumption of risk, we answer the question in the negative. We affirm the trial court’s summary judgment dismissal of renter Brian Pellham’s suit for personal injury against the tube [**2] rental company, Let’s Go Tubing, Inc.

FACTS

¶2 Brian Pellham sues for injuries suffered while inner tubing on the Yakima River. Because the trial court dismissed Pellham’s suit on summary judgment, we write the facts in a light favorable to Pellham.

¶3 Melanie Wells invited Brian Pellham and his domestic partner to join her and three others on a leisurely unguided excursion floating the Yakima River. Wells arranged the expedition and reserved equipment and transportation from Let’s Go Tubing, Inc.

¶4 [*404] On July 30, 2011, Brian Pellham met the Wells party at the Let’s Go Tubing’s Umtanum gathering site, where additional tubers waited. Before boarding a bus, each participant signed a release of liability and assumption of risk form. Pellham felt rushed but read and signed the form. The form provided:

I, the renter of this rental equipment, assume and understand that river tubing can be HAZARDOUS, and that rocks, logs, bridges, plants, animals, other people, other water craft, exposure to the elements, variations in water depth and speed of current, along with other structures and equipment, and many other hazards or obstacles exist in the river environment. In using the rental equipment or any facilities [**3] or vehicles related thereto such dangers are recognized and accepted whether they are marked or unmarked. River tubing can be a strenuous and physically demanding activity. It requires walking, bending, lifting, paddling, swimming, and awareness of the outdoor environment. I realize that slips, falls, flips, and other accidents do occur and serious injuries or death may result and I assume full responsibility for these risks … . “IN CONSIDERATION FOR THIS RENTAL AND ANY USE OF THE FACILITIES, VEHICLES, OR ENVIRONMENT RELATED TO THE USE OF THIS EQUIPMENT, I HEREBY RELEASE HOLD HARMLESS AND INDEMNIFY LET’S GO TUBING, INC. ITS SUBSIDIARIES AND ITS AGENTS FROM ANY AND ALL CLAIMS AND LIABILITIES ARISING OUT OF OR IN CONNECTION WITH THE USE OF THIS RENTAL EQUIPMENT.”

Clerk’s Papers at 46. On other occasions, such as a rafting trip, Brian Pellham has signed a waiver. In his business, he employs release forms.

¶5 Let’s Go Tubing launches its customers from the Umtanum site unless the Yakima River level runs low. With low water, the company buses customers to one of two other Yakima River sites, Big Horn or Ringer Loop.

¶6 On July 30, 2011, Let’s Go Tubing’s shuttle bus, because [**4] of a low river level, transported Brian Pellham, his group members, and other customers eight miles upstream [*405] to Ringer Loop. Ringer Loop maintains a public concrete boat ramp and public restroom. The total number of customers on the excursion approached twenty. During transport, Steff Thomas, the Let’s Go Tubing bus driver, told Melanie Wells and a handful of others seated at the front of the bus to push into the middle of the river once they embarked, because a fallen tree obstructed the river immediately downriver but out of sight from the launch site. We do not know the number of customers the driver warned. Thomas did not warn Pellham of the obstructing tree. Nor did anyone else. Someone, possibly Thomas, warned everyone not to leave the river except at designated spots because private owners own most of the riverbank.

¶7 At the launch site, Let’s Go Tubing handed each person a Frisbee to use as a paddle. Brian Pellham requested a life jacket, but Steff Thomas ignored him. Fifteen inner tubers entered the river first. Pellham and four others followed in a second group with their tubes tied together. They encountered a swift current. As soon as the flotilla of five rounded the [**5] first bend in the river, they saw a fallen tree extending halfway across the river. Many branches extended from the tree trunk. Each paddled furiously with his or her Frisbee, but the fleet of five inner tubes struck the tree. Brian Pellham held the tree with his left hand and attempted to steer around the tree. The current grabbed the inner tubes and Pellham fell backward into the river. The fall broke Pellham’s eardrum. The current forced Pellham under the tree and the water level. When Pellham resurfaced, his head struck a large branch. He sustained a whiplash injury. His chest also hit the branch.

¶8 Brian Pellham swam to shore and ended his river excursion. Pellham told Steff Thomas of his dangerous encounter, and the driver admitted he knew about the fallen tree but laws prevented Let’s Go Tubing from removing the obstacle.

[*406] ¶9 Brian Pellham later underwent a neck fusion surgery. The accident also caused damage to a low back disk, and the damage creates pain radiating to his left foot.

PROCEDURE

¶10 Brian Pellham sued Let’s Go Tubing for negligent failure to warn and Consumer Protection Act, chapter 19.86 RCW, violations. Let’s Go Tubing answered the complaint and raised affirmative defenses, including release of liability and [**6] assumption of the risk. The company filed a motion for summary judgment dismissal based on the release and on assumption of risk. In response to the motion, Pellham argued that he did not waive liability because Let’s Go Tubing committed gross negligence. He also argued he did not expressly or impliedly assume the risk of floating into a hazard. Pellham agreed to dismissal of his consumer protection claim. The trial court granted summary dismissal of all of Pellham’s claims.

LAW AND ANALYSIS

¶11 On appeal, Brian Pellham contends the trial court erred in dismissing his claim because he presented sufficient evidence of gross negligence because Let’s Go Tubing chose the excursion location, 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. On appeal, he does not argue liability against Let’s Go Tubing for failing to provide a life vest.

[1] ¶12 Let’s Go Tubing responds that summary judgment was appropriate because Pellham failed to establish a duty, the liability release disposes of the claim, and Pellham’s evidence does not create [**7] a genuine issue as to any fact material to establishing gross negligence. We affirm based on the inherent risks in river tubing. Because of Pellham’s [*407] voluntary participation in the outdoor recreation activity, he assumed the risk of a fallen log and swift current. Conversely, Pellham’s assumption of the risk created no duty for Let’s Go Tubing to warn Pellham of or prevent injury to him from trees in the river. Because we rely on the inherent risks in river tubing, we do not address whether the written agreement signed by Pellham bars his suit.

¶13 Because we hold that Brian Pellham assumed the risk and thereby rendered Let’s Go Tubing dutyless, we do not address whether Pellham created an issue of fact with regard to gross negligence. We conclude that, to avoid application of inherent peril assumption of risk, Pellham needed to show intentional or reckless misconduct of the rental company, and Pellham does not show or argue either.

Summary Judgment Principles

¶14 We commence with our obligatory recitation of summary judgment principles. [HN1] This court reviews a summary judgment order de novo, engaging in the same inquiry as the trial court. Highline School District No. 401 v. Port of Seattle, 87 Wn.2d 6, 15, 548 P.2d 1085 (1976); Mahoney v. Shinpoch, 107 Wn.2d 679, 683, 732 P.2d 510 (1987). [HN2] Summary judgment is proper if the records on file with the [**8] trial court show “there is no genuine issue as to any material fact” and “the moving party is entitled to a judgment as a matter of law.” CR 56(c). [HN3] This court, like the trial court, construes all evidence and reasonable inferences in the light most favorable to Brian Pellham, as the nonmoving party. Barber v. Bankers Life & Casualty Co., 81 Wn.2d 140, 142, 500 P.2d 88 (1972); Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). [HN4] A court may grant summary judgment if the pleadings, affidavits, and depositions establish that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000).

[*408] Defenses on Review

¶15 Let’s Go Tubing seeks affirmation of the summary judgment dismissal of Brian Pellham’s claim based on both an absence of duty and Pellham’s assumption of risk. In turn, Pellham argues that, under RAP 2.5(a), the rental company may not assert a lack of duty because the company did not raise this defense before the trial court.

[2] ¶16 We need not address Brian Pellham’s objection to Let’s Go Tubing’s argument of lack of duty. We base our decision on inherent peril assumption of risk, and the rental company raised the defense of assumption of risk below. Anyway, assumption of risk in this context is equivalent to a lack of duty. [HN5] Assumption of the risk in the sports participant context is in [**9] reality the principle of no duty and hence no breach and no underlying cause of action. Brown v. Stevens Pass, Inc., 97 Wn. App. 519, 523, 984 P.2d 448 (1999); Codd v. Stevens Pass, Inc., 45 Wn. App. 393, 401-02, 725 P.2d 1008 (1986).

Assumption of Risk

[3, 4] ¶17 [HN6] A negligence claim requires the plaintiff to establish (1) the existence of a duty owed, (2) breach of that duty, (3) a resulting injury, and (4) a proximate cause between the breach and the injury. Tincani v. Inland Empire Zoological Society, 124 Wn.2d 121, 127-28, 875 P.2d 621 (1994). Thus, to prevail on his negligence claim, Brian Pellham must establish that Let’s Go Tubing owed him a duty of care. Folsom v. Burger King, 135 Wn.2d 658, 671, 958 P.2d 301 (1998). [HN7] The tort concept of duty overlaps with the contract and tort principles of assumption of risk. As previously mentioned, sometimes assumption of risk relieves the defendant of a duty. Brown v. Stevens Pass, Inc., 97 Wn. App. at 523 (1999); Codd v. Stevens Pass, Inc., 45 Wn. App. at 402 (1986).

[5] ¶18 [HN8] The threshold determination of whether a duty exists is a question of law. Tincani v. Inland Empire Zoological [*409] Society, 124 Wn.2d at 128; Coleman v. Hoffman, 115 Wn. App. 853, 858, 64 P.3d 65 (2003). We hold that, because of Brian Pellham’s assumption of the risk of fallen trees in the water, Let’s Go Tubing, as a matter of law, had no duty to warn Pellham of the danger or, at the least, the rental company possessed only a restricted duty to not intentionally injure Pellham or engage in reckless misconduct.

[6] ¶19 We first briefly explore the variegated versions of assumption of risk in order to later analyze the application of inherent peril assumption of risk. [HN9] The term “assumption of the risk” expresses [**10] several distinct common law theories, derived from different sources, which apply when a plaintiff knowingly exposes himself to particular risks. Allen v. Dover Co-Recreational Softball League, 148 N.H. 407, 807 A.2d 1274, 1281 (2002); Francis H. Bohlen, Voluntary Assumption of Risk (pt. 1), 20 Harv. L. Rev. 14, 15-30 (1906); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 68 (5th ed. 1984). Stated differently, the general rubric of assumption of risk does not signify a singular doctrine but rather encompasses a cluster of discrete concepts. Kirk v. Washington State University, 109 Wn.2d 448, 453, 746 P.2d 285 (1987). 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. Gregoire v. City of Oak Harbor, 170 Wn.2d 628, 636, 244 P.3d 924 (2010) (plurality opinion); Gleason v. Cohen, 192 Wn. App. 788, 794, 368 P.3d 531 (2016); 16 David K. DeWolf & Keller W. Allen, Washington Practice: Tort Law and Practice § 9:11, at 398-99 (4th ed. 2013).

[7] ¶20 Before the enactment of comparative negligence and comparative fault statutes, practitioners and courts encountered little reason to distinguish the four versions of assumption of risk because at common law all assumption of the risk completely barred recovery. Scott v. Pacific West Mountain Resort, 119 Wn.2d 484, 496, 834 P.2d 6 (1992). [*410] Today, [HN10] the first two categories of assumption of risk, express assumption and implied primary assumption, on the one hand, continue to operate as a complete bar to a plaintiff’s recovery. Kirk v. Washington State University, 109 Wn.2d at 453-54; Gleason v. Cohen, 192 Wn. App. at 794. On the other hand, implied unreasonable and implied [**11] reasonable assumption meld into contributory negligence and merely reduce the plaintiff’s recoverable damages based on comparative fault pursuant to RCW 4.22.005 and .015. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 497. The last two types are merely alternative names for contributory negligence. Gregoire v. City of Oak Harbor, 170 Wn.2d at 636 (2010). Our decision relies on implied primary assumption, but we will discuss other renderings of assumption of risk in order to sculpt our decision.

[8-11] ¶21 [HN11] 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. Gregoire v. City of Oak Harbor, 170 Wn.2d at 636; Kirk v. Washington State University, 109 Wn.2d at 453. [HN12] Implied primary assumption of risk follows from the plaintiff engaging in risky conduct, from which the law implies consent. Kirk v. Washington State University, 109 Wn.2d at 453; Erie v. White, 92 Wn. App. 297, 303, 966 P.2d 342 (1998). [HN13] 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. Kirk v. Washington State University, 109 Wn.2d at 454. [HN14] 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. Kirk v. Washington State University, 109 Wn.2d at 454.

[12] ¶22 We confront difficulty in distinguishing among at least three of the four categories because of the [**12] nondescript identifiers and near homophonic labels of some classifications. Therefore, we recommend that the Supreme [*411] Court rechristen the categories as express assumption, inherent peril assumption of risk, and increased danger assumption of risk. [HN15] The gist of implied reasonable and implied unreasonable assumption of risk is that the defendant performed conduct that increased the risk of an activity or situation beyond the risks inherent in the activity or situation and the plaintiff reasonably or unreasonably encountered this increased risk. The traditional categories of implied unreasonable and implied reasonable assumption of risk hold no meaningful distinction since both reduce rather than bar the plaintiff’s recovery, and so we urge combining the two concepts into increased danger assumption of risk. We hereafter use these new terms.

Inherent Peril Assumption of Risk

[13, 14] ¶23 We now focus on inherent peril assumption of risk. [HN16] Inherent peril assumption bars a claim resulting from specific known and appreciated risks impliedly assumed often in advance of any negligence of the defendant. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 497 (1992); Boyce v. West, 71 Wn. App. 657, 666-67, 862 P.2d 592 (1993). Plaintiff’s consent to relieve the defendant of any duty is implied based on the plaintiff’s decision [**13] to engage in an activity that involves those known risks. Egan v. Cauble, 92 Wn. App. 372, 376, 966 P.2d 362 (1998); Gleason v. Cohen, 192 Wn. App. at 797 (2016). [HN17] One who participates in sports impliedly assumes the risks inherent in the sport. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 498; Boyce v. West, 71 Wn. App. at 667.

[15] ¶24 [HN18] Whether inherent peril assumption of risk applies depends on whether the plaintiff was injured by an inherent risk of an activity. Gleason v. Cohen, 192 Wn. App. at 797. The plaintiff assumes the dangers that are inherent in and necessary to a particular activity. Tincani v. Inland Empire Zoological Society, 124 Wn.2d at 144 (1994); Scott v. Pacific West Mountain Resort, 119 Wn.2d at 500-01; Gleason [*412] v. Cohen, 192 Wn. App. at 797; Lascheid v. City of Kennewick, 137 Wn. App. 633, 641-42, 154 P.3d 307 (2007); Taylor v. Baseball Club of Seattle, LP, 132 Wn. App. 32, 37-39, 130 P.3d 835 (2006); Dorr v. Big Creek Wood Products, Inc., 84 Wn. App. 420, 427, 927 P.2d 1148 (1996).

¶25 [HN19] The classic example of inherent peril assumption involves participation in sports when a participant knows that the risk of injury is a natural part of such participation. Gleason v. Cohen, 192 Wn. App. at 798. One who engages in sports assumes the risks that are inherent in the sport. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 498; Gleason v. Cohen, 192 Wn. App. at 798. To the extent a risk inherent in the sport injures a plaintiff, the defendant has no duty and there is no negligence. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 498; Gleason v. Cohen, 192 Wn. App. at 798. 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. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 498; Gleason v. Cohen, 192 Wn. App. at 798.

[16] ¶26 [HN20] Inherent peril assumption extends to water sports. One who engages in water sports assumes the reasonably foreseeable risks inherent in the activity. DeWick v. Village of Penn Yan, 275 A.D.2d 1011, 713 N.Y.S.2d 592, 594 (2000). This assumption of risk includes inner tubing on water and canoe rentals. Record v. Reason, 73 Cal. App. 4th 472, 86 Cal. Rptr. 2d 547 (1999); Ferrari v. Bob’s Canoe Rental, Inc., 143 A.D.3d 937, 39 N.Y.S.3d 522 (2016). Bodies of water often undergo change, and changing conditions in the water [**14] do not alter the assumption of risk. DeWick v. Village of Penn Yan, 713 N.Y.S.2d at 594. There is no duty to warn of the presence of natural transitory conditions. DeWick v. Village of Penn Yan, 713 N.Y.S.2d at 594.

¶27 DeWick v. Village of Penn Yan, 275 A.D.2d 1011 is illustrative of the application of inherent peril assumption in the context of water. Trina Kerrick and Daniel DeWick [*413] drowned in Keuka Lake on June 19, 1995. Kerrick allegedly gained access to the lake from the beach at Indian Pines Park, which was owned by defendant Village of Penn Yan. While wading in the water, she stepped from a sandbar where the lake bottom drops off and became caught in an undertow or current. DeWick drowned trying to save her. Neither could swim. The accident occurred on a hot day, four days before the beach officially opened for the season. The plaintiffs alleged that the village failed to warn specifically about the dangers of the drop-off and swift current. The court summarily dismissed the suit. The risk of reaching a drop-off was a reasonably foreseeable risk inherent in wading into a lake.

[17] ¶28 [HN21] 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 [**15] chose to encounter the risk. Kirk v. Washington State University, 109 Wn.2d at 453 (1987). The participant must know that the risk is present, and he or she must further understand its nature; his or her choice to incur it must be free and voluntary. Brown v. Stevens Pass, Inc., 97 Wn. App. at 523. In the usual case, his or her knowledge and appreciation of the danger will be a question for the jury; but where it is clear that any person in his or her position must have understood the danger, the issue may be decided by the court. Brown v. Stevens Pass, Inc., 97 Wn. App. at 523; Keeton et al., supra, § 68, at 489.

¶29 [HN22] The rule of both express and inherent peril assumption of risk requires a finding that the plaintiff had full subjective understanding of the presence and nature of the specific risk. Kirk v. Washington State University, 109 Wn.2d at 453. Depending on how specific the risk must be, this statement of the rule taken literally would abrogate the rule of inherent peril assumption because one rarely, if ever, anticipates the full particulars of an accident producing injury. One can never predict all of the variables that [*414] combine to cause an accident and injury. Also, the doctrine might not apply in wrongful death cases, because the judge or jury will lack evidence of the subjective understanding of the decedent. Washington courts’ applications of the rule suggest, however, that the plaintiff need only know [**16] the general nature of the risk. One case example is Boyce v. West, 71 Wn. App. 657 (1993).

¶30 In Boyce v. West, a mother brought a suit against a college and its scuba diving instructor after the death of her son, who died during a scuba diving accident while engaging in the college course. The mother claimed the instructor negligently taught and supervised her son. The son, Peter Boyce, signed a document acknowledging the possibility of death from scuba diving and assuming all risks in connection with the course, whether foreseen or unforeseen. This court affirmed summary judgment dismissal of the claims against the school and the instructor. The court reasoned that negligent instruction and supervision are risks associated with being a student in a scuba diving course and were encompassed by the broad language of the contract. Although Peter may not have specifically considered the possibility of instructor negligence when he signed the release, this lack of consideration did not invalidate his express assumption of all risks associated with his participation in the course. [HN23] Knowledge of a particular risk is unnecessary when the plaintiff, by express agreement, assumes all risks.

¶31 Boyce v. West entails express assumption of [**17] risk, but [HN24] the same rule of subjective knowledge of risk applies to both express assumption and inherent peril assumption. Based on Boyce v. West and cases involving water sports, we hold that 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 [*415] fallen tree in the river, but he knew of the potential of a fallen tree somewhere in the river. He had more reason to know of the dangers that caused his injury when he started his excursion than Peter Boyce had reason to know of the risks that led to his death when Boyce signed his college course form. In the setting of inherent peril assumption, New York courts have ruled that, [HN25] if the participant fully comprehends the risks of the activity or if those risks are obvious or reasonably foreseeable, he or she has consented to those risks and the defendant has performed its duty. Ferrari v. Bob’s Canoe Rental, Inc., 143 A.D.3d at 938 (2016); Turcotte v. Fell, 68 N.Y.2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49 (1986).

[18] ¶32 [HN26] While participants in sports are generally held to have impliedly assumed the risks [**18] inherent in the sport, such assumption of risk does not preclude a recovery for negligent acts that unduly enhance such risks. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 501; Gleason v. Cohen, 192 Wn. App. at 798. This principle leads us to a discussion of increased danger assumption.

[19] ¶33 [HN27] 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. Barrett v. Lowe’s Home Centers, Inc., 179 Wn. App. 1, 6, 324 P.3d 688 (2013). This court warned long ago that courts must carefully draw the line between these two types of assumption of risk. Gleason v. Cohen, 192 Wn. App. at 795; Dorr v. Big Creek Wood Products, Inc., 84 Wn. App. at 425-26 (1996). A rigorous application of inherent peril assumption of risk could undermine the purpose of comparative negligence. Kirk v. Washington State University, 109 Wn.2d at 455-56. Significantly, [HN28] inherent peril assumption is the exception rather than the rule in assumption of risk situations.

[20] ¶34 [HN29] Increased danger assumption of risk does not involve a plaintiff’s consent to relieve the defendant of a [*416] duty. Gleason v. Cohen, 192 Wn. App. at 796. In this type of assumption of risk, the defendant breached a duty that created a risk of harm, and the plaintiff chose to take that risk. Gleason v. Cohen, 192 Wn. App. at 796. Specifically, increased danger assumption involves the plaintiff’s voluntary choice to encounter a risk created [**19] by the defendant’s negligence. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 499; Gleason v. Cohen, 192 Wn. App. at 796. Increased danger assumption of risk arises when the plaintiff knows of a risk already created by the negligence of the defendant, yet chooses voluntarily to encounter it. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 499 (1992); Gleason v. Cohen, 192 Wn. App. at 798. In such a case, a plaintiff’s conduct is not truly consensual but is a form of contributory negligence, in which the negligence consists of making the wrong choice and voluntarily encountering a known unreasonable risk. Gleason v. Cohen, 192 Wn. App. at 796.

¶35 Dorr v. Big Creek Wood Products, Inc., 84 Wn. App. 420, 927 P.2d 1148 (1996) presents a good illustration of increased danger assumption of risk. Michael Dorr entered a forest where his friend John Knecht cut trees. Dorr knew of the phenomenon of “widow-makers,” large limbs caught in surrounding trees after a tree is felled. Nevertheless, after Knecht cut a tree, Knecht waved Dorr forward to meet him. As Dorr proceeded, a large limb fell on him. This court affirmed a verdict favoring Dorr. Although Dorr in general assumed the risk of “widow-makers,” Knecht’s misleading directions led to implied unreasonable or secondary assumption of risk. The jury could still find and did find Dorr comparatively at fault for proceeding with the knowledge of “widow-makers,” but Dorr’s fault would be compared with Knecht’s fault. The negligence of Knecht [**20] arose after Dorr entered the forest.

[21] ¶36 Brian Pellham alleges that Let’s Go Tubing was negligent by reason of sending him and others on inner tubes in fast moving water with a downed tree in the middle [*417] of the water without warning to the tuber. Let’s Go Tubing did not create the risk and could not remove the risk. Although Pellham knew of the risks of logs and current, Pellham did not know of the precise risk when he first encountered it. 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.

¶37 Let’s Go Tubing performed no act that created the swift current or felled the log into the water. [HN30] The cases that decline application of inherent peril assumption involve a positive act of the defendant, such as the implanting of a post or snow shack adjacent to a ski run. Scott v. Pacific West Mountain Resort, 119 Wn.2d 484 (1992); Brown v. Stevens Pass, Inc., 97 Wn. App. at 521 (1999).

¶38 One might argue that Let’s Go Tubing’s failure to warn increased the risk attended to the fallen log in the Yakima River. [HN31] A defendant may be held liable when a reasonable person would customarily [**21] instruct a plaintiff in respect to the dangers inherent in an activity. Allen v. Dover Co-Recreational Softball League, 807 A.2d at 1288. Thus, a defendant may be held liable if the plaintiff alleges that a reasonable person would customarily warn, advise, inform, and instruct regarding the risk of injury to participants and the manner in which such risks could be minimized and their failure to do so caused the plaintiff’s injuries. Allen v. Dover Co-Recreational Softball League, 807 A.2d at 1288. Brian Pellham presents no evidence that those who rent out watercrafts customarily warn of fallen natural objects in the water.

[22] ¶39 The document signed by Brian Pellham contained terms in addition to releasing Let’s Go Tubing from liability. In the instrument, Pellham also recognized that the hazards of river tubing included the existence of rocks, logs, plants, and variations in water depth and speed of [*418] current. Pellham agreed to assume full responsibility for all risks involved in river tubing, including serious injuries and death resulting from the hazards. Although we do not base our holding on express assumption of risk, we note that the release’s recitation of dangers warned Pellham of the inherent perils attended to inner tubing and those dangers that led to Pellham’s injuries.

Gross Negligence

¶40 Brian Pellham argues that the waiver [**22] form he signed does not bar a claim for gross negligence. The parties, in turn, devote much argument to the issue of whether Pellham creates a question of fact as to gross negligence. Since we do not rely on express assumption of risk, we need not directly address this argument. Instead, we must ask and answer whether a tuber may overcome the defense of inherent peril assumption of risk by showing gross negligence by the inner tube rental company.

¶41 [HN32] When inherent peril assumption of risk applies, the plaintiff’s consent negates any duty the defendant would have otherwise owed to the plaintiff. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 498 (1992); Gleason v. Cohen, 192 Wn. App. at 798 (2016). Based on this premise of inherent peril assumption, the defendant should avoid liability for gross negligence. Gross negligence constitutes the failure to exercise slight care. Nist v. Tudor, 67 Wn.2d 322, 331, 407 P.2d 798 (1965). The lack of duty resulting from inherent peril assumption should extend to an absence of any obligation to exercise slight care.

¶42 At the same time, [HN33] 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. [**23]

¶43 No Washington case directly holds that a claim for gross negligence survives the plaintiff’s express assumption [*419] of risk. Nevertheless, in at least two decisions, Washington courts assumed that a gross negligence cause of action endured. Boyce v. West, 71 Wn. App. 657 (1993); Blide v. Rainier Mountaineering, Inc., 30 Wn. App. 571, 636 P.2d 492 (1981). In Boyce v. West, the surviving mother failed to present evidence of gross negligence. In Blide v. Rainier Mountaineering, Inc., an injured climber did not argue gross negligence. Other jurisdictions have held that express assumption of risk does not bar a claim for gross negligence since public policy does not allow one to exonerate oneself from gross negligence. Coomer v. Kansas City Royals Baseball Corp., 437 S.W.3d 184, 193 n.3 (Mo. 2014); Kerns v. Hoppe, 128 Nev. 910, 381 P.3d 630 (2012); Perez v. McConkey, 872 S.W.2d 897, 904 (Tenn. 1994).

¶44 [HN34] Since express assumption of risk and inherent peril assumption of risk both result in the bar of the plaintiff’s claim and arise from the plaintiff’s voluntary assumption of risk, one might argue that a gross negligence claim should survive assumption of risk by inherent peril if it survives express assumption of risk. Nevertheless, the two varieties of assumption of risk promote different interests and raise disparate concerns. A signed assumption of all risks could be the result of unequal bargaining power and apply to activities that involve little, or no, risks. The bargaining [**24] power with regard to inherent peril assumption is immaterial. Assumption follows from hazards the plaintiff voluntarily assumes because of the thrill and enjoyment of an activity.

[23] ¶45 We find no foreign decisions in which the court holds that a cause of action for gross negligence survives the application of inherent peril assumption of risk in the context of sports or outdoor recreation. Instead, other courts addressing the question consistently [HN35] limit the liability of the defendant, when inherent peril assumption applies, to intentional or reckless conduct of the defendant. Ellis v. Greater Cleveland R.T.A., 2014-Ohio-5549, 25 N.E.3d 503, 507 (Ct. App.); Custodi v. Town of Amherst, 20 N.Y.3d 83, [*420] 980 N.E.2d 933, 957 N.Y.S.2d 268 (2012); Cole v. Boy Scouts of America, 397 S.C. 247, 725 S.E.2d 476, 478 (2011); Pfenning v. Lineman, 947 N.E.2d 392, 404 (Ind. 2011); Yoneda v. Tom, 110 Haw. 367, 133 P.3d 796, 808 (2006); Peart v. Ferro, 119 Cal. App. 4th 60, 13 Cal. Rptr. 3d 885, 898 (2004); Allen v. Dover Co-Recreational Softball League, 807 A.2d at 1281 (2002); Behar v. Fox, 249 Mich. App. 314, 642 N.W.2d 426, 428 (2001); Estes v. Tripson, 188 Ariz. 93, 932 P.2d 1364, 1365 (Ct. App. 1997); Savino v. Robertson, 273 Ill. App. 3d 811, 652 N.E.2d 1240, 1245, 210 Ill. Dec. 264 (1995); King v. Kayak Manufacturing Corp., 182 W. Va. 276, 387 S.E.2d 511, 518 (1989). A recklessness standard encourages vigorous participation in recreational activities, while still providing protection from egregious conduct. Behar v. Fox, 642 N.W.2d at 428 (2001). 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.

¶46 [HN36] Gross negligence consists of the failure to exercise slight care. Nist v. Tudor, 67 Wn.2d at 331 (1965). 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 [**25] 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. Adkisson v. City of Seattle, 42 Wn.2d 676, 685, 258 P.2d 461 (1953); Brown v. Department of Social & Health Services, 190 Wn. App. 572, 590, 360 P.3d 875 (2015). 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.

[*421] CONCLUSION

¶47 We affirm the trial court’s summary judgment dismissal of Brian Pellham’s suit against Let’s Go Tubing.

Korsmo and Siddoway, JJ., concur.

LexisNexis Practice Guide: Washington Torts and Personal Injury

LexisNexis Practice Guide: Washington Trial and Post-Trial Civil Procedure

Annotated Revised Code of Washington by LexisNexis


185 Mile Running Race release was clear and under Washington, law was sufficient to beat a Public Policy & ambiguous argument by plaintiff

Decision clearly sets forth the requirements for the plaintiff to prove her claims which she failed to do.

Johnson et al., v. Spokane to Sandpoint, LLC, et al., 176 Wn. App. 453; 309 P.3d 528; 2013 Wash. App. LEXIS 1696

State: Washington, Court of Appeals of Washington, Division Three

Plaintiff: Robin Johnson and Craig Johnson

Defendant: Spokane to Sandpoint, LLC, et al.

Plaintiff Claims: Negligence & Gross Negligence

Defendant Defenses: Release

Holding: for the defendant

Year: 2013

The plaintiff, an attorney signed up for the Spokane to Sandpoint race. The race is a team race run over two days and nights. The race is 185 miles long and an open course, meaning there is traffic on the course.

Spokane to Sandpoint promotes a long-distance relay race from the Spokane area to Sandpoint, Idaho, involving teams running a 185-mile course over two days, day and night. The course is open, meaning it is not closed to public traffic.

The racers sign up online and sign an electronic release. The racers also receive a race handbook. The handbook explains the race and includes sections on crossing roads, highways and train tracks.

The plaintiff was crossing a highway, and she was hit by a car. The driver of the car stated the plaintiff walked out in front of her without looking. The plaintiff settled with the driver before this appeal.

As Ms. Johnson was crossing U.S. Route 2, Madilyn Young was driving about 63 miles per hour southbound in the outside lane on U.S. Route 2, approaching the Colbert Road intersection. Ac-cording to Ms. Young’s statement to the police, she saw Ms. Johnson crossing the northbound lanes of U.S. Route 2 and saw her continue into the southbound lanes without looking for cars. Ms. Young was unable to stop in time to avoid a collision. Ms. Johnson suffered severe injuries.

The defendant filed a motion for summary judgment, which was granted and this appeal followed.

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

The appellate court first looked at the requirements for the plaintiff to survive and proceed to trial.

To prevail on a negligence claim against Spokane to Sandpoint, the Johnsons must establish Spokane to Sandpoint owed them a duty. Whether such a duty exists is a question of law. Id. The parties may, subject to certain exceptions, expressly agree in advance that one party is under no obligation of care to the other, and shall not be held liable for ordinary negligence.

The court then looked at the requirements for releases to be valid under Washington’s law. (Of note, the court calls the exculpatory clause a waiver clause. However, the court refers to the agreement as a release.)

The function of a waiver provision is “to deny an injured party the right to recover damages from the person negligently causing the injury.” The general rule in Washington is that a waiver provision is enforceable unless (1) it violates public policy, (2) the negligent act falls greatly below the legal standard for protection of others, or (3) it is inconspicuous.

Under Washington’s law, releases are valid, unless they violate public policy. There are six different factors identified as attributable to public policy in Washington.

Six factors are considered in determining whether exculpatory agreements violate public policy. The court considers whether (1) the agreement concerns an endeavor of a type generally thought suitable for public regulation; (2) the party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public; (3) such party holds itself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards; (4) because of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks the services; (5) in exercising a superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence; and (6) the person or property of members of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the part of the furnisher, its employees, or agents.

The court then went through all six factors and eliminated them all in one paragraph.

First, 185-mile relay races are not regulated; second, Spokane to Sandpoint is not performing an important public service such as a school; third, not all members of the public participate in relay races, unlike schools; fourth, Spokane to Sandpoint had no control over how Ms. Johnson ran or when she decided to cross U.S. Route 2; fifth, there was no inequality of bargaining since Ms. Johnson could have easily chosen not to participate and could have selected a different event; and sixth, while Spokane to Sandpoint set up the course, it did not control in what manner Ms. Johnson ran the race.

Generally, Washington law looks at whether the issues that identify a public policy issue are those that affect the majority of the public in Washington. The court also found that other Washington decisions have found that recreational activities were not a public interest.

The second issue was the plaintiff’s claim the defendant was grossly negligent. Like most states, a release in Washington will not stop a claim for gross negligence. Gross negligence is greater than ordinary negligence and is care appreciably less than care required in an ordinary negligence claim.

“Gross negligence” is “negligence substantially and appreciably greater than ordinary negligence,” i.e., “care substantially or appreciably less than the quantum of care inhering in ordinary negligence.” (“gross negligence” is “the failure to exercise slight care”). A plaintiff seeking to overcome an exculpatory clause by proving gross negligence must supply “substantial evidence” that the defendant’s act or omission represented care appreciably less than the care inherent in ordinary negligence. To meet this burden of proof on summary judgment, the plaintiff must offer something more substantial than mere argument that the defendant’s breach of care rises to the level of gross negligence.

The court then went through the facts and found that nothing required the defendant to do more than what the defendant did. Consequently, since there was no duty to do more, there was no breach of a duty, let alone acts, which were substantially below the duty.

The final argument the plaintiff argued was the release was ambiguous and not conspicuous. Here again, Washington’s law set forth the requirements for ambiguous and conspicuous quite clearly.

Factors in deciding whether a waiver and release provision is conspicuous include whether the waiver is set apart or hidden within other provisions, whether the heading is clear, whether the waiver is set off in capital letters or in bold type, whether there is a signature line below the waiver provision, what the language says above the signature line, and whether it is clear that the signature is related to the waiver.

The requirements basically require the release to be seen by the signor and not hidden. The exculpatory provisions must be evident, conspicuous and not hidden. The language must stand out so it is easily recognized with capital letters and/or bold type and there must be a signature line below the exculpatory provisions so that you can see your signature is related to the exculpatory provisions.

In this case, the release provisions were found not to be ambiguous. Additionally, the plaintiff admitted in her deposition that she understood from a legal perspective that the release would release her from claiming damages for any injuries.

The appellate court agreed with the trial court and affirmed the decision.

So Now What?

This decision is refreshing because it clearly sets out the requirements needed to prove a release valid and invalid. The definition of gross negligence also easily defined to that you can understand your duties and a substantial breach of your duties leading to a gross negligence claim.

Also of note, which the court pointed out was the information provided to the plaintiff and other racers in the racer handbook. Although not an express assumption of risk agreement, the handbook was still proof, the plaintiff assumed the risk, even though that issue was not argued. The risks of the race were set forth as well as the steps taken by the defendant to protect the runners in the handbook.

Again, the more information you provide to your clients, the more information you give them the better your chances of winning if your release fails.

What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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Johnson et al., v. Spokane to Sandpoint, LLC, et al., 176 Wn. App. 453; 309 P.3d 528; 2013 Wash. App. LEXIS 1696

Johnson et al., v. Spokane to Sandpoint, LLC, et al., 176 Wn. App. 453; 309 P.3d 528; 2013 Wash. App. LEXIS 1696

Robin Johnson et al., Appellants, v. Spokane to Sandpoint, LLC, et al., Respondents.

No. 31042-6-III

COURT OF APPEALS OF WASHINGTON, DIVISION THREE

July 23, 2013, Filed

NOTICE: Order Granting Motion to Publish September 10, 2013.

SUBSEQUENT HISTORY: Reported at Johnson v. Spokane to Sandpoint, LLC, 175 Wn. App. 1054, 2013 Wash. App. LEXIS 1835 (2013)

Ordered published by Johnson v. Spokane to Sandpoint, LLC, 2013 Wash. App. LEXIS 2129 (Wash. Ct. App., Sept. 10, 2013)

PRIOR HISTORY: [***1]

Appeal from Spokane Superior Court. Docket No: 10-2-05387-0. Date filed: 07/09/2012. Judge signing: Honorable Gregory D Sypolt.

SUMMARY:

WASHINGTON OFFICIAL REPORTS SUMMARY Nature of Action: A participant in a long-distance relay race who was struck by a moving vehicle sought damages for personal injury from the race promoter.

Nature of Action: A participant in a long-distance relay race who was struck by a moving vehicle sought damages for personal injury from the race promoter.

Superior Court: The Superior Court for Spokane County, No. 10-2-05387-0, Gregory D. Sypolt, J., on July 9, 2012, entered a summary judgment in favor of the race promoter.

Court of Appeals: Holding that a preinjury release and waiver signed by the runner precluded her recovering for ordinary negligence, the court affirms the judgment.

HEADNOTES WASHINGTON OFFICIAL REPORTS HEADNOTES

[1] Negligence — Duty — Necessity. The threshold question in a negligence action is whether the defendant owed a duty of care to the plaintiff.

[2] Negligence — Duty — Question of Law or Fact — In General. For purposes of a negligence cause of action, the existence of a duty of care is a question of law.

[3] Torts — Limitation of Liability — Validity — In General. Subject to certain exceptions, parties may expressly agree in advance that one is under no obligation of care to the other and shall not be liable for ordinary negligence.

[4] Torts — Limitation of Liability — Purpose. The function of a contractual waiver of negligence liability is to deny an injured party the right to recover damages from the person negligently causing the injury.

[5] Torts — Limitation of Liability — Validity — Test. A contractual waiver of negligence liability is enforceable unless (1) it violates public policy, (2) the negligent act falls greatly below the legal standard for the protection of others, or (3) it is inconspicuous.

[6] Torts — Limitation of Liability — Validity — Public Policy — Factors. In determining whether an agreement exculpating a party from liability for its future conduct violates public policy, a court will consider whether (1) the agreement concerns an endeavor of a type generally thought suitable for public regulation; (2) the party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public; (3) such party holds itself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards; (4) because of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks the services; (5) in exercising a superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence; and (6) the person or property of members of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the part of the furnisher, its employees, or its agents.

[7] Torts — Limitation of Liability — Validity — Public Policy — Public Interest — Recreational Activities. For purposes of determining the validity of a liability release clause under a public policy analysis, Washington courts do not favor finding a public interest in adult recreational activities.

[8] Torts — Limitation of Liability — Applicability — Gross Negligence. A preinjury waiver and release will not exculpate a defendant from liability for damages resulting from gross negligence. “Gross negligence” is negligence substantially and appreciably greater than ordinary negligence, i.e., care substantially or appreciably less than the quantum of care inhering in ordinary negligence, or a failure to exercise slight care. A plaintiff seeking to overcome an exculpatory clause by proving gross negligence must supply substantial evidence that the defendant’s act or omission represented care appreciably less than the care inherent in ordinary negligence. To meet this burden of proof on summary judgment, a plaintiff must offer something more substantial than mere argument that the defendant’s breach of care rises to the level of gross negligence.

[9] Negligence — Proof — Higher Standard — Summary Judgment — Prima Facie Case — Necessity. When the standard of proof in a negligence action is higher than ordinary negligence, in order to avoid an adverse summary judgment, a plaintiff must show that it can support its claim with prima facie proof supporting the higher level of proof.

[10] Torts — Limitation of Liability — Validity — Conspicuous Nature — Factors. The conspicuousness of a contractual liability waiver or release provision is determined by considering such factors as whether the provision is set apart or hidden within other provisions, whether the provision heading is clear, whether the waiver is set off in capital letters or in bold type, whether there is a signature line below the waiver provision, what the language says above the signature line, and whether it is clear that the signature is related to the waiver. Brown, J., delivered the opinion for a unanimous court.

COUNSEL: Martin A. Peltram, for appellants.

Thomas C. Stratton (of Rockey Stratton PS), for respondents.

JUDGES: Authored by Stephen M. Brown. Concurring: Laurel H. Siddoway, Kevin M. Korsmo.

OPINION BY: Stephen M. Brown

OPINION

[*455] [**530] ¶1 Brown, J. — Robin Johnson and Craig Johnson appeal the dismissal of their personal injury suit against Spokane to Sandpoint LLC after the trial court ruled the preinjury release and waiver Ms. Johnson signed precluded recovery. The Johnsons contend the release is unenforceable because it is ambiguous, offends public policy, and because Spokane to Sandpoint was grossly negligent. We disagree and affirm.

FACTS

¶2 Spokane to Sandpoint promotes a long-distance relay race from the Spokane area to Sandpoint, Idaho, involving teams running a 185-mile course over two days, day and [**531] night. The course is open, meaning it is not closed to public traffic.

¶3 When registering on line, the runners must electronically acknowledge a release of liability and waiver, which states:

I understand that by registering I have accepted and agreed to the waiver [***2] and release agreement(s) presented to me during registration and that these documents include a release of liability and waiver of legal rights and deprive me of the right to sue certain parties. By agreeing electronically, I have acknowledged that I have both read and understood any waiver and release agreement(s) presented to me as part of the registration process and accept the inherent dangers and risks which may or may not be readily foreseeable, including without limitation personal injury, property damage or death that arise from participation in the event.

[*456] Clerk’s Papers (CP) at 246. Ms. Johnson, an attorney, registered on line for the 2010 Spokane to Sandpoint race and acknowledged the above waiver, plus she agreed to “waive and release Spokane to Sandpointfrom any and all claims or liability of any kind arising out of my participation in this event, even though that liability may arise out negligence or carelessness on the part of persons on this waiver.” CP at 246. Ms. Johnson agreed she read the agreement carefully and understood the terms and she signed the agreement, “FREELY AND VOLUNTARILY, WITHOUT ANY INDUCEMENT, ASSURANCE OR GUARANTEE” and that her signature was [***3] “TO SERVE AS CONFIRMATION OF MY COMPLETE AND UNCONDITIONAL ACCEPTANCE OF THE TERMS, CONDITIONS, AND PROVISIONS OF THIS AGREEMENT.” CP at 248.

¶4 Spokane to Sandpoint provided a race handbook to Ms. Johnson, explaining all facets of the race, including crossing public highways and train tracks. The fourth leg of the race crossed U.S. Route 2 at its intersection with Colbert Road. At that location, U.S. Route 2 is a divided highway that runs north and south. It has two lanes in each direction, separated by a median strip. A sign was posted on Colbert Road telling the runners “caution crossing highway.” CP at 128. Signs were posted along the race route informing drivers that runners were running along the race route roads.

¶5 As Ms. Johnson was crossing U.S. Route 2, Madilyn Young was driving about 63 miles per hour southbound in the outside lane on U.S. Route 2, approaching the Colbert Road intersection. According to Ms. Young’s statement to the police, she saw Ms. Johnson crossing the northbound lanes of U.S. Route 2 and saw her continue into the southbound lanes without looking for cars. Ms. Young was unable to stop in time to avoid a collision. Ms. Johnson suffered severe injuries.

¶6 The Johnsons sued Spokane [***4] to Sandpoint, Ms. Young, and Ms. Young’s parents. The Johnsons dismissed their [*457] claims against Ms. Young and her parents following a settlement.

¶7 During Ms. Johnson’s deposition, counsel for Spokane to Sandpoint asked her if she understood that the release she signed “would … release the entities for any personal injury that might occur to you during the activity?” CP at 138. Ms. Johnson replied, “Yes, I understand that from a legal perspective completely.” CP at 139. When questioned about the on line registration process, counsel asked:

Q. Do you recall whether you clicked yes to the waiver language at all on the registration process?

A. On the registration process I assume I must have clicked because all that information is there and I did it. Nobody else did it for me.

CP at 156.

¶8 Spokane to Sandpoint requested summary judgment dismissal, arguing the preinjury waiver and release agreed to by Ms. Johnson was conspicuous and not against public policy and the Johnsons lacked the evidence of gross negligence necessary to overcome the release. The trial court agreed and dismissed the Johnsons’ complaint.

ANALYSIS

¶9 The issue is whether the trial court erred in summarily dismissing the [**532] Johnsons’ [***5] negligence complaint. The Johnsons contend the release and waiver signed by Ms. Johnson prior to her injury was invalid and unenforceable because it was ambiguous and against public policy, and because Spokane to Sandpoint was grossly negligent.

¶10 [HN1] We review summary judgment de novo and engage in the same inquiry as the trial court. Heath v. Uraga, 106 Wn. App. 506, 512, 24 P.3d 413 (2001). [HN2] Summary judgment is appropriate if, in view of all the evidence, reasonable persons could reach only one conclusion. Hansen v. Friend, 118 Wn.2d 476, 485, 824 P.2d 483 (1992). Where different [*458] competing inferences may be drawn from the evidence, the issue must be resolved by the trier of fact. Kuyper v. Dep’t of Wildlife, 79 Wn. App. 732, 739, 904 P.2d 793 (1995).

[1-3] ¶11 [HN3] To prevail on a negligence claim against Spokane to Sandpoint, the Johnsons must establish Spokane to Sandpoint owed them a duty. Chauvlier v. Booth Creek Ski Holdings, Inc., 109 Wn. App. 334, 339, 35 P.3d 383 (2001) (citing Tincani v. Inland Empire Zoological Soc’y, 124 Wn.2d 121, 128, 875 P.2d 621 (1994)). Whether such a duty exists is a question of law. Id. The parties may, subject to certain exceptions, expressly agree in advance that one [***6] party is under no obligation of care to the other, and shall not be held liable for ordinary negligence. Chauvlier, 109 Wn. App. at 339.

[4, 5] ¶12 [HN4] The function of a waiver provision is “to deny an injured party the right to recover damages from the person negligently causing the injury.” Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 491, 834 P.2d 6 (1992). The general rule in Washington is that a waiver provision is enforceable unless (1) it violates public policy, (2) the negligent act falls greatly below the legal standard for protection of others, or (3) it is inconspicuous. Stokes v. Bally’s Pacwest, Inc., 113 Wn. App. 442, 445, 54 P.3d 161 (2002).

[6] ¶13 [HN5] In Washington, contracts releasing liability for negligence are valid unless a public interest is involved. Hewitt v. Miller, 11 Wn. App. 72, 521 P.2d 244 (1974). [HN6] Six factors are considered in determining whether exculpatory agreements violate public policy. The court considers whether (1) the agreement concerns an endeavor of a type generally thought suitable for public regulation; (2) the party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members [***7] of the public; (3) such party holds itself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established [*459] standards; (4) because of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks the services; (5) in exercising a superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence; and (6) the person or property of members of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the part of the furnisher, its employees, or agents. Wagenblast v. Odessa Sch. Dist. 105-157-166J, 110 Wn.2d 845, 851-55, 758 P.2d 968 (1988) (citing Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92, 98-101, 383 P.2d 441, 32 Cal. Rptr. 33 (1963)). The Johnsons fail to establish all six factors.

¶14 First, 185-mile relay races are not regulated; [***8] second, Spokane to Sandpoint is not performing an important public service such as a school; third, not all members of the public participate in relay races, unlike schools; fourth, Spokane to Sandpoint had no control over how Ms. Johnson ran or when she decided to cross U.S. Route 2; fifth, there was no inequality of bargaining since Ms. Johnson could have easily chosen not to participate and could have selected a different event; and sixth, while Spokane to Sandpoint set up the course, it did not control in what manner Ms. Johnson ran the race.

[7] ¶15 [HN7] Washington courts have not favored finding a public interest in adult recreational activities. As noted in Hewitt, 11 Wn. App. [**533] at 74, “[e]xtended discussion is not required to conclude that instruction in scuba diving does not involve a public duty.” Similarly, “[a]lthough a popular sport in Washington, mountaineering, like scuba diving, does not involve public interest.” Blide v. Rainier Mountaineering, Inc., 30 Wn. App. 571, 574, 636 P.2d 492 (1981). Washington courts have come to the same conclusion regarding [*460] tobogganing and demolition car racing. Broderson v. Rainer Nat’l Park Co., 187 Wash. 399, 406, 60 P.2d 234 (1936), overruled in part by [***9] Baker v. City of Seattle, 79 Wn.2d 198, 484 P.2d 405 (1971); Conradt v. Four Star Promotions, Inc., 45 Wn. App. 847, 853, 728 P.2d 617 (1986).

[8] ¶16 [HN8] A preinjury waiver and release will not exculpate a defendant from liability for damages resulting from gross negligence. Vodopest v. MacGregor, 128 Wn.2d 840, 853, 913 P.2d 779 (1996). “Gross negligence” is “negligence substantially and appreciably greater than ordinary negligence,” i.e., “care substantially or appreciably less than the quantum of care inhering in ordinary negligence.” Nist v. Tudor, 67 Wn.2d 322, 331, 407 P.2d 798 (1965); see 6 Washington Practice: Washington Pattern Jury Instructions: Civil 10.07 (6th ed. 2012) (“gross negligence” is “the failure to exercise slight care”). A plaintiff seeking to overcome an exculpatory clause by proving gross negligence must supply “substantial evidence” that the defendant’s act or omission represented care appreciably less than the care inherent in ordinary negligence. Boyce v. West, 71 Wn. App. 657, 665, 862 P.2d 592 (1993). To meet this burden of proof on summary judgment, the plaintiff must offer something more substantial than mere argument that the defendant’s breach of care rises [***10] to the level of gross negligence. CR 56(e); Boyce, 71 Wn. App. at 666.

¶17 Spokane to Sandpoint marked the roadways to warn both drivers and runners of danger and provided a handbook to each runner advising about crossing busy roadways and highways. Nothing in this record establishes any duty to do more.

¶18 Our case is somewhat like Conradt, where Mr. Conradt was hurt in an auto race. 45 Wn. App. at 848. He signed a release before being told of a change in the race direction. Id. Mr. Conradt argued the risk had been materially altered by that change after he signed the release. Id. at 850. He explained he could not corner as well and he had not understood the additional risk. Id. The race promoter [*461] requested summary judgment based on the release. Id. at 848. The trial court dismissed Mr. Conradt’s complaint, finding the release was valid and the promoter’s action did not amount to gross negligence. Id. at 852. The Conradt court affirmed, holding the promoter’s “conduct was not so substantially and appreciably substandard that it rendered the release invalid.” Id.

[9] ¶19 Similarly, the Johnsons fail to show Spokane to Sandpoint committed gross negligence by failing to exercise slight care. See Woody v. Stapp, 146 Wn. App. 16, 22, 189 P.3d 807 (2008) [***11] (When a standard of proof is higher than ordinary negligence, the nonmoving parties must show that they can support their claim with prima facie proof supporting the higher level of proof.). Spokane to Sandpoint’s conduct does not reach gross negligence under the circumstances presented here.

[10] ¶20 Finally, the Johnsons argue the release was ambiguous and not conspicuous. Several Washington courts have analyzed waiver provisions to determine whether the language was conspicuous. [HN9] Factors in deciding whether a waiver and release provision is conspicuous include whether the waiver is set apart or hidden within other provisions, whether the heading is clear, whether the waiver is set off in capital letters or in bold type, whether there is a signature line below the waiver provision, what the language says above the signature line, and whether it is clear that the signature is related to the waiver. See Baker, 79 Wn.2d at 202; McCorkle v. Hall, 56 Wn. App. 80, 83, 782 P.2d 574 (1989); Chauvlier, 109 Wn. App. at 342; Stokes, 113 Wn. App. at 448.

[**534] ¶21 The release executed by Ms. Johnson on line clearly sets apart the release language in either italicized letters or in all capital letters or both. The [***12] document was conspicuous with a header stating, “WAIVER AND RELEASE OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT.” CP at 246. The waiver repeatedly warned Ms. Johnson that she was giving up her legal rights by [*462] signing the waiver, with this clearly indicated above the signature line. Although the Johnsons argue the waiver was ambiguous and, therefore, inconspicuous, Ms. Johnson (an attorney) acknowledged in her deposition that from a “legal perspective” she understood the release she signed “would … release the entities for any personal injury that might occur … during the activity.” CP at 138-39. Thus, no genuine issues of material fact remain regarding ambiguity or conspicuousness.

¶22 Given our analysis, we hold reasonable minds can reach but one conclusion; the preinjury release and waiver signed by Ms. Johnson precludes her from claiming an ordinary negligence duty by Spokane to Sandpoint, thus preventing her from seeking liability damages for her injuries. The trial court correctly concluded likewise in summarily dismissing the Johnsons’ complaint.

¶23 Affirmed. [***13]

Korsmo, C.J., and Siddoway, J., concur.


City not liable for injuries to BMX rider, riding in City Park on features built without city’s consent

The duty owed by the city to features, structures and changes to the park that the city did not make was low and protected by the recreational use statute in this case.

Wilkerson, v. The City of SeaTac, 2012 Wash. App. LEXIS 2592

State: Washington, Court of Appeals of Washington, Division One

Plaintiff: Jon L. Wilkerson

Defendant: The City of SeaTac

Plaintiff Claims: City breached the duty to use reasonable care in failing to maintain the park and “allowing man-made jumps to remain despite the . . . inherent danger the jumps posed.”

Defendant Defenses: No Duty, and Washington Recreational Use Statute

Holding: For the City

Year: 2012

This is very sad; the plaintiff ended up a quadriplegic because of the accident. This also explains the lawsuit. There is so much money at stake when someone is rendered paralyzed or a quadriplegic that there is bound to be a lawsuit.

In this case, the plaintiff had just moved to the area. He inquired at a local shop where he could practice jumping in anticipation of his trip to Whistler in BC with some friends. The bike shop sent him to Des Moines Trail Park.

The Des Moines Creek Trail Park is a 96-acre woodland preserve open to the public for recreational use. The City of SeaTac (City) owns and operates the portion of the park located within the City, 1 including dirt mounds in the park that bicyclists use as bike jumps. The dirt jumps, known as “the Softies,” are located about a quarter-mile off a paved trail in the park. The City did not create or maintain the dirt jumps.

The plaintiff considered himself an excellent mountain biker and BMX rider. He was used to doing ramps and jumps.

The area was built by people other than the city. It was known as “the softies” by locals. Around 5 pm one day, the plaintiff went to the park to ride. He rode several jumps and scouted them all out before jumping them. He picked out a gap jump, deciding other jumps were outside of his skill set.  While riding the gap jump he crashed and rendered himself a quadriplegic.

The plaintiff could not move and laid calling for help for several hours before passing out.  Approximately 1 AM the next day the city reported the plaintiff’s car in the parking lot. Around 11 am, two cyclists found the plaintiff and notified EMS.

While in a rehabilitation hospital the plaintiff stated: “…that although he was an experienced mountain biker, as he went over the jump, he came down “wrong” because he” ‘was a bit out of practice’ ” and ” ‘a little too bold.’

The plaintiff filed this lawsuit against the city. The trial court dismissed the claims based on the city’s motion for summary judgment, and this appeal followed.

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

The appellate court first looked at the defense provided by the Recreational Use Statue of Washington. Chapter 4.24  Special Rights of Action and Special Immunities.

Under Washington’s law a landowner is immune from liability for injuries upon his land unless the injury is “caused by a known dangerous artificial latent condition “for which warning signs have not been conspicuously posted.”

To establish the City was not immune from suit under RCW 4.24.210, Wilkerson must show the City charged a fee for the use of the land, the injuries were intentionally inflicted, or the injuries were sustained by reason of a known dangerous artificial latent condition for which no warning signs were posted. Davis,

The issue then came down to whether or not the jumps were a latent condition. There are four elements the plaintiff must prove to show the jumps were a latent condition.

Each of the four elements of a known dangerous artificial latent injury-causing condition must be present in order to establish liability under the recreational land use statute. “If one of the four elements is not present, a claim cannot survive summary judgment.”

The definition of latent under Washington Law is “means” ‘not readily apparent to the recreational user.”

In determining whether the injury-causing condition is latent, the question is not whether the specific risk is readily apparent but, instead, whether the injury-causing condition itself is readily apparent.

The plaintiff’s experts argued that the approach which was described as an S-curve was a latent condition. However, the court distinguished that argument by stating there was a difference between a latent condition and a patent condition that had latent dangers.

The condition itself must be latent.” While the court expressly acknowledged that “it may not have occurred to Van Dinter that he could injure himself in the way he did,” the court concluded that “this does not show the injury-causing condition — the caterpillar’s placement — was latent. . . . The caterpillar as well as its injury-causing aspect — its proximity to the grassy area — were obvious.”

Nor did the fact that the plaintiff did not appreciate the risk caused by the approach change the condition of the land.

The plaintiff then argued that his secondary injury, lying in the park all-night, suffering hypothermia that required additional surgeries and hospitalizations were not covered by the recreational use statute.

Secondary injuries were not covered under Wisconsin’s Recreational Use Statute. However, the language in the Wisconsin statute differs from the language in the Washington statute.

By contrast, RCW 4.24.200-.210 grants a broader immunity to landowners “who allow members of the public to use [their lands] for the purposes of outdoor recreation.” RCW 4.24.210(1); (because landowner “open[ed] up the lands for recreational use without a fee,” and thereby “brought itself under the protection of the immunity statute,” landowner was immune from liability regardless of whether “a person coming onto the property may have some commercial purpose in mind”).

The court held the immunity provided by the Washington Recreational Use Statute was broadly written and covered the secondary injuries the plaintiff suffered.

The plaintiff then argued the city was willful and wanton or intentional because the city knew that other cyclists had been injured at the park. This argument stemmed from the plaintiff asserting that “that the government’s failure to” ‘put up signs and ropes’ ” was deliberate and the government” ‘knew or should have known’ ” of the dangerous condition.”

However, the court found that this did not rise to the level of willful or wanton or intentional negligence.

Here, as in Jones, there is no dispute that the City did not create the dirt jumps or S-curve approach. While the alleged failure of the City to “bulldoze the Softies” or post warning signs may constitute negligence, it is not willful or wanton conduct under the recreational land use immunity statute.

The plaintiff next argued the defendant had a duty to supervise and patrol the park.

Wilkerson also claims the City assumed a duty to supervise and patrol the park. Wilkerson points to the sign the City posted in the parking lot and the failure to take some action after the City employee saw his car in the parking lot at 1:00 a.m. The sign posted at the entry to the Des Moines Creek Trail Park parking lot stated:

However, this argument also failed because if there was a duty, it was owed to the general public, not to the plaintiff specially.

“Under the public duty doctrine, no liability may be imposed for a public official’s negligent conduct unless it is shown that the duty breached was owed to the injured person as an individual and was not merely the breach of an obligation owed to the public in general (i.e., a duty to all is a duty to no one).”

Because the record shows that the City did not assume a duty or make express assurances to Wilkerson, the public duty doctrine bars his claim that the City owed him a duty of care.

The appellate court agreed with the trial court, and the dismissal of the lawsuit was affirmed.

So Now What?

It is sad when any activity renders someone, especially a young person, a quadriplegic. However, sometimes, you have to accept the fact you screwed up, or misjudged the jump, as the plaintiff admitted to in the rehab hospital and live with your mistakes.

If you are such a person, but as much disability, health and life insurance that you can afford, it may be the only way to stay somewhat better off than what the government can provide.

From the stand point of the defendant city, you need to understand your duty and your level of duty to features, additions or other things that are added to a park or city property without your permission or without you exercising control over the situation.

Not all cities can escape liability when a group of people add to a park.

 

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Washington Recreational Use Statute

Title 4  Civil Procedure 

Chapter 4.24  Special Rights of Action and Special Immunities

Rev. Code Wash. (ARCW) § 4.24.200  (2016)

4.24.200.  Liability of owners or others in possession of land and water areas for injuries to recreation users — Purpose.

The purpose of RCW 4.24.200 and 4.24.210 is to encourage owners or others in lawful possession and control of land and water areas or channels to make them available to the public for recreational purposes by limiting their liability toward persons entering thereon and toward persons who may be injured or otherwise damaged by the acts or omissions of persons entering thereon.

HISTORY: 1969 ex.s. c 24 § 1; 1967 c 216 § 1.

4.24.210.  Liability of owners or others in possession of land and water areas for injuries to recreation users — Known dangerous artificial latent conditions — Other limitations.

(1) Except as otherwise provided in subsection (3) or (4) of this section, any public or private landowners, hydroelectric project owners, or others in lawful possession and control of any lands whether designated resource, rural, or urban, or water areas or channels and lands adjacent to such areas or channels, who allow members of the public to use them for the purposes of outdoor recreation, which term includes, but is not limited to, the cutting, gathering, and removing of firewood by private persons for their personal use without purchasing the firewood from the landowner, hunting, fishing, camping, picnicking, swimming, hiking, bicycling, skateboarding or other nonmotorized wheel-based activities, aviation activities including, but not limited to, the operation of airplanes, ultra-light airplanes, hanggliders, parachutes, and paragliders, rock climbing, the riding of horses or other animals, clam digging, pleasure driving of off-road vehicles, snowmobiles, and other vehicles, boating, kayaking, canoeing, rafting, nature study, winter or water sports, viewing or enjoying historical, archaeological, scenic, or scientific sites, without charging a fee of any kind therefor, shall not be liable for unintentional injuries to such users.

(2) Except as otherwise provided in subsection (3) or (4) of this section, any public or private landowner or others in lawful possession and control of any lands whether rural or urban, or water areas or channels and lands adjacent to such areas or channels, who offer or allow such land to be used for purposes of a fish or wildlife cooperative project, or allow access to such land for cleanup of litter or other solid waste, shall not be liable for unintentional injuries to any volunteer group or to any other users.

(3) Any public or private landowner, or others in lawful possession and control of the land, may charge an administrative fee of up to twenty-five dollars for the cutting, gathering, and removing of firewood from the land.

(4)       (a) Nothing in this section shall prevent the liability of a landowner or others in lawful possession and control for injuries sustained to users by reason of a known dangerous artificial latent condition for which warning signs have not been conspicuously posted.

(i) A fixed anchor used in rock climbing and put in place by someone other than a landowner is not a known dangerous artificial latent condition and a landowner under subsection (1) of this section shall not be liable for unintentional injuries resulting from the condition or use of such an anchor.

(ii) Releasing water or flows and making waterways or channels available for kayaking, canoeing, or rafting purposes pursuant to and in substantial compliance with a hydroelectric license issued by the federal energy regulatory commission, and making adjacent lands available for purposes of allowing viewing of such activities, does not create a known dangerous artificial latent condition and hydroelectric project owners under subsection (1) of this section shall not be liable for unintentional injuries to the recreational users and observers resulting from such releases and activities.

(b) Nothing in RCW 4.24.200 and this section limits or expands in any way the doctrine of attractive nuisance.

(c) Usage by members of the public, volunteer groups, or other users is permissive and does not support any claim of adverse possession.

(5) For purposes of this section, the following are not fees:

(a) A license or permit issued for statewide use under authority of chapter 79A.05 RCW or Title 77 RCW;

(b) A pass or permit issued under RCW 79A.80.020, 79A.80.030, or 79A.80.040; and

(c) A daily charge not to exceed twenty dollars per person, per day, for access to a publicly owned ORV sports park, as defined in RCW 46.09.310, or other public facility accessed by a highway, street, or nonhighway road for the purposes of off-road vehicle use.

HISTORY: 2012 c 15 § 1. Prior: 2011 c 320 § 11; 2011 c 171 § 2; 2011 c 53 § 1; 2006 c 212 § 6; prior: 2003 c 39 § 2; 2003 c 16 § 2; 1997 c 26 § 1; 1992 c 52 § 1; prior: 1991 c 69 § 1; 1991 c 50 § 1; 1980 c 111 § 1; 1979 c 53 § 1; 1972 ex.s. c 153 § 17; 1969 ex.s. c 24 § 2; 1967 c 216 § 2.


Wilkerson, v. The City of SeaTac, 2012 Wash. App. LEXIS 2592

Wilkerson, v. The City of SeaTac, 2012 Wash. App. LEXIS 2592

Jon L. Wilkerson, Appellant, v. The City of SeaTac, Respondent.

No. 66524-3-I

COURT OF APPEALS OF WASHINGTON, DIVISION ONE

2012 Wash. App. LEXIS 2592

April 17, 2012, Oral Argument

November 5, 2012, Filed

NOTICE:

As amended by order of the Court of Appeals March 27, 2013. RULES OF THE WASHINGTON COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE WASHINGTON RULES OF COURT.

SUBSEQUENT HISTORY: Reported at Wilkerson v. City of SeaTac, 171 Wn. App. 1023, 2012 Wash. App. LEXIS 2614 (2012)

Reconsideration denied by, Modified by Wilkerson v. City of SeaTac, 2013 Wash. App. LEXIS 797 (Wash. Ct. App., Mar. 27, 2013)

PRIOR HISTORY: [*1]

Appeal from King County Superior Court. Docket No: 09-2-23226-1. Judgment or order under review. Date filed: 12/10/2010. Judge signing: Honorable Michael C Hayden.

CORE TERMS: jump, recreational, latent, land use, bike, landowner, gap, summary judgment, immunity, dirt, speed, wanton, injury-causing, willful, trail, pitch, lead-in, user, parking lot, “appreciate”, creek, softies, owed, mountain, readily apparent, artificial, recreation, channel, posted, stump

COUNSEL: Noah Christian Davis, In Pacta PLLC, Seattle, WA, for Appellant(s).

Francis Stanley Floyd, Nicholas L. Jenkins, Floyd Pflueger & Ringer PS, Seattle, WA; Mary E. Mirante Bartolo, City of Seatac, Seatac, WA; Mark Sterling Johnsen, City of Seatac Legal Dept, Seatac, WA, for Respondent(s).

JUDGES: AUTHOR: Ann Schindler, J. WE CONCUR: Anne Ellington, JPT., C. Kenneth Grosse, J.

OPINION BY: Ann Schindler

OPINION

¶1 Schindler, J. — Jon Wilkerson challenges the decision on summary judgment to dismiss his lawsuit against the City of SeaTac based on the recreational land use immunity statute, RCW 4.24.200-.210. We affirm.

FACTS

¶2 The Des Moines Creek Trail Park is a 96-acre woodland preserve open to the public for recreational use. The City of SeaTac (City) owns and operates the portion of the park located within the City, 1 including dirt mounds in the park that bicyclists use as bike jumps. The dirt jumps, known as “the Softies,” are located about a quarter-mile off a paved trail in the park. The City did not create or maintain the dirt jumps.

1 The City of Des Moines and [*2] the Port of Seattle own and operate other portions of the park.

¶3 In June 2006, 30-year-old Jon Wilkerson moved from Arkansas to Kent, Washington to work as a physical therapist. Wilkerson had plans to go mountain biking at Whistler in British Columbia with friends in July. Wilkerson testified that he considered himself an “experienced mountain biker” and had previously used BMX 2 and mountain bikes to do ramp and dirt jumps.

2 (Bicycle motocross.)

¶4 About a week after moving to Kent, Wilkerson went to a bike shop to buy a new helmet. Wilkerson asked the bike shop manager “about nearby parks that had dirt jumps — where I could ride my bike and practice making jumps in anticipation of [the] bike trip to Whistler with friends.” The bike shop manager told Wilkerson about the Des Moines Creek Trail Park and the “BMX style dirt jump[s],” and “told [him] how to get to [the Softies].”

¶5 On June 21, Wilkerson drove to the Des Moines Creek Trail Park. Wilkerson arrived at the park between 5:00 and 6:00 p.m. and parked his Ford Expedition in the parking lot located at South 200th Street. Wilkerson left his cell phone in his car. Wilkerson testified that he went to the park that day to train and “work[] [*3] on jumps that I knew that I would need to be able to clear at Whistler. . . . I was working that day to prepare to do more advanced techniques at Whistler.”

¶6 After riding around the park for about 30 to 45 minutes on “single [bike] track trails,” Wilkerson testified that he followed the directions he received from the bike shop manager to get to the Softies. Wilkerson said he “rode down a ravine, crossed a creek, walked [his] bike up and the softies were on the right.” When he arrived at the Softies, no one else was there.

¶7 Wilkerson testified that he examined the dirt jumps and understood the importance of the “approach speed,” as well as the condition of the track and the height and pitch of the jumps. Wilkerson said that he rode his bike over the jumps to “try some of them out” before selecting a smaller “gap jump.” Wilkerson said he decided the other jumps “weren’t within my skill set” because they were “too steep” and “too close together,” and concluded the smaller gap jump was “within my skill set.”

¶8 The dirt jump Wilkerson selected contained “two mounds with a gap in between.” Wilkerson testified that he inspected the jump before attempting it, and rode down the approach to check [*4] the pitch and surface composition.

Q But you did check the jump out before you went off of it, correct?

A I did.

Q And, you rode down and actually, with the intention of checking it out before you went off of it, correct?

A I did.

Q And, you were looking for things like the pitch of the jump, correct?

A Yes.

Q You were looking to see if the composition of the surfaces was adequate, correct?

A Yes.

Q You were looking to see if the jump was safe before you went off of it, correct?

A Yes.

¶9 Wilkerson testified that he concluded “there was enough of a grade to [carry] me into [sic] with a moderate to fast amount of speed.” Wilkerson admitted that it had been at least a couple of years “since I’d done a gap jump.” But Wilkerson said that he had no concerns about his ability to accomplish the jump.

¶10 In his declaration in opposition to summary judgment, Wilkerson states he “reviewed” the jump, including “the pitch of the take-off jump itself and the size of the jump and the gap and thought everything looked ok,” but “did not take a practice ‘run in.'” The declaration states, in pertinent part:

14. I then rode over to a smaller jump (which had a crevice or drop in the middle) called a gap jump and felt that it was well within my “skill set”;

15. I then generally reviewed the jump, including the pitch of the take-off jump itself and the size of the jump and the gap and thought everything looked ok;

16. That is, looking at the jump itself, it looked fine for me to take;

17. I did not measure the gap width, nor the pitch of the jump nor the pitch of the landing;

… .

23. I also did not take a practice “run in” leading up to the jump because I had no reason to think that there was some danger to me from the approach to the jump or that the approach would be problematic or prevent me from clearing the jump.

¶11 Wilkerson testified that he “gauged the speed to be appropriate for the gap” and approached the jump “moderate to fast, the speed needed to get over the gap.” Wilkerson missed the jump and “[t]umbled forward” over the front of the bike. Wilkerson testified, in pertinent part:

On the back side of the jump for some reason my back wheel didn’t make it all the way over the berm of the back side of the jump. So, [*5] it impacted the top of the berm, rebounded and knocked me over the front of the bicycle.

¶12 Wilkerson hit the ground head-first and landed on his back five or six feet beyond the jump. Wilkerson was unable to move. Wilkerson called for help for some time before losing consciousness.

¶13 At about 1:00 a.m., a City employee reported seeing Wilkerson’s car in the parking lot. Two bicyclists found Wilkerson at about 11:00 a.m. and called 911. Emergency personnel immediately responded and transported Wilkerson to Harborview Medical Center. Wilkerson suffered from hypothermia and went into cardiac arrest. During “life-saving efforts,” Wilkerson’s lung was lacerated. Wilkerson successfully underwent surgery for the laceration. The doctors at Harborview diagnosed Wilkerson with a C4-C6 vertebra fracture. Wilkerson is quadriplegic.

¶14 After an assessment in Arkansas in September 2006, Wilkerson participated in the program at the Baylor Institute for Rehabilitation in Texas. During the assessment, Wilkerson said that although he was an experienced mountain biker, as he went over the jump, he came down “wrong” because he ” ‘was a bit out of practice’ ” and ” ‘a little too bold.’ ”

¶15 Wilkerson filed a lawsuit [*6] against the City alleging the City breached the duty to use reasonable care in failing to maintain the park and “allowing man-made jumps to remain despite the . . . inherent danger the jumps posed.” The complaint also alleged the City breached the duty to supervise the park and report Wilkerson’s vehicle “to authorities.” Wilkerson claimed the failure to report seeing his car in the parking lot caused him to suffer hypothermia and injury to his lungs. The City denied the allegations and asserted a number of affirmative defenses, including immunity under the recreational land use statute, RCW 4.24.200-.210.

¶16 The City filed a motion for partial summary judgment to dismiss the claim that the City breached the duty to remove the dirt jumps. The City argued that because there was no evidence of a known dangerous artificial latent condition, the claim was barred by the recreational land use statute.

¶17 Wilkerson argued there were genuine issues of material fact as to whether the approach to the gap jump was a known dangerous artificial latent condition. Wilkerson also argued that the City’s failure to remove, redesign, or maintain the dirt jumps was “willful and wanton conduct [that] rises to [*7] the level of intentional conduct.”

¶18 In support of his argument that the approach to the gap jump was a latent condition, Wilkerson submitted the declarations of Samuel Morris, Jr., a professional mountain bike racer; Lee Bridgers, the owner of a company that conducts mountain bike jumping clinics; and his own declaration. 3

3 In support of his assertion that the approach to the gap jump was a “known” and “dangerous” condition, Wilkerson submitted excerpts from the deposition of the City’s Acting Fire Chief and incident reports of bicycle accidents.

¶19 In his declaration, Wilkerson states that he did not “see[] or appreciate[] the S-curved, angled lead-in to the jump.” Morris states that in his opinion,

it was not the jump itself that caused Jon to crash, but the curvy nature of the lead-in, or approach, to the jump, which more probably than not reduced his speed enough to prevent him from successfully completing the jump. . . . While Jon testified that he reviewed the size of the gap and the pitch of the jump, what he did not consider and what a beginner to even an intermediate jumper would mostly likely not consider because of the subtleness is the curved approach leading into the jump and [*8] the effect that the approach would have on the ability of the rider to complete the jump. These conditions would not be apparent to a rider of Jon’s skill level.

¶20 Bridgers testified that the cause of the crash was the “lack of speed due to the twists and turns in the approach.”

[T]he curvy lead-in to the jump prevented Jon from successfully attaining the speed necessary to complete the jump and was the primary cause of Jon’s injury.

Bridgers stated that in his opinion, Wilkerson did not appreciate the S-curve approach.

While the S-curve after the berm is not visibly dramatic, it affects the direction, physics, and speed of the rider attempting to take the jump and therefore has a significant impact on the rider’s ability to successfully clear the jump, especially on a first attempt. This is something that Jon obviously did not notice or appreciate and which clearly had an impact on his ability to make the jump.

¶21 The court granted the motion for partial summary judgment. Even assuming the effect of the S-curve approach to the jump was not readily apparent to Wilkerson, the court concluded it was not a latent condition. The court ruled that as a matter of law, the inability to appreciate the [*9] risk does not constitute a latent condition.

So for purposes of the summary judgment, I am assuming that the trail, the approach leading to the jump was curved in some fashion such that it would have limited the speed of a biker who arrived at the jump site.

I am going to further conclude, for purposes of the summary judgment, that it would not have been readily apparent to the biker that he could not acquire sufficient speed to clear the jump.

[T]here is no testimony that you couldn’t see the path. The path was there. The path was not submerged; it was not invisible. Whether it was straight or curved, it was the path that one could see.

. . . .

[T]here are no cases where the courts have said you can look directly at it, you can see what is there to be seen, and the inability to appreciate the risk posed constitutes latency. I didn’t see any cases like that.

I find as a matter of law that the lead up, whether it was curved or straight, is not the latent condition required under the statute, and it does not abrogate the statutory immunity.

¶22 The court also concluded there was no evidence that the City acted with willful and wanton disregard for a danger posed by the Softies.

I would also suggest [*10] that there is no evidence here that would rise to the level of willful and wanton disregard, if indeed that is the standard in Washington.

I will accept for a summary judgment proposition that the city knew or should have known these jumps were out there, they knew or should have known that they were dangerous and there have been prior accidents, and that they did not go in and sign it or remov[e them i]s not the standard for recreational use immunity.

¶23 The “Order Granting Defendant SeaTac’s Motion for Summary Judgment Re: Recreational Use Immunity” dismisses the claim that “the City of SeaTac owed [Wilkerson] a duty to protect him from his failed mountain bike jump” at the Des Moines Creek Trail Park. The court denied Wilkerson’s motion for reconsideration.

¶24 The City then filed a motion for summary judgment dismissal of Wilkerson’s claim that the City breached the duty to supervise the park and report seeing Wilkerson’s vehicle in the parking lot. The City argued that the recreational land use statute and the public duty doctrine barred these claims.

¶25 Wilkerson argued the recreational land use statute did not apply to the cardiac and lung injuries he suffered as a result of remaining in [*11] the park overnight because he was no longer engaged in recreation. Wilkerson also argued that the City assumed a duty to users of the park to exercise reasonable care in patrolling the park.

¶26 The court granted summary judgment. The court ruled that the recreational land use statute barred Wilkerson’s claim that the City was liable for the injuries Wilkerson suffered as a result of the crash. The court’s oral ruling states, in pertinent part:

I mean to suggest that a landowner is immune from someone using their land for recreation, but if they get hurt, then a new duty arises to come take care of them and to use reasonable efforts to make sure they are safe after they are injured, as opposed to being safe before they are injured, really stretches it too far.

[T]o suggest the landowner has a duty not to protect the person from injury, but to treat them after they are injured, or to be alert to the fact of injury, even though they are not alert to prevent the injury, makes no sense.

So I am ruling that in the circumstances of having failed to detect him injured on site and failed to having brought medical services to him fast enough, the city is still acting in its capacity as landowner.

The [*12] “Order Granting Defendant SeaTac’s Motion for Summary Judgment Re: Duty to Rescue” dismisses Wilkerson’s claim that the City “owed him a duty to supervise and rescue him sooner.” 4

4 Wilkerson filed a motion to compel the City to produce discovery, which the court denied. Wilkerson appeals the order denying the motion to compel but does not assign error to the order or address it in the briefs. Accordingly, the issue is waived. RAP 10.3(a)(4); Hollis v. Garwall, Inc., 137 Wn.2d 683, 689 n.4, 974 P.2d 836 (1999).

ANALYSIS

¶27 Wilkerson contends the trial court erred in dismissing his negligence claims against the City under the recreational land use immunity statute, RCW 4.24.200-.210, and the court erred in concluding that the statute barred his claim for “hypothermia and cardiac and lung injuries.”

¶28 We review summary judgment de novo and consider the facts and all reasonable inferences in the light most favorable to the nonmoving party. Hearst Commc’ns, Inc. v. Seattle Times Co., 154 Wn.2d 493, 501, 115 P.3d 262 (2005). Summary judgment is appropriate only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Bulman v. Safeway, Inc., 144 Wn.2d 335, 351, 27 P.3d 1172 (2001). [*13] A party cannot rely on allegations in the pleadings, speculation, or argumentative assertions that factual issues remain. White v. State, 131 Wn.2d 1, 9, 929 P.2d 396 (1997).

¶29 The recreational land use statute, RCW 4.24.200-.210, grants immunity to landowners for unintentional injuries to recreational users of the land.

¶30 The statute modifies a landowner’s common law duty in order “to encourage landowners to open their lands to the public for recreational purposes.” Davis v. State, 144 Wn.2d 612, 616, 30 P.3d 460 (2001). Because the recreational land use statute is in derogation of common law, it is strictly construed. Matthews v. Elk Pioneer Days, 64 Wn. App. 433, 437, 824 P.2d 541 (1992).

¶31 Under RCW 4.24.200, the purpose of the recreational land use statute is to

encourage owners or others in lawful possession and control of land and water areas or channels to make them available to the public for recreational purposes by limiting their liability toward persons entering thereon and toward persons who may be injured or otherwise damaged by the acts or omissions of persons entering thereon. [5]

5 The legislature amended the statute several times between 2006 and 2012. Laws of 2006, ch. 212, § 6; [*14] Laws of 2011, ch. 53, § 1; Laws of 2011 ch. 171, § 2; Laws of 2011 ch. 320, § 11; Laws of 2012 ch. 15, § 1. The amendments are not pertinent to this appeal.

¶32 Under RCW 4.24.210, a landowner is immune from liability for unintentional injuries unless the injury is caused by a known dangerous artificial latent condition “for which warning signs have not been conspicuously posted.” RCW 4.24.210 states, in pertinent part:

(1) [A]ny public or private landowners . . . or others in lawful possession and control of any lands whether designated resource, rural, or urban, or water areas or channels and lands adjacent to such areas or channels, who allow members of the public to use them for the purposes of outdoor recreation, which term includes, but is not limited to, . . . bicycling, . . . without charging a fee of any kind therefor, shall not be liable for unintentional injuries to such users.

. . . .

(4)(a) Nothing in this section shall prevent the liability of a landowner or others in lawful possession and control for injuries sustained to users by reason of a known dangerous artificial latent condition for which warning signs have not been conspicuously posted.

¶33 To establish the City was not immune [*15] from suit under RCW 4.24.210, Wilkerson must show the City charged a fee for the use of the land, the injuries were intentionally inflicted, or the injuries were sustained by reason of a known dangerous artificial latent condition for which no warning signs were posted. Davis, 144 Wn.2d at 616.

¶34 Here, there is no dispute that the Des Moines Creek Trail Park was open to the public for recreational purposes and no fee was charged. The parties dispute whether the injury-causing condition was latent. Each of the four elements of a known dangerous artificial latent injury-causing condition must be present in order to establish liability under the recreational land use statute. Ravenscroft v. Wash. Water Power Co., 136 Wn.2d 911, 920, 969 P.2d 75 (1998). “If one of the four elements is not present, a claim cannot survive summary judgment.” Davis, 144 Wn.2d at 616.

¶35 Wilkerson asserts there are genuine issues of material fact as to whether the S-curve lead-in was a latent condition, and whether a recreational user would recognize the danger of the S-curve approach. Wilkerson contends the S-curve “lead-in to the jump” caused his injuries.

¶36 For purposes of the recreational land use statute, RCW 4.24.210, [*16] “latent” means ” ‘not readily apparent to the recreational user.’ ” Ravenscroft, 136 Wn.2d at 924 (quoting Van Dinter v. City of Kennewick, 121 Wn.2d 38, 45, 846 P.2d 522 (1993)). In determining whether the injury-causing condition is latent, the question is not whether the specific risk is readily apparent but, instead, whether the injury-causing condition itself is readily apparent. Ravenscroft, 136 Wn.2d at 924. A landowner will not be held liable where a patent condition posed a latent, or unobvious, danger. Van Dinter, 121 Wn.2d at 46. Although latency is a factual question, when reasonable minds could reach but one conclusion from the evidence presented, summary judgment is appropriate. Van Dinter, 121 Wn.2d at 47.

¶37 Even viewing the evidence in the light most favorable to Wilkerson, as a matter of law, the S-curve lead-in was not a latent condition. At most, the S-curve approach is a patent condition that “posed a latent, or unobvious, danger.” Van Dinter, 121 Wn.2d at 46.

¶38 In Van Dinter, the Washington Supreme Court addressed the difference between a latent condition and a latent danger. In Van Dinter, Van Dinter struck his eye on a protruding metal antenna of a caterpillar-shaped [*17] playground toy located next to the grassy area at the park where he was engaged in a water fight. Van Dinter, 121 Wn.2d at 40. Van Dinter stated that “he did not realize someone on the grass could collide with any part of the caterpillar.” Van Dinter, 121 Wn.2d at 40. Van Dinter asserted “a condition is latent for purposes of RCW 4.24.210 if its injury-producing aspect is not readily apparent to the ordinary recreational user,” and argued that “while the caterpillar was obvious, its injury-causing aspect was not.” Van Dinter, 121 Wn.2d at 45.

¶39 The court disagreed with Van Dinter and held that “RCW 4.24.210 does not hold landowners potentially liable for patent conditions with latent dangers. The condition itself must be latent.” Van Dinter, 121 Wn.2d at 46. While the court expressly acknowledged that “it may not have occurred to Van Dinter that he could injure himself in the way he did,” the court concluded that “this does not show the injury-causing condition — the caterpillar’s placement — was latent. . . . The caterpillar as well as its injury-causing aspect — its proximity to the grassy area — were obvious.” Van Dinter, 121 Wn.2d at 46.

¶40 Here, Wilkerson’s experts testified that the [*18] danger posed by the S-curve approach was not “obvious” to “beginning to intermediate” bike jumpers.

[T]he S-curve . . . affects the direction, physics, and speed of the rider attempting to take the jump . . . . It is my opinion that the dangers posed by the S-curved lead-in to the jump were not obvious for [Wilkerson] and other beginning to intermediate jumpers. [6]

6 (Emphases added.)

¶41 Morris testified that it was unlikely that Wilkerson or other jumpers would “consider . . . the effect that the approach would have.”

While [Wilkerson] testified that he reviewed the size of the gap and the pitch of the jump, what he did not consider and what a beginner to even an intermediate jumper would most likely not consider because of the subtleness is the curved approach leading into the jump and the effect that the approach would have on the ability of the rider to complete the jump. [7]

7 (Emphases added.)

¶42 The testimony that Wilkerson did not “appreciate” the danger of the S-curve approach to the jump does not establish a latent condition. As in Van Dinter, at most, Wilkerson’s failure to “appreciate” the S-curve lead-in “shows that the present situation is one in which a patent condition posed a latent, [*19] or unobvious, danger.” Van Dinter, 121 Wn.2d at 46.

¶43 The cases Wilkerson relies on, Ravenscroft and Cultee v. City of Tacoma, 95 Wn. App. 505, 977 P.2d 15 (1999), are distinguishable. In Ravenscroft, a man was injured when the boat he was riding in hit a rooted tree stump submerged in a channel of water that formed part of a dam reservoir. Ravenscroft, 136 Wn.2d at 915. The driver of the boat testified that “he saw nothing that would indicate the presence of any submerged objects or hazards in the direction he was traveling.” Ravenscroft, 136 Wn.2d at 916. Other witnesses testified that other boats had hit the stumps. Ravenscroft, 136 Wn.2d at 925.

¶44 The court identified the injury-causing condition as the “man-created water course, containing a submerged line of tree stumps” that was “created by [the Washington Water Power Company] cutting down trees, leaving stumps near the middle of a water channel, then raising the river to a level which covered the stumps.” Ravenscroft, 136 Wn.2d at 923. The court concluded that summary judgment was not appropriate because “[t]he record does not support a conclusion that the submerged stumps near the middle of the channel were obvious or visible as [*20] a matter of law.” Ravenscroft, 136 Wn.2d at 926.

¶45 In Cultee, a five-year-old girl rode a bicycle on a road with an eroded edge that was partially flooded by the Hood Canal tidal waters. Cultee, 95 Wn. App. at 509. The girl fell into the water and drowned at a point where the road and the eroded edge were covered by two to four inches of muddy water and the adjacent fields were covered with several feet of water. Cultee, 95 Wn. App. at 510. The court held there were material issues of fact about whether the condition that killed the girl was “the depth of the water alone, or a combination of the muddy water obscuring the eroded edge of the road and an abrupt drop into deep water;” and whether ” ‘recreational users’ would have been able to see the edge of the road, given that it was eroded and covered with a two-to-four-inch layer of muddy water.” Cultee, 95 Wn. App. at 523.

¶46 Wilkerson also argues that the trial court erred in concluding the recreational land use statute bars his claim for cardiac and lung injuries. Wilkerson argues the statute does not apply to the injuries he suffered after he missed the jump because he was not “engaged in recreation” or “using” the land when he suffered [*21] cardiac and lung injuries.

¶47 Wilkerson relies on Wisconsin law in support of his argument that the recreational land use statute does not apply to secondary injuries. But unlike RCW 4.24.210(1), the Wisconsin statute predicates landowner immunity on recreational use. The Wisconsin statute states, in pertinent part: “[N]o owner . . . is liable for . . . any injury to . . . a person engaging in recreational activity on the owner’s property.” Wis. Stat. § 895.52(2)(b). By contrast, RCW 4.24.200-.210 grants a broader immunity to landowners “who allow members of the public to use [their lands] for the purposes of outdoor recreation.” RCW 4.24.210(1); see also Gaeta v. Seattle City Light, 54 Wn. App. 603, 608-10, 774 P.2d 1255 (1989) (because landowner “open[ed] up the lands for recreational use without a fee,” and thereby “brought itself under the protection of the immunity statute,” landowner was immune from liability regardless of whether “a person coming onto the property may have some commercial purpose in mind”).

¶48 Next, Wilkerson argues that the City’s willful and wanton or intentional conduct precludes immunity under the recreational land use statute because the City knew that other bicyclists [*22] had been injured. Jones v. United States, 693 F.2d 1299 (9th Cir. 1982), does not support Wilkerson’s argument.

¶49 In Jones, the plaintiff went to Hurricane Ridge located in Olympic National Park as part of a church-sponsored event. Jones, 693 F.2d at 1300. The plaintiff was severely injured while riding on an inner tube at Hurricane Ridge. Jones, 693 F.2d at 1300. The plaintiff sued the church and the federal government. Jones, 693 F.2d at 1300. The jury returned a verdict against the church but found the plaintiff was also negligent. Jones, 693 F.2d at 1301. The trial court entered judgment in favor of the federal government under Washington’s recreational land use statute on the grounds that the plaintiff did not establish the government’s conduct was willful or wanton. Jones, 693 F.2d at 1300-01. 8

8

The evidence established that the extent of the danger was not actually or reasonably known to the Government. Its failure to put up signs and ropes was negligence which proximately contributed to the plaintiff’s accident but it did not constitute “an intentional failure to do an act” nor was it “in reckless disregard of the consequences.”

Jones, 693 F.2d at 1304 (internal quotation marks [*23] omitted).

¶50 On appeal, the plaintiff argued the court erred in concluding the government’s conduct was not willful or wanton under the recreational land use statute. Jones, 693 F.2d at 1301. The plaintiff asserted that the government’s failure to ” ‘put up signs and ropes’ ” was deliberate and the government ” ‘knew or should have known’ ” of the dangerous condition. Jones, 693 F.2d at 1304.

¶51 The Ninth Circuit affirmed. Jones, 693 F.2d at 1305. The Court distinguished cases that involved specific acts of the government that create a dangerous condition, and held that ” ‘[w]anton misconduct is not negligence since it involves intent rather than inadvertence, and is positive rather than negative.’ ” Jones, 693 F.2d at 1305 n.21 (quoting Adkisson v. City of Seattle, 42 Wn.2d 676, 687, 258 P.2d 461 (1953)). Because the government did not create the injury-causing condition, and the ” ‘impact of tubing and the inherent dangers . . . were not apparent to the public or the Government,’ ” the Court concluded the failure to put up signs or ropes was not intentional and willful or wanton conduct under the recreational land use statute. Jones, 693 F.2d at 1305.

We agree with the district court that, [*24] “While it was negligence on the Government’s part not to put up signs or ropes, its failure to do so does not rise to the status of willful and wanton conduct under the law of Washington.”

Jones, 693 F.2d at 1305.

¶52 Here, as in Jones, there is no dispute that the City did not create the dirt jumps or S-curve approach. While the alleged failure of the City to “bulldoze the Softies” or post warning signs may constitute negligence, it is not willful or wanton conduct under the recreational land use immunity statute.

¶53 Wilkerson also claims the City assumed a duty to supervise and patrol the park. Wilkerson points to the sign the City posted in the parking lot and the failure to take some action after the City employee saw his car in the parking lot at 1:00 a.m. The sign posted at the entry to the Des Moines Creek Trail Park parking lot stated:

Park is patrolled by City of SeaTac Police Department . . .

Park is operated by City of SeaTac Parks & Recreation Department . . .

. . . .

Park is closed from dusk to dawn unless otherwise posted

. . . .

Parking . . . is only permitted during park hours.

. . . .

Unauthorized vehicles will be impounded.

¶54 But in order to establish liability, Wilkerson must show there [*25] is a duty owed to him and not a duty owed to the public in general. Babcock v. Mason County Fire Dist. No. 6, 144 Wn.2d 774, 785, 30 P.3d 1261 (2001).

“Under the public duty doctrine, no liability may be imposed for a public official’s negligent conduct unless it is shown that the duty breached was owed to the injured person as an individual and was not merely the breach of an obligation owed to the public in general (i.e., a duty to all is a duty to no one).”

Babcock, 144 Wn.2d at 785 (quoting Taylor v. Stevens County, 111 Wn.2d 159, 163, 759 P.2d 447 (1988) 9). Because the record shows that the City did not assume a duty or make express assurances to Wilkerson, the public duty doctrine bars his claim that the City owed him a duty of care. Babcock, 144 Wn.2d at 785-86.

9 (Internal quotation marks and citation omitted.)

¶55 We affirm dismissal of Wilkerson’s lawsuit against the City.

Grosse, J., and Ellington, J. Pro Tem., concur.

After modification, further reconsideration denied March 27, 2013.


Complete this Survey to Promote Cycling and Tourism in Washington

By participating in this survey you will help a grassroots citizens group realize a pedestrian path along the Mt Baker Highway corridor.Glacier Creek Bridge 1 LR

Mt Baker Highway, AKA Washington State Highway 542 stretches 58 miles from sea level in Bellingham, Washington to Artist’s Point at an elevation of 5,140 feet – a scenic overlook above tree line that on clear days treats visitors to sublime views of Mt Baker and Mt Shuksan.

Since 1992 Whatcom County has had plans to build a pedestrian pathway from Bellingham to Artist’s Point and dubbed it the Bay to Baker Trail (B2B). However due to a number of factors little has been accomplished. Right of way has been established in some areas, and in those areas some sections of the trail is under water for much of the year, some travel heavily undercut banks 100 feet above the North Fork Nooksack River, and at least one section acts as the local garbage dump.

Due to its beauty the highway attracts heavy traffic during the winter ski and summer hiking seasons. RVs, families coming up to recreate in SUVs, sports cars, sport motorcycles traveling at triple digits due to virtually no speed enforcement, and road cyclists all share this road. To compound the mix there are residential communities on the highway with limited options for residents to safely walk or ride bikes to community destination. At the local middle school if a child shows up to school with their bike they are sent home due to the hazard that riding on the road represents.

The mild winter that the Pacific Northwest experienced this last year was a shock to the small, tourist dependent communities in the shadow of Mt Baker. Businesses closed and residents watched as skiers, snowboarders and snowmobilers, who bring much needed revenue to the area, disappeared. It was a call to action as residents and business owners realized that perhaps some diversification of recreational opportunities was in order.

Inventorying the material that they had to work with, a group of residents and business owners has banded together in an attempt to motivate government to take action on the Bay to Baker Trail. John Adam, owner of Glacier Ski Shop, believes that pedestrian infrastructure will not only make the area more attractive to visitors, but will also provide residents with a safe option to getting in a vehicle and burning fossil fuels when they need a quart of milk. Paul Engel, who owns Wild and Scenic River Tours, added that, “Hundreds of reports show that when pedestrian pathways are created in a community it brings nothing but good – the population is healthier, vehicular traffic is reduced, property values are stable and local businesses see more traffic. Everyone benefits”

It would be easy to see why businesses would want to increase tourist traffic, and a small group of locals have pointed fingers at them and stating that they just want to “cash in”. When in reality it is more a matter of staying in businesses. And while a very small group of locals oppose the trail effort, the vast majority are for it. One of those is Marty Grabijas, a product developer in the outdoor industry.  According to Marty, “What we have here is so special. The access to big wilderness and high alpine environments is incredible, and I can see why some want this to remain their private paradise. However no matter how much we want it we can’t turn the clock back. We do however have an opportunity to engineer the Mt Baker Highway corridor for the future. With a pedestrian pathway we can reduce vehicle congestion, and provide residents and visitors with a safe way to get around on foot or on a bike. My motive for being involved is to create safe places to walk and ride for everyone. The Mt Baker area is visually stunning, and with a safe pathway in the highway corridor a bike is the perfect vehicle for visiting services in one of the several small towns, or connecting to Forest Service roads and exploring the area.”542 drop off 1 LR

This citizens group is in the due diligence stage of forming a pedestrian and equestrian advocacy group. Part of that process is showing a want and need for pedestrian pathways by gauging interest of residents, visitors and potential visitors. By participating in their survey you will provide them with the data points they need to attempt to secure funding in Whatcom County’s 2017 / 18 budget to see portions of the Bay to Baker Trail become reality.

Regardless if you have been to the Mt Baker area, your feedback is valuable.

Go to the Survey Here: https://www.surveymonkey.com/s/MTBAKERTA

What do you think? Leave a comment.

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Dive Buddy (co-participant) not liable for death of the diver because the cause of death was too distant from the acts of the plaintiff

This case was brought to my attention because of the suit for the ski buddy fatality in Canada in the news recently. (See Canadian suit would hold you liable for your ski buddy’s death.)Are you liable for your buddy’s death if you are participating in a sport together. The issue pivots on whether or not there is an expected responsibility (duty) on behalf of the buddies.

Rasmussen, et al., v. Bendotti, 107 Wn. App. 947; 29 P.3d 56; 2001 Wash. App. LEXIS 1962

Plaintiff: Cully, Adam, and Brandy Jo Rasmussen, children of the deceased and the estate of the deceased

Defendant: Eugene L. Bendotti, husband of the deceased

Plaintiff Claims: negligence

Defendant Defenses: there was no negligence

Holding: for the defendant

This is one of a few cases where a co-participant or in this case dive buddy is held liable for the injuries or deaths of the other participant. In this case, a husband and wife were diving together to recover a snowmobile 100’ deep in a lake. On the fourth dive of the day, the husband realized he had not attached his power inflator to his buoyance compensator. He dropped his weight belt and ascended, leaving his spouse, dive buddy, below.

The wife was found drowned after becoming entangled in a rope.

The buoyance compensator is a PFD (personal floatation device) designed for diving. It is inflated and deflated as you dive to keep your body at the level or depth in the water you want. Many divers will deflate and inflate the buoyance compensator (BC) several times during a dive as they descend, stay at a level and descend or ascend again.

A trial was held to the court which held that the husband did owe a duty to the spouse. However, that duty was terminated once the husband’s emergency occurred. The court also found that the husband’s failure to act as a proper dive buddy was too distant from the cause of death of the spouse to be the proximate cause of her death.

The plaintiff’s appealed.

In this case, the plaintiff’s appealed the errors; they felt the court made in its decision. Those are called “assignment of error(s).” The plaintiff argued that the court came to the incorrect conclusion in the determination of the facts and the application of the law.

Summary of the case

The court accepted several conclusions of fact and law from the trial court that are necessary to understand its analysis and, which are critical legal issues. The first was a dive buddy owes a duty of care to his or her dive buddy. Consequently, a failure to exercise this duty, which results in an injury to the dive buddy, can be negligent.

The existence of a duty is a question of law. Whether the defendant owed the plaintiff a duty, however, turns on the foreseeability of injury; that is, whether the risk embraced by the conduct exposes the plaintiff to injury. “The hazard that brought about or assisted in bringing about the result must be among the hazards to be perceived reasonably and with respect to which defendant’s conduct was negligent.”

The trial court found the defendant had not breached his duty because his personnel emergency ended any duty he owed to his dive buddy. The trial court labeled this as the emergency doctrine. However, the appellate court defined the emergency doctrine as:

The emergency doctrine was developed at common law and states the commonsense proposition that a person faced with an emergency should not be held to the same standards as someone given time for reflection and deliberation.

A defendant is entitled to the benefit of the emergency doctrine when he or she undertakes the best course of action given an emergency not of his or her own making.

The appellate court did not hold the emergency doctrine did not apply; however, its statements indicate such because it went on to discuss proximate cause.

Proximate cause is the term defined to relate the breach of the duty to the injury.

Proximate cause has two discreet elements. The first, cause in fact, requires some physical connection between the act (the failure to connect the power inflator) and the injury (Bonny’s death). The second element of proximate cause involves legal causation. Id. And that is a policy consideration for the court. The consideration is whether the ultimate result and the defendant’s acts are substantially connected, and not too remote to impose liability. Id. It is a legal question involving logic, common sense, justice, policy, and precedent.

The court ruled that the cause of the plaintiff’s death was the plaintiff’s own acts, not caused by the defendant. The court questioned, “…if Gene had properly connected his power inflator, would Bonny be alive today?” The trial court stated, and the appellate court accepted that the act of the defendant descending was not the cause of the plaintiff’s death.

An expert witness opined that the cause of the plaintiff’s death was her failure to have a dive knife with her.

There was too much between the ascension of the defendant and the entanglement which caused the drowning to be linked. The ascension was not the proximate cause of the plaintiff’s death.

So Now What?

The decision in the Canadian court on whether a ski buddy owes a duty of care to another skier will probably not end with the jury’s decision. See Canadian suit would hold you liable for your ski buddy’s death. Ski buddy meaning the guy you don’t know skiing next to you. However, here we have a definitive decision that a dive buddy in a scuba diving owes a duty to their dive buddy.

This is a very different legal relationship than found in competitive sports where someone may be injured due to another participant and the nature of the game. See Indiana adopts the higher standard of care between participants in sporting events in this Triathlon case. Here one participant in the sport is legal responsible, as defined by the sport or activity or sometimes the two people, for the other person.

If you agree to watch or take care of someone in a sport, you may be accepting liability for that person. Be aware.

What do you think? Leave a comment.

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Rasmussen, et al., v. Bendotti, 107 Wn. App. 947; 29 P.3d 56; 2001 Wash. App. LEXIS 1962

Rasmussen, et al., v. Bendotti, 107 Wn. App. 947; 29 P.3d 56; 2001 Wash. App. LEXIS 1962

Cully C. Rasmussen, as Personal Representative, ET AL., Appellants, v. Eugene L. Bendotti, Respondent.

No. 19464-7-III

COURT OF APPEALS OF WASHINGTON, DIVISION THREE, PANEL ONE

107 Wn. App. 947; 29 P.3d 56; 2001 Wash. App. LEXIS 1962

August 21, 2001, Filed

SUBSEQUENT HISTORY: [***1] Order Denying Motion and Reconsideration September 26, 2001, Reported at: 2001 Wash. App. LEXIS 2165.

SUMMARY: Nature of Action: The children and the estate of a diver who drowned during a scuba diving excursion sought damages from the diver’s diving partner based on the diving partner’s failure to perform a self-equipment check prior to commencing the dive. The failure to perform the equipment check caused the diving partner to make an emergency ascent during the dive. While the diving partner was ascending to the water’s surface, the diver’s equipment became entangled in a rope which led to the diver’s drowning.

Superior Court: After denying the defendant’s motion for a summary judgment, the Superior Court for Chelan County, No. 98-2-00754-5, Lesley A. Allan, J., on June 30, 2000, entered a judgment in favor of the defendant.

Court of Appeals: Holding that there was sufficient evidence to support the trial court’s conclusion that the defendant’s failure to perform an equipment check prior to the dive was not a proximate cause of the decedent’s death, the court affirms the judgment.

HEADNOTES WASHINGTON OFFICIAL REPORTS HEADNOTES

[1] Appeal — Findings of Fact — Failure To Assign Error — Effect Unchallenged findings of fact are verities before a reviewing court.

[2] Appeal — Conclusions of Law — Review — Standard of Review An appellate court reviews a trial court’s conclusions of law in a civil action by first determining whether the trial court applied the correct legal standard to the facts under consideration. The trial court’s legal conclusions flowing from its findings, or the ultimate facts of the case, are reviewed de novo.

[3] Negligence — Duty — Question of Law or Fact — Review The existence of a duty of care is a question of law that an appellate court reviews de novo.

[4] Negligence — Duty — Breach — Resulting Emergency — Termination of Duty — Question of Law or Fact — Review Whether an emergency created by the breach of a duty of care terminates the duty is a question of law that an appellate court reviews de novo.

[5] Negligence — Duty — Determination — Scope A cause of action for negligence is grounded on the existence of a duty owed specifically to the plaintiff or to a class or group of people to which the plaintiff belongs.

[6] Negligence — Elements — In General A negligence action is comprised of four elements: (1) duty, (2) breach, (3) proximate cause, and (4) injury.

[7] Negligence — Duty — Scope — Foreseeability — In General The scope of a duty of care turns on the foreseeability of injury; i.e., it turns on whether the risk embraced by the conduct exposes the claimant to injury.

[8] Negligence — Duty — Scope — Foreseeability — Test An injury is foreseeable if it is among the dangers to be perceived reasonably and with respect to which the defendant’s conduct is negligent.

[9] Sports — Scuba Diving — Duty to Diving Partner — Reasonable Prudence A scuba diver owes a duty to a diving partner to act in the manner of a reasonably prudent diver.

[10] Negligence — Duty — Breach — Question of Law or Fact — In General Whether a legal duty of care has been breached is a question of fact.

[11] Sports — Scuba Diving — Duty to Diving Partner — Breach — Failure To Perform Equipment Check A scuba diver breaches the duty of reasonable prudence in relation to a diving partner by failing to perform a self or buddy equipment check prior to commencing a dive.

[12] Negligence — Emergency Doctrine — In General The emergency doctrine is a common law rule by which a person faced with an emergency is not held to the same standards as a person who has time for reflection and deliberation.

[13] Negligence — Emergency Doctrine — One’s Own Making — Effect The emergency doctrine does not apply to excuse a party’s negligence if that negligence contributed to the emergency.

[14] Negligence — Emergency Doctrine — One’s Own Making — Evaluation of Conduct For purposes determining whether an actor’s own negligence prevents application of the emergency doctrine, the actor’s conduct is evaluated as of the time of the negligent act or omission, not when the actor later discovers the negligent act or omission and reacts to it.

[15] Negligence — Proximate Cause — Elements Proximate cause is divided into two elements: cause-in-fact and legal causation. A cause-in-fact is based on the physical connection between an act and an injury. Legal causation is grounded in a policy determination made by the court. The focus in the legal causation analysis is whether, as a matter of policy, the connection between the defendant’s act and the ultimate result is too remote to impose liability. A determination of legal causation depends on mixed considerations of logic, common sense, justice, policy, and precedent.

[16] Negligence — Proximate Cause — Question of Law or Fact — Deference to Trial Court The issue of proximate cause in a negligence action presents a mixed question of law and fact. Insofar as a trial court’s determination of proximate cause necessarily entails factual considerations of “but-for” causation, it is accorded deference by a reviewing court.

[17] Negligence — Proximate Cause — Proof — Speculation Speculation is insufficient to establish proximate cause in a negligence action.

COUNSEL: Douglas J. Takasugi (of Jeffers, Danielson, Sonn & Aylward, P.S.), for appellants.

Thomas F. O’Connell (of Davis, Arneil, Dorsey, Kight), for respondent.

JUDGES: Author: DENNIS J. SWEENEY. Concurring: STEPHEN M. BROWN & KENNETH H. KATO.

OPINION BY: DENNIS J. SWEENEY

OPINION

[**58] [*950] Sweeney, J. [HN1] — To hold a defendant liable for negligence, the plaintiff must show that the defendant proximately caused the plaintiff’s injury. Crowe v. Gaston, 134 Wn.2d 509, 514, 951 P.2d 1118 (1998). [HN2] Proximate cause is generally a question of fact. Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999). Here, the trial court, sitting as the fact finder, found that any negligence on the part of Eugene Bendotti (Gene) was “too attenuated” from Bonny Jo Bendotti’s death to hold Gene legally liable. Gene was Bonny’s scuba diving buddy. He failed to properly attach a power inflator to his buoyancy compensator. This required an emergency ascent. Bonny then drowned after her equipment became [***2] entangled in a rope. We conclude that the trial court’s finding is adequately supported by the evidence, and affirm the judgment dismissing Cully, Adam, and Brandy Jo Rasmussen’s wrongful death suit.

FACTS

Our factual summary here follows the trial court’s unchallenged findings of fact, including those denominated as conclusions of law. Hagemann v. Worth, 56 Wn. App. 85, 89, 782 P.2d 1072 (1989). We refer to Mr. and Mrs. Bendotti as Gene and Bonny. We intend no disrespect by doing so. We use their first names simply for clarity and ease of reference.

Bonny and Gene were married in 1990. They got interested in scuba diving and completed [**59] the necessary scuba certification in April 1996. Their training included an open water dive course and an advanced open water dive course.

In the fall of 1996, the Bendottis were asked to help recover a snowmobile from Lake Wenatchee. They agreed to [*951] help. On October 4, they made one or two dives, located the snowmobile in approximately 100 feet of water, and marked it with a 50-foot line.

The Bendottis returned to Lake Wenatchee on November 2. At first they were unable to locate the snowmobile or marker line. They located [***3] the snowmobile during the second dive and marked it with a longer line and buoy. They then broke for lunch and refilled their air tanks. After the third dive, the Bendottis and others with them decided to try to attach a line to the snowmobile to drag it from the lake. Both descended for their fourth dive.

Gene had, however, inadvertently failed to reconnect his power inflator to his buoyancy compensator. A power inflator inflates a buoyancy compensator which then allows the diver to rise to the surface. And “[b]ecause he and Bonny did not adequately perform buddy and self-equipment checks, it was not discovered.” Clerk’s Papers (CP) at 561. Once in the water, Gene discovered the equipment problem and immediately surfaced. Bonny, however, became entangled in a rope at the 40-foot level “perhaps while ascending herself.” CP at 561. She was unable to disentangle herself and drowned.

Cully, Adam, and Brandy Jo Rasmussen are Bonny’s children. They sued Gene on behalf of themselves and Bonny’s estate. The court denied Gene’s motion for summary judgment and heard the matter without a jury.

The court concluded that Gene owed a duty to Bonny as her scuba [***4] diving “buddy.” Left unstated, but easily inferable given the court’s other conclusions, is the finding that Gene breached that duty by failing to reconnect his power inflator. The court then goes on to conclude that because Gene’s failure to reconnect his power inflator was an emergency, he acted as a reasonably prudent diver when he ditched his weight belt and ascended. It also concluded that Gene’s duty to Bonny terminated because of this emergency. The court then held that the Rasmussens “failed to prove by a preponderance of the evidence any breach of duty by Gene to Bonny occurring prior to Gene facing his own personal [*952] emergency.” CP at 562. The court dismissed the Rasmussens’ claims with prejudice.

The Rasmussens moved for reconsideration. The court denied the motion, but supplemented its original conclusions of law. It concluded that both Gene and Bonny should have checked Gene’s scuba equipment prior to their fourth dive. But their failure to do so placed only Gene at risk. In its supplemental conclusions, the court further reiterated that a diver’s primary duty is to himself, or herself, and that Bonny became entangled only after Gene faced his own emergency. And Gene’s [***5] duty to Bonny terminated once he faced his own emergency.

Finally, the court concluded that Gene’s failure to attach his power inflator was “too attenuated” from Bonny’s subsequent entanglement in the rope to hold him legally responsible for her death. CP at 435.

The Rasmussens appeal the judgment dismissing their claims. Gene appeals the denial of his pretrial motion for summary judgment.

ASSIGNMENTS OF ERROR

The Rasmussens assign error to a number of the court’s conclusions of law. And those assignments of error delineate the issues before us.

The Rasmussens assign error to the following original conclusions of law, which we paraphrase:

. That Gene’s legal duty to Bonny terminated when he was faced with his own emergency during the fourth dive. Conclusion of Law 4.

. The Rasmussens did not prove any breach of duty by Gene to Bonny prior to Gene’s facing his own personal emergency. Conclusion of Law 5.

[**60] The Rasmussens assign error to the following supplemental conclusions of law, which we also paraphrase:

[*953] Failure to perform equipment checks, their own and their buddy’s, put Gene solely at risk. Supplemental Conclusion of Law 3.

. If Gene had improperly loaded a spear gun [***6] which discharged and struck Bonny, his conduct at the surface would have increased the risk to Bonny. But that did not occur. Supplemental Conclusion of Law 4.

. Gene’s failure to check his equipment did not put Bonny at an increased risk of harm. Supplemental Conclusion of Law 5.

. When Gene surfaced, he acted reasonably and his duty to his dive buddy terminated. Supplemental Conclusion of Law 7.

. The connection between Gene’s failure to attach his power inflator on the surface and Bonny’s subsequent entanglement (and death) is too attenuated to hold Gene legally responsible. Supplemental Conclusion of Law 9.

. To hold Gene responsible would make him a guarantor of Bonny’s safety. Supplemental Conclusion of Law 10.

From these assignments of error, the Rasmussens make four basic arguments:

(1) After concluding that Gene owed a duty of care to Bonny (a duty owed by all dive buddies), the court then inconsistently goes on to conclude that Gene did not breach that duty–despite the fact that Gene negligently failed to reconnect his power inflator and perform adequate equipment checks before the fourth dive, contrary to standard diving practices.

(2) After concluding that Gene owed a duty [***7] to Bonny, the court then goes on to conclude that that duty terminated when Gene was faced with his own emergency. The Rasmussens argue that the duty should not have terminated because the emergency Gene was responding to was one of his own making. Brown v. Spokane County Fire Prot. Dist. No. 1100 Wn.2d 188, 197, 668 P.2d 571 (1983); Pryor [*954] v. Safeway Stores, Inc., 196 Wash. 382, 387-88, 83 P.2d 241 (1938), overruled on other grounds by Blaak v. Davidson, 84 Wn.2d 882, 529 P.2d 1048 (1975).

(3) The court concluded that Gene’s failure to perform a self-equipment check did not put Bonny at any increased risk of harm. The Rasmussens urge that if Gene had a duty, as the court found, then Bonny was certainly within the class of people that the duty was intended to protect.

(4) Finally, the court concluded that the connection between Gene’s negligence and Bonny’s death was too attenuated for the death to proximately flow from the breach of duty. Again, the Rasmussens argue that the very purpose of diving with a buddy, a standard obligatory diving practice, is so one diver is available to assist another who encounters difficulty underwater.

[***8] STANDARD OF REVIEW

[1] The Rasmussens challenge only the court’s conclusions of law. The findings of fact are therefore verities on appeal. Nordstrom Credit, Inc. v. Dep’t of Revenue, 120 Wn.2d 935, 941, 845 P.2d 1331 (1993).

[2] [HN3] We review the court’s conclusions of law by first determining whether the court applied the correct legal standard to the facts under consideration. Our review is de novo. See State v. Williams, 96 Wn.2d 215, 220, 634 P.2d 868 (1981) (appellate court determines questions of law). Every conclusion of law, however, necessarily incorporates the factual determinations made by the court in arriving at the legal conclusion (or ultimate fact). See Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 101-02 (3d Cir. 1981) (the logical flow is evidence to basic facts to ultimate facts). For example, the fact that a driver ran a red light is clearly a finding of fact and, therefore, a decision which would demand our deference. But the court’s conclusion of law from that finding that the defendant ran the light and was therefore negligent would be a conclusion (running a red light is negligent), which we [***9] would review de novo.

[**61] [*955] [3] [4] To be more specific, and address the questions raised here, the question of whether Gene had a duty to Bonny as her diving buddy is a question of law which we review de novo. Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999). Likewise, [HN4] the question of whether an emergency created by a breach of that duty (failure to check his equipment) terminated that duty to his buddy (Bonny) is also a question of law, which we review de novo. Mains Farm Homeowners Ass’n v. Worthington, 121 Wn.2d 810, 813, 854 P.2d 1072 (1993).

But [HN5] the question of the proximal relationship between any breach of Gene’s duty and Bonny’s subsequent death is a mixed question of law and fact, and so requires our deference. See Bell v. McMurray, 5 Wn. App. 207, 213, 486 P.2d 1105 (1971) [HN6] (proximate cause is a mixed question of law and fact, and “is usually for the trier of facts”).

NEGLIGENCE

[5] [6] We begin with the hornbook statement of elements for a cause of action in negligence. [HN7] Negligence requires a duty specifically to the plaintiff or to the class or group of people which includes the plaintiff. See Rodriguez v. Perez, 99 Wn. App. 439, 444, 994 P.2d 874, [***10] [HN8] (“When a duty is owed to a specific individual or class of individuals, that person or persons may bring an action in negligence for breach of that duty.”), review denied, 141 Wn.2d 1020 (2000); Torres v. City of Anacortes, 97 Wn. App. 64, 73, 981 P.2d 891 (1999), review denied, 140 Wn.2d 1007, 999 P.2d 1261 (2000). The plaintiff must then prove that a breach of the duty proximately caused the injury complained of. Hertog, 138 Wn.2d at 275; Crowe v. Gaston, 134 Wn.2d 509, 514, 951 P.2d 1118 (1998); Schooley v. Pinch’s Deli Mkt., Inc., 134 Wn.2d 468, 474, 951 P.2d 749 (1998). Finally, of course, there must be some injury. Hertog, 138 Wn.2d at 275. But injury is not at issue here.

DUTY

[7] [8] [HN9] The existence of a duty is a question of law. Hertog, [*956] 138 Wn.2d at 275. Whether the defendant owed the plaintiff a duty, however, turns on the foreseeability of injury; that is, whether the risk embraced by the conduct exposes the plaintiff to injury. Rikstad v. Holmberg, 76 Wn.2d 265, 268, 456 P.2d 355 (1969). “The hazard [***11] that brought about or assisted in bringing about the result must be among the hazards to be perceived reasonably and with respect to which defendant’s conduct was negligent.” Id.

[9] And on this question, the trial judge’s conclusions of law, while a bit inconsistent, are nonetheless reconcilable.

First, and foremost, the court concluded unequivocally that:

. “[A] scuba diver owes a duty to his buddy . . . .” Conclusion of Law 2, CP at 562.

. “Because Gene and Bonny were dive buddies on November 2, 1996, Gene owed a duty to Bonny to act in the manner of a reasonably prudent diver.” Conclusion of Law 3, CP at 562.

The court’s conclusions are based on its unchallenged factual finding that: “Bonny and Gene received instruction to always dive with a buddy. One reason for this was safety, as a buddy can assist a diver who encounters difficulties underwater.” Finding of Fact 8, CP at 546.

BREACH OF A DUTY OF CARE

[10] [11] [HN10] Whether a duty of care has been breached is a question of fact. Hertog, 138 Wn.2d at 275. And the court’s findings of fact on this question are instructive. The court found that “[s]tandard diving practices [***12] include performing a buddy check and self equipment check prior to each dive. If these checks had been performed, any problem with Gene’s power inflator would likely have been discovered.” Finding of Fact 25, CP at 555. The court also found that Gene and Bonny did not perform a buddy check before the fourth and fatal dive. Findings of Fact 26 and 47.

Given the duty owed by one diver to his or her buddy and the court’s unchallenged finding of fact that those duties were not performed, the legal conclusion that Gene [*957] breached his duty to Bonny is inescapable. [**62] See Williams, 96 Wn.2d at 221 [HN11] (“Where findings necessarily imply one conclusion of law the question still remains whether the evidence justified that conclusion.” (emphasis omitted)). [HN12] Duties are not owed in the abstract. Nor are duties owed to oneself. Here, the duty owed was to that population intended to be protected by the buddy checks. And that population obviously includes a diver’s buddy–here, Bonny.

Emergency Doctrine

Having concluded that Gene owed a duty to Bonny as her dive buddy, the court then went on to conclude that that duty terminated with Gene’s [***13] own personal emergency. Conclusion of Law 4. The issue raised by the Rasmussens’ assignment of error to this conclusion is whether a duty of care ends with an emergency when the emergency is the result of the defendant’s breach of a duty?

[12] [HN13] The emergency doctrine was developed at common law and states the commonsense proposition that a person faced with an emergency should not be held to the same standards as someone given time for reflection and deliberation. Sandberg v. Spoelstra, 46 Wn.2d 776, 782, 285 P.2d 564 (1955).

The trial judge here concluded that “when Gene was required to so act [because of his personal emergency], his legal duty to Bonny was terminated.” Conclusion of Law 4, CP at 562.

[13] [14] The emergency here was Gene’s discovery of the results of his earlier omission. That is, he discovered that he had failed to properly connect his power inflator to his buoyancy compensator. But that emergency was of his own making. And because of that, he is not entitled to the benefit of the emergency doctrine. McCluskey v. Handorff-Sherman, 68 Wn. App. 96, 111, 841 P.2d 1300 (1992) [HN14] (“It is a well-established principle that the emergency doctrine [***14] does not apply where a person’s own negligence put him in the emergency situation.”), aff’d, 125 Wn.2d 1, 882 P.2d 157 (1994).

[HN15] [*958] A defendant is entitled to the benefit of the emergency doctrine when he or she undertakes the best course of action given an emergency not of his or her own making. Brown, 100 Wn.2d at 197. So, for example, if Gene, or for that matter Bonny, had inadvertently disconnected Gene’s power inflator while diving and Gene reacted to the emergency by immediately ascending, his conduct could be judged based on the emergency. But here, the court had already found that he had inadvertently, i.e., negligently, failed to perform his self and buddy checks. His conduct must then be evaluated at that time (when he was obligated to check his equipment) and not when he later discovered his negligent omission and reacted to it.

The court then erred by concluding that Gene’s emergency cut off any duty he owed to Bonny. Brown v. Yamaha Motor Corp., 38 Wn. App. 914, 920, 691 P.2d 577 (1984) (emergency doctrine is applicable only if the defendant’s negligence did not contribute to the emergency).

PROXIMATE CAUSE [***15]

The court concluded that “the connection between Gene Bendotti’s failure to attach his power inflator on the surface and Bonny Bendotti’s subsequent entanglement is too attenuated a connection to hold Gene Bendotti legally responsible for Bonny Bendotti’s death[.]” Suppl. Conclusion of Law 9, CP at 435.

[15] [16] [HN16] Proximate cause has two discreet elements. The first, cause in fact, requires some physical connection between the act (the failure to connect the power inflator) and the injury (Bonny’s death). Meneely v. S.R. Smith, Inc., 101 Wn. App. 845, 862-63, 5 P.3d 49 (2000). The second element of proximate cause involves legal causation. Id. And that is a policy consideration for the court. Id. at 863. The consideration is whether the ultimate result and the defendant’s acts are substantially connected, and not too remote to impose liability. Id. It is a legal question involving logic, common sense, justice, policy, and precedent. Id.

[HN17] The question of proximate cause then is a mixed question [*959] of law and fact. Bell, 5 Wn. App. at 213. We must then defer to the trial judge’s determination [***16] of proximate cause because it necessarily [**63] entails factual considerations of “but-for” causation. Here, the question simply put is, if Gene had properly connected his power inflator, would Bonny be alive today? The court held that the connection between Gene’s breach and Bonny’s death was too attenuated to say that had he connected his power inflator she would still be alive. The evidence amply supports this fact.

Jon Hardy, a scuba diving expert, testified that there was no connection between Gene’s failure to attach his power inflator and Bonny’s subsequent entanglement. Nor did he believe there was a connection between the loss of buddy contact and Bonny’s death. He further stated that he believed the proximate cause of Bonny’s death was her failure to carry a dive knife.

[17] How Bonny became entangled and why she was not able to free herself is not known. Also unknown is whether Gene could have saved her in any event. So, whether Gene could have saved her is speculation. And [HN18] speculation is not sufficient to establish proximate cause. Jankelson v. Sisters of Charity, 17 Wn.2d 631, 643, 136 P.2d 720 (1943) [HN19] (“‘The cause of an accident may be said to be speculative when, [***17] from a consideration of all the facts, it is as likely that it happened from one cause as another.'”) (quoting Frescoln v. Puget Sound Traction, Light & Power Co., 90 Wash. 59, 63, 155 P. 395 (1916)).

CONCLUSION

We affirm the trial court’s judgment in favor of Gene because its conclusion that the result (Bonny’s death) was too attenuated from Gene’s breach of his duty (failure to properly attach his power inflator) is amply supported by the evidence.

Brown, A.C.J., and Kato, J., concur.

Recinsideration denied September 26, 2001.

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Washington Skier Safety Act

Washington Skier Safety Act

ANNOTATED REVISED CODE OF WASHINGTON

TITLE 70.  PUBLIC HEALTH AND SAFETY 

CHAPTER 70.117.  SKIING AND COMMERCIAL SKI ACTIVITY

GO TO REVISED CODE OF WASHINGTON ARCHIVE DIRECTORY

Rev. Code Wash. (ARCW) § 70.117.010 (2012)

§ 70.117.010. Ski area sign requirements

   Transferred.

§ 70.117.015. “Trails” or “runs” defined

   Transferred.

§ 70.117.020. Standard of conduct — Prohibited acts — Responsibility

   Transferred.

§ 70.117.025. Skiing outside of trails or boundaries — Notice of skier responsibility

   Transferred.

§ 70.117.030. Leaving scene of skiing accident — Penalty — Notice

   Transferred.

§ 70.117.040. Insurance requirements for operators

   Transferred.

§ 79A.45.010. Ski area sign requirements

   (1) The operator of any ski area shall maintain a sign system based on international or national standards and as may be required by the state parks and recreation commission.

All signs for instruction of the public shall be bold in design with wording short, simple, and to the point. All such signs shall be prominently placed.

Entrances to all machinery, operators’, and attendants’ rooms shall be posted to the effect that unauthorized persons are not permitted therein.

The sign “Working on Lift” or a similar warning sign shall be hung on the main disconnect switch and at control points for starting the auxiliary or prime mover when a person is working on the passenger tramway.

(2) All signs required for normal daytime operation shall be in place, and those pertaining to the tramway, lift, or tow operations shall be adequately lighted for night skiing.

(3) If a particular trail or run has been closed to the public by an operator, the operator shall place a notice thereof at the top of the trail or run involved, and no person shall ski on a run or trail which has been designated “Closed”.

(4) An operator shall place a notice at the embarking terminal or terminals of a lift or tow which has been closed that the lift or tow has been closed and that a person embarking on such a lift or tow shall be considered to be a trespasser.

(5) Any snow making machines or equipment shall be clearly visible and clearly marked. Snow grooming equipment or any other vehicles shall be equipped with a yellow flashing light at any time the vehicle is moving on or in the vicinity of a ski run; however, low profile vehicles, such as snowmobiles, may be identified in the alternative with a flag on a mast of not less than six feet in height.

(6) The operator of any ski area shall maintain a readily visible sign on each rope tow, wire rope tow, j-bar, t-bar, ski lift, or other similar device, advising the users of the device that:

   (a) Any person not familiar with the operation of the lift shall ask the operator thereof for assistance and/or instruction; and

   (b) The skiing-ability level recommended for users of the lift and the runs served by the device shall be classified “easiest”, “more difficult”, and “most difficult”.

§ 79A.45.020. “Trails” or “runs” defined

   As used in this chapter, the following terms have the meanings indicated unless the context clearly requires otherwise.

   “Trails” or “runs” means those trails or runs that have been marked, signed, or designated by the ski area operator as ski trails or ski runs within the ski area boundary.

§ 79A.45.030. Standard of conduct — Prohibited acts — Responsibility

   (1) In addition to the specific requirements of this section, all skiers shall conduct themselves within the limits of their individual ability and shall not act in a manner that may contribute to the injury of themselves or any other person.

(2) No person shall:

   (a) Embark or disembark upon a ski lift except at a designated area;

   (b) Throw or expel any object from any tramway, ski lift, commercial skimobile, or other similar device while riding on the device;

   (c) Act in any manner while riding on a rope tow, wire rope tow, j-bar, t-bar, ski lift, or similar device that may interfere with the proper or safe operation of the lift or tow;

   (d) Wilfully engage in any type of conduct which may injure any person, or place any object in the uphill ski track which may cause another to fall, while traveling uphill on a ski lift; or

   (e) Cross the uphill track of a j-bar, t-bar, rope tow, wire rope tow, or other similar device except at designated locations.

(3) Every person shall maintain control of his or her speed and course at all times, and shall stay clear of any snowgrooming equipment, any vehicle, any lift tower, and any other equipment on the mountain.

(4) A person shall be the sole judge of his or her ability to negotiate any trail, run, or uphill track and no action shall be maintained against any operator by reason of the condition of the track, trail, or run unless the condition results from the negligence of the operator.

(5) Any person who boards a rope tow, wire rope tow, j-bar, t-bar, ski lift, or other similar device shall be presumed to have sufficient abilities to use the device. No liability shall attach to any operator or attendant for failure to instruct the person on the use of the device, but a person shall follow any written or verbal instructions that are given regarding the use.

(6) Because of the inherent risks in the sport of skiing all persons using the ski hill shall exercise reasonable care for their own safety. However, the primary duty shall be on the person skiing downhill to avoid any collision with any person or object below him or her.

(7) Any person skiing outside the confines of trails open for skiing or runs open for skiing within the ski area boundary shall be responsible for any injuries or losses resulting from his or her action.

(8) Any person on foot or on any type of sliding device shall be responsible for any collision whether the collision is with another person or with an object.

(9) A person embarking on a lift or tow without authority shall be considered to be a trespasser.

§ 79A.45.040. Skiing outside of trails or boundaries — Notice of skier responsibility

   Ski area operators shall place a notice of the provisions of RCW 79A.45.030(7) on their trail maps, at or near the ticket booth, and at the bottom of each ski lift or similar device.

§ 79A.45.050. Leaving scene of skiing accident — Penalty — Notice

   (1) Any person who is involved in a skiing accident and who departs from the scene of the accident without leaving personal identification or otherwise clearly identifying himself or herself before notifying the proper authorities or obtaining assistance, knowing that any other person involved in the accident is in need of medical or other assistance, shall be guilty of a misdemeanor.

(2) An operator shall place a prominent notice containing the substance of this section in such places as are necessary to notify the public.

§ 79A.45.060. Insurance requirements for operators

   (1) Every tramway, ski lift, or commercial skimobile operator shall maintain liability insurance of not less than one hundred thousand dollars per person per accident and of not less than two hundred thousand dollars per accident.

(2) Every operator of a rope tow, wire rope tow, j-bar, t-bar, or similar device shall maintain liability insurance of not less than twenty-five thousand dollars per person per accident and of not less than fifty thousand dollars per accident.

(3) This section shall not apply to operators of tramways that are not open to the general public and that are operated without charge, except that this section shall apply to operators of tramways that are operated by schools, ski clubs, or similar organizations.

§ 79A.45.070. Skiing in an area or trail closed to the public — Penalty

   A person is guilty of a misdemeanor if the person knowingly skis in an area or on a ski trail, owned or controlled by a ski area operator, that is closed to the public and that has signs posted indicating the closure.


Good News ASI was dismissed from the lawsuit

Bad news, the post-accident investigation proved the college was negligent according to the court.

Foster, et al., v. Alex Kosseff, et al., 2013 U.S. Dist. LEXIS 40566 (E.D. Wash. 2013)

Plaintiff: Stephanie Foster, et al.

Defendant: Alex Kosseff, et al.

Plaintiff Claims: Negligence: Plaintiff was the intended beneficiary of the defendant’s work;

Defendant Defenses: No duty owed to the plaintiff

Holding: For the defendant

This is a follow-up to the article, I wrote Bad luck or about time, however, you look at this decision, you will change the way you work in the Outdoor Recreation Industry. The original article was about a motion to dismiss which the defendant safety audit company lost.

This article is the result of a motion for summary judgment filed on behalf of the defendant auditor which the court granted.

The plaintiff was a student at the defendant college, Whitman College and also worked in the Outdoor Program at the college. While working the plaintiff was asked to bring down the ropes still on the climbing wall. She climbed up to a platform next to the wall and removed the ropes. She then “hooked” into the remaining rope intending to rappel suffering severe and injuries to her spine.

The initial report prepared by the defendant auditors (meaning the individuals and the company the individual(s) worked for) was titled “Draft Risk Management Audit.” The report included extensive language about what the audit would and would not do and was quoted by the court.

The college hired the same auditor to investigate the accident. (Can you say conflict of interest?) The auditor submitted a report on his investigation into the accident. The report stated that the plaintiff had climbed above the Super Shut anchors which released the rope causing her to fall.

The court reviewed the accident report prepared by the defendant and made the following statement.

Thus, Kosseff concluded that both Whitman College and Ms. Foster were negligent in using the Super Shut anchors for a purpose for which they were not designed.

Summary of the case

The first argument the court reviewed was whether the plaintiff was an intended beneficiary of the work with the defendant auditor. The court quickly found that to be true. The Draft Audit stated the audit was being down for the college, employees and students. The college hired the audit for the benefit to the college, students and employees.

The second issue discussed was the scope of an audit. The court first went through the elements to prove negligence and what makes up the first part of the element’s duty, under Washington’s law.

There are four elements in a common law negligence claim in Washington: duty, breach, causation and damages. As to the first element, a duty of care is defined as “an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” Whether a duty of care exists is a matter of law to be decided by the court rather than by a jury. This is a “threshold question” which involves three separate inquiries: “Does an obligation exist? What is the measure of care required? To whom and with respect to what risks is the obligation owed?”

Under Washington’s law, someone who inspects the premises of another does not become the insurer of anyone injured by the negligence of the inspection. In most states, an inspecting party is only “liable for undiscovered hazards which he or she undertook to discover in the first place.” Meaning, you are only liable for what you say you are going to discover and don’t.

Consequently, the defendant could not be liable, unless he had agreed to inspect the elements of the wall. The audit was directed at procedures and programs not equipment. On top of that, even if the audit looked at equipment, it did not look at how that equipment was used or in this case, misused.

Because the audit was not directed at the equipment which caused the accident, the defendant auditor was dismissed from the suit.

 

So Now What?

1.      If you are a college, with a climbing wall, it needs to be inspected by engineers.

2.    If you are a college, do not create a conflict of interest by hiring the company that gave you a review to investigate an accident which the review might have missed. Again, can you say Conflict of Interest?

3.    If you are any business do not have an accident investigated by anyone other than who your attorney or insurance company hires. Here, the defendant with the conflict of interest nailed the defendant college to the judgment wall with its report.

Because the report was not done by legal counsel, the report can be used by the plaintiff to prove the defendant negligent. That, however, will not be too difficult since the court in this decision already came to that conclusions based upon the accident report. However, a report that was protected by privilege would not have hung the defendant.

Although the plaintiff is probably upset that one defendant was dismissed, they have to be happy with the decision because of this issue.

The initial outcome of this case is good; the company being paid to review the college was dismissed from the case. However, the long-term effects are multiple.

·        Initially, the one defendant won, but only by sinking its co-defendants.

·        Long term, colleges are going to be hesitant to build climbing walls because this case is going to settle or go to trial for a large amount of money. Spinal cord injuries are multimillion dollar cases.

·        The entire industry has to wise up. Contracts that are created by legitimate risk management firms will be signed in advance and have tons of disclaimer and indemnification language. However, the issue is not who can sue or defend who, but what are you getting for your money?

As a side note, this part of the Draft Audit was quoted by the court.

If an accident does occur, participation in this voluntary program can protect the organization’s reputation and serve, if necessary, as part of a legal defense.

Instead of a defense, it created a legal claim and proof of negligence…….

 

 

Relevant Cases:

Bad luck or about time, however, you look at this decision, you will change the way you work in the Outdoor Recreation Industry                                                                                 http://rec-law.us/13L66Dn

 

Other Cases concerning Climbing Walls:

Gross Negligence beats a release…but after the trial                                       http://rec-law.us/K884tT

Michigan court upholds release in a climbing wall accident where injured climber sued his belayer for his injuries                                                                                                                http://rec-law.us/Lt1Z6T

Poorly written release gave the plaintiff’s the only chance they had to winhttp://rec-law.us/GVzUUV

 

What do you think? Leave a comment.

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Foster, et al., v. Alex Kosseff, et al., 2013 U.S. Dist. LEXIS 40566 (E.D. Wash. 2013)

Foster, et al., v. Alex Kosseff, et al., 2013 U.S. Dist. LEXIS 40566 (E.D. Wash. 2013)

Stephanie Foster, et al., Plaintiffs, v. Alex Kosseff, et al., Defendants.

NO: 11-CV-5069-TOR

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON

2013 U.S. Dist. LEXIS 40566

March 22, 2013, Decided

March 22, 2013, Filed

PRIOR HISTORY: Foster v. Kosseff, 2013 U.S. Dist. LEXIS 5380 (E.D. Wash., Jan. 14, 2013)

COUNSEL: [*1] For Stephanie Foster, Gary Foster, Susan Foster, Plaintiffs: Allen M Ressler, LEAD ATTORNEY, Ressler and Tesh PLLC, Seattle, WA; William S Finger, LEAD ATTORNEY, Frank & Finger PC, Evergreen, CO.

For Alex Kosseff, Adventure Safety International LLC, Defendants: Heather C Yakely, LEAD ATTORNEY, Evans Craven & Lackie PS – SPO, Spokane, WA.

JUDGES: THOMAS O. RICE, United States District Judge.

OPINION BY: THOMAS O. RICE

OPINION

ORDER GRANTING DEFENDANT ALEX KOSSEFF’S AND DEFENDANT ADVENTURE SAFETY INTERNATIONAL’S MOTION FOR SUMMARY JUDGMENT

BEFORE THE COURT is a motion for summary judgment filed by Defendants Alex Kosseff and Adventure Safety International (ECF No. 80). This matter was heard with oral argument on March 22, 2013. William S. Finger appeared on behalf of the Plaintiffs. Heather C. Yakely appeared on behalf of Defendants Alex Kosseff and Adventure Safety International. The Court has reviewed the briefing and the record and files herein, and is fully informed.

BACKGROUND

Defendants Alex Kosseff (“Kosseff”) and Adventure Safety International LLC (“ASI”) have moved for summary judgment on Plaintiffs’ negligence claims. Defendants assert that these claims fail as a matter of law because neither Kosseff nor ASI [*2] owed Plaintiff Stephanie Foster (“Ms. Foster”) a duty of care to identify the dangerous condition which caused her to fall from the Whitman College climbing wall on April 28, 2008.

FACTS

Ms. Foster enrolled as a freshman at Whitman College in the fall of 2007. During the 2007-2008 academic year, Plaintiff enrolled in several rock climbing classes offered through the Whitman College Outdoor Program (“Outdoor Program”). She also accepted a paid position as a student climbing instructor for the Outdoor Program. As a result of this coursework and employment, Plaintiff participated in several climbing sessions on a sport climbing wall located on the Whitman College campus.

On April 28, 2008, Ms. Foster was summoned to the climbing wall by her supervisor, Brien Sheedy (“Sheedy”) to assist in removing several climbing ropes that were hanging from the top of the wall. At Sheedy’s direction, Ms. Foster ascended the wall, climbed atop a platform adjacent to the wall, and removed all but one of the ropes. Having completed her task, Ms. Foster lowered herself back onto the climbing wall with the intention of rappelling down the wall using the remaining rope. Shortly after beginning her descent, however, [*3] the remaining rope became unhooked from two “Super Shut” anchors located near the top of the wall. The release of the rope caused Ms. Foster to free fall approximately 35 feet to the ground, resulting in serious permanent injury to her spine.

In April of 2007, one year prior to Ms. Foster’s fall, Whitman College hired ASI to perform a “risk management audit” of the Outdoor Program. The purpose and scope of this audit are central to the outcome of this case. Unfortunately, the terms of the agreement between Whitman College and ASI were never reduced to writing. In any event, it is undisputed that the audit was conducted by Defendant Alex Kosseff (“Kosseff”) over the course of four days on the Whitman College campus. It is further undisputed that Whitman College paid $3,000 for the audit.

During the course of the audit, Kosseff met with several students and administrators who were involved with the Outdoor Program. He also observed several regularly-scheduled activities, including an open climbing wall session, a pool session offered to students in a kayaking class, a climbing wall session offered to students in a rock climbing class, a training session for an upcoming climbing competition, [*4] and a debriefing session for a glacier mountaineering course. ECF No. 153-5 at 7.

After completing his site visit, Kosseff prepared and submitted a written report of his findings and recommendations to Whitman College. The authenticity of this document, which bears the title, “Draft Risk Management Audit,” (hereafter “audit report”) is undisputed. 1 The audit report contains several passages which are relevant to the issues raised in the instant motion. One such passage, under the heading “Audit Process Introduction” reads as follows:

The ASI Risk Management Audit program is a voluntary program aimed at improving risk management practices in outdoor education and recreation. This program has been designed by ASI and the audit process is handled by one of our experienced staff members. We recognize that each program is unique and that one standardized risk management plan will not work for every organization. With this in mind, the ASI Risk Management audit process does not prescribe specific approaches, but rather aims to assess that different aspects [of] risk management are being addressed.

ASI’s audit program is designed as an accessible step for organizations that want to reduce the [*5] risk of an accident taking place. It gives organizational management, clients/students, and others confidence that prudent steps are being taken to manage hazards. If an accident does occur, participation in this voluntary program can protect the organization’s reputation and serve, if necessary, as part of a legal defense. ASI’s audit program focuses exclusively on risk management and safety concerns and does not address educational, marketing, business and financial management, or other issues.

ECF No. 153-5 at 5.

1 ASI apparently contemplated issuing a final draft after Whitman College had reviewed and implemented its recommendations, but no final draft was ever issued. ECF No. 84-1 at Tr. 35-36.

In another passage, under the heading “Audit Program Disclaimer,” the audit report states:

The nature of Adventure Safety International Risk Management Audit is to gain a general understanding of the risk management practices at the time of the review. This is done primarily through review of the self assessment responses supplied by the management of the program being accredited. This is supplemented with onsite observation and interviews, which occur during a brief site visit.

The major aim [*6] of this voluntary audit is to benchmark the program against the risk management guidelines that ASI believes will promote good risk management practice. The benchmarks have been established, at three levels, in many (but not all) areas of risk management planning. The intent is to identify and share good practice amongst outdoor programs and over time to raise the level of risk management practice.

The audit cannot provide any guarantee that future operations will be free of safety incidents. Rather the audit documents that at the time of the review risk management practices met or exceeded risk management guidelines established by ASI and based on current industry practices.

ECF No. 153-5 at 6.

Finally, the audit report documents ASI’s substantive findings and recommendations across 27 different program evaluation criteria. These criteria vary widely, ranging from training and oversight of activity leaders to safety of passenger vans and drivers. Included among these criteria are ratings for “Equipment” and “Facilities.” ECF No. 153-5 at 30, 35. The audit report assigns the Outdoor Program the highest rating in both categories, noting that the quality of the program’s equipment was “exceptional,” [*7] and that those responsible for the program routinely inspect facilities for potential safety hazards. ECF No. 153-5 at 30, 35.

Shortly after Ms. Foster’s fall on April 28, 2008, Whitman College hired ASI to investigate the cause of the accident. ASI assigned Kosseff to conduct the investigation. Kosseff ultimately concluded that the accident occurred as a result of Plaintiff climbing above the Super Shut anchors and subsequently descending below them. According to Kosseff, the Super Shut anchors were not designed to accommodate a person climbing above them; rather, the anchors were designed for use only at “dead end” locations on a sport climbing wall. Kosseff further noted that the manufacturer of the anchors had issued warnings against climbing above them, noting that the risk of a climbing rope becoming disengaged from an anchor in this situation was about “50/50.” Thus, Kosseff concluded that both Whitman College and Ms. Foster were negligent in using the Super Shut anchors for a purpose for which they were not designed.

In the instant lawsuit, Plaintiffs assign fault to Kosseff for failing to identify the risks posed by the Super Shut anchors during the ASI’s risk management audit. [*8] Had Kosseff identified these risks and reported them to Whitman College, Plaintiffs assert, the problem could have been corrected before Ms. Foster was injured. For the reasons discussed below, the Court finds that ASI’s duty of care arising from the risk management audit did not extend to identifying the risk posed by improper use of the Super Shut anchors.

DISCUSSION

The Court may grant summary judgment in favor of a moving party who demonstrates “that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party moving for summary judgment bears the initial burden of showing the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The burden then shifts to the non-moving party to identify specific genuine issues of material fact which must be decided by a jury. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id. at 252.

For [*9] purposes of summary judgment, a fact is “material” if it might affect the outcome of the suit under the governing law. Id. at 248. A dispute as to any such fact is “genuine” only where the evidence is such that a reasonable jury could find in favor of the non-moving party. Id. In ruling on a summary judgment motion, a court must construe the facts, as well as all rational inferences therefrom, in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007). Finally, the court may only consider evidence that would be admissible at trial. Orr v. Bank of America, NT & SA, 285 F.3d 764 (9th Cir. 2002).

A. Plaintiff Was an Intended Beneficiary of the Risk Management Audit

In its prior order denying Defendants’ motion to dismiss, the Court remarked that, in its view, the viability of Plaintiffs’ negligence claim hinged on their ability to establish that Ms. Foster was an intended third-party beneficiary of the contract between ASI and Whitman College. ECF No. 72 at 10 (citing Burg v. Shannon & Wilson, Inc., 110 Wash. App. 798, 807-08, 43 P.3d 526 (2002)). Specifically, the Court commented that, in order to avoid summary dismissal of this claim, Plaintiff would need to establish, [*10] as a threshold matter, that “ASI agreed to undertake the risk management audit for the benefit of the college’s employees and students rather than for the benefit of the college itself.” ECF No. 72 at 10.

Having reviewed the record on summary judgment, the Court finds that Plaintiffs have established a triable question of fact on this issue. First, the Draft Risk Management Audit indicates that ASI’s audit program is designed to “give[] organizational management, clients/students, and others confidence that prudent steps are being taken to manage hazards.” ECF No. 153-5 at 5 (emphasis added). Second, the Director of the Outdoor Program, Brien Sheedy, testified during his deposition that the risk management audit was designed to minimize risks to “all users” of the Outdoor Program, including students and employees. ECF No. 153-10 at 34-35. Third, Whitman College’s chief financial officer, Peter Harvey, testified that the college typically takes an “across the board” approach to risk management by attempting to mitigate risks to students, employees and faculty. ECF No. 153-8 at 25. Finally, Whitman College’s president, George Bridges, testified that he would expect any risk management [*11] audit commissioned by the college “to protect the school and the employees and the students.” ECF No. 153-9 at 44. A rational jury could find from this evidence that Ms. Foster, as an employee and student of Whitman College, was an intended beneficiary of the contract for the risk management audit.

B. The Danger Posed by Misuse of the Super Shut Anchors Was Beyond the Scope of ASI’s Risk Management Audit

There are four elements to a common law negligence claim in Washington: duty, breach, causation and damages. Michaels v. CH2M Hill, Inc., 171 Wn.2d 587, 605, 257 P.3d 532 (2011). As to the first element, a duty of care is defined as “an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” Affiliated FM Ins. Co. v. LTK Consulting Servs., Inc., 170 Wash.2d 442, 449, 243 P.3d 521 (2010) (internal quotation and citation omitted). Whether a duty of care exists is a matter of law to be decided by the court rather than by a jury. Osborn v. Mason Cnty., 157 Wash.2d 18, 23, 134 P.3d 197 (2006). This is a “threshold question” which involves three separate inquiries: “Does an obligation exist? What is the measure of care required? To whom and with respect to what [*12] risks is the obligation owed?” Affiliated FM Ins. Co., 170 Wash.2d at 449. In deciding whether the law imposes a duty of care, a court must balance “considerations of logic, common sense, justice, policy, and precedent.” Id. at 450 (internal quotations and citations omitted).

Here, Defendants contend that they did not owe Ms. Foster a duty of care to discover the danger posed by misuse of the Super Shut anchors. The Court agrees. In Washington, a private party who inspects another’s premises for safety hazards may be liable to third parties for injuries caused by the inspecting party’s negligence. See Sheridan v. Aetna Cas. & Surety Co., 3 Wash.2d 423, 439-40, 100 P.2d 1024 (1940); (liability insurer which inspected cargo elevator for safety hazards liable to third party who was injured as a result of insurer’s failure to discover dangerous condition); Nielson v. Wolfkill Corp., 47 Wash. App. 352, 359-60, 734 P.2d 961 (1987) (injured worker’s cause of action for negligent safety inspection performed by Department of Labor and Industries inspector barred by Washington Industrial Insurance Act); see also Restatement (Second) of Torts § 324A(b) (1965) (“One who undertakes, gratuitously or for consideration, to render [*13] services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if he has undertaken to perform a duty owed by the other to the third person.”).

Nevertheless, the act of inspecting another’s premises for safety hazards does not transform the inspecting party into a de facto insurer against any and all risks. Although the Court has not located any cases directly on-point in the State of Washington, courts in other jurisdictions have held that an inspecting party is only liable for undiscovered hazards which he or she undertook to discover in the first place. See, e.g., Procter & Gamble Co. v. Staples, 551 So.2d 949, 955-56 (Ala. 1989) (“In defining the nature of the duty undertaken by a voluntary [safety] inspection, two aspects must be considered–the physical scope of the undertaking and the degree of scrutiny and action mandated by conditions observed or reasonably observable.”) (quotation and citation omitted); Winslett v. Twin City Fire Ins. Co., 141 Ga. App. 143, 232 S.E.2d 638, 639 (Ga. App. 1977) (no liability [*14] to third party for failing to discover dangerous condition on construction crane where “evidence was uncontradicted that no detailed inspections of machinery or equipment were contemplated or made”); Lavazzi v. McDonald’s Corp., 239 Ill. App. 3d 403, 606 N.E.2d 845, 849-50, 179 Ill. Dec. 1013 (Ill. App. 1992) (inspectors hired by restaurant to perform food safety inspections at supplier’s plant not liable for negligent inspection where inspectors “did not specifically focus any attention . . . on the piece of equipment involved in the injury”). In other words, the weight of authority from other jurisdictions counsels that an inspecting party’s liability for negligent inspection must be circumscribed by the scope of the inspection actually performed.

The Court concludes that “considerations of logic, common sense, justice, policy, and precedent” support adoption of this rule. See Affiliated FM Ins. Co., 170 Wash.2d at 450. Contrary to Plaintiffs’ assertions, an inspecting party’s duty of care is not synonymous with the foreseeability of a particular injury occurring. As Defendants correctly note, this argument improperly collapses the duty of care and causation elements of a negligence claim. In Washington, a negligence plaintiff [*15] must make a “threshold showing” that the defendant owed her a duty of care before proceeding to the issues of whether the defendant breached its duty and whether the breach was a foreseeable cause of the plaintiff’s injury. See Munich v. Skagit Emergency Commc’ns Ctr., 175 Wn.2d 871, 877, 288 P.3d 328 (2012). While foreseeability can sometimes inform the scope of a duty owed, it cannot create the duty of care in the first instance. Michaels, 171 Wn.2d at 608. Indeed, equating duty with foreseeability in the context of a safety inspection would lead to a perverse result: an inspector would be legally obligated to report each and every manner in which a person might conceivably be injured–regardless of how obvious, inherent or attenuated the danger might be. This result would effectively transform safety inspectors into de facto insurers against all risks. As a matter of logic and public policy, the better approach is to define an inspector’s duty of care according to the types of hazards that were actually targeted by his or her inspection.

Applying this rule to the instant case, the Court finds that the hazard which caused Ms. Foster’s fall–misuse of the Super Shut anchors–was simply beyond [*16] the scope of the risk management audit that ASI performed. As a threshold matter, Plaintiffs have failed to establish that ASI undertook to inspect any individual pieces of equipment maintained by the Outdoor Program. In his deposition, Kosseff testified unequivocally that the Outdoor Program’s equipment was beyond the scope of ASI’s audit:

There were hundreds and hundreds of pieces of equipment within this program. Each of those pieces of equipment, especially the climbing [equipment], have specific ways in which they’re used. There — I was not looking at how this equipment would be utilized in this situation. I was looking at how the college conducted their systems for managing risk.

ECF No. 84-1 at Tr. 94. Similarly, Brien Sheedy states in his declaration that he “understood and expected that the [audit] would not review specific equipment utilized in the Outdoor Program, for example the Fixe Super Shut anchors, as that type of inspection was not envisioned by the audit process based upon the information [he] learned from [Kosseff]” prior to hiring ASI. ECF No. 82 at ¶ 6. Although this testimony is somewhat self-serving, Plaintiffs have not rebutted it.

Moreover, even assuming for [*17] the sake of argument that ASI was charged with inspecting individual pieces of equipment, it could not reasonably have been expected to identify hazards stemming from potential misuse of the equipment. As Defendants correctly note, the Super Shut anchors which Ms. Foster was using at the time of the accident did not truly “fail.” Rather, the anchors did something that they were designed to do–i.e., release a climbing rope–when Ms. Foster used them for an unsupported application.

To whatever extent Kosseff understood the danger of the Super Shuts releasing a rope in this scenario, he was not obligated to address it with Whitman College. ASI did not contract with Whitman College to address dangers caused by misuse of the Outdoor Program’s equipment. While there is no written contract evidencing the scope of work that ASI agreed to perform, the audit report prepared by Kosseff is highly informative. Having reviewed the audit report in its entirety, the Court finds that the purpose of the risk management audit was to improve Whitman College’s safety practices rather than to identify and catalog specific safety hazards. Indeed, there is no evidence that ASI agreed to perform a detailed “safety [*18] inspection” of specific outdoor equipment, buildings, vehicles, etc. Nor is there any evidence that Kosseff actually undertook to perform an inspection at that minute level of detail.

In the final analysis, there is simply no evidence that ASI agreed or undertook to examine the virtually countless ways in which the Outdoor Program’s climbing equipment could have been dangerously misused. Accordingly, Plaintiffs have not met their burden of establishing that ASI owed Ms. Foster a duty of care to discover and report the danger posed by misuse of the Super Shut anchors. In the absence of a duty of care, Plaintiffs cannot prevail on their negligence claim. Defendants’ motion for summary judgment is granted.

ACCORDINGLY, IT IS HEREBY ORDERED:

1. The motion for summary judgment filed by Defendants Alex Kosseff and Adventure Safety International (ECF No. 80) is GRANTED. Plaintiffs’ claims against these Defendants are DISMISSED with prejudice.

2. Plaintiffs’ claim against Defendant Fixe Industry, which has never been served in this action, is DISMISSED without prejudice.

3. All pending motions are DENIED as moot.

The District Court Executive is hereby directed to enter this Order and a judgment [*19] accordingly, provide copies to counsel, and CLOSE the file.

DATED March 22, 2013.

/s/ Thomas O. Rice

THOMAS O. RICE

United States District Judge


Washington Independent Sales Rep

ANNOTATED REVISED CODE OF WASHINGTON

TITLE 49. LABOR REGULATIONS

CHAPTER 49.48. WAGES—PAYMENT—COLLECTION

GO TO REVISED CODE OF WASHINGTON ARCHIVE DIRECTORY

Rev. Code Wash. (ARCW) § 49.48.150 (2012)

§ 49.48.150. Sales representatives—Definitions

Unless the context clearly requires otherwise, the definitions in this section apply throughout RCW 49.48.160 through 49.48.190.

(1) “Commission” means compensation paid a sales representative by a principal in an amount based on a percentage of the dollar amount of certain orders for or sales of the principal’s product.

(2) “Principal” means a person, whether or not the person has a permanent or fixed place of business in this state, who:

(a) Manufactures, produces, imports, or distributes a product for sale to customers who purchase the product for resale;

(b) Uses a sales representative to solicit orders for the product; and

(c) Compensates the sales representative in whole or in part by commission.

(3) “Sales representative” means a person who solicits, on behalf of a principal, orders for the purchase at wholesale of the principal’s product, but does not include a person who places orders for his or her own account for resale, or purchases for his or her own account for resale, or sells or takes orders for the direct sale of products to the ultimate consumer.

§ 49.48.160. Sales representatives—Contract—Agreement

(1) A contract between a principal and a sales representative under which the sales representative is to solicit wholesale orders within this state must be in writing and must set forth the method by which the sales representative’s commission is to be computed and paid. The principal shall provide the sales representative with a copy of the contract. A provision in the contract establishing venue for an action arising under the contract in a state other than this state is void.

(2) When no written contract has been entered into, any agreement between a sales representative and a principal is deemed to incorporate the provisions of RCW 49.48.150 through 49.48.190.

(3) During the course of the contract, a sales representative shall be paid the earned commission and all other moneys earned or payable in accordance with the agreed terms of the contract, but no later than thirty days after receipt of payment by the principal for products or goods sold on behalf of the principal by the sales representative.

Upon termination of a contract, whether or not the agreement is in writing, all earned commissions due to the sales representative shall be paid within thirty days after receipt of payment by the principal for products or goods sold on behalf of the principal by the sales representative, including earned commissions not due when the contract is terminated.

§ 49.48.170. Sales representatives—Payment

A principal shall pay wages and commissions at the usual place of payment unless the sales representative requests that the wages and commissions be sent through registered mail. If, in accordance with a request by the sales representative, the sales representative’s wages and commissions are sent through the mail, the wages and commissions are deemed to have been paid as of the date of their registered postmark.

§ 49.48.180. Sales representatives—Principal considered doing business in this state

A principal who is not a resident of this state and who enters into a contract subject to RCW 49.48.150 through 49.48.190 is considered to be doing business in this state for purposes of the exercise of personal jurisdiction over the principal.

§ 49.48.190. Sales representatives—Rights and remedies not exclusive—Waiver void

(1) RCW 49.48.150 through 49.48.190 supplement but do not supplant any other rights and remedies enjoyed by sales representatives.

(2) A provision of RCW 49.48.150 through 49.48.190 may not be waived, whether by express waiver or by attempt to make a contract or agreement subject to the laws of another state. A waiver of a provision of RCW 49.48.150 through 49.48.190 is void.

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You have to be prepared way before trial, and you have to win at trial, because judges are given wide discretion in controlling your chances on appeal.

Salvini v. Ski Lifts, Inc., 2008 Wash. App. LEXIS 2506

This case significantly changed the ski industry.

This decision out of the Washington Appellate Court offers value in understanding some issues that occur at trial. It also offers an example of how much control a judge has in a trial and why a judge really can control the outcome of your trial if you are not prepared.

The plaintiff in this case was an experienced skier who had gone over the table-top  jump at issue before. There is conflicting testimony on how fast the plaintiff was skiing; however, he landed far down the hill beyond the landing zone. The injuries rendered him a quadriplegic. The case was taken to trial, and the jury found the plaintiff 55% liable and the ski area 45% liable. The jury awarded $30 million in damages, resulting in a $14 million-dollar  recovery for the plaintiff.

The plaintiff sued “alleging that it designed and built an unreasonably dangerous ski jump, and that it failed to close the jump or to warn of its dangers.” The defense argued that the risk was an inherent part of skiing, and the plaintiff was negligent and therefore, the cause of his injuries.

Summary of the case

Washington like all other states has comparative negligence. However, unlike the majority of the states, this is a pure comparative negligence state. That means the jury awards an amount and decides what percentage each party to the litigation is at fault. In the majority of states if the plaintiff is more than 50% or 51% at fault the plaintiff recovers nothing. This is not true in Washington. The percentage is applied to the damages, and the plaintiff receives that percentage of the damages. 45% of $30 million is about $14 million.

Washington has a Skier Safety Statute. However, it is very weak and does not define the risks of skiing. In this case, the statute provided very little benefit to the defendant.

The majority of the decision focuses on the jury instructions. Jury instructions are the actual written instructions the jury takes with them into the jury room that explain the law. The legal issues and definitions are each on a separate on a piece of paper that is numbered. By reading through the instructions in numerical order the jury is helped to decide the legal issues or more importantly decide how the facts apply to the law.

Some states have pre-printed jury instructions. Federal courts and several states the jury instructions are created by the parties and the judge. In both cases, the opposing attorneys and judge creates the final instructions that the jury will read.

The judge is given wide discretion in creating jury instructions and unless the jury instructions are plain wrong, they are rarely overturned. That was the case here. The defendant argued several issues with the jury instructions, and the appellate court found none of the issues were so great as to be wrong. The judge has vast discretion to determine the jury instructions.

“The court need not include specific language in a jury instruction, so long as the instructions as a whole correctly state the law.”

Washington Skier Safety Act does not have any definitions for terrain parks or jumps. Like many ski area acts, Washington’s has not been updated to keep up with the changes in the sport.

This left the defendant with a tough burden of proving the risks of jumping in a terrain park was an inherent risk of skiing.

Washington applies the landowner test to the duty owed to patrons at a ski area. Because the skier is there for the financial benefit of the ski area, the skier is a business invitee which the ski area owes “a duty to a skier to discover dangerous conditions through reasonable inspection, and repair that condition or warn the invitees, unless it is known or obvious.” The Appellate Court quoted from the Restatement of Torts to support its opinion, which places a very high burden upon a ski area.

An invitee is entitled to expect that the possessor will take reasonable care to ascertain the actual condition of the premises and, having discovered it, either to make it reasonably safe by repair or to give warning of the actual condition and the risk involved therein.

Restatement (Second) of Torts § 343, cmt. d (1965).

The defendant argued that a notice on a whiteboard was sufficient to warn of the dangers. However, the court found otherwise. The plaintiff’s experts also opined that there should have been an entrance to the jump so skiers could not get so much speed. That was supported by 15 incidents reports the plaintiff placed  into evidence of injuries from people landing beyond the jump landing zone. This was reduced from 66 the plaintiff had originally tried to have admitted.

If you keep paperwork showing a problem, you better also have paperwork showing what you did about the problem.

The ski area also argued they were not required to create a start point or place a sign there because the speed that a skier entered a jump was up to the skier.

The court, however, did make some statements from a skier’s perspective that seemed at odds with reality.

Lifts further contends that it had no duty to warn Salvini because he had used the jump before and was fully aware of its condition. This argument is not persuasive. Salvini’s previous use of the jump would not necessarily put him on notice that its design could increase the risk of severe injury from overshooting. Whether the jump’s deficiencies were “known and obvious” and whether Salvini should have anticipated the harm is a question of fact for the jury.

.. . . .

The trial court rejected most of the 66 incident reports offered by Salvini because it found that they were not sufficiently similar, and it admitted only “[t]hose accident reports documenting an injury occurring as a result of overshooting the jump in question, on either skis or snowboards (which go slower than skis.) … .” CP at 2635. If overshooting was a problem for slower moving snowboarders, it is reasonable to expect it to be a problem for skiers as well.

The first issue is that using a jump does not give you notice that the jump is dangerous seems to be at odds with reality. The issue that if you go over a jump and do not realize that it has increased dangers over skiing on flat terrain does not seem logical. Anytime you are going faster than you feel comfortable or above the ground without holding on to something seems to indicate an increase in risk that should be obvious to everyone.

At the same time, after you have done something dangerous enough times, enough being a different number for everyone, you become accustomed to the risk. However, being able to deal with the risk does not mean that you have totally lost the ability to understand or appreciate the risk.

The second is the court’s statement about snowboards going slower than skiers which does not seem to be supported in the opinion and could be argued in a lot of cases is as irrelevant. It is the skill of the person wearing the board or skis that have more of an influence on the speed rather than the implement itself.

This decision is a nasty one for ski areas. $14 million is a lot of money, especially for a small area and a small insurance pool

So Now What?

You cannot create risks just because every other competitor is doing it. If you state does not have the laws, or you do not have either the skills and knowledge or the defenses to deal with the risk you are over your head.

Find out what your competitors are doing. How they are approaching the risk. In this case, what fencing they are using, how they are building their features and who they are allowing in the features.

There were some very interesting things that occurred with this trial; however, that is the system we have in the US, and sometimes you get screwed.

Plaintiff: Kenneth Salvini

Defendant: Ski Lifts, Inc. (dba Snoqualmie Summit Ski Area)

Plaintiff Claims: Negligence

Defendant Defenses: inherent risks and signage

Holding: for the plaintiff

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Salvini v. Ski Lifts, Inc., 2008 Wash. App. LEXIS 2506

Salvini v. Ski Lifts, Inc., 2008 Wash. App. LEXIS 2506

Kenneth Salvini et al., Individually, Respondents, v. Ski Lifts, Inc., Appellant.

NO. 60211-0-I

COURT OF APPEALS OF WASHINGTON, DIVISION ONE

2008 Wash. App. LEXIS 2506

October 20, 2008, Filed

NOTICE: Rules of the Washington Court of Appeals may limit citation to unpublished opinions. Please refer to the Washington Rules of Court.

SUBSEQUENT HISTORY: Reported at Salvini v. Ski Lifts, Inc., 2008 Wash. App. LEXIS 2529 (Wash. Ct. App., Oct. 20, 2008)

PRIOR HISTORY: [*1]

Appeal from King County Superior Court. Docket No: 05-2-13652-9. Judgment or order under review. Date filed: May 31, 2007. Judge signing: Honorable Laura Inveen.

COUNSEL: Counsel for Appellant(s): William Robert Hickman, Pamela A. Okano, Reed McClure, Ruth Nielsen, Nielsen Law Office Inc PS, Wendy E Lyon, Riddell Williams PS, Seattle, WA; James W. Huston, Morrison & Foerster, LLP, San Diego, CA; Beth S. Brinkmann, Ketanji Brown Jackson, Morrison & Foerster, LLP, Washington, DC.

Counsel for Respondent(s): John Robert Connelly Jr., Connelly Law Offices, James Walter Beck, Gordon Thomas Honeywell, Tacoma, WA; Philip Albert Talmadge, Tukwila, WA.

JUDGES: Authored by Linda Lau. Concurring: Marlin Appelwick, Ronald Cox.

OPINION BY: Linda Lau

OPINION

¶1 Lau, J. — While attempting a terrain park ski jump at a ski area, Kenneth Salvini was severely injured. Salvini and his parents brought a negligence action against the owner-operator Ski Lifts, Inc. The jury found Salvini 55 percent responsible and Ski Lifts 45 percent responsible. Ski Lifts appeals, arguing that the trial court improperly instructed the jury on duty, inherent risk, and signage, and that it admitted prejudicial and irrelevant evidence of prior accidents. We conclude that [*2] the jury instructions were proper and that the trial court did not abuse its discretion in admitting evidence of prior accidents for the limited purpose of notice. Accordingly, we affirm.

FACTS

¶2 Ski Lifts owns and operates Snoqualmie, a ski area that features downhill skiing and a terrain park filled with artificial jumps and structures. Among these features are “table top” jumps, which have a takeoff ramp, a flat deck section, and a landing slope. To jump a table top successfully, a skier must approach the takeoff ramp with sufficient speed to launch into the air and clear the deck while maintaining enough control to land upright on the landing slope. “Overshooting” occurs when the skier lands past the end of the landing slope.

¶3 At approximately 7 P.M. on February 11, 2004, Kenneth Salvini arrived at Snoqualmie with his father and some friends. It was night, and the snow was rough, icy, and hard. After spending about an hour skiing at the Alpental downhill area, the main ski lift broke down. They then moved to the Summit Central downhill area. Salvini and a friend took a lift to the top of the mountain and skied over to the terrain park. A message hand written in light blue pen on a whiteboard [*3] sign posted near the lift read, “Terrain park Tip of the Week: Most injuries in the terrain park are as a result of the rider out-jumping the landing. Thanks, your friendly Ski Patrol.” Ex. 7. A Ski Lifts employee testified that the message was posted following several overshooting incidents. But Salvini and his friend did not see the sign.

¶4 Salvini, an experienced skier, decided to try a table top jump in the lower part of the terrain park–one that he had successfully jumped while skiing the previous week. Salvini testified that his goal was to approach the jump with “enough speed to make sure [he] cleared the deck.” Verbatim Report of Proceedings (VRP) (Mar. 22, 2007) at 83. Ski Lifts asserted that Salvini approached the jump at an excessively high speed, but Salvini presented evidence that his speed was within the range expected at a ski jump. He lost control, rotated backwards, “overshot” the landing ramp, and landed on his back onto a flat or nearly flat area. Salvini is now a quadriplegic.

¶5 Salvini and his parents filed a negligence action against Ski Lifts, alleging that it designed and built an unreasonably dangerous ski jump and that it failed to close the jump or to warn of [*4] its dangers, thereby exposing him to an extreme risk of serious injury beyond the risks inherent in the sport. Ski Lifts asserted that it was not negligent and that Salvini’s injuries were solely the result of the inherent risks of the sport and Salvini’s own negligence.

¶6 Ski Lifts filed a motion in limine to exclude evidence of prior accidents at the terrain park. Salvini responded with a motion to admit 66 prior incident reports. After reviewing the incident reports, the trial court admitted 15 reports for “the limited issue of notice” but excluded the remainder because they were not substantially similar. Clerk’s Papers (CP) at 2632-35. 1 At Ski Lifts’ request, the trial court instructed the jury that the reports were admitted “for the limited purpose of showing that defendant had notice that people had overshot the landing of the jump on which the plaintiff was injured.” CP at 2672.

1 The court originally admitted 16 incident reports, but this was later reduced to 15.

¶7 The jury found Salvini 55 percent at fault and Ski Lifts 45 percent at fault. The jury also found that Salvini had suffered approximately $ 30 million in damages, resulting in a judgment against Ski Lifts of approximately [*5] $ 14 million. The trial court denied Ski Lifts’ motion for a new trial. Ski Lifts now appeals.

ANALYSIS

Jury Instruction on Inherent Risk

¶8 Ski Lifts argues that the trial court erred in refusing to give its proposed jury instruction. The instruction stated: “An inherent risk of a sport is one that cannot be eliminated without fundamentally changing the nature of the sport or chilling vigorous participation in the sport.” CP at 2578. Alleged errors of law in jury instructions are reviewed de novo. Barrett v. Lucky Seven Saloon, Inc., 152 Wn.2d 259, 266, 96 P.3d 386 (2004). Whether to give a particular jury instruction, however, is within the trial court’s discretion. Boeing Co. v. Key, 101 Wn. App. 629, 632, 5 P.3d 16 (2000). “Jury instructions are sufficient if they allow the parties to argue their theories of the case, do not mislead the jury and, when taken as a whole, properly inform the jury of the law to be applied.” Hue v. Farmboy Spray Co., 127 Wn.2d 67, 92, 896 P.2d 682 (1995). “The trial court is given considerable discretion in deciding how the instructions will be worded.” Goodman v. Boeing Co., 75 Wn. App. 60, 73, 877 P.2d 703 (1994), aff’d, 127 Wn.2d 1020, 890 P.2d 463 (1995).

¶9 Chapter 79A.45 RCW [*6] generally sets forth the responsibilities of skiers and ski area operators. 2 The statute “modifies, but is generally consistent with, the common law.” Codd v. Stevens Pass, Inc., 45 Wn. App. 393, 397, 725 P.2d 1008 (1986). It provides that “[b]ecause of the inherent risks in the sport of skiing all persons using the ski hill shall exercise reasonable care for their own safety.” RCW 79A.45.030(6). “A defendant simply does not have a duty to protect a sports participant from dangers which are an inherent and normal part of a sport.” Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 500, 834 P.2d 6 (1992). But “[a]lthough the statute imposes both primary and secondary duties on skiers, it ‘does not purport to relieve ski operators from all liability for their own negligence.'” Brown v. Stevens Pass, Inc., 97 Wn. App. 519, 524, 984 P.2d 448 (1999) (quoting Scott, 119 Wn.2d at 500). Risks caused by negligent provision of dangerous facilities are not “inherent” in a sport. Scott, 119 Wn.2d at 498.

2 Nothing in the statute specifically addresses terrain park ski jumping.

10 Washington’s ski statute does not define “inherent risk.” 3 The language of Ski Lifts’ proposed instruction is drawn from [*7] an intermediate California appellate court decision, Vine v. Bear Valley Ski Co., 118 Cal. App. 4th 577, 13 Cal. Rptr. 3d 370 (2004). In Vine, a snowboarder who was seriously injured on a terrain park ski jump brought a negligence action against the ski area. The ski operator, arguing that it owed no duty to protect Vine against inherent risks, requested the following instruction on assumption of risk:

“The defendant has no duty to eliminate, reduce or make safer the inherent risks of injury which arise from the nature of the sport of recreational snowboard jumping or the manner in which it is conducted. An inherent risk of a sport is one that cannot be eliminated without fundamentally changing the nature of the sport or chilling vigorous participation in the sport.

“The defendant is under a duty to use ordinary care not to increase the risks to a snowboarder over and above those inherent in the sport. The defendant is under a duty to refrain from constructing a jump for use by the public which, by design, poses an extreme risk of injury.

“A failure to fulfill such duty is negligence.”

Id. at 594 n.5.

3 In contrast, some states have enacted ski safety statutes that define “inherent risks” [*8] and/or “inherent danger” of skiing with particularity. See, e.g., Colo. Rev. Stat. Ann. § 33-44-103(3.5) (West); Mich. Comp. Laws Ann. 408.342(2) (LexisNexis); 32 Me. Rev. Stat. Ann § 15217.

11 The trial court ruled that the primary assumption of risk doctrine did not apply because snowboarding does not inherently require jumps that are designed in such a way as to create an extreme risk of injury. Id. at 590. Thus, the court instructed the jury on ordinary negligence and contributory negligence but not on assumption of the risk. Id. at 595-97, 603.

12 The California appellate court held that the instructions were erroneous regarding the duty of care owed by the ski operator.

Nowhere was the jury informed that Bear Valley owed Vine no duty to protect her from the risks inherent in snowboard jumping. Indeed, the instructions suggested just the opposite, since it was obviously foreseeable that the inherent risks of riding a snowboard over the jump built by Bear Valley might result in injury.

Id. at 596. The court reasoned, “It is fundamentally unfair for a snowboarding injury case to go to a jury without any instruction on assumption of the risk.” Id. at 603.

13 Ski Lifts argues that under the reasoning [*9] of Vine, the trial court’s failure to give Ski Lifts’ proposed jury instruction defining the inherent risks of terrain park jumping deprived it of the ability to argue that the risks that caused Salvini’s accident were inherent in the sport and that he was responsible for his own injury. Salvini contends that the jury instructions given by the trial court were an accurate statement of the law and that Ski Lifts’ proposed additional instruction was unnecessary for Ski Lifts to argue its theory of the case.

14 We disagree with Ski Lifts. In Vine, the trial court declined to instruct the jury on the inherent risks of the sport, which erroneously precluded the jury from considering assumption of the risk. Here, in contrast, the trial court did instruct the jury on Salvini’s assumption of the risks that are an inherent and normal part of terrain park jumping. Instruction 16 stated,

A skier jumping in a terrain park assumes the dangers that are inherent in the sport of terrain park jumping. The ski area has no duty to protect a skier from dangers that are an inherent and normal part of jumping in a terrain park.

The ski area has a duty not to unduly enhance the risk of jumping in a terrain park [*10] beyond the risks inherent in the sport.

CP at 2674.

¶15 Instruction 16 properly informed the jury of Washington law, was not misleading, and permitted Ski Lifts to argue that the conditions and risks that caused Salvini’s injuries were an inherent and normal part of the sport. 4 During closing statements, Ski Lifts argued to the jury:

So what do we need to know in order to decide what is an inherent part of this sport? And what we know and what everybody has talked about is jumping is a fundamental activity, that’s what it is about. …

… Jumps are not safe, because ‘safe’ means free from injury or danger, free from risk, and we have to start out with the premise that this is an inherently dangerous activity; it is not free from risk. You can’t design out the risk, that’s part of jumping. …

… Talking about landing on your feet, landing on your landing gear, and absorbing the shock of a jump. That’s inherent in jumping, and that’s what is most important. …

… Two inherent dangers, everyone talked about it, losing control and falling. Those are things that come along with the sport.

… What we have to look at is what’s normal of [sic] this sport, and that the jumpers have [*11] the responsibility, they can choose their speed, depending on what they want to do. … And that’s why there is no starting point. That’s not a decision the ski area is making … , it is a decision the skier needs to make for themselves.

… .

The jump itself. Again, we talk first about what is normal to the sport. And the people who build the jump are telling you this is what’s normal for the sport. This is what all of the ski areas are doing, this is how the jumps are built. …

We have some other things that factor in to this particular table top and the choices that are available. And this is all part of what is normal in the sport. We have the jump itself, we have the two different landings, we have the half pipe off to the right, we have other jumps below, two take offs on that jump, and lots of room to go around on either side. … And those are things that we don’t have a duty to change because that’s an inherent and normal part of the sport. …

… .

… Because “normal” for a ski area includes people going to the first aid room for a whole variety of reasons, not to minimize it. But to say it is a risky sport and accidents happen, and you have to get back to [*12] the first part of our instruction, which is, there are inherent dangers … . And they are athletes and they are human and they did something different, and it ended up in injury. And nobody wants that to happen, but we can’t take that away and still have the sport, because what we have is something that is inherently dangerous and people are doing it because they want to. …

… .

… But what we know is that at the end of the day, it was not the ski area that caused the accident, it was the behavior of the jumper. And not in a critical way, because this is what is part of the sport. And that’s why it is an inherent risk, because it is very dangerous. And it starts out that way. And the ski area did not do anything to increase that danger. It is a normal jump and it is a normal activity. … The people that developed it told you what it was about, and the skier assumes the dangers that are inherent in the sport, and assumes what is part of the normal sport. Not a different sport, but this sport. And we don’t have a duty to make it a different sport. … What is this sport about? It is about the risk of falling and being injured. It is about speed and control and snow conditions [*13] and choices. And that’s all a normal part of the sport.

VRP (Apr. 4, 2007) at 6-46.

4 Salvini argues that Ski Lifts failed to preserve any error on inherent risks of ski jumping because it proposed and received instruction 16, which was a correct statement of the law. We disagree. Ski Lifts specifically took exception below to the trial court’s refusal to give an additional proposed definition of “inherent risk,” which it now contends was necessary for the jury to understand that phrase. This was sufficient to preserve the issue for appellate review under CR 51(f).

¶16 “Whether to define a phrase is a matter of judgment to be exercised by the trial court.” Goodman, 75 Wn. App. at 76. Under the instructions given, Ski Lifts could and did define the inherent and normal risks very broadly in crafting its argument to the jury. Ski Lifts’ additional instruction defining “inherent risk” was unnecessary and superfluous. 5 And when applied to this case, the definition is self-evident and obvious. The jury attributed 55 percent of the fault for the accident to inherent risk and Salvini’s own negligence. It is entirely speculative to conclude that the jury did not understand “inherent risk” or that [*14] the verdict would have been different if Ski Lifts’ proposed instruction had been given. 6 The trial court did not abuse its discretion in refusing to give a proposed instruction derived from California common law that was unnecessary to allow Ski Lifts to fully argue its theory of the case.

5 See Goodman, 75 Wn. App. at 76 (upholding trial court’s refusal to give a jury instruction defining the phrase “continuing violation” where the definition was self-evident and obvious when applied to facts of case).

6 In the special verdict form, the jury answered, “Yes” to the following question: “Was one or more of the inherent risks of jumping in a terrain park a proximate cause of plaintiff’s injuries?”

Jury Instruction on Duty to Discover Dangerous Conditions

¶17 Ski Lifts argues that instruction 15 misstated the duty owed by a ski area operator regarding the discovery and elimination of dangers, thereby erroneously holding Ski Lifts to an improperly broad duty to protect Salvini.

¶18 Instruction 15 stated,

The operator of a ski area owes its customers a duty to exercise ordinary care. This includes the exercise of ordinary care to provide reasonably safe facilities and to maintain in a reasonably safe [*15] condition those portions of the premises that such person is expressly or impliedly invited to use or might reasonably be expected to use. The operator of a ski area owes a duty to its customers to discover dangerous conditions through reasonable inspection, and repair that condition or warn the skier unless it is known or obvious.

CP at 2673. (Emphasis added.)

¶19 Ski Lifts objects only to the final, italicized sentence of the instruction, which was added at Salvini’s request over Ski Lifts’ objection. 7 This sentence was drawn directly from the Scott decision, which describes the duty of care for ski area operators. “A skier is a business invitee of a ski area operator. The operator owes a duty to a skier to discover dangerous conditions through reasonable inspection, and repair that condition or warn the invitees, unless it is known or obvious.” Scott, 119 Wn.2d at 500 (footnotes omitted). The Scott court further specified, “[T]he plaintiff assumes the dangers that are inherent in and necessary to the particular sport or activity” and that “[w]hile participants in sports are generally held to have impliedly assumed the risks inherent in the sport, such assumption of risk does not preclude [*16] a recovery for negligent acts which unduly enhance such risks.” Id. at 501 (third emphasis added).

7 Ski Lifts argues that instruction 15 misstated Washington law by failing to reference “unreasonably” dangerous conditions. Salvini contends that Ski Lifts failed to preserve this argument because it did not propose inserting the word “unreasonably” into the instruction. But Ski Lifts did object to instruction 15 on the ground that “the law would indicate that we don’t have a duty unless it is unreasonably dangerous. So I believe that the dicta from Scott that has been added to the WPIC instruction is not appropriate.” VRP (Apr. 3, 2007 P.M.) at 11. Accordingly, Ski Lifts’ proposed instruction was essentially the same as instruction 15, but without the final sentence taken from Scott. This sufficiently informed the trial court of the point of law in dispute to preserve for appellate review the issue of whether instruction 15 properly stated the duty owed by ski operators to skiers. Falk v. Keene Corp., 113 Wn.2d 645, 657-58, 782 P.2d 974 (1989). CR 51(f) does not require a party to additionally propose an alternative instruction under similar circumstances. Joyce v. State Dep’t of Corrections, 155 Wn.2d 306, 324-25, 119 P.3d 825 (2005).

¶20 Ski [*17] Lifts argues that the final sentence of instruction 15 misstated the duty of care for providers of an inherently dangerous activity such as terrain park ski jumping because, unlike Scott, it failed to specify that the duty was limited only to “unreasonably” dangerous conditions–those that “unduly enhance” the inherent risks. According to Ski Lifts, the omission of the word “unreasonably” from the jury instruction mistakenly informed the jury that Ski Lifts’ legal duty was to eliminate all dangers to terrain park ski jumpers–a standard that is impossible to meet. Ski Lifts further contends that instruction 16 was insufficient to cure the defect in instruction 15 regarding Ski Lifts’ duty of care for three reasons. First, it is not clear that the “unduly enhance” language of instruction 16 operates to limit instruction 15’s reference to “dangerous conditions.” Second, it was contradictory and confusing to instruct the jury that Ski Lifts was responsible for “dangerous conditions” (instruction 15) while also instructing it that Salvini assumed the dangers inherent in terrain jumping (instruction 16). Third, under the reasoning of Vine, the jury could not determine comparative fault [*18] without an instruction specifically defining the inherent risks assumed by Salvini.

¶21 We disagree with Ski Lifts and hold that instructions 15 and 16 properly instructed the jury on Washington law. “The court need not include specific language in a jury instruction, so long as the instructions as a whole correctly state the law.” Boeing Co. v. Key, 101 Wn. App. 629, 633, 5 P.3d 16 (2000).

¶22 Instruction 15 accurately summarized the well-established duty of care owed by ski area operators to skiers. Washington courts have adopted with approval the Restatement (Second) of Torts § 343 (1965), which sets forth the duties a possessor of land owes to an invitee. Iwai v. State, 129 Wn.2d 84, 95, 915 P.2d 1089 (1996). Section 343 states,

Dangerous Conditions Known to or Discoverable by Possessor A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, [*19] and

(c) fails to exercise reasonable care to protect them against the danger.

¶23 The ski operator owes an affirmative duty of care to the skier, as a business invitee, to discover dangerous conditions through reasonable inspection and repair them or warn the invitees of the hazard unless it is known or obvious. See, e.g., Scott, 119 Wn.2d at 500; Brown, 97 Wn. App. at 524; Codd, 45 Wn. App. 396-97. Consistent with this standard, instruction 15 also stated that the ski area operator’s duty is to provide “reasonably safe facilities” and to maintain them in a “reasonably safe condition.” Furthermore, instruction 16–to which Ski Lifts did not object–specified that a ski area has no duty to protect against “dangers that are an inherent and normal part of jumping in a terrain park” and that “[t]he ski area has a duty not to unduly enhance the risk of jumping in a terrain park beyond the risks inherent in the sport.”

¶24 Together, these instructions accurately summarized the law, allowed Ski Lifts to argue its theory of the case, and were not contradictory, confusing, or misleading. Ski Lifts could, and did, argue that the risks of the jump were known and obvious. Ski Lifts could, and did, argue [*20] that Salvini’s injuries resulted from the inherent risks of the sport. And the trial court gave an instruction on comparative fault to which Ski Lifts did not object. As discussed above, Ski Lifts’ proposed instruction defining “inherent risk” was unnecessary to allow Ski Lifts to fully argue all of its claims. The trial court did not abuse its discretion in refusing to omit the final sentence from instruction 15.

Jury Instruction on Failure to Warn

¶25 Ski Lifts argues that Salvini offered no evidence of proximate cause to support his claim that Ski Lifts was liable on a failure to warn theory. Instruction 15 informed the jury that Ski Lifts had a duty to “discover dangerous conditions through reasonable inspection, and repair that condition or warn the skier unless it is known or obvious.” Instruction 17 stated, “A statute relating to ski areas provides: All signs for instruction of the public shall be bold in design with wording short, simple, and to the point. All such signs shall be prominently placed.” 8 Relying primarily on products liability cases, Ski Lifts contends that proof of proximate cause on a failure to warn theory requires the plaintiff to show that he would have read and [*21] heeded an adequate warning. Because instructions 15 and 17 invited the jury to find Ski Lifts liable for failure to warn in the absence of evidence that Salvini would have behaved differently had he received better warnings, Ski Lifts contends that there was insufficient evidence to support these instructions. 9 We disagree.

8 RCW 79A.45.010(1).

9 We also note that during closing arguments, Ski Lifts did not contend that Salvini had failed to provide sufficient evidence of proximate cause on a failure to warn theory.

¶26 As a preliminary matter, we note that Ski Lifts objected to the final sentence of instruction 15 on the ground that it misstated the premises liability standard of care for ski area operators. But it did not object to instruction 15 on the ground that it erroneously instructed the jury on a failure-to-warn theory. Nor did Ski Lifts mention instruction 15 when it objected to instruction 17 on the ground that there was no evidence of proximate cause to support it. CR 51(f) requires that counsel state distinctly the matter to which he objects and the grounds for that objection so that the court may correct any error before instructing the jury. Because Ski Lifts did not apprise [*22] the trial court of the point of law in dispute, it waived any claimed error regarding instruction 15 or its interplay with instruction 17 in the context of this argument. Falk v. Keene Corp., 113 Wn.2d 645, 657-58, 782 P.2d 974 (1989).

¶27 Ski Lifts’ argument misconstrues the purpose of instruction 17 in this premises liability case. Salvini claimed that Ski Lifts “was negligent in the design, construction, and maintenance of the terrain park jump on which [he] was injured.” CP at 2960 (instruction 2). To establish an action for negligence, a plaintiff must show (1) the existence of a duty, (2) breach of that duty, (3) a resulting injury, and (4) proximate cause. Iwai, 129 Wn.2d at 96. In premises liability cases, a landowner’s duty of care is governed by the entrant’s common law status as an invitee, licensee, or trespasser. Tincani v. Inland Empire Zoological Soc., 124 Wn.2d 121, 128, 875 P.2d 621 (1994). Here, the parties do not dispute that Salvini was a business invitee of Ski Lifts.

¶28 “The duty owed by the possessor to the invitee derives from the entrant’s expectation that the possessor has exercised due care to make the premises reasonably safe.” The Law of Premises Liability (3d ed.) [*23] § 4.1, at 75 (2001). This duty may be fulfilled by an appropriate warning or other affirmative action to remedy the danger. Id. “An invitee is entitled to expect that the possessor will take reasonable care to ascertain the actual condition of the premises and, having discovered it, either to make it reasonably safe by repair or to give warning of the actual condition and the risk involved therein.” Restatement (Second) of Torts § 343, cmt. d (1965).

¶29 Salvini contended that Ski Lifts was negligent under this common law premises liability standard. And Ski Lifts could satisfy its duty to protect its customers from unreasonably dangerous conditions by providing adequate warnings. Instruction 17 went directly to Ski Lifts’ defense that it had met this duty. This instruction properly allowed the jury to evaluate the reasonableness of the warnings provided in light of the statutory signage requirements and the degree to which Salvini was comparatively at fault for failing to see the whiteboard sign.

¶30 Both parties presented evidence at trial regarding the reasonableness and adequacy of the warning signs. Expert witnesses Dr. Richard Gill and Richard Penniman testified extensively regarding the [*24] inadequacy of Ski Lifts’ warning signs. Salvini testified that he did not see the whiteboard sign. Salvini’s skiing companion and Salvini’s father, as well as several Ski Lifts employees, also testified that they did not see the sign. Expert witnesses Helge Lien and Richard Penniman testified that Ski Lifts should have designated a starting point for the jump to prevent skiers from gaining too much speed and overshooting the jump. Salvini argued in closing that the jump was not reasonably safe and that the signage failed to warn of the specific hazard known to Ski Lifts. He did not contend that Ski Lifts was additionally liable on a separate failure-to-warn theory.

¶31 Ski Lifts introduced photographs of its warning signs into evidence, and the photos were shown to the jury. Ski Lifts employees Dan Brewster and Bryan Picard 10 testified regarding the location and content of the warning signs. Ski Lifts’ expert witness Elia Hamilton testified that the warning signs at the entrance of the terrain park were “absolutely” appropriate. Ski Lifts relied on the signage evidence to argue in closing that Salvini was adequately warned. 11 Ski Lifts also argued that it had no duty to post signs designating [*25] a starting point because that choice is part of the skier’s responsibility. “‘[P]rejudicial error occurs where the jury is instructed on an issue that lacks substantial evidence to support it.'” Manzanares v. Playhouse Corp., 25 Wn. App. 905, 910, 611 P.2d 797 (1980) (quoting Haynes v. Moore, 14 Wn. App. 668, 672, 545 P.2d 28 (1975)). There was ample evidence to support giving instruction 17. 12

10 Bryan Picard was employed by Ski Lifts at the time of Salvini’s accident, but no longer employed by Ski Lifts at the time of trial.

11 “Another part of the responsibility code, observe all posted signs and warnings. The information is there. We can’t make people read signs, we can’t make people do anything, these are choices. But the signs are there, and this is part of the skiers’ responsibility.” VRP (Apr. 4, 2007 A.M.) at 9.

12 To the extent Ski Lifts contends that instruction 15 in combination with instruction 17 presented a separate inadequate warning theory of liability, Ski Lifts’ failure to request a clarifying special verdict form requiring the jury to indicate which theories of liability the jury relied upon precludes it from raising such an argument on appeal. See Davis v. Microsoft Corp., 149 Wn.2d 521, 539-40, 70 P.3d 126 (2003).

¶32 Ski [*26] Lifts further contends that it had no duty to warn Salvini because he had used the jump before and was fully aware of its condition. This argument is not persuasive. Salvini’s previous use of the jump would not necessarily put him on notice that its design could increase the risk of severe injury from overshooting. Whether the jump’s deficiencies were “known and obvious” and whether Salvini should have anticipated the harm is a question of fact for the jury. Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 54, 914 P.2d 728 (1996). The jury instructions properly allowed Ski Lifts to argue that the alleged defect was known or obvious, while also allowing Salvini to argue that it was not.

Evidence of Prior Accidents

¶33 Ski Lifts argues that the trial court abused its discretion in admitting evidence and testimony regarding 15 prior incidents of overshooting the same jump at which Salvini was injured. The court ruled that these incident reports were not admissible “as substantive evidence of the existence of a dangerous condition,” but that they were sufficiently similar “to put Ski Lifts on notice of a potential defect to warrant further inquiry into the design of the jump, or the reasonableness [*27] of the signage in light of the multiple injuries caused as a result of overshooting the landing of the jump in question.” CP at 2635. Ski Lifts moved the court for a limiting instruction on the admission of prior incident reports. The trial court granted Ski Lifts’ motion and gave a limiting instruction.

Exhibits 154, 155, 160, 161, 163, 165, 166, 167, 170, 171, 172, 173, 174, 175 and 176 are accident reports. These accident reports have been admitted into evidence for the limited purpose of showing that defendant had notice that people had overshot the landing of the jump on which the plaintiff was injured. You are not to infer anything beyond notice by admission of these prior accidents.

CP at 2672 (instruction 14).

¶34 “A trial court’s decision admitting or excluding evidence is reviewed for an abuse of discretion, which occurs only when the exercise of discretion is manifestly unreasonable or based on untenable grounds or reasons.” Kimball v. Otis Elevator Co., 89 Wn. App. 169, 172-73, 947 P.2d 1275 (1997).

¶35 In a negligence case, other accidents and injuries are inadmissible to show a general lack of care or negligence, but may be admissible on other, more limited issues if the conditions [*28] are sufficiently similar and the actions are sufficiently numerous. 13 5 Karl B. Tegland, Washington Practice: Evidence § 402.11, at 304 (2007) (citing Panitz v. Orenge, 10 Wn. App. 317, 322, 518 P.2d 726 (1973)). Evidence of prior accidents which occurred under substantially similar circumstances is admissible for the purpose of demonstrating a dangerous condition or notice of a defect. Davis v. Globe Mach. Mfg. Co., 102 Wn.2d 68, 77, 684 P.2d 692 (1984). Turner v. City of Tacoma, 72 Wn.2d 1029, 1036, 435 P.2d 927 (1967).

13 Some courts have recently relaxed the substantial similarity requirement when the evidence is offered for the purpose of showing notice. 5 Tegland, supra, § 402.11 (Supp. 2008).

¶36 The admitted reports need not be identical, only substantially similar. See, e.g., Seay v. Chrysler Corp., 93 Wn.2d 319, 324, 609 P.2d 1382 (1980) (upholding admission of evidence of other accidents involving same type of car chassis); Blood v. Allied Stores Corp., 62 Wn.2d 187, 189, 381 P.2d 742 (1963) (upholding exclusion of reports that showed “no similarity”); Miller v. Staton, 58 Wn.2d 879, 884-85, 365 P.2d 333 (1961) (upholding admission of evidence of previous fights in a tavern); [*29] O’Dell v. Chi., Milwaukee, St. Paul & Pac. R.R.., 6 Wn. App. 817, 826, 496 P.2d 519 (1972) (upholding admission of evidence of other near-accidents at same railroad crossing).

¶37 Ski Lifts first argues that Salvini failed to establish that the prior incidents were substantially similar to his situation because 13 of the 15 incident reports involved snowboarders, not skiers, and because the two reports involving skiers occurred under different conditions. We disagree. The trial court rejected most of the 66 incident reports offered by Salvini because it found that they were not sufficiently similar, and it admitted only “[t]hose accident reports documenting an injury occurring as a result of overshooting the jump in question, on either skis or snowboards (which go slower than skis.) … .” CP at 2635. If overshooting was a problem for slower moving snowboarders, it is reasonable to expect it to be a problem for skiers as well. Admitting evidence of prior accidents that occurred at the same table top jump, whether they involved skiers or snowboarders, was not an abuse of discretion.

¶38 Ski Lifts argues that the trial court’s limiting instruction was a confusing and meaningless restriction on [*30] the use of the evidence. 14 But Ski Lifts did not assign error to this limiting instruction and has therefore waived any objection to it. 15 Barrett v. Lucky Seven Saloon, Inc., 152 Wn.2d 259, 281, 96 P.3d 386 (2004). Indeed, Ski Lifts asked the court to read the limiting instruction immediately before the prior incident evidence was presented to the jury and to include it among the court’s instructions to the jury. The court granted both requests.

14 Ski Lifts appears to challenge both the giving and the language of the limiting instruction. “A limiting instruction is available as a matter of right. If evidence is admissible only for a limited purpose and an appropriate limiting instruction is requested, the court may not refuse to give the instruction.” 5 Tegland, supra, § 105.2 (2007) (interpreting ER 105).

15 The limiting instruction requested and proposed by Ski Lifts contained a final sentence stating, “You are not to infer from these accident reports that the defendant was negligent.” CP at 2637. Salvini requested that the court remove that sentence and replace it with, “[Y]ou are not to infer anything beyond notice by admission of these prior accidents.” 1 Transcript of Proceedings (TR) (Mar. 12, 2007) at 28. [*31] The trial court agreed with Salvini and modified Ski Lifts’ proposed instruction accordingly. Ski Lifts did not object.

¶39 Ski Lifts argues that the prior incidents should not have been admitted for the purpose of notice, because it conceded that it was aware of overshooting incidents. “Evidence of similar accidents is inadmissible to prove notice, if there is no question that there was notice, or if notice is not a disputed issue in the case.” 5 Tegland, supra, at 306 (citing Hinkel v. Weyerhaeuser Co., 6 Wn. App. 548, 555-56, 494 P.2d 1008 (1972)); Porter v. Chicago, M., P. & P.R. Co., 41 Wn.2d 836, 842, 252 P.2d 306 (1953). We disagree.

[T]he fact that evidence is undisputed does not, alone, make the evidence inadmissible. Undisputed evidence may be valuable background information or other information that the jury, in fairness, ought to hear.

Thus, as a general rule, a party cannot frustrate the introduction of evidence by offering to stipulate to the underlying facts.

5 Tegland, supra, at 469. See, e.g., State v. Pirtle, 127 Wn.2d 628, 652, 904 P.2d 245 (1995); State v. Rice, 110 Wn.2d 577, 598-99, 757 P.2d 889 (1988); the plaintiff is not bound to stipulate to the issue unless its probative [*32] value is substantially outweighed by unfair prejudice. Pirtle, 127 Wn.2d at 653.

¶40 The issue in this case went beyond the mere fact that Ski Lifts had notice of overshooting. The prior incident reports were probative of the extent and nature of the notice, which went directly to the question of whether Ski Lifts met its duty of care based on what it knew. Salvini is not categorically bound from introducing evidence of substantially similar prior overshooting incidents merely because Ski Lifts admitted it knew that they were occurring.

¶41 Ski Lifts also contends that the evidence was not probative of notice of a design defect because overshooting incidents are common. But evidence of prior accidents goes directly to the issue of whether Ski Lifts exercised reasonable care in light of what it knew about the performance of this particular table top jump. Therefore, it had probative value.

¶42 Ski Lifts argues that the incident reports should have been excluded under ER 403, which provides that relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury … .” The burden of showing prejudice [*33] is on the party seeking to exclude the evidence. Carson v. Fine, 123 Wn.2d 206, 225, 867 P.2d 610 (1994); 5 Tegland, supra, § 403.2 at 435.

[T]he exercise of discretion in balancing the danger of prejudice against the probative value of the evidence is a matter within the trial court’s discretion and should be overturned only if no reasonable person could take the view adopted by the trial court. A trial judge, not an appellate court, is in the best position to evaluate the dynamics of a jury trial and therefore the prejudicial effect of a piece of evidence.

State v. Posey, 161 Wn.2d 638, 648, 167 P.3d 560 (2007) (internal citations omitted).

¶43 Ski Lifts argues that any probative value was outweighed by the extreme prejudicial effect, because Salvini’s counsel and expert witnesses referenced the incident reports not just to demonstrate notice, but also to show that the jump was improperly designed and unreasonably dangerous. But although Ski Lifts lodged “a continuing objection regarding the accident reports,” 1 TR (Mar. 12, 2007) at 51, it never objected to Salvini’s closing argument or trial testimony that allegedly went beyond the limited purpose of notice. Rather, it raised this issue [*34] for the first time in its motion for a new trial. To challenge a trial court’s admission of evidence on appeal, a party must raise a timely and specific objection at trial. State v. Gray, 134 Wn. App. 547, 557, 138 P.3d 1123 (2006), review denied, 160 Wn.2d 1008 (2007). ?To be timely, the party must make the objection at the earliest possible opportunity after the basis for the objection becomes apparent.” Id. at 557 n.27. By failing to object at trial, a party waives any claim that the evidence was erroneously admitted. ER 103(a)(1); State v. Warren, 134 Wn. App. 44, 57-58, 138 P.3d 1081 (2006), review granted, 161 Wn.2d 1001 (2007).

¶44 Because Ski Lifts did not timely object to the improper argument and testimony, Ski Lifts waives any challenge to it now on appeal. “‘The purpose of a motion in limine is to dispose of legal matters so counsel will not be forced to make comments in the presence of the jury which might prejudice his presentation.'” State v. Sullivan, 69 Wn. App. 167, 170-71, 847 P.2d 953 (1993) (quoting State v. Kelly, 102 Wn.2d 188, 193, 685 P.2d 564 (1984)). But when a party who prevails on a motion in limine later suspects a violation of that ruling, that party has a [*35] duty to bring the violation to the court’s attention to allow the court to decide what remedy, if any, to direct. A.C. ex rel Cooper v. Bellingham Sch. Dist., 125 Wn. App. 511, 525, 105 P.3d 400 (2004). As one court explained,

[W]here the evidence has been admitted notwithstanding the trial court’s prior exclusionary ruling, the complaining party [is] required to object in order to give the trial court the opportunity of curing any potential prejudice. Otherwise, we would have a situation fraught with a potential for serious abuse. A party so situated could simply lie back, not allowing the trial court to avoid the potential prejudice, gamble on the verdict, and then seek a new trial on appeal.

Sullivan, 69 Wn. App. at 172.

¶45 Here, while the court ruled that Salvini would be allowed to present evidence of prior incidents for the limited issue of notice, Ski Lifts was still required to object when Salvini’s counsel elicited improper testimony in violation of the motion in limine so the court could attempt to cure any resulting prejudice. By failing to do so, Ski Lifts waived review of this issue. In addition, Ski Lifts’ nonspecific continuing objection was insufficient to preserve the issue [*36] for appellate review. State v. Boast, 87 Wn.2d 447, 451, 553 P.2d 1322 (1976); State v. Saunders, 132 Wn. App. 592, 607, 132 P.3d 743 (2006).

¶46 Ski Lifts further contends that the evidence was prejudicial because the jury might have improperly punished Ski Lifts for being a bad actor or improperly inferred that the jump must have been defective. We disagree. As discussed above, Ski Lifts successfully moved for a limiting instruction, which was read to the jury at the time the evidence was presented and was included in the court’s instructions to the jury. “A jury is presumed to follow the court’s instructions and that presumption will prevail until it is overcome by a showing otherwise.” Carnation Co. v. Hill, 115 Wn.2d 184, 187, 796 P.2d 416 (1990) (curative instructions); see also State v. Lough, 125 Wn.2d 847, 864, 889 P.2d 487 (1995) (limiting instructions). And the trial court also instructed the jury in instruction 1 that “[i]t is your duty to decide the facts of the case based on the evidence presented to you during this trial” and that “[y]ou must not let your emotions overcome your rational thought process. You must reach your decision based on the facts proved to you and on [*37] the law given to you, not on sympathy, bias, or personal preference.” CP at 2657-59. Therefore, Ski Lifts’ arguments that the jury might have misused the evidence or that it might have improperly punished Ski Lifts are purely speculative.

¶47 In sum, we conclude that the jury instructions accurately stated the law, were not misleading, allowed Ski Lifts to argue its theory of the case, and were supported by substantial evidence. We further conclude that the prior incident reports were properly admitted. Accordingly, we affirm.

Cox and Appelwick, JJ., concur.

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Bad luck or about time, however, you look at this decision, you will change the way you work in the Outdoor Recreation Industry

Foster, et al., v. Kosseff, et al., 2013 U.S. Dist. LEXIS 5380

It is an industry, and it is not based on dreams or what your think it should be: Welcome to the real world

Simply, someone went into a climbing wall at a university, was paid to review the risk-management issues, created a report and is now being sued because of it.

The plaintiff was a student and employee of Whitman College of Spokane Washington. The plaintiff worked at the climbing wall as an instructor. She was injured when she fell 32 feet from the climbing wall. (Some of this information I got from a news article Student crushes vertebrae in climbing wall fall.) The court opinion says she was training on the wall. The article says she was cleaning holds when she fell.

She fell because a shut failed to work properly. The decision said the plaintiff failed to use the shut properly. The manufacturer of the Shut was not included in the lawsuit.

Alex Kosseff and Adventure Safety International, LLC, (ASI) were named as defendants. ASI had been hired by the college to perform a “risk management audit.” A document was prepared by ASI, which was titled Whitman College Outdoor Programs Draft Risk Management Audit. One of the major arguments was the report was labeled a draft report.

ASI, according to the article, was also hired by the college after the accident to investigate the complaint.

The plaintiff sued, and ASI filed an answer to the complaint. This motion was then filed moving to have ASI dismissed from the suit.

The court found that the plaintiff could continue her claim against the defendant because she was a third party beneficiary of the agreement between the college and the defendant or because as an employee of the college at the time of the accident, she was part of the agreement. Plaintiff would not have a claim against the defendant if she was an incidental beneficiary of the contract.

The question then “depends upon the extent to which ASI agreed to undertake the risk management audit for the benefit of the college’s employees and students rather than for the benefit the college itself.”

So if she was an employee of college at the time of the accident, is the basis for this claim a worker’s compensation subrogation claim?

Summary of the case

The basis of ASI’s motion was it did not owe a duty to the plaintiff.

The crux of ASI’s argument is that it did not owe Plaintiff a duty of care because the dangerous condition which caused her accident was simply “outside the scope of the risk-management audit” that it agreed to perform. Specifically, ASI argues that the scope of the audit was limited to “gain[ing] a general understanding of [Whitman College’s] risk management practices,” and that it did not “guarantee that future operations will be free of safety incidents.”

ASI is saying that they were working for the college, not the plaintiff. The court did not buy the argument.

The court held the audit report was not the only reason for its decision and was not necessarily required by the plaintiff to prove her case. That issue, whether the defendant owed the plaintiff a duty of care.

The court looked at the plaintiff as the intended recipient, the third party beneficiary, of the work done by ASI. I also think the court could have held that the plaintiff was the intended beneficiary of the report because she was an employee of the College.

If you are hired to work for a college and the work, you are performing is for the benefit of the patrons of the college, you are possibly liable to the students.

This was just a preliminary motion, there is a lot of litigation and trial left in this case, and ASI may eventually be dismissed. However, ASI will have to find better arguments.

So Now What?

1.      If you are performing this type of work, you can be sued. I’ve known it for years, and I’m amazed the number of people who are astounded by this decision.

2.    If you do this type of work, you need insurance to cover your liability.

3.    If you do this type of work, based on this decision, you can’t miss anything.

4.    If you do this type of work you better not be stupid enough to call what you do an audit.

Remember that marketing makes promises that risk management has to pay for. Audit sounded like a cool word to use to describe walking into a program and looking around. However, audit has a much more definitive definition. Wikipedia uses the following words to define “audit:” thoroughly examines and reasonable assurance that the statements are free from material error.

5.     Why are you doing this work? Do you have the credentials and the experience to make these decisions? What is your engineering degree? What ASTM committees that are involved in the creation of the equipment and facilities that you audit are you on? What equipment are you taking with you to perform the appropriate tests?

And this is not the only way that a third party can be brought into a suit like this. They misrepresented their abilities (Which I believe every single one of them is doing) which can lead to liability.

You just can’t say I’ve done it for 10 years. Therefore, I can tell you how to do it. You have to study and inspect and test. You have to take the climbing wall apart and see if the structure is built correctly. Are the bolts the proper size and strength and not just was some pseudo organization says but what the ASTM says it should be? What is the force the climbing wall can sustain? Is all the equipment in the chain where force will be applied, built and maintained to sustain that force?

This is a bad case, but not one that is unexpected just took longer to occur then I would have guessed.

If you do have an accident, you can’t hire the person who did your inspect to do the accident inspection. Besides that, inspection is not protected and is discoverable by the plaintiff.

The three largest payouts in the OR industry occurred after third party investigators were hired to determine what happened. In one, the plaintiffs took the investigators report and turned it into the complaint.

If you have a wall or run a program hire professional. Not people you may meet at a show, but people with real credentials after their name.

If you think, you still want to keep doing this, make sure your agreement with the program defines what you can and cannot do, and that you are not liable for the programs’ failure to follow your recommendations.

 

Plaintiff: Stephanie Foster

 

Defendant: Alex Kosseff, et al.

 

Plaintiff Claims: Defendant was negligent in failing to discover the risk posed by the Super Shut anchor.

 

Defendant Defenses: Defendant did not owe the plaintiff a duty of care.

 

Holding: Defendant’s motion to dismiss was denied.

 

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By Recreation Law          Rec-law@recreation-law.com   James H. Moss                  Jim Moss

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Foster, et al., v. Kosseff, et al., 2013 U.S. Dist. LEXIS 5380

Foster, et al., v. Kosseff, et al., 2013 U.S. Dist. LEXIS 5380

Stephanie Foster, et al., Plaintiffs, v. Alex Kosseff, et al., Defendants.

NO: 11-CV-5069-TOR

United States District Court For The Eastern District Of Washington

2013 U.S. Dist. LEXIS 5380

January 14, 2013, Decided

January 14, 2013, Filed

CORE TERMS: audit report, audit, duty of care, beneficiary–, climbing, owed, failure to state a claim, citation omitted, incorporation, discover, lawsuit, anchor, owe, dangerous condition, negligence claim, authenticity, quotation, summary judgment, recreational, leave to amend, underlying purpose, recommendations, deliberately, cognizable, omitting, coverage, survive, amend, issues of law, discovery

COUNSEL: [*1] For Stephanie Foster, Susan Foster, Gary Foster, Plaintiffs: Allen M Ressler, LEAD ATTORNEY, Ressler and Tesh PLLC, Seattle, WA; William S Finger, LEAD ATTORNEY, Frank & Finger PC, Evergreen, CO.

For Alex Kosseff, Adventure Safety International LLC, Defendants: Heather C Yakely, LEAD ATTORNEY, Evans Craven & Lackie PS – SPO, Spokane, WA.

JUDGES: THOMAS O. RICE, United States District Judge.

OPINION BY: THOMAS O. RICE

OPINION

ORDER DENYING DEFENDANT ADVENTURE SAFETY INTERNATIONAL’S MOTION TO DISMISS

BEFORE THE COURT is Defendants Alex Kosseff’s and Adventure Safety International, LLC’s motion to dismiss for failure to state a claim (ECF No. 33). This motion was heard without oral argument on January 14, 2013. The Court has reviewed the motion, the response, and the reply, and is fully informed.

BACKGROUND

In this diversity case, Plaintiff seeks to recover damages for a back injury which she sustained during a fall from a recreational climbing wall maintained by her employer, Whitman College. Plaintiff alleges that Defendants Alex Kosseff and Adventure Safety International, LLC, were negligent in failing to discover the dangerous condition which caused the accident during a safety audit commissioned by Whitman College [*2] in 2007. Defendants have moved to dismiss the complaint for failure to state a claim on the ground that they did not owe a duty of care to Plaintiff. For the reasons discussed below, the Court will deny the motion.

FACTS

Plaintiff Stephanie Foster (“Plaintiff”) is a student enrolled at Whitman College in Spokane, Washington. In April 2008, Plaintiff was employed as a student instructor in Whitman College’s Outdoor Program. One of her duties in this position was to teach other students how to properly climb and descend a recreational climbing wall located on the Whitman College campus.

On April 28, 2008, Plaintiff fell from the climbing wall during a training exercise and was seriously injured. A subsequent investigation revealed that the accident occurred when a “Super Shut” climbing anchor manufactured by Defendant Fixe Industry1 inadvertently opened while Plaintiff was descending the wall. This investigation further revealed that the anchor opened as a result of Plaintiff using it in a manner for which it was not designed.

1 Defendant Fixe Industry has never been served in this action.

Approximately one year prior to Plaintiff’s accident, Whitman College hired Defendants Alex Kosseff and [*3] Adventure Safety International, LLC (collectively “ASI”) to perform a “risk management audit” of the Outdoor Program’s facilities. The parties sharply disagree about the scope of this audit. Plaintiff asserts that the audit extended to identifying and mitigating all risks posed to users of the climbing wall. ASI maintains that the audit was merely intended to provide Whitman College with a “general understanding” of how to improve its risk management program. In any event, it is undisputed that ASI’s audit did not identify the risk that the Super Shut anchor posed when used improperly.

Plaintiff filed this lawsuit on April 22, 2011. Among other claims, Plaintiff asserts that ASI was negligent in failing to discover the risk posed by the Super Shut anchor. ASI now moves to dismiss the lawsuit for failure to state a claim on the ground that it did not owe Plaintiff a duty of care as a matter of law. Because ASI has previously filed an answer to Plaintiff’s Complaint, (ECF No. 9) the Court will treat the instant motion as a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 954 (9th Cir. 2004).

DISCUSSION

A [*4] motion for judgment on the pleadings is reviewed under the same legal standard as a motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6). Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). A motion to dismiss “tests the legal sufficiency of a [plaintiff’s] claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). To survive such a motion, the plaintiff must allege facts which, when taken as true, “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868, (2009) (quotation and citation omitted). To satisfy this plausibility standard, the allegations in a complaint must be sufficient “to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, are insufficient. Iqbal, 556 U.S. at 678.

In addition, Federal Rule of Civil Procedure 8(a)(2) requires that a plaintiff’s complaint contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This standard “does not require ‘detailed factual allegations,’ [*5] but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). To determine whether Rule 8(a)(2) has been satisfied, a court must first identify the elements of the plaintiff’s claim(s) and then determine whether those elements could be proven on the facts pled. Although the court should generally draw reasonable inferences in the plaintiff’s favor, see Sheppard v. David Evans and Assoc., 694 F.3d 1045, 1051 (9th Cir. 2012), it need not accept “naked assertions devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (internal quotations and citation omitted).

The Ninth Circuit has repeatedly instructed district courts to “grant leave to amend even if no request to amend the pleading was made, unless … the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The standard for granting leave to amend is generous–the court “should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). In determining whether leave to amend is appropriate, a court must consider the following five factors: bad faith, undue delay, prejudice [*6] to the opposing party, futility of amendment, and whether the plaintiff has previously amended the complaint. United States v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011).

A. Consideration of the Draft Audit Report

In support of its motion to dismiss, ASI has submitted a document entitled “Whitman College Outdoor Programs Draft Risk Management Audit” (hereafter “audit report”). ECF No. 36-1. The parties disagree about whether the Court may properly consider the contents of this document without converting the instant motion into a motion for summary judgment. On December 4, 2012, in response to Plaintiff’s concerns that ASI was effectively seeking summary judgment, the Court ruled that it would treat ASI’s motion “as a standard motion to dismiss, considering only (1) facts specifically alleged in the complaint; and (2) documents submitted by Defendants that were referenced in the complaint and whose authenticity has not been questioned.” ECF No. 52 at 3-4. This ruling was based, in large part, upon ASI’s representations that it had submitted the audit report “for background purposes” only and that the contents of the report were “not relevant to the actual issues of law before [*7] the court.” See ECF No. 51 at 5.

It has now become clear that the contents of the audit report are material to the issues of law presented in the instant motion. The crux of ASI’s argument is that it did not owe Plaintiff a duty of care because the dangerous condition which caused her accident was simply “outside the scope of the risk management audit” that it agreed to perform. ECF No. 70 at 7. Specifically, ASI argues that the scope of the audit was limited to “gain[ing] a general understanding of [Whitman College’s] risk management practices,” and that it did not “guarantee that future operations will be free of safety incidents.” ECF No. 70 at 7 (citing ECF No. 71-1 at 9). Because this argument expressly relies upon the contents of the audit report itself, the Court must decide whether the audit report is “fair game” at this early stage of the proceedings.

“Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n. 19 (9th Cir. 1989). One exception to this rule is the so-called “incorporation by reference doctrine,” which permits a court to consider “documents [*8] whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the plaintiff’s pleading.” Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). As the Ninth Circuit explained in Knievel, this exception typically applies in “situations in which the plaintiff’s claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document.” Id. The underlying purpose of this exception is “to prevent plaintiffs from surviving a Rule 12(b)(6) motion by deliberately omitting documents upon which their claims are based.” Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (quotation and citation omitted); see also United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (explaining that that the incorporation by reference doctrine “may apply, for example, when a plaintiff’s claim about insurance coverage is based on the contents of a coverage plan, or when a plaintiff’s claim about stock fraud is based on the contents of SEC filings”) (citations omitted).

The Court will not consider the audit report under the incorporation by reference [*9] doctrine for several reasons. First, the contents of the report are disputed. In responding to the instant motion, Plaintiff indicates that only a portion of the document was prepared by Defendant Kosseff and that another portion may have been prepared by Whitman College prior to ASI’s inspection of its facilities. ECF No. 67 at 2-3. Plaintiff further asserts that the audit report purports to be a draft rather than a finalized document. See ECF No. 36-1. This latter assertion is particularly on-point. Indeed, the document is styled as a “Draft Risk Management Audit,” and has the words “Whitman College Draft Risk Management Audit” reproduced at the top of each page. ECF No. 36-1 (emphasis in original).

Second, considering the audit report at this juncture would not serve the underlying purpose of the incorporation by reference doctrine. Notably, this is not a case in which the plaintiff has attempted to survive a motion to dismiss “by deliberately omitting documents upon which [her] claims are based.” Swartz, 476 F.3d at 763. To the contrary, Plaintiff did not have a copy of the audit report (and therefore lacked knowledge of its precise contents) when this lawsuit was filed. See Pl.’s [*10] Compl., ECF No. 1, at ¶¶ 15, 30-31 (alleging that Plaintiff learned of the audit report’s existence from an investigation performed by the Department of Labor and Industries and that Whitman College and Defendant ASI “failed or refused” to provide her with a copy before the lawsuit was filed).

Third, the contents of the audit report are not particularly “integral” to Plaintiff’s claim. See Ritchie, 342 F.3d at 908. Unlike claims for breach of an insurance contract, for example (see Ritchie, 342 F.3d at 908), Plaintiff’s negligence claim does not necessarily rely upon the contents of a specific document. In fact, Plaintiff could theoretically prove the elements of her negligence claim (i.e., duty, breach, causation and damages) exclusively through witness testimony without introducing the audit report at all. Further, it is worth noting that the audit report is not a contract between ASI and Whitman College; it is simply ASI’s work product. As such, the audit report is not particularly probative of the most crucial issue in this case: whether ASI owed Plaintiff a legal duty. Although the report details specific tasks performed, it does not describe the precise scope of work that that [*11] ASI agreed to perform.

Finally, equitable considerations weigh against considering the audit report at this time. At bottom, Plaintiff’s negligence claim relies on the allegation that ASI agreed to “analyze and point out dangers and suggest remediation of dangers to prevent injury to students and employees utilizing the climbing wall.” Pl.’s Compl., ECF No. 1, at ¶ 28. ASI has attempted to establish that the audit was more limited in scope and that, as a result, it did not owe Plaintiff a duty of care. In so doing, however, ASI has expressly relied upon the contents of the audit report. Based upon ASI’s prior representation that it would not do so, the Court denied Plaintiff an opportunity to conduct additional discovery relevant to this issue. That ruling has now placed Plaintiff at a significant disadvantage. Accordingly, the Court will not consider the contents of the audit report to the exclusion of other evidence which Plaintiff may develop as discovery progresses.

B. Duty Owed to Intended Third-Party Beneficiary

In light of the Court’s ruling above, the only remaining issue is whether Plaintiff has stated a legally cognizable claim on the facts alleged in the complaint. In the Court’s [*12] view, the relevant inquiry is whether Plaintiff was an intended third-party beneficiary of the contract between ASI and Whitman College. To the extent that Plaintiff was an intended beneficiary as an employee and student of Whitman College, ASI may have owed her a duty of care to discover the dangerous condition at issue. See Burg v. Shannon & Wilson, Inc., 110 Wash. App. 798, 807-08, 43 P.3d 526 (2002) (holding that engineering firm had no duty of care to disclose specific safety recommendations to third party who would have benefitted from the recommendations, but who was not an intended third-party beneficiary of the underlying agreement). To the extent that Plaintiff was merely an incidental beneficiary of the contract, however, she lacks a cognizable claim. Id. Stated somewhat differently, the viability of Plaintiff’s claim depends upon the extent to which ASI agreed to undertake the risk management audit for the benefit of the college’s employees and students rather than for the benefit the college itself.

In her complaint, Plaintiff squarely alleges that the risk management audit was performed for the benefit of Whitman College’s employees and students. See Pl.’s Compl., ECF No. 1, at ¶ 28 [*13] (“The risk assessment was done for the benefit of Whitman College and its employees and students because Whitman College understood its duty to provide safe recreational activities and as part of good institutional management.”). This allegation, which the Court must accept as true for purposes of this motion, is sufficient to establish that Plaintiff was an intended third-party beneficiary of the agreement such that ASI may have owed her a duty of care to discover the dangerous condition at issue. Whether Plaintiff was in fact an intended beneficiary–as well as the scope of any duty owed to her by ASI–may be revisited on summary judgment.

ACCORDINGLY, IT IS HEREBY ORDERED:

Defendants’ motion to dismiss for failure to state a claim (ECF No. 33) is DENIED.

The District Court Executive is hereby directed to enter this Order and provide copies to counsel.

DATED this 14th day of January, 2012.

/s/ Thomas O. Rice

THOMAS O. RICE

United States District Judge

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By Recreation Law          Rec-law@recreation-law.com   James H. Moss                  Jim Moss

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WA Zip line lawsuit dismissed because the plaintiff admitted he should have understood the risk

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 theEnglish: Zip Line Canopy tour in Jaco Beach. O...claims 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.

So

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?

A. Correct.

Q. But if you had thought about it, you would have been able to figure that out, correct?

A. If someone asked me?

Q. Yes.

A. Yes.

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?

English: A zip-line over the rainforest canopy...


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.

What do you think? Leave a comment.

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Oldja v. Warm Beach Christian Camps And Conference Center, 793 F. Supp. 2d 1208; 2011 U.S. Dist. LEXIS 67966

Oldja v. Warm Beach Christian Camps And Conference Center, 793 F. Supp. 2d 1208; 2011 U.S. Dist. LEXIS 67966

Ted Oldja, Plaintiff, v. Warm Beach Christian Camps And Conference Center, Defendant.

CASE NO. C09-0122-JCC

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON

793 F. Supp. 2d 1208; 2011 U.S. Dist. LEXIS 67966

June 24, 2011, Decided

June 24, 2011, Filed

COUNSEL: [**1] For Ted Oldja, Plaintiff: Kenneth R Friedman, LEAD ATTORNEY, FRIEDMAN RUBIN, BREMERTON, WA; Michael N White, FRIEDMAN RUBIN, (BREMERTON), BREMERTON, WA.

For Warm Beach Christian Camps and Conference Center, Defendant: David R Goodnight, Vanessa Soriano Power, STOEL RIVES (WA), SEATTLE, WA; Francis S Floyd, Nicholas L Jenkins, FLOYD PFLUEGER & RINGER PS, SEATTLE, WA.

JUDGES: John C. Coughenour, UNITED STATES DISTRICT JUDGE.

OPINION BY: John C. Coughenour

OPINION

[*1209] ORDER

This matter comes before the Court on Defendant’s motion for summary judgment (Dkt. No. 49), Plaintiff’s response (Dkt. No. 53), and Defendant’s reply. (Dkt. No. 59.) Having thoroughly considered the parties’ briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS the motion for the reasons explained herein.

I. BACKGROUND

In the summer of 2007, Ted Oldja attended a camp at Warm Beach Christian Camp (“Warm Beach”) in Stanwood, Washington. Mr. and Mrs. Oldja decided to ride on the zip line operated by Warm Beach. The zip line carried riders in a harness suspended from a cable by two ropes: a white rope, which acts as the primary connection between the harness and the cable, and bears the load of the rider’s weight; and [**2] a black rope, which acts as a secondary connection between the harness and the cable, and can be used as a safety line to slow the rider down.

Before a user rides the zip line, it is the job of the launch facilitator to follow a safety procedure. First, the facilitator tells the rider that they can hold on to either the white and black ropes during the ride, or just the white rope. The facilitator instructs riders not to hold only the black secondary line, because it will slow them down or stop them completely. The facilitator then double-checks the harness configuration, pulley attachments, safety helmet, and carabiners. The launch facilitator calls “zip clear” to the landing facilitator to communicate that the rider is ready, and the landing facilitator responds “zip clear” to communicate that the path is clear for the rider.

After watching his wife on the ride, it was Mr. Oldja’s turn. The launch facilitator, Paul Matthewson, testified that he followed the proper safety procedures. (Dkt. No. 49 Ex. 2 at 51- 53.) Matthewson testified that he did not see Oldja wrap his fingers in the white primary rope, and that Oldja’s fingers were not wrapped in the rope when Matthewson cleared him [**3] to go. (Id. at 60.) Some time after Matthewson called “zip clear,” Mr. Oldja, a mechanical engineer, wrapped his fingers in the white primary rope, and stepped off the platform. The load-bearing rope tightened [*1210] around his hand and crushed his fingers. Mr. Oldja was rushed to a hospital and has had several surgeries on his hand. Plaintiff filed suit against Warm Beach for negligence, product liability, and negligence per se under a variety of theories. Defendant now moves for summary judgment dismissal of all three of these claims. Plaintiff does not oppose summary judgment on the product liability claim.

II. APPLICABLE LAW

[HN1] Federal Rule of Civil Procedure 56(c) mandates that a motion for summary judgment be granted when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). There exists a genuine issue as to a particular fact–and hence that fact “can be resolved only by a finder of fact” at trial–when “[it] may reasonably be resolved in favor of either party”; conversely, there exists no genuine issue when reasonable [**4] minds could not differ as to the import of the evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Whether a particular fact is material, in turn, is determined by the substantive law of the case: “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. Summary judgment, then, demands an inquiry into “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law”; if applying the relevant law to those facts about which no two reasonable factfinders could disagree dictates that the moving party must prevail, then a motion for summary judgment must be granted. Id. at 250-52.

III. DISCUSSION

A. Duty of Ordinary Care

Plaintiff argues that it is well established that every business has a duty to use ordinary care in keeping its premises reasonably safe for use by business invitees. (Dkt. No. 53 at 10.) Defendant argues that Section 388 of the Second Restatement of Torts should govern the analysis. [**5] The Court addresses Section 388 below, but Section 388 governs only the duty to disclose and does not govern the duty of ordinary care. Defendant has not shown an absence of a genuine issue of material fact with respect to its alleged breach of the duty of ordinary care. Accordingly, summary judgment dismissal of this claim is denied.

B. Duty to Disclose

[HN2] With reference to a duty to disclose, The Supreme Court of Washington has adopted Section 388 of the Second Restatement of Torts, which states that the supplier is liable if he:

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.

Fleming v. Stoddard Wendle Motor Co., 70 Wn.2d 465, 423 P.2d 926, 928 (Wash. 1967).

Plaintiff argues that he is choosing not to pursue his claims under Section 388. Rather, Plaintiff argues that the Court [*1211] should consider Section 343A, which creates a duty to protect invitees from known or obvious dangers when the [**6] landowner should anticipate the harm despite such knowledge and obviousness.

Plaintiff is misguided. [HN3] He may choose the claims he brings, but he cannot choose the standard the Court will apply to those claims. Section 343 governs liability for an activity or condition on the land. Section 388 governs liability for use of a chattel. “Chattel” means movable or transferable property. Black’s Law Dictionary (9th ed. 2009). Defendant argues that the zip line is movable property, and Plaintiff does not challenge this characterization. The Court agrees. Plaintiff’s injury was caused by equipment on the land, not the land itself. Accordingly, Section 388 governs Plaintiff’s claims. Lunt v. Mt. Spokane Skiing Corp., 62 Wn. App. 353, 814 P.2d 1189, 1192 (Wash. Ct. App. 1991) (where injury arises from equipment not land, Section 388 not Section 343 governs).

[HN4] Each of the three criteria in Section 388 must be satisfied. The Court will begin with consideration of the second criterion. To prevail on this element at the summary judgment phase, Plaintiff must show some evidence that Defendant had no reason to believe that riders of the zip line would realize the dangerous condition. This is a dense piece of legal language, [**7] so an illustration is helpful.

In Fleming v. Stoddard Wendle Motor Co., 70 Wn.2d 465, 423 P.2d 926 (Wash. 1967), a man disabled a safety feature on a truck that was designed to prevent the motor from starting if the car was in gear. He sold the truck to a mechanic and did not disclose that the safety feature had been disabled. When the purchaser started the truck, it lurched forward, striking and injuring the plaintiff. The Supreme Court of Washington noted that the man who had sold the car had no reason to believe that any future operator of the car would know that the safety feature had been disabled. Id. at 928. Because the seller had no reason to believe the defect would be discovered, he had a duty to warn of that defect. The defect was latent and no amount of common sense or automotive knowledge could inform a driver about that particular hazard. Dismissal of the seller was reversed.

In contrast, Mele v. Turner, 106 Wn.2d 73, 720 P.2d 787 (Wash. 1986) concerns a case where a young man borrowed a lawn mower from his neighbors, inserted his hand into the mower housing to clean out some wet grass, and injured four fingers. The young man admitted in an affidavit: “I obviously realized that one should not put [**8] his hand under the machine where the blade runs . . . .” Id. at 790. The Court held that because the dangerous condition was obvious and known, defendants had no legal duty to warn. Id. There was nothing latent about the defect, and common sense would inform the user of the hazard.

The present case is much closer to Mele than Fleming. Plaintiff’s injury was the natural result of wrapping a rope around one’s hand and then suspending one’s body from that rope. This was not a latent or hidden condition that only Defendant could know. Common sense of a capable adult is sufficient to inform a rider of this danger. Plaintiff admitted as much in his deposition:

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?

A. Correct.

Q. But if you had thought about it, you would have been able to figure that out, correct?

[*1212] A. If someone asked me?

Q. Yes.

A. Yes.

(Dkt. No. 50 at Ex. A 196:14-197:1.) Given Plaintiff’s admission that he would have realized the danger if he had thought about it, Plaintiff cannot credibly argue [**9] that Defendant had no reason to believe that he would realize the danger.

The only evidence Plaintiff offers on this point is the testimony of Dr. Richard Gill, a Human Factors Engineering consultant. Dr. Gill was disclosed as a rebuttal expert, and testified that the scope of his work was to provide rebuttal testimony to the three defense experts. (Dkt. No. 60 at Ex. 1, Ex 2 16:8-9.) Dr. Gill’s expert report provides a series of conclusions about the behavior of zip line riders that does not rebut any of the testimony of Defendant’s experts. Rather, this type of testimony should have been disclosed in the initial expert discovery responses and is therefore untimely. Accordingly, Dr. Gill’s testimony regarding the behavioral tendencies of zip line or challenge course participants is STRICKEN. Plaintiff has failed to demonstrate a genuine issue of material fact with respect to Defendant’s liability under Section 388.

C. Liability for violation of state regulations

Plaintiff’s next argument is that Defendant was negligent pursuant to RCW 5.40.050 for violation of a state statute. [HN5] WAC 296-403A-190 states that amusement rides must be inspected by certified inspectors. RCW 67.42.010 and [**10] WAC 296-403A-100(2) provide the definition of amusement rides, but do not mention zip lines. Plaintiff argues that these definitions do include zip lines, and relies on a series of communications with the State of Washington Department of Labor and Industries (“L&I”) in 2009 and 2010 in support of this contention. (Dkt. No. 50 at Ex. 11.)

The Court interprets these communications very differently from Plaintiff. It is clear from these emails that the decision to include zip lines in the definition of “amusement ride” under WAC 296-403A-100(2) was not made until late 2009 or early 2010, more than two years after Plaintiff injured his hand on Defendant’s zip line. (Dkt. No. 50 at Ex. 11.) Plaintiff does not address this chronology in his briefing. It is misleading in the extreme for Plaintiff to characterize Defendant’s zip line as “unlicensed” when the licensing body had not yet decided that a license was required. Plaintiff has failed to show a genuine issue of material fact with respect to Defendant’s failure to comply with licensing requirements.

D. Common Carrier Liability

Plaintiff’s third argument is that Defendant is subject to common carrier liability. [HN6] Under Washington law, the duty [**11] of a common carrier to safeguard passengers from injury requires the carrier to exercise the highest degree of care consistent with the practical operation of its business or its type of transportation. Benjamin v. Seattle, 74 Wn.2d 832, 447 P.2d 172 (1968). Plaintiff acknowledges that there is no Washington caselaw addressing the issue of whether a zip line qualifies as a “common carrier,” but argues that this Court should expand the definition to include zip lines and similar amusement rides. In support of this argument, Plaintiff mentions a series of California decisions holding that a higher standard of care applies to amusement rides. Gomez v. Superior Court, 35 Cal. 4th 1125, 29 Cal. Rptr. 3d 352, 113 P.3d 41, 47 (Cal. 2005) (holding that the same high standard of care applied to carriers of passengers should also apply to operators of roller [*1213] coasters); Neubauer v. Disneyland, 875 F. Supp. 672, 673 (C.D. Cal. 1995) (holding that under California’s broad common carrier statute, a Disneyland amusement ride may be a common carrier).

This argument stumbles into the yawning gap between the Washington and California common-carrier statutes. [HN7] California’s common carrier statute is broad: Every one who offers to the public to carry persons, [**12] property, or messages, excepting only telegraphic messages, is a common carrier of whatever he thus offers to carry. Cal Civ Code § 2168. Washington’s common carrier statute is narrow and exhaustive:

“Common carrier” includes all railroads, railroad companies, street railroads, street railroad companies, commercial ferries, motor freight carriers, auto transportation companies, charter party carriers and excursion service carriers, private nonprofit transportation providers, solid waste collection companies, household goods carriers, hazardous liquid pipeline companies, and every corporation, company, association, joint stock association, partnership, and person, their lessees, trustees, or receivers appointed by any court whatsoever, and every city or town, owning, operating, managing, or controlling any such agency for public use in the conveyance of persons or property for hire within this state.

RCW 81.04.010(11). Plaintiff offers no argument or evidence for the proposition that this definition includes a zip line. Again, Plaintiff has failed to show a genuine issue of material fact with respect to Defendant’s liability as an alleged common carrier.

IV. CONCLUSION

Defendant’s motion [**13] for Summary Judgment (Dkt. No. 49) is GRANTED in part and DENIED in part. Plaintiff’s claims for breach of the duty of ordinary care survive summary judgment. Plaintiff’s claims for breach of the duty to disclose, claims relating to the violation of the WAC, and claims relating to common carrier liability are DISMISSED.

DATED this 24th day of June 2011.

/s/ John C. Coughenour

John C. Coughenour

UNITED STATES DISTRICT JUDGE


Summer Camp, Zip line injury and confusing legal analysis in Washington

A 200' Mammoth Deluxe zip line installed over ...

A 200′ Mammoth Deluxe zip line installed over a pond. (Photo credit: Wikipedia)

Oldja v. Warm Beach Christian Camps and Conference Center, 793 F. Supp. 2d 1208; 2011 U.S. Dist. LEXIS 67966

Facts, no prepared defense and the plaintiff will get to go to trial.

In this case, I think the parents of a child who was attending the summer camp opted to ride the camp zip line. The zip line had two ropes that attached the rider to the haul line. The adult plaintiff when getting ready to ride wrapped one rope around his fingers. When he launched, the rope tightened almost severing his fingers.

The defendant filed a motion for summary judgment. However, the analysis by the court did not read like the normal decisions on motions for summary judgment and started out by denying part of the plaintiff’s argument.

Summary of the case

The plaintiff argued the summer camp, landowner, owed him a duty of ordinary care. The court found this really did not apply to this case, and the duty was a duty to disclose rather than a duty of ordinary care. However, the court allowed this argument to proceed.

Under Washington’s law, the duty of ordinary care is defined as:

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.

The court then argued that the plaintiff was arguing the wrong legal issues because the plaintiff was arguing the plaintiff was a landowner; however, the injury did not occur on the land.

Because the injury the plaintiff received was based on the acts of the plaintiff, wrapping a rope around his hand, there was no violation of a duty by the defendant.

Plaintiff’s injury was the natural result of wrapping a rope around one’s hand and then suspending one’s body from that rope. This was not a latent or hidden condition that only defendant could know. Common sense of a capable adult is sufficient to inform a rider of this danger. Plaintiff admitted as much in his deposition:

Q. Did you know that if you wrapped the rope around your fingers, and then you put weight on the rope, 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?

A. Correct.

Q. But if you had thought about it, you would have been able to figure that out, correct?

A. If someone asked me?

Q. Yes.

A. Yes.

Because the plaintiff admitted that if he thought  about it, he would have realized that his actions would injure his hand, the defendant did not owe him a greater duty than it had done.

The plaintiff then stretched with two additional causes or claims. The first was the defendant had violated a state statute because the zip line was not inspected by the state. However, the statute that the plaintiff tried to apply, the amusement ride statute, did not include zip lines in its definitions until after the plaintiff’s accident. The statute at the time the plaintiff was injured did not apply to zip lines.

The next argument is farther out there, and exponentially scarier. The plaintiff argued that a zip line should be classified as a common carrier. A common carrier under most state interpretations are airlines, trains, buses, etc. Those types of transportation, carriers for hire, where the customer pays to be moved from one place to the next owe their customers the highest degree of care. The transportation must be for the purpose of movement, not amusement. The scary part is a common carrier owes the highest degree of care to its customers.

This definition means that a common carrier is liable in most situations for any injury to its passengers.

However, the court did not find a zip line was a common carrier. Thankfully.

So Now What?

The obvious issue that was missed, was the camp should have been using a release. An adult is on the property having fun; an injury will occur.

A motion for summary judgment is used when the legal arguments against a claim are sufficient to eliminate that claim. In most cases, this ends the lawsuit as long as all claims are ruled in favor of the defendant. Here the one claim, no matter how sketchy is probably going to allow the plaintiff to recover some amount of money.

Based on the ruling, the plaintiff will get his day in court or be paid not to go to court. A slip when someone is loading a zip line, no release and a traumatic injury add up to a big lawsuit.

What do you think? Leave a comment.

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Oldja v.Warm Beach Christian Camps and Conference Center, 793 F. Supp. 2d 1208; 2011 U.S. Dist. LEXIS 67966

Oldja v.Warm Beach Christian Camps and Conference Center, 793 F. Supp. 2d 1208; 2011 U.S. Dist. LEXIS 67966

Ted Oldja, Plaintiff, v. Warm Beach Christian Camps and Conference Center, Defendant.

CASE NO. C09-0122-JCC

United States District Court for the Western District of Washington

793 F. Supp. 2d 1208; 2011 U.S. Dist. LEXIS 67966

June 24, 2011, Decided

June 24, 2011, Filed

COUNSEL: [**1] For Ted Oldja, Plaintiff: Kenneth R Friedman, LEAD ATTORNEY, FRIEDMAN RUBIN, BREMERTON, WA; Michael N White, FRIEDMAN RUBIN, (BREMERTON), BREMERTON, WA.

For Warm Beach Christian Camps and Conference Center, Defendant: David R Goodnight, Vanessa Soriano Power, STOEL RIVES (WA), SEATTLE, WA; Francis S Floyd, Nicholas L Jenkins, FLOYD PFLUEGER & RINGER PS, SEATTLE, WA.

JUDGES: John C. Coughenour, UNITED STATES DISTRICT JUDGE.

OPINION BY: John C. Coughenour

OPINION

[*1209] ORDER

This matter comes before the Court on Defendant’s motion for summary judgment (Dkt. No. 49), Plaintiff’s response (Dkt. No. 53), and Defendant’s reply. (Dkt. No. 59.) Having thoroughly considered the parties’ briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS the motion for the reasons explained herein.

I. BACKGROUND

In the summer of 2007, Ted Oldja attended a camp at Warm Beach Christian Camp (“Warm Beach”) in Stanwood, Washington. Mr. and Mrs. Oldja decided to ride on the zip line operated by Warm Beach. The zip line carried riders in a harness suspended from a cable by two ropes: a white rope, which acts as the primary connection between the harness and the cable, and bears the load of the rider’s weight; and [**2] a black rope, which acts as a secondary connection between the harness and the cable, and can be used as a safety line to slow the rider down.

Before a user rides the zip line, it is the job of the launch facilitator to follow a safety procedure. First, the facilitator tells the rider that they can hold on to either the white and black ropes during the ride, or just the white rope. The facilitator instructs riders not to hold only the black secondary line, because it will slow them down or stop them completely. The facilitator then double-checks the harness configuration, pulley attachments, safety helmet, and carabiners. The launch facilitator calls “zip clear” to the landing facilitator to communicate that the rider is ready, and the landing facilitator responds “zip clear” to communicate that the path is clear for the rider.

After watching his wife on the ride, it was Mr. Oldja’s turn. The launch facilitator, Paul Matthewson, testified that he followed the proper safety procedures. (Dkt. No. 49 Ex. 2 at 51- 53.) Matthewson testified that he did not see Oldja wrap his fingers in the white primary rope, and that Oldja’s fingers were not wrapped in the rope when Matthewson cleared him [**3] to go. (Id. at 60.) Sometime after Matthewson called “zip clear,” Mr. Oldja, a mechanical engineer, wrapped his fingers in the white primary rope, and stepped off the platform. The load-bearing rope tightened [*1210] around his hand and crushed his fingers. Mr. Oldja was rushed to a hospital and has had several surgeries on his hand. Plaintiff filed suit against Warm Beach for negligence, product liability, and negligence per se under a variety of theories. Defendant now moves for summary judgment dismissal of all three of these claims. Plaintiff does not oppose summary judgment on the product liability claim.

II. APPLICABLE LAW

[HN1] Federal Rule of Civil Procedure 56(c) mandates that a motion for summary judgment be granted when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). There exists a genuine issue as to a particular fact–and hence that fact “can be resolved only by a finder of fact” at trial–when “[it] may reasonably be resolved in favor of either party”; conversely, there exists no genuine issue when reasonable [**4] minds could not differ as to the import of the evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Whether a particular fact is material, in turn, is determined by the substantive law of the case: “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. Summary judgment, then, demands an inquiry into “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law”; if applying the relevant law to those facts about which no two reasonable factfinders could disagree dictates that the moving party must prevail, then a motion for summary judgment must be granted. Id. at 250-52.

III. DISCUSSION

A. Duty of Ordinary Care

Plaintiff argues that it is well established that every business has a duty to use ordinary care in keeping its premises reasonably safe for use by business invitees. (Dkt. No. 53 at 10.) Defendant argues that Section 388 of the Second Restatement of Torts should govern the analysis. [**5] The Court addresses Section 388 below, but Section 388 governs only the duty to disclose and does not govern the duty of ordinary care. Defendant has not shown an absence of a genuine issue of material fact with respect to its alleged breach of the duty of ordinary care. Accordingly, summary judgment dismissal of this claim is denied.

B. Duty to Disclose

[HN2] With reference to a duty to disclose, The Supreme Court of Washington has adopted Section 388 of the Second Restatement of Torts, which states that the supplier is liable if he:

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.

Fleming v. Stoddard Wendle Motor Co., 70 Wn.2d 465, 423 P.2d 926, 928 (Wash. 1967).

Plaintiff argues that he is choosing not to pursue his claims under Section 388. Rather, Plaintiff argues that the Court [*1211] should consider Section 343A, which creates a duty to protect invitees from known or obvious dangers when the [**6] landowner should anticipate the harm despite such knowledge and obviousness.

Plaintiff is misguided. [HN3] He may choose the claims he brings, but he cannot choose the standard the Court will apply to those claims. Section 343 governs liability for an activity or condition on the land. Section 388 governs liability for use of a chattel. “Chattel” means movable or transferable property. Black’s Law Dictionary (9th ed. 2009). Defendant argues that the zip line is movable property, and Plaintiff does not challenge this characterization. The Court agrees. Plaintiff’s injury was caused by equipment on the land, not the land itself. Accordingly, Section 388 governs Plaintiff’s claims. Lunt v. Mt. Spokane Skiing Corp., 62 Wn. App. 353, 814 P.2d 1189, 1192 (Wash. Ct. App. 1991) (where injury arises from equipment not land, Section 388 not Section 343 governs).

[HN4] Each of the three criteria in Section 388 must be satisfied. The Court will begin with consideration of the second criterion. To prevail on this element at the summary judgment phase, Plaintiff must show some evidence that Defendant had no reason to believe that riders of the zip line would realize the dangerous condition. This is a dense piece of legal language, [**7] so an illustration is helpful.

In Fleming v. Stoddard Wendle Motor Co., 70 Wn.2d 465, 423 P.2d 926 (Wash. 1967), a man disabled a safety feature on a truck that was designed to prevent the motor from starting if the car was in gear. He sold the truck to a mechanic and did not disclose that the safety feature had been disabled. When the purchaser started the truck, it lurched forward, striking and injuring the plaintiff. The Supreme Court of Washington noted that the man who had sold the car had no reason to believe that any future operator of the car would know that the safety feature had been disabled. Id. at 928. Because the seller had no reason to believe the defect would be discovered, he had a duty to warn of that defect. The defect was latent and no amount of common sense or automotive knowledge could inform a driver about that particular hazard. Dismissal of the seller was reversed.

In contrast, Mele v. Turner, 106 Wn.2d 73, 720 P.2d 787 (Wash. 1986) concerns a case where a young man borrowed a lawn mower from his neighbors, inserted his hand into the mower housing to clean out some wet grass, and injured four fingers. The young man admitted in an affidavit: “I obviously realized that one should not put [**8] his hand under the machine where the blade runs . . . .” Id. at 790. The Court held that because the dangerous condition was obvious and known, defendants had no legal duty to warn. Id. There was nothing latent about the defect, and common sense would inform the user of the hazard.

The present case is much closer to Mele than Fleming. Plaintiff’s injury was the natural result of wrapping a rope around one’s hand and then suspending one’s body from that rope. This was not a latent or hidden condition that only Defendant could know. Common sense of a capable adult is sufficient to inform a rider of this danger. Plaintiff admitted as much in his deposition:

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?

A. Correct.

Q. But if you had thought about it, you would have been able to figure that out, correct?

[*1212] A. If someone asked me?

Q. Yes.

A. Yes.

(Dkt. No. 50 at Ex. A 196:14-197:1.) Given Plaintiff’s admission that he would have realized the danger if he had thought about it, Plaintiff cannot credibly argue [**9] that Defendant had no reason to believe that he would realize the danger.

The only evidence Plaintiff offers on this point is the testimony of Dr. Richard Gill, a Human Factors Engineering consultant. Dr. Gill was disclosed as a rebuttal expert, and testified that the scope of his work was to provide rebuttal testimony to the three defense experts. (Dkt. No. 60 at Ex. 1, Ex 2 16:8-9.) Dr. Gill’s expert report provides a series of conclusions about the behavior of zip line riders that does not rebut any of the testimony of Defendant’s experts. Rather, this type of testimony should have been disclosed in the initial expert discovery responses and is therefore untimely. Accordingly, Dr. Gill’s testimony regarding the behavioral tendencies of zip line or challenge course participants is STRICKEN. Plaintiff has failed to demonstrate a genuine issue of material fact with respect to Defendant’s liability under Section 388.

C. Liability for violation of state regulations

Plaintiff’s next argument is that Defendant was negligent pursuant to RCW 5.40.050 for violation of a state statute. [HN5] WAC 296-403A-190 states that amusement rides must be inspected by certified inspectors. RCW 67.42.010 and [**10] WAC 296-403A-100(2) provide the definition of amusement rides, but do not mention zip lines. Plaintiff argues that these definitions do include zip lines, and relies on a series of communications with the State of Washington Department of Labor and Industries (“L&I”) in 2009 and 2010 in support of this contention. (Dkt. No. 50 at Ex. 11.)

The Court interprets these communications very differently from Plaintiff. It is clear from these emails that the decision to include zip lines in the definition of “amusement ride” under WAC 296-403A-100(2) was not made until late 2009 or early 2010, more than two years after Plaintiff injured his hand on Defendant’s zip line. (Dkt. No. 50 at Ex. 11.) Plaintiff does not address this chronology in his briefing. It is misleading in the extreme for Plaintiff to characterize Defendant’s zip line as “unlicensed” when the licensing body had not yet decided that a license was required. Plaintiff has failed to show a genuine issue of material fact with respect to Defendant’s failure to comply with licensing requirements.

D. Common Carrier Liability

Plaintiff’s third argument is that Defendant is subject to common carrier liability. [HN6] Under Washington law, the duty [**11] of a common carrier to safeguard passengers from injury requires the carrier to exercise the highest degree of care consistent with the practical operation of its business or its type of transportation. Benjamin v. Seattle, 74 Wn.2d 832, 447 P.2d 172 (1968). Plaintiff acknowledges that there is no Washington caselaw addressing the issue of whether a zip line qualifies as a “common carrier,” but argues that this Court should expand the definition to include zip lines and similar amusement rides. In support of this argument, Plaintiff mentions a series of California decisions holding that a higher standard of care applies to amusement rides. Gomez v. Superior Court, 35 Cal. 4th 1125, 29 Cal. Rptr. 3d 352, 113 P.3d 41, 47 (Cal. 2005) (holding that the same high standard of care applied to carriers of passengers should also apply to operators of roller [*1213] coasters); Neubauer v. Disneyland, 875 F. Supp. 672, 673 (C.D. Cal. 1995) (holding that under California’s broad common carrier statute, a Disneyland amusement ride may be a common carrier).

This argument stumbles into the yawning gap between the Washington and California common-carrier statutes. [HN7] California’s common carrier statute is broad: Everyone who offers to the public to carry persons, [**12] property, or messages, excepting only telegraphic messages, is a common carrier of whatever he thus offers to carry. Cal Civ Code § 2168. Washington’s common carrier statute is narrow and exhaustive:

“Common carrier” includes all railroads, railroad companies, street railroads, street railroad companies, commercial ferries, motor freight carriers, auto transportation companies, charter party carriers and excursion service carriers, private nonprofit transportation providers, solid waste collection companies, household goods carriers, hazardous liquid pipeline companies, and every corporation, company, association, joint stock association, partnership, and person, their lessees, trustees, or receivers appointed by any court whatsoever, and every city or town, owning, operating, managing, or controlling any such agency for public use in the conveyance of persons or property for hire within this state.

RCW 81.04.010(11). Plaintiff offers no argument or evidence for the proposition that this definition includes a zip line. Again, Plaintiff has failed to show a genuine issue of material fact with respect to Defendant’s liability as an alleged common carrier.

IV. CONCLUSION

Defendant’s motion [**13] for Summary Judgment (Dkt. No. 49) is GRANTED in part and DENIED in part. Plaintiff’s claims for breach of the duty of ordinary care survive summary judgment. Plaintiff’s claims for breach of the duty to disclose, claims relating to the violation of the WAC, and claims relating to common carrier liability are DISMISSED.

DATED this 24th day of June 2011.

/s/ John C. Coughenour

John C. Coughenour

UNITED STATES DISTRICT JUDGE

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Johnson v. Recreational Equipment, Inc., 2011 Wash. App. LEXIS 351

Johnson v. Recreational Equipment, Inc., 2011 Wash. App. LEXIS 351
Monika Johnson, Respondent, v. Recreational Equipment, Inc., Petitioner.
No. 65463-2-I
Court of Appeals of Washington, Division One
2011 Wash. App. LEXIS 351
January 6, 2011, Oral Argument
February 7, 2011, Filed
PRIOR HISTORY: [*1]
Appeal from King County Superior Court. Docket No: 09-2-14346-3. Judgment or order under review. Date filed: 05/10/2010. Judge signing: Honorable Steven C Gonzalez.
DISPOSITION: Affirmed.
SUMMARY:
WASHINGTON OFFICIAL REPORTS SUMMARY Nature of Action: Action for damages for injuries sustained while riding a bicycle. The plaintiff brought the action as a product liability claim against the seller of the bicycle. The plaintiff alleged that her injuries were caused by a defect in the carbon fiber front fork of the bicycle. Both the bicycle and the carbon fiber fork, although not manufactured by the defendant, were marketed under the defendant’s brand name.
Nature of Action: Action for damages for injuries sustained while riding a bicycle. The plaintiff brought the action as a product liability claim against the seller of the bicycle. The plaintiff alleged that her injuries were caused by a defect in the carbon fiber front fork of the bicycle. Both the bicycle and the carbon fiber fork, although not manufactured by the defendant, were marketed under the defendant’s brand name.
Superior Court: The Superior Court for King County, No. 09-2-14346-3, Steven C. Gonzalez, J., on May 10, 2010, denied the defendant’s motion to be permitted to seek to have the jury allocate fault to the manufacturer of the carbon fiber fork and granted the plaintiff’s motion for summary judgment on the issue of strict liability.
Court of Appeals: Holding that the defendant’s statutory vicarious liability for the manufacturing defect precludes a right to have fault allocated to the manufacturer and that the factual averments in the record were sufficient for the trial court to rule on the issue of strict liability as a matter of law, the court affirms the trial court’s rulings.
HEADNOTES WASHINGTON OFFICIAL REPORTS HEADNOTES
[1] Statutes — Construction — Review — Standard of Review. Questions of statutory interpretation are reviewed de novo.
[2] Statutes — Construction — Legislative Intent — In General. A court’s primary duty in interpreting a statute is to implement legislative intent.
[3] Statutes — Construction — Unambiguous Language — Statutory Language — In General. The meaning of an unambiguous statute is derived from the statute’s plain language.
[4] Statutes — Construction — Superfluous Provisions. A statute must be construed so that no provision is rendered meaningless or superfluous.
[5] Products Liability — Defect — Seller Liability — Own Brand Product — Statutory Provisions — Nature of Liability — Vicarious Liability. RCW 7.72.040(2)(e) holds a product seller liable for a manufacturing defect in a product marketed under the product sellers’s own trade name or brand name even though the manufacturer necessarily is the entity that actually caused the defect. The statute creates a form of vicarious liability that enables a claimant injured by a defectively manufactured product to recover fully from the product seller where the seller branded the product as its own.
[6] Statutes — Construction — Meaningful Interpretation — In General. Because a court assumes that the legislature does not engage in meaningless acts, a statute should not be construed as if the legislature has.
[7] Statutes — Repeal — By Implication — Disfavored Status. Implied repeals of statutes are disfavored; courts have a duty to interpret statutes so as to give them effect.
[8] Products Liability — Defect — Seller Liability — Own Brand Product — Allocation of Fault — To Manufacturer — In General. A product seller that is subject to vicarious liability for a manufacturing defect in a product under RCW 7.72.040(2)(e) because the product is marketed under the product sellers’s own trade name or brand name does not have a right to an allocation of fault to the manufacturer on the same manufacturing defect claim. This rule is not inconsistent with the law of comparative fault as set forth in chapter 4.22 RCW because RCW 7.72.040(2)(e) provides that the seller’s proportionate amount of damages is the full amount of damages, in which case no apportionment of fault is necessary to ensure that the seller pays only its share of damages.
[9] Products Liability — Defect — Seller Liability — Own Brand Product — Allocation of Fault — Private Contract. The rule of RCW 7.72.040(2)(e) that a product seller can be vicariously liable for a manufacturing defect in a product marketed under the product seller’s own trade name or brand name suggests a legislative intent to leave to the marketplace the means of allocating risk between commercial entities. The Washington Product Liability Act (ch. 7.72 RCW) presupposes a contractual relationship between the product seller and the manufacturer, with or without an intermediary supplier, and, rather than legislatively imposing a means of risk allocation, assumes that sophisticated commercial parties will contract to allocate risk between themselves.
[10] Judgment — Summary Judgment — Burden on Moving Party — Absence of Factual Issue. In a summary judgment proceeding, the party moving for summary judgment has the burden of demonstrating that there is no genuine issue as to any material fact.
[11] Judgment — Summary Judgment — Determination — Single Conclusion From Evidence. Summary judgment is appropriate if reasonable persons could reach only one conclusion from the facts submitted.
[12] Judgment — Summary Judgment — Issues of Fact — Material Fact — What Constitutes. For purposes of a summary judgment proceeding, a material fact is a fact on which the outcome of the litigation depends, in whole or in part.
[13] Judgment — Summary Judgment — Affidavits — Sufficiency — Evidentiary Facts. An affidavit submitted in response to a motion for summary judgment does not raise a genuine issue of fact unless it sets forth facts that are evidentiary in nature, i.e., information as to what took place–an act, an incident, a reality–as distinguished from supposition or opinion. Ultimate facts, conclusions of fact, and conclusory statements of fact or legal conclusions are insufficient to raise a question of fact.
[14] Products Liability — Defect — Strict Liability — Manufacturing Defect — Deviation From Manufacturer’s Specifications or Standards — Proof — Expert Testimony — Sufficiency. In a strict liability product liability action alleging that a product was not reasonably safe in construction, where the manufacturing defect is such that no conceivable performance standard would call for the product to be manufactured that way, expert testimony that such defect caused the product’s failure can be sufficient to establish that the product deviated in some material way from the manufacturer’s design specifications or performance standards, or deviated in some material way from otherwise identical units of the same product line, within the meaning of RCW 7.72.030(2)(a). Direct evidence of the manufacturer’s design specifications or performance standards is not required in this situation.
[15] Judgment — Summary Judgment — Burden on Nonmoving Party — Averment of Specific Facts — Speculation. A party opposing a motion for summary judgment cannot rely on speculation and conjecture to raise a genuine issue of material fact.
[16] Trial — Bifurcation of Issues — Review — Standard of Review. A trial court’s decision to order separate trials is reviewed for abuse of discretion.
[17] Products Liability — Defect — Seller Liability — Own Brand Product — Contribution — Third Party Action — Against Manufacturer — Bifurcation of Trial. In a product liability action alleging that a product seller is vicariously liable for a manufacturing defect in a product marketed under the product seller’s own trade name or brand name, the trial court may properly rule that any contribution claim by the seller against the product’s manufacturer must be tried separately because joining the manufacturer as a third party defendant would delay and prejudice the plaintiff’s claim against the seller. The trial court may properly bifurcate the claims despite negative consequences for the seller’s contribution rights.
COUNSEL: V.L. Woolston and Paul S. Graves (of Perkins Coie LLP), for petitioner.
Robert L. Christie, Jason M. Rosen, and Thomas P. Miller (of Christie Law Group PLLC), for respondent.
JUDGES: AUTHOR: Stephen J. Dwyer, C.J. We concur: Michael S. Spearman, J., C. Kenneth Grosse, J.
OPINION BY: Stephen J. Dwyer
OPINION
¶1 Dwyer, C.J. — [HN1] The Washington product liability act (WPLA), chapter 7.72 RCW, sets forth a statutory form of vicarious liability whereby a product seller assumes the liability of a manufacturer where a product is marketed under the seller’s brand name. Because permitting the product seller to attribute fault to the actual manufacturer would abrogate this provision of the WPLA, principles of comparative fault do not apply, notwithstanding the possibility that statutory contribution may thereby be precluded. Such a result is not in contravention of our state’s statutory comparative fault system, as commercial entities [*2] can themselves contract to allocate liability where the WPLA’s vicarious liability provision applies.
¶2 Accordingly, we affirm the trial court’s ruling that Recreational Equipment, Inc. (REI) is not entitled to seek to allocate fault to the manufacturer of the defective product that REI branded as its own. We also conclude that the trial court erred neither by finding REI strictly liable for the injuries caused by the defective product nor by ruling that any third party claim by REI against the manufacturer would be severed for trial.
I
¶3 In November 2007, Monika Johnson was riding her bicycle along a downtown Seattle sidewalk when the front carbon fiber fork of the bicycle, which attaches the bicycle’s front wheel to its frame, “sheared from the steer tube suddenly and without warning.” Clerk’s Papers (CP) at 57. The fork and front wheel detached from the frame of the bicycle, and Johnson fell face first onto the sidewalk, sustaining serious injuries.
¶4 Johnson brought an action against REI pursuant to the WPLA, alleging that her injuries were caused by a defect in the carbon fiber fork. Both the bicycle and the carbon fiber fork, although not manufactured by REI, were marketed under REI’s [*3] brand name, Novara. Johnson had purchased the Novara brand bicycle from REI in 2002. In 2005, she had taken the bicycle to REI for repairs following a collision with a car door. The Novara carbon fiber fork that fractured in November 2007 was installed on the bicycle during those 2005 repairs.
¶5 Johnson did not name the manufacturer of the fork, Aprebic Industry Company, Ltd., as a defendant in the action. REI filed a motion for partial summary judgment, seeking a ruling that it was entitled to ask the jury to allocate fault to Aprebic pursuant to Washington’s comparative fault system, set forth in chapter 4.22 RCW, or, in the alternative, requesting leave to file a third party complaint against Aprebic. In response, Johnson filed a motion for partial summary judgment, asserting that REI was strictly liable for her injuries.
¶6 In support of her summary judgment motion, Johnson submitted to the trial court the declaration of Gerald Zaminski, a professional engineer, who examined the bicycle and the carbon fiber fork and destructively tested the fork. He found that the section of the fork where the fracture occurred “was manufactured using a relatively small number of [carbon fiber] layers.” [*4] CP at 106. He concluded that “[t]he small number of carbon fiber layers and their orientation interface resulted in the nucleation and propagation of cracking” and that this cracking “led to the catastrophic fracture and failure of the fork.” CP at 106. According to Zaminski, the thickness of the carbon fiber layering where the fracture occurred was “just a fraction of the thickness of the carbon fiber layup elsewhere in the fork and steerer tube.” CP at 106. He stated that the carbon fiber layers also “displayed voids, gaps, separations, and kinks, which are all indicative of defective manufacturing.” CP at 106. Zaminski also observed that the carbon fiber layers at the point of the fracture were “starved of epoxy,” making them “more susceptible to failure.” CP at 107. Zaminski declared that “[t]he orientation and makeup of the carbon fiber layers can only occur during manufacturing; they are not defects that can occur after the product has been manufactured.” CP at 107.
¶7 In response, REI submitted the declaration of David Mitchell, also a professional engineer, who inspected the bicycle and carbon fiber fork. Mitchell asserted that “there is presently insufficient information to rule [*5] out the accumulation of prior damage to the front fork as the cause of ultimate fork separation.” CP at 178. He stated that “the nature of the fracture was not determined” and that additional laboratory testing should be conducted, including loading an examplar fork to determine its breaking strength. CP at 177. He also noted that the bicycle itself was “clearly a high mileage vehicle” that displayed “substantial wear and tear.” CP at 176. Mitchell further suggested that a 2006 collision involving the bicycle, in which the rear wheel was damaged, could have contributed to the fork’s fracture. He opined that “[i]f an element of that crash involved the front fork without creating visible damage, then it could be considered an initiating event for the fracture that serves as the basis for this law suit.” CP at 178.
¶8 The trial court denied REI’s motion to be permitted to seek to have the jury allocate fault to Aprebic and granted Johnson’s motion for summary judgment on the issue of strict liability. The trial court ruled that “[d]efendant REI has the liability of a ‘manufacturer’ as set forth in RCW 7.72.040(2)(e) and is strictly liable as a matter of law for all damages and injuries that [*6] plaintiff sustained.” 1 CP at 196. The trial court further determined that the fact that Aprebic is the actual manufacturer of the fork has no bearing on REI’s liability to Johnson, as “REI has the same liability as the actual manufacturer.” CP at 196. The trial court concluded that Johnson could look to REI exclusively for compensation for her injuries. Although the trial court denied REI’s request to attribute fault to Aprebic, it did grant to REI leave to join Aprebic as a third party defendant. However, the trial court noted that if REI did so, the court would “require separate trials under CR 20(b) to prevent delay and prejudice to [Johnson].” CP at 198.
1 The trial court noted that its ruling would not “preclude REI from asserting that [Johnson] was contributorily negligent if any facts to support this are developed.” CP at 196.
¶9 REI sought discretionary review of the trial court’s rulings. A commissioner of this court granted discretionary review of the trial court’s rulings on three issues: (1) whether comparative fault principles apply to Johnson’s claims, (2) whether REI is strictly liable for Johnson’s injuries, and (3) whether any third party claim brought by REI against Aprebic [*7] should be severed for trial.
II
¶10 REI first contends that the statutory comparative fault system adopted by our legislature in 1986 demands that it be permitted to ask the jury to allocate fault to Aprebic for the fork’s manufacturing defect. Because the WPLA expressly provides that REI, by selling the defective product under its own brand name, assumes the liability of the manufacturer, we disagree.
[1] ¶11 [HN2] Questions of statutory interpretation are reviewed de novo. Happy Bunch, LLC v. Grandview N., LLC, 142 Wn. App. 81, 88, 173 P.3d 959 (2007). Whether the WPLA permits a product seller that brands a defective product as its own to attribute fault to the actual manufacturer is a question of statutory interpretation; thus, we review the question de novo.
[2-4] ¶12 [HN3] Our primary duty in interpreting a statute is to discern and implement legislative intent. Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). Where a statute is unambiguous, we derive its meaning from the plain language of the statute. Campbell & Gwinn, 146 Wn.2d at 9-10. Moreover, we must construe statutes such that no provision is rendered meaningless or superfluous. Whatcom County v. City of Bellingham, 128 Wn.2d 537, 546, 909 P.2d 1303 (1996).
¶13 [HN4] In [*8] 1981, our legislature codified the law of product liability by enacting the Washington product liability act (WPLA), chapter 7.72 RCW. The WPLA distinguishes between and imposes different standards of liability on manufacturers and product sellers for harm caused by defective products. See RCW 7.72.030, .040. As a general rule, manufacturers of defective products are held to a higher standard of liability, including strict liability where injury is caused by a manufacturing defect or a breach of warranty. RCW 7.72.030(2). 2 In contrast, product sellers are ordinarily liable only for negligence, breach of express warranty, or intentional misrepresentation. RCW 7.72.040(1). In limited circumstances, however, product sellers are subject to “the liability of a manufacturer,” including where “[t]he product was marketed under a trade name or brand name of the product seller.” RCW 7.72.040(2), (2)(e). 3
2 RCW 7.72.030(2) provides, in pertinent part:
[HN5] (2) A product manufacturer is subject to strict liability to a claimant if the claimant’s harm was proximately caused by the fact that the product was not reasonably safe in construction or not reasonably safe because it did not conform to the manufacturer’s [*9] express warranty or to the implied warranties under Title 62A RCW.
(a) A product is not reasonably safe in construction if, when the product left the control of the manufacturer, the product deviated in some material way from the design specifications or performance standards of the manufacturer, or deviated in some material way from otherwise identical units of the same product line.
3 The limited circumstances in which a product seller assumes the liability of a manufacturer are set forth in RCW 7.70.040(2), which provides:
[HN6] (2) A product seller, other than a manufacturer, shall have the liability of a manufacturer to the claimant if:
(a) No solvent manufacturer who would be liable to the claimant is subject to service of process under the laws of the claimant’s domicile or the state of Washington; or
(b) The court determines that it is highly probable that the claimant would be unable to enforce a judgment against any manufacturer; or
(c) The product seller is a controlled subsidiary of a manufacturer, or the manufacturer is a controlled subsidiary of the product seller; or
(d) The product seller provided the plans or specifications for the manufacture or preparation of the product and such [*10] plans or specifications were a proximate cause of the defect in the product; or
(e) The product was marketed under a trade name or brand name of the product seller.
[5-9] ¶14 [HN7] The WPLA explicitly provides that “[a] product seller, other than a manufacturer, [has] the liability of a manufacturer” where “[t]he product was marketed under a trade name or brand name of the product seller.” RCW 7.72.040(2), (2)(e). Although, absent this provision, only a manufacturer could be held liable for a manufacturing defect, RCW 7.72.030(2), our legislature has chosen to hold particular product sellers liable for such acts–despite the fact that the manufacturer of the product is necessarily the entity that actually caused the defect where a product is defectively manufactured.
¶15 Thus, [HN8] by imposing liability on sellers of branded products for manufacturing defects–which, inevitably, are caused by acts of the manufacturer–our legislature created a statutory form of vicarious liability that enables the claimant injured by a defectively manufactured product to recover fully from the product seller where the seller branded the product as its own. See 16 David K. DeWolf & Keller W. Allen, Washington Practice: Tort Law & [*11] Practice, § 3.1, at 116 (3d ed. 2006) (“In contrast to direct liability, which is liability for breach of one’s own duty of care, vicarious liability is liability for the breach of someone else’s duty of care.”). Because a seller of a branded product is vicariously liable for manufacturing defects, permitting REI–the product seller liable as the manufacturer pursuant to RCW 7.72.040(2)(e)–to seek to allocate fault to Aprebic–the actual manufacturer of the defective product–would undermine the statutory scheme of the WPLA.
¶16 REI incorrectly contends that RCW 7.72.040(2)(e), rather than creating a statutory form of vicarious liability, instead merely imposes on sellers of branded products the liability standard to which manufacturers are held. Thus, according to REI, although product sellers are ordinarily liable only for negligence, breach of an express warranty, or intentional misrepresentation, pursuant to RCW 7.72.040(1), sellers of branded products may also be found liable, pursuant to RCW 7.72.040(2)(e), for design and construction defects, inadequate warnings, or breach of an implied warranty–acts for which generally only manufacturers are held liable. See RCW 7.72.030(1), (2). For [*12] this reason, REI argues that it should be permitted to attribute fault to Aprebic. This contention fails for two reasons.
¶17 First, [HN9] had our legislature merely imposed on sellers of branded products the liability standard of manufacturers, as REI contends that it did, the legislature would have engaged in a meaningless act. RCW 7.72.030(2) provides that “[a] product manufacturer is subject to strict liability to a claimant if the claimant’s harm was proximately caused by the fact that the product was not reasonably safe in construction.” The statute defines a manufacturer as “a product seller who designs, produces, makes, fabricates, constructs, or remanufactures the relevant product … before its sale to a user or consumer.” RCW 7.72.010(2). Here, REI, because it does not design, make, fabricate, construct, or remanufacture bicycle forks, could never be found by a trier of fact to have acted as an actual manufacturer. Thus, it could never be proved to have acted in such a way so as to expose it to direct liability as a manufacturer. Indeed, were it otherwise, the legislature would not have needed to enact RCW 7.72.040(2)(e)–by acting as a manufacturer, REI would be subject to direct [*13] manufacturer liability pursuant to RCW 7.72.030(2), rendering RCW 7.72.040(2)(e) superfluous. We will not assume that the legislature, by enacting RCW 7.72.040(2)(e), engaged in a meaningless act. See JJR Inc. v. City of Seattle, 126 Wn.2d 1, 10, 891 P.2d 720 (1995) (“When interpreting statutes, the court must assume that the Legislature does not engage in meaningless acts.”).
¶18 Similarly, [HN10] construing RCW 7.72.040(2)(e) such that a product seller could seek to allocate fault to a manufacturer would render the provision itself meaningless, as the product seller could always avoid the allocation of any fault to it simply by attributing fault to the actual manufacturer. See Whatcom County, 128 Wn.2d. at 546 (noting that statutes must be construed such that all language is given effect and no provision in rendered meaningless or superfluous). Certainly, as a factual matter, where a manufacturing defect is at issue, the manufacturer–not the product seller–actually caused the defect. Thus, were allocation of fault principles to apply, the manufacturer would necessarily be 100 percent responsible for the defectively manufactured product. Also necessarily, the product seller would avoid all such [*14] liability. Such a result would contravene our legislature’s clear intent that a product seller that brands a product as its own assumes the liability of the manufacturer. 4
4 The legislative history of the WPLA includes a statement that [HN11] where the nonmanufacturing product seller “adopts the product as its own, [it] has, in a sense, waived [its] right to immunity and should be subject[ed] to a manufacturer’s liability.” Senate Journal, 47th Leg., Reg. Sess., at 625 (Wash. 1981).
¶19 [HN12] Although RCW 7.72.040(2)(e) does not permit the product seller to seek to allocate fault to the manufacturer, this provision is not inconsistent with Washington’s comparative fault system, set forth in chapter 4.22 RCW. REI argues to the contrary, contending that our legislature, by adopting comparative fault as the general rule for tort liability, endorsed the principle that “every entity responsible for committing a tort should be liable to the plaintiff based on its own individual share of the total fault, no more and no less.” Br. of Pet’r at 16. This overly broad assertion assumes that, by enacting RCW 4.22.070, our legislature eliminated vicarious liability, which it expressly did not do. Indeed, this specific [*15] statute itself explicitly retains principles of common law vicarious liability, in that it provides that “[a] party shall be responsible for the fault of another … where both were acting in concert or when a person was acting as an agent or servant of the party.” RCW 4.22.070(1)(a). Similarly, the WPLA provision at issue here is a statutory imposition of vicarious liability wherein the seller of a branded product is held liable for the actions of the manufacturer, notwithstanding that the product seller did not actually manufacture the defective product.
¶20 Permitting REI to attribute fault to Aprebic would effectively abrogate RCW 7.72.040(2)(e), as the product seller would never assume the liability that the legislature intended the seller to bear where the seller brands the product as its own. [HN13] “Authority is legion that implied repeals of statutes are disfavored and courts have a duty to interpret statutes so as to give them effect.” Bellevue Sch. Dist. No. 405 v. Brazier Constr. Co., 103 Wn.2d 111, 122, 691 P.2d 178 (1984). Because the WPLA and our state’s statutory comparative fault system can be reconciled, we will not hold that our legislature intended, by passing the tort reform [*16] act of 1986, to impliedly repeal RCW 7.72.040(2)(e). See Bellevue Sch. Dist., 103 Wn.2d at 123 (“Repeals by implication are not favored and will not be found to exist where earlier and later statutes may logically stand side by side and be held valid.”). We are loathe to find a silent repeal, and we decline to do so here.
¶21 Moreover, [HN14] the fact that a product seller such as REI is not permitted to seek to allocate fault to the product manufacturer does not suggest an oversight by the legislature. Rather, it suggests a legislative intent to leave to the marketplace the means of allocating risk between commercial entities. The WPLA presupposes a contractual relationship between the product seller and the manufacturer, with or without an intermediary supplier, and, rather than legislatively imposing a means of risk allocation, assumes that sophisticated commercial parties will contract to allocate risk between themselves. Were we to hold that the WPLA permits REI to attribute fault to Aprebic, we would not only be acting in contradiction to the legislature’s clear intent–we would also be upsetting three decades of reliance on a statute that allows product sellers and manufacturers to themselves [*17] determine how best to allocate risk.
¶22 REI incorrectly asserts that Washington case law requires that it be permitted to attribute fault to Aprebic. REI cites Hiner v. Bridgestone/Firestone, Inc., 138 Wn.2d 248, 978 P.2d 505 (1999), for the proposition that comparative fault principles apply in all product liability cases. The plaintiff therein, a motorist injured in a collision, brought a product liability suit against the manufacturer of the snow tires that had been installed only on the vehicle’s front wheels. Hiner, 138 Wn.2d at 251. The snow tire manufacturer raised the affirmative defense of entity liability, “arguing that liability should be shared by the installer of the studded snow tires, the manufacturer of the Goodyear tires on the rear wheels, and the manufacturer of the Hyundai automobile.” Hiner, 138 Wn.2d at 259.
¶23 The Court of Appeals affirmed the trial court’s dismissal of the affirmative defense, reasoning that the comparative fault statute permitted a defendant manufacturer to apportion fault only to those entities liable to the plaintiff pursuant to the WPLA. Hiner v. Bridgestone/Firestone, Inc., 91 Wn. App. 722, 736, 959 P.2d 1158 (1998). Our Supreme Court reversed, [*18] holding that “[t]he plain language of the contributory fault statute does not limit apportioning fault only to other manufacturers and product sellers in a product liability case.” Hiner, 138 Wn.2d at 264. The court based its reasoning on the broad definition of “fault” set forth in Washington’s comparative fault statute, which states that “fault” includes “acts or omissions … that subject a person to strict tort liability or liability on a product liability claim.” RCW 4.22.015.
¶24 The Hiner decision is inapposite. In Hiner, the manufacturer of the snow tires sought to attribute fault to other entities that, if found to be at fault, would be liable pursuant to theories of liability different than the theory of liability pursuant to which the manufacturer was liable. Here, REI contends that it should be permitted to attribute fault to another entity that, if found to be at fault, would be liable pursuant to precisely the same theory of liability–“the liability of a manufacturer”–as that of REI. REI, which pursuant to the WPLA has the liability of the manufacturer, seeks to attribute fault to Aprebic based on the theory that Aprebic is the actual manufacturer. Because REI is vicariously [*19] liable for Aprebic’s acts, the basis of both entities’ alleged liability is the same. Put another way, in Hiner the fault sought to be allocated was not the same fault. In Hiner, the fault sought to be allocated resulted from different acts; here, the fault sought to be allocated arises from the same acts. Hiner is not inconsistent with the decision we reach today. 5
5 Similarly, the decision in Lundberg v. All-Pure Chemical Co., 55 Wn. App. 181, 777 P.2d 15 (1989), does not apply here. The court therein determined that the jury could be instructed on the plaintiff’s alleged comparative negligence in a product liability action, notwithstanding that the plaintiff’s claim alleged strict liability. Lundberg, 55 Wn. App. at 186-87. Finding that the legislature intended the comparative fault doctrine to apply to all actions based on fault, including strict liability and product liability claims, the court held that there is “no reason to distinguish between negligence and strict liability actions for purposes of instructing a jury on the plaintiff’s comparative fault.” Lundberg, 55 Wn. App. at 186. Johnson’s comparative fault is not at issue. Rather, the issue here is whether fault can be [*20] attributed to another entity where that entity is liable on the same basis and based on the same facts as is the defendant seeking to attribute fault and where permitting the defendant to attribute fault would contravene the purpose of the relevant statute.
¶25 Moreover, [HN15] the purpose of the comparative fault statute is “that fault be apportioned and … an entity be required to pay that entity’s proportionate share of damages only.” Washburn v. Beatt Equip. Co., 120 Wn.2d 246, 294, 840 P.2d 860 (1992). Pursuant to RCW 7.72.040(2)(e), REI’s proportionate share of damages is the full amount of damages. Thus, unlike in Hiner, no apportionment of fault is necessary to ensure that the defendant pays only its share of damages.
¶26 Applicable case law further undermines REI’s assertion that it should be permitted to attribute fault to Aprebic. In Farmers Insurance Co. of Washington v. Waxman Industries, Inc., 132 Wn. App. 142, 148, 130 P.3d 874 (2006), we reversed vacation of a default judgment holding Waxman strictly liable as the “manufacturer” of a defective water supply line that was sold under the Waxman trade name. Waxman’s motion to vacate stated that “defects in hoses ‘often’ can be attributed [*21] to component parts of the hose manufactured by some other entity.” Waxman, 132 Wn. App. at 146. Waxman further contended that it did not manufacture the allegedly defective water supply line. Waxman, 132 Wn. App. at 146.
¶27 We held that Waxman’s evidence was insufficient to support a meritorious defense as required for vacation of a default judgment. Waxman, 132 Wn. App. at 145. Given that [HN16] a product seller that brands a product under its trade name is subject to the liability of the manufacturer pursuant to RCW 7.72.040(2)(e), we concluded that “[t]he materials submitted by Waxman do not explain how Waxman could avoid a finding of liability simply by proving that some other entity actually manufactured the supply line.” Waxman, 132 Wn. App. at 147. Furthermore, we determined that “whatever right of indemnity and contribution Waxman may be able to establish against other entities is not a defense to Waxman’s own liability.” Waxman, 132 Wn. App. at 148. The principles we set forth in Waxman support the conclusion that REI may not seek to allocate fault to Aprebic, the manufacturer, where it assumed the liability of the manufacturer.
¶28 [HN17] RCW 7.72.040(2)(e) creates a statutory form of vicarious [*22] liability whereby the seller of a branded product assumes the liability of the manufacturer. Because permitting such a product seller to seek to allocate fault to the actual manufacturer pursuant to comparative fault principles would undermine our legislature’s intent in enacting this statutory provision, the trial court did not err by concluding that REI could not seek to allocate fault to Aprebic.
III
¶29 REI next contends that the trial court erred by concluding that REI is strictly liable for Johnson’s injuries. Specifically, REI asserts that the trial court erred by resolving issues of material fact in favor of Johnson and by finding that the alleged manufacturing defects were the cause of her injuries. We disagree.
[10, 11] ¶30 [HN18] “In reviewing a summary judgment order, the appellate court evaluates the matter de novo, performing the same inquiry as the trial court.” Snohomish County v. Rugg, 115 Wn. App. 218, 224, 61 P.3d 1184 (2002). Summary judgment is appropriate only where “there is no genuine issue as to any material fact and … the moving party is entitled to a judgment as a matter of law.” CR 56(c). The moving party bears the burden of demonstrating that there is no genuine issue as to any [*23] material fact. Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 349, 588 P.2d 1346 (1979). All reasonable inferences must be considered in the light most favorable to the nonmoving party, and summary judgment may be granted only if a reasonable person could reach but one conclusion. Rugg, 115 Wn. App. at 224.
[12, 13] ¶31 [HN19] A material fact ” ‘is a fact upon which the outcome of the litigation depends, in whole or in part.’ ” Lamon, 91 Wn.2d at 349 (quoting Morris v. McNicol, 83 Wn.2d 491, 494-95, 519 P.2d 7 (1974)). An affidavit submitted in support of or in response to a motion for summary judgment “does not raise a genuine issue of fact unless it sets forth facts evidentiary in nature, i.e., information as to what took place, an act, an incident, a reality as distinguished from supposition or opinion.” Rugg, 115 Wn. App. at 224. “[U]ltimate facts, conclusions of fact, conclusory statements of fact or legal conclusions are insufficient to raise a question of fact.” Rugg, 115 Wn. App. at 224.
[14] ¶32 The WPLA provides that “[a] product manufacturer is subject to strict liability to a claimant if the claimant’s harm was proximately caused by the fact that the product was not reasonably safe in construction.” RCW 7.72.030(2).
A [*24] product is not reasonably safe in construction if, when the product left the control of the manufacturer, the product deviated in some material way from the design specifications or performance standards of the manufacturer, or deviated in some material way from otherwise identical units of the same product line.
RCW 7.72.030(2)(a).
¶33 REI first contends that, because the statutory definition of a manufacturing defect requires that the product deviate from the manufacturer’s design specifications or performance standards, Johnson cannot prove that the bicycle’s fork contained a manufacturing defect without submitting to the court direct evidence of Aprebic’s design specifications or performance standards. REI asserts that “there is no evidence in the record to establish that the fork at issue deviated from Aprebic’s design standards.” Br. of Pet’r at 34. To the contrary, Johnson submitted to the trial court evidence–in the form of Zaminski’s declaration–that the fork fractured due to insufficient carbon fiber layering. This evidence itself supports the conclusion that the fork “deviated in some material way from the design specifications or performance standards of the manufacturer,” RCW 7.72.030(2)(a), [*25] as no conceivable performance standard would call for the manufacture of a carbon fiber fork that fractures as Johnson’s did. Although [HN20] on summary judgment all reasonable inferences must be drawn in favor of the nonmoving party, Rugg, 115 Wn. App. at 224, no reasonable inference can be drawn that a carbon fiber fork that fractures in this way performed in accordance with any manufacturer’s performance standards. 6
6 Moreover, [HN21] the purpose of holding sellers of branded products vicariously liable for manufacturing defects would be undermined were we to require the claimant to conduct discovery from the manufacturer itself, particularly where the manufacturer is not a party to the action. Where such evidence is not necessary to demonstrate that the product was, indeed, defective, the trial court did not err by not requiring Johnson to produce direct evidence of Aprebic’s performance standards.
¶34 REI next contends that genuine issues of material fact regarding causation remain, thus precluding summary judgment. However, despite REI’s assertion that the bicycle displayed “substantial wear and tear,” REI does not establish how the fact that the bicycle was a “high mileage vehicle” explains the [*26] fracture of the carbon fiber fork. See CP at 176. Thus, the alleged “wear and tear” on the bicycle is not a ” ‘fact upon which the outcome of the litigation depends.’ ” See Lamon, 91 Wn.2d at 349 (quoting Morris, 83 Wn.2d at 494-95).
[15] ¶35 REI further speculates that the 2006 collision, which resulted in damage to the back tire of the bicycle, may have been a contributing cause of the fracture of the fork. However, REI’s evidence does not explain how that collision could have contributed to the fracture. Moreover, REI’s evidence refutes neither Johnson’s expert’s assertion that the insufficient carbon fiber layering is a defect that can occur only during manufacture nor the same expert’s conclusion that this particular defect caused the fork to fracture. Rather, REI conjectures that “[i]f an element of that crash involved the front fork without creating visible damage, then it could be considered an initiating event for the fracture that serves as the basis for this law suit.” CP at 178. REI cannot rely on speculation and conjecture to raise a genuine issue of material fact. See Rugg, 115 Wn. App. at 224.
¶36 The trial court did not erroneously resolve issues of material fact in favor of Johnson. [*27] To the contrary, its grant of summary judgment was appropriate because REI failed to raise any genuine issue of material fact as to its liability for Johnson’s injuries.
IV
¶37 Finally, REI contends that the trial court erred by ruling that any claim brought by REI against Aprebic would be bifurcated for trial from Johnson’s claim. We disagree.
[16, 17] ¶38 [HN22] A trial court’s decision to order separate trials is reviewed for an abuse of discretion. Maki v. Aluminum Bldg. Prods., 73 Wn.2d 23, 25, 436 P.2d 186 (1968) (“The right to order separate trials is a matter of discretion vested in the trial court by the rules.”). Civil Rule 20(b) permits the trial court to order separate trials to prevent delay or prejudice where a party would be delayed or “put to expense by the inclusion of a party against whom he asserts no claim and who asserts no claim against him.” Here, the trial court acted well within its discretion in finding that permitting REI to join Aprebic as a third party defendant would delay and prejudice the adjudication of Johnson’s claim and, thus, ruling that any claim brought by REI against Aprebic should be bifurcated for trial.
¶39 Notwithstanding that the trial court acted within its discretion [*28] pursuant to CR 20(b), REI contends that the trial court’s bifurcation ruling was erroneous because the court “appeared to be unaware of the impact such bifurcation would have on the viability of REI’s contribution claim.” Br. of Pet’r at 41-42. REI and Aprebic cannot be jointly and severally liable for Johnson’s injuries, as required to establish a statutory right to contribution, unless a judgment is entered against both parties in Johnson’s suit. See [HN23] RCW 4.22.040 (noting that a right to contribution exists where the parties are jointly and severally liable); RCW 4.22.070(1)(b) (providing that only those defendants against whom judgment is entered may be jointly and severally liable for the claimant’s injuries). Thus, REI contends that the trial court abused its discretion by misapplying the law in issuing a ruling that would compromise REI’s right to seek contribution from Aprebic.
¶40 However, notwithstanding that REI may be precluded from seeking statutory contribution from Aprebic, the trial court did not abuse its discretion by misapplying the law. Indeed, [HN24] this is not the first time that a court has upheld a proper application of the law despite negative consequences for a party’s [*29] contribution rights. In Kottler v. State, 136 Wn.2d 437, 439, 963 P.2d 834 (1998), our Supreme Court held that a settling party in a civil tort action is not entitled to seek contribution from another alleged tortfeasor where joint and several liability did not arise pursuant to the exceptions set forth in RCW 4.22.070. Because no judgment had been entered against the settling defendant, and, thus, joint and several liability did not arise, RCW 4.22.040 precluded the settling party from seeking contribution. See Kottler, 136 Wn.2d at 439; RCW 4.22.040 (“A right of contribution exists between or among two or more persons who are jointly and severally liable upon the same indivisible claim for the same injury.”).
¶41 Justice Talmadge wrote separately “to urge legislative attention toward the anomalous result this case requires.” Kottler, 136 Wn.2d at 450 (Talmadge, J., concurring). Although he “agree[d] with the majority’s resolution because the statutory language and our case law compel its result,” Kottler, 136 Wn.2d at 450, Justice Talmadge remarked that it appeared that proper application of the 1981 and 1986 tort reform acts effected a result that contradicted the legislature’s intent [*30] in enacting those very statutes. Kottler, 136 Wn.2d at 450. Thus, “[t]o more effectively execute [the legislature’s] intent,” Justice Talmadge implored the legislature to “address[ ] and correct[ ] this unfortunate situation in the tort law.” Kottler, 136 Wn.2d at 453. Notwithstanding Justice Talmadge’s appeal to the legislature, it has amended neither the 1981 nor the 1986 act to address this “anomalous result.”
¶42 Here, as in Kottler, a result dictated by proper application of the law leads to an “anomalous result” in that REI’s contribution rights are compromised. Here, also as in Kottler, the existence of such an anomaly suggests neither a misunderstanding nor a misapplication of the law. Rather, the trial court here properly understood and applied the law, notwithstanding that REI’s right to seek contribution may have been thereby compromised.
¶43 The trial court did not abuse its discretion by ruling that any claim by REI against Aprebic would be bifurcated for trial from Johnson’s claim. 7
7 REI additionally contends that the trial court erred by denying REI’s request to conduct additional discovery prior to the summary judgment ruling. Because discretionary review was not granted on this [*31] issue, we will not reach it. City of Bothell v. Barnhart, 156 Wn. App. 531, 538 n.2, 234 P.3d 264 (2010) (noting that, [HN25] pursuant to RAP 2.3(e), the appellate court may specify the issue or issues as to which discretionary review is granted), review granted, No. 84907-2 (Wash. Nov. 3, 2010).
¶44 Affirmed.
Grosse and Spearman, JJ., cncur.