To prove gross negligence under Washington State law you have to show intentional or reckless misconduct. Assumption of the risk prevents river tuber for suing for his injuries hitting a strainer.Posted: August 28, 2017
Washington defines assumption of the risk the same way most other courts do. However, the names they sue to describe assumption of the risk are different in some cases and confusing in others.
Here, assumption of the risk stopped claims both for negligence and gross negligence for this tubing case.
Assumption of the risk is growing again as a defense to different types of claims by plaintiffs. In this case, the plaintiff assumed the risk of his injuries for a tubing accident which barred his negligence claim and his gross negligence claim. The standard of proof needed to prove a claim that cannot be defeated by assumption of the risk in Washington is a much higher level of action on the part of the defendant.
Here the plaintiff failed to plead or allege that level of acts by the defendant.
Washington also uses different names for the types of assumption of the risk that are applied to cases, which can lead to greater confusion.
If you are a defendant, instead of attempting to understand what is or is not assumption of the risk. Spend your time educating your customers, so they know and assume the risk they may be facing.
State: Washington, Court of Appeals of Washington, Division Three
Plaintiff: Brian Pellham
Defendant: Let’s Go Tubing, Inc., et al.
Plaintiff Claims: presented sufficient evidence of gross negligence because Let’s Go Tubing chose the excursion lo-cation, knew of the existence of a hazard, and failed to warn Pellham of the hazard. He argues that the rental company’s gross negligence supersedes any release of liability and assumption of the risk contained in the form he signed.
Defendant Defenses: that summary judgment was appropriate because Pellham failed to establish a duty, the liability release disposes of the claim, and Pelham’s evidence does not create [**7] a genuine issue as to any fact material to establishing gross negligence.
Holding: For the Defendant
The plaintiff rented an inner tube from the defendant. The rental included delivery to the put in by the defendant. This is commonly described as a livery operation as compared to a pure rental where the renter takes the inner tube and goes wherever.
Upon arrival, the plaintiff signed a release and rented an inner tube. The plaintiff uses releases in his business, although what type of business was never discussed by the court.
The bus driver for the defendant told most of the tubers that upon entry they should push off to the far side of the river to avoid a tree that had fallen into the river immediately downriver but out of sight of the put in.
The plaintiff did not hear this warning. The plaintiff and four friends tied their inner tubes together. The current was swift and they quickly rounded the bend where they saw the tree across the river. The rental company gave each renter a Frisbee to use as a paddle. Everyone used the Frisbee to paddle away from the tree, but the plaintiff hit the tree. Falling into the river the plaintiff broke his ear drum. He went under the tree and upon resurfacing; he struck a large branch which gave him a whiplash.
The plaintiff swam to shore and ended his tubing trip. The plaintiff eventually underwent a neck fusion surgery.
The defendant was legally not allowed to remove the strainer from the river.
The plaintiff sued the defendant. The trial court granted the defendant’s motion for summary judgment, and the plaintiff appealed.
Analysis: making sense of the law based on these facts.
Washington has defined four types of assumption of the risk and has identified them slightly differently than most other states.
Washington law and most other states’ jurisprudence recognize four taxonomies of the assumption of risk doctrine: (1) express, (2) implied primary, (3) implied unreasonable, and (4) implied reasonable.
The first two, Express Assumption of the Risk and Implied Assumption of the Risk are still complete bars to a claim of negligence. The second two, Implied Unreasonable and Implied Reasonable have merged into contributory negligence and simply reduce the plaintiff’s damages.
Washington defines the types of assumption of the risk the same way most other states do.
Express assumption of risk arises when a plaintiff explicitly consents to relieve the defendant of a duty owed by the defendant to the plaintiff regarding specific known risks.
Implied primary assumption of risk follows from the plaintiff engaging in risky conduct, from which the law implies consent.
Implied unreasonable assumption of risk, by contrast, focuses not so much on the duty and negligence of the defendant as on the further issue of the objective unreasonableness of the plaintiff’s conduct in assuming the risk.
Implied reasonable assumption of risk is roughly the counterpart to implied unreasonable assumption of risk in that the plaintiff assumed a risk but acted reasonably in doing so.
Washington also names Implied Primary Assumption of the Risk as Inherent Peril Assumption of the Risk.
Inherent peril assumption bars a claim resulting from specific known and appreciated risks impliedly assumed often in advance of any negligence of the defendant. Plaintiff’s consent to relieve the defendant of any duty is implied based on the plaintiff’s decision to engage in an activity that involves those known risks. One who participates in sports impliedly assumes the risks inherent in the sport.
How the plaintiff was injured defines whether or not Inherent Peril Assumption of the Risk applies. The court went on to define the inherent peril assumption of the risk as:
One who engages in sports assumes the risks that are inherent in the sport. To the extent a risk inherent in the sport injures a plaintiff, the defendant has no duty and there is no negligence. A defendant simply does not have a duty to protect a sports participant from dangers that are an inherent and normal part of a sport.
Inherent peril assumption of the risk extends to water sports. One who plays in the water assumes the reasonably foreseeable risks inherent in the activity. Water sports include inner tubing and canoe rentals. Inherent risk applies because “Bodies of water often undergo change, and changing conditions in the water do not alter the assumption of risk. There is no duty to warn of the presence of natural transitory conditions.”
For the plaintiff to assume the risk, three elements must be found.
Inherent peril assumption, like express assumption of risk, demands the presence of three elements. The evidence must show (1) the plaintiff possessed full subjective understanding (2) of the presence and nature of the specific risk and (3) voluntarily chose to encounter the risk.
Washington also requires the plaintiff to understand the risk. “The rule of both express and inherent peril assumptions of risk requires a finding that the plaintiff had full subjective understanding of the presence and nature of the specific risk.”
However, that does not require knowledge of the specific issues that caused the injury, just knowledge that the injury could occur. Meaning, if the injured party knows that trees fall into rivers, would be enough. There is no requirement that the injured plaintiff knew that a tree fell into the river.
…Brian Pellham assumed the risks involved in river tubing, including the fallen tree. Pellham may not have precisely and subjectively known how the combination of a swift current, a bend in the river, and a fallen tree would produce his injury. Nevertheless, he knew of the potential of all factors. He may not have known of the location of any fallen tree in the river, but he knew of the potential of a fallen tree somewhere in the river.
However, even if the plaintiff assumed the risks, a plaintiff cannot assume the risk where the defendant unduly enhanced the risk.
While participants in sports are generally held to have impliedly assumed the risks inherent in the sport, such assumption of risk does not preclude a recovery for negligent acts that unduly enhance such risks.
This difference places a burden on the plaintiff, in what he or she has to prove to win their claim and a burden on the courts to define what is an increase in the level of danger.
Courts have struggled to properly distinguish between inherent peril assumption of risk (implied primary assumption of risk), which bars the plaintiff’s claim, and increased danger assumption of risk (implied unreasonable assumption of risk), which simply reduces the plaintiff’s damages.
However, here any negligence upon the part of the defendant did not increase the risk. The negligence occurred prior to the plaintiff entering the water. The danger was the tree in the river which the defendant could not do anything about.
When he noticed the risk, he lacked time to avoid the hazard. Pellham did not voluntarily proceed after knowing of the alleged negligence of Let’s Go Tubing. Any alleged negligence of Let’s Go Tubing occurred before Pellham entered the river. Therefore, increased danger assumption of risk does not apply.
The plaintiff also argued in this complaint, that the actions of the defendant were grossly negligent. Gross negligence in Washington is defined as failure to exercise slight care.
Gross negligence claims survive when a release has been signed. The issue before the court was whether gross negligence claims can be stopped if the plaintiff assumed the risk.
At the same time, gross negligence claims survive a release against liability. A sporting participant’s assumption of inherent risks effectively acts as a release from liability. Since gross negligence claims survive a release, gross negligence maybe should survive inherent peril assumption of risk.
The court then redefined how gross negligence was going to be reviewed in Washington applying an intentional reckless standard as the level required proving gross negligence when a plaintiff assumes the risk.
We join the other jurisdictions in imposing an intentional and reckless standard, rather than a gross negligence standard, when the plaintiff assumes the risks of inherent perils in a sporting or outdoor activity.
There is a difference between gross negligence and reckless misconduct under Washington’s law.
Gross negligence consists of the failure to exercise slight care. Reckless misconduct denotes a more serious level of misconduct than gross negligence. An actor’s conduct is in “reckless disregard” of the safety of another if he or she intentionally does an act or fails to do an act that it is his or her duty to the other to do, knowing or having reason to know of facts that would lead a reasonable person to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him or her.
Because reckless conduct is a higher burden to meet, assumption of the risk becomes a defense that can beat a gross negligence claim in some situations in Washington. The plaintiff never pleaded reckless conduct on the part of the defendant so the plaintiff’s gross negligence claim was also denied.
Brian Pellham does not allege that Let’s Go Tubing engaged in reckless conduct. No evidence supports a conclusion that the inner tube rental company bus driver purposely omitted a warning to Pellham with knowledge that Pellham would suffer substantial harm.
So Now What?
Understanding the different slight subtlest between the various forms of assumption of the risk is difficult. Comparing them between states does nothing but create a confusing group of definitions that cross one another and at best confuse one another.
Better, set up a system to educate your guests or clients on the risks they may encounter. That time spent educating the guests can pay dividends both in keeping you out of court and keeping your guests happy and coming back.
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You probably are not liable, but the PR cost of not making sure your guests are going to be safe could swamp your business.Posted: July 1, 2015
Strainer traps several and creates near drowning on Ohio river that is canoed regularly.
I first saw this from a FB post which described more than the article does.
Canoe liveries are big business in Ohio and the Midwest. They provide a great way to all types of people to get on a river and enjoy nature and the water. The Big Darby Creek in central Ohio is one of those rivers.
In this case a strainer stretched most of the way across the river. It caught canoe after canoe which eventually forced one woman under the strainer where she was held for several minutes. CPR brought her back and everyone was saved. However the harrowing minutes on the river, 911 calls and the press reported the story.
The article at the end identifies the canoe livery who had rented the boats.
Whether or not the livery had any knowledge of the problem in advance is not known. However this is a great teaching situation where you can see the bad public relations costing more than possible litigation. Ohio has great release law and even allows a parent to sign away a minor’s right to sue. See States that allow a parent to sign away a minor’s right to sue.
If you owned or ran a canoe livery should you send a boat down in the morning to check things out? Granted the tree could have fallen after the first staff boat went through and before the first rented canoe came down the river. However the odds are better that the tree fell overnight.
The next issue is whether the canoe livery had the right to remove the tree even if they did find it. I don’t remember Ohio water law enough to know.
If you know of the situation, should you inform you guests? Could you have posted a sign upstream of the strainer? What else can you do?
What do you think? Leave a comment.
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Louisiana court holds a tubing operation is not liable for drowning or failure to properly perform CPR. Court finds (or confuses) both no duty owed to prove negligence and assumption of the risk on the part of the deceased.Posted: June 16, 2014
Louisiana is one state that does not allow the use of a release. (See States that do not Support the Use of a Release.) This limits the possible defenses in LA.
Date of the Decision: March 23, 2012
Plaintiff: Neelam Parveen, Individually and on Behalf of Mansoor Raja and their Minor Children
Defendant: Tiki Tubing, LLC and Abc Insurance Company
Plaintiff Claims: negligence, gross negligence, duty to maintain the river so that its guests would not be injured by the river’s vices and defects, a duty to train Tiki employees in emergency rescue and life-saving procedures, and a duty to properly warn Tiki customers of the hazards associated with tubing on the Amite River. Also failure of the employees of the defendant to perform CPR properly.
Holding: for the defendant tubing livery
The plaintiff is the husband of the deceased and mother of their children.
The defendant was a tubing rental (livery) operation on the Amite River in Louisiana. For the fee the defendant provides parking, a bus ride to the put in, tubes and a beach entry and exit. The Amite River is advertised by the defendant on it’s website at 1” to 3” deep with 6”-8” holes. The river is slow moving and smooth.
The defendant also states “Tiki . . . and its affiliates assume no liability for personal injury or loss of personal property.” The defendant provides life jackets free of charge however customers are not required to wear them. No one was aware of a prior drowning on the river. No employees of the defendant were trained in life saving or first aid or CPR.
The deceased was accompanied by two other companions. One of the three printed the other names on the release. The deceased did not sign the release. The three were also given safety instructions.
The men started leaving their tubes and swimming downstream for a short distance before waiting for the current to bring their tube to them. At some point the deceased went under the surface and did not come up. Eventually an employee found the deceased and got him to the surface.
A companion started CPR and was assisted by four other people including some employees of the defendant.
The plaintiff filed suit which was dismissed after the defendant filed a motion for summary judgment. The plaintiff appealed.
Summary of the case
The court outlined the plaintiff’s claims as:
Broadly stated, the plaintiff maintains that Tiki had custody of the tubing route on the Amite River and, accordingly, that Tiki owed its patrons a duty to maintain the river so that its guests would not be injured by the river’s vices and defects, a duty to train Tiki employees in emergency rescue and life-saving procedures, and a duty to properly warn Tiki customers of the hazards associated with tubing on the Amite River.
The plaintiff also alleges that once Tiki employees involved themselves in attempted life-saving procedures on Raja, those employees assumed a duty to perform those life-saving measures properly.
Under Louisiana law a tort is defined as:
The elements of a cause of action in tort are fault, causation, and damage. The existence of a legal duty and a breach of that duty are prerequisites to any determination of fault. Although the determination of whether to assign a legal duty is fact-specific, the issue of whether there is a duty ultimately is a question of law.
The court found that to prove her case the plaintiff must prove:
(1) Tiki is the custodian of the portion of the Amite River that includes the tubing route; (2) that portion of the Amite River is defective and that the defect presented an unreasonable risk of harm; (3) Tiki knew or should have known of the defect; (4) the plaintiff was damaged by the defect; and (5) Tiki could have prevented the damage to the plaintiff by the exercise of reasonable care, which Tiki failed to exercise.
Failure to prove one element defeats the plaintiff’s claims.
The court first looked at whether or not the defendant had control over the river to be liable for it. The court defines this as the defendant having custody and control over the river. To determine whether the defendant had the requisite custody and control the court held it had to consider:
(1) whether the person bears such a relationship as to have the right of direction and control over the thing; and (2) what, if any, kind of benefit the person derives from the thing. “The person who has custody or garde of a thing is he who has the legal duty to prevent its vice or defect from harming another.” This court has held that a state-owned river cannot be in the custody of a landowner.
Even if the plaintiff could prove the defendant’s “custody” of the river, the plaintiff would also have to prove that the river section at issue was defective.
This court has held that the “existence of a hole in a natural lake, that renders the depth of the lake deeper than other portions, would not, ipso facto, constitute a defective. Further, “variations in water depth within natural swimming areas are standard.” Citing this court in Johnson, the Fourth Circuit has concluded that there is no distinction between a hole in a lake and a drop off in a river. The plaintiff fails to establish that the deeper pocket in this natural body of water constitutes a defect for purposes of Article 2317.1.
The conditions of the river at the time of the decedents drowning were all conditions that under Louisiana law were inherent risks and thus assumed by the deceased.
The court next looked the risks of tubing.
Tubing has been defined as an activity that is obviously and inherently dangerous. Drowning because of currents is a natural and inevitable risk to swimmers in a natural body of water. When a risk is obvious, there is no duty to warn or protect against it.
The court concluded the deceased voluntarily left this tube to swim in the river without a life jacket.
The court then looked at the issue of failure to perform CPR properly. Under Louisiana law if a person voluntarily undertakes a “task that he otherwise has no duty to perform, he must nevertheless perform that task in a reasonable or prudent manner.”
Although the plaintiff’s expert witness stated that CPR was performed improperly, no one was able to claim that the actions of the defendant employees were “unreasonable, imprudent, or, more importantly, a cause-in-fact of Raja’s death or that there was a reasonable probability that proper CPR would have been lifesaving in these circumstances.”
The court found since no one could point that a specific employee or employees had done something wrong in performing CPR then that claim must also fail.
The court upheld the trial courts motion for summary judgment with this statement.” Despite not being a good swimmer, Raja willingly entered the river without a life jacket and chose to swim away from his tube. It was Raja’s own imprudent actions that led to his tragic death.”
So Now What?
Louisiana law came from the Napoleonic code. Consequently the laws in Louisiana are generally different, other than the protections afforded by the US constitution. Louisiana does not allow the use of a release to stop claims.
C.C. Art. 2004 (2005)
Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party. Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.
Here the court seemed to combine the issue to find the defendant owed no duty to the deceased and the deceased assumed the risk of the activity which lead to his death, without using the terms specifically.
What do you think? Leave a comment.
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Parveen v. Tiki Tubing, LLC, 2011 1477 (La.App. 1 Cir. 03/23/12); 2012 La. App. Unpub. LEXIS 115
Neelam Parveen, Individually and on Behalf of Mansoor Raja and their Minor Children Versus Tiki Tubing, LLC and Abc Insurance Company
NO. 2011 CA 1477
COURT OF APPEAL OF LOUISIANA, FIRST CIRCUIT
2011 1477 (La.App. 1 Cir. 03/23/12); 2012 La. App. Unpub. LEXIS 115
March 23, 2012, Judgment Rendered
NOTICE: NOT DESIGNATED FOR PUBLICATION.
PLEASE CONSULT THE LOUISIANA RULES OF APPELLATE PROCEDURE FOR CITATION OF UNPUBLISHED OPINIONS.
SUBSEQUENT HISTORY: Writ denied by Parveen v. Tiki Tubing, LLC, 90 So. 3d 1063, 2012 La. LEXIS 1798 (La., June 15, 2012)
PRIOR HISTORY: [*1]
On Appeal from the 21st Judicial District Court, in and for the Parish of Livingston, State of Louisiana. District Court No. 128,216. The Honorable Elizabeth P. Wolfe, Judge Presiding.
COUNSEL: Nicholas M. Graphia, Monroe, La., Counsel for Plaintiff/Appellant, Neelam Parveen, individually and on behalf of Mansoor Raja and their minor children.
C. David Vasser, Jr., Baton Rouge, La., Counsel for Defendant/Appellee, Tiki Tubing, L.L.C.
JUDGES: BEFORE: CARTER, C.J., PARRO AND HIGGINBOTHAM, JJ.
OPINION BY: CARTER
[Pg 2] CARTER, C.J.
The plaintiff appeals the summary judgment dismissing her suit for damages arising from the drowning death of her husband. For the reasons that follow, we affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Tiki Tubing, L.L.C. (Tiki) is a commercial enterprise located on the banks of the Amite River. During peak summer months, Tiki employs 10-15 full time employees. For a fee, Tiki provides customers with parking, tube rental, a bus ride upstream, and a beach entry and exit on the river. The tubing route on the Amite River takes approximately four hours to complete. The Tiki website describes the Amite River as “smooth and slow moving and … 1 to 3 feet deep with a few deeper holes from [*2] 6 to 8 feet deep.” The website continues: “All bodies of water have some inherent risks. Tiki . . . and its affiliates assume no liability for personal injury or loss of personal property.” The tubers are grouped together at the Tiki hut and bused upstream to the ingress point on the river. At this point, the tubers select their tubes and enter the water.
According to John Fore, the managing member of Tiki, there are no warning signs posted at the hut or along the river. Tiki provides life jackets free of charge to customers; however, customers are not required to wear them. Neither Fore nor the Tiki employees were aware of any prior drowning on the tubing route. There are no lifeguards or rescuers on staff, and employees are not trained in water safety or in cardiopulmonary resuscitation (CPR). Tiki employees do not travel the river with the tubers, and there is no emergency equipment along the river route or at the Tiki [Pg 3] facility. Tiki does hire off-duty Livingston Parish Deputies as independent contractors to assist with crowd control, public drinking, drugs, broken glass, and unlocking of cars. The deputies are not posted on the tubing route; they are not hired to handle medical [*3] emergencies.
On June 21, 2009, 37-year-old Mansoor Raja and two of his friends decided to tube the Amite River. Raja had never tubed before, and after reading about Tiki from its internet website, Raja, Akhlaq Akhtar, and Tariq Mehmood drove to the facility. The group was presented with a liability waiver at the hut, and Akhtar printed all three men’s names on the bottom of the sheet.1 Although Raja was with Akhtar when Akhtar completed the form, Raja did not read or sign the waiver. Akhtar remembered the men being given a document containing safety instructions and that this information also was posted on a board. According to Akhtar, all three men read the instructions, which specifically mentioned the availability of life jackets. Akhtar asked the other men if they needed life jackets, but the general consensus was that the water would not be deep enough and that the life jackets were not needed. The waiver sheet is the only “warning” at the Tiki facility.
1 The waiver is entitled “Participant’s Agreement, Release, and Assumption of Risk.” The bottom of the form has multiple lines upon which customers write their names.
The three men boarded the bus, rode upstream, retrieved their tubes, [*4] and entered the river. According to Akhtar, Raja and Mehmood were playing around and getting caught in trees in the water. Akhtar tried to rush the other two men along so that they would not get separated from the group. The water was shallow, and Raja and Mehmood were leaving their tubes and [Pg 4] swimming freely in the river. The three men continued in this fashion for 15 to 20 minutes.
On the river trip, Raja was “getting excited.” He would leave his tube, swim downstream with the current, then wait for his tube to float to him. Raja did this four or five times. The men stopped to take a photograph, after which Raja said he would swim just one more length. Suddenly, while swimming ahead of his tube, Raja disappeared under the water. Then, Mehmood began having trouble in the water. Akhtar floated toward his friends and was able to help Mehmood get hold of the tube and out of the water. Raja, however, panicked and was unable to grasp the tube. According to Akhtar, the water was “too far deep” and moving much faster underneath the surface. Akhtar did not leave his tube in an attempt to pull Raja from the water because, according to Akhtar, the water was too deep and the current would [*5] have pulled him under too. Akhtar explained: “If you go to somebody who’s drowning, he’ll take you with him even if you are [a] good swimmer….”
Other floaters, noticing the commotion, began calling for help; the authorities were alerted with a call to 911, and another tuber ran toward the ingress point where several employees were working to notify them that someone was “lost.” Christopher Seese, a teenage employee of Tiki, stated that he first thought someone had simply gotten off his tube and run off. Upon realizing there was a problem, three employees ran to the scene. Fifteen to twenty tubers were sitting on the beach, and several tubers were swimming around in the deeper area of the river. The employees immediately entered the river. It took Christopher five to ten minutes to [Pg 5] locate Raja in the eight-foot-deep pocket in the river by dragging his foot in the water. Raja’s body was resting against a submerged log. According to Christopher, the current in the pocket was no stronger than the rest of the river; however, the water was deeper. It was estimated that it took an additional three to four minutes to get Raja out of the water and onto the shore.
Raja was brought to [*6] the shore, and another tuber was the first to attempt CPR. Because he was on the opposite side of the river, Akhtar estimated that it took him ten minutes to get to Raja after he was pulled from the water. Upon reaching shore, Akhtar observed that the unidentified tuber was performing CPR incorrectly, so Akhtar took over.2 Akhtar blew air into Raja’s chest, and Tiki employee Jacob Bourgeois assisted with chest compressions. Ultimately, four different people performed chest compressions on Raja, assisting Akhtar with CPR until the rescue helicopter arrived. According to Akhtar, Raja’s pulse was restored and he was warm to the touch prior to the arrival of paramedics and being airlifted to a hospital. Raja’s death certificate indicates he died the next day, June 22, 2009.
2 Akhtar explained that he had received training in CPR during military service.
Raja’s surviving spouse, Neelam Parveen, filed this wrongful death and survival action for damages against Tiki and its insurer, alleging Tiki’s negligent acts and omissions were a proximate cause of Raja’s death. After answering the petition, Tiki filed a motion for summary judgment, alleging Tiki did not breach any legal duty to Raja. Subsequent [*7] to the filing of Tiki’s motion for summary judgment, but prior to the hearing on the motion, the trial court granted the plaintiff leave to file a supplemental and amending [Pg 6] petition for damages. Therein the plaintiff alleged that she was entitled to punitive damages under general maritime law in that Tiki’s conduct was grossly negligent, reckless, and wanton. Thereafter, the plaintiff filed an opposition to Tiki’s motion for summary judgment, with attachments thereto, as well as a supplemental opposition.
Following a hearing, the trial court granted Tiki’s motion for summary judgment, and the plaintiff’s claims against Tiki were dismissed with prejudice. The plaintiff appeals, asserting several arguments in support of her position that summary judgment was improperly granted.
A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. All Crane Rental of Georgia, Inc. v. Vincent, 10-0116 (La. App. 1 Cir. 9/10/10), 47 So. 3d 1024, 1027, writ denied, 10-2227 (La. 11/19/10), 49 So. 3d 387. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions [*8] on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. Code Civ. Proc. Ann. art. 966B. Summary judgment is favored and designed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. Proc. Ann. art. 966A(2).
Appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. All Crane, 47 So. 3d at 1027. On a motion for summary judgment, the burden of proof is on the mover. La. Code Civ. Proc. Ann. art. 966C(2) [Pg 7]. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion, the mover’s burden does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Id. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Id. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary [*9] burden of proof at trial. Id. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. La. Code Civ. Proc. Ann. art. 966C(2); All Crane, 47 So. 3d at 1027.
In ruling on a motion for summary judgment, the court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter but, instead, to determine whether there is a genuine issue of triable fact. All Crane, 47 So. 3d at 1027. A court cannot make credibility decisions on a motion for summary judgment. Id. In deciding a motion for summary judgment, the court must assume that all of the witnesses are credible. Id. Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Id. Whether a particular fact in dispute is “material” for summary judgment purposes is viewed in light of the substantive law applicable to the case. Richard v. Hall, 03-1488 (La. 4/23/04), 874 So. 2d 131, 137.
[Pg 8] DISCUSSION
The plaintiff advances several theories of recovery for the alleged negligence or gross negligence of Tiki. [*10] Broadly stated, the plaintiff maintains that Tiki had custody of the tubing route on the Amite River and, accordingly, that Tiki owed its patrons a duty to maintain the river so that its guests would not be injured by the river’s vices and defects, a duty to train Tiki employees in emergency rescue and life-saving procedures, and a duty to properly warn Tiki customers of the hazards associated with tubing on the Amite River. The plaintiff also alleges that once Tiki employees involved themselves in attempted life-saving procedures on Raja, those employees assumed a duty to perform those life-saving measures properly.
The elements of a cause of action in tort are fault, causation, and damage. Seals v. Morris, 410 So. 2d 715, 718 (La. 1981). The existence of a legal duty and a breach of that duty are prerequisites to any determination of fault. Id. Although the determination of whether to assign a legal duty is fact-specific, the issue of whether there is a duty ultimately is a question of law. Bowman v. City of Baton Rouge/Parish of East Baton Rouge, 02-1376 (La. App. 1 Cir. 5/9/03), 849 So. 2d 622, 627, writ denied, 03-1579 (La. 10/3/03), 855 So. 2d 315. The inquiry is whether the plaintiff [*11] has any law–statutory, jurisprudential, or arising from general principles of fault– to support her claim. Faucheaux v. Terrebonne Consol. Government, 615 So. 2d 289, 292 (La. 1993); Fredericks v. Daiquiris & Creams of Mandeville, L.L.C, 04-0567 (La. App. 1 Cir. 3/24/05), 906 So. 2d 636, 639, writ denied, 05-1047 (La. 6/17/05), 904 So. 2d 706.
[Pg 9] Under Louisiana Civil Code article 2317, “[w]e are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.” Louisiana Civil Code article 2317.1 modifies Article 2317 and provides in pertinent part:
[The] custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.
The plaintiff alleges that in accordance with Article 2317.1, Tiki, as custodian3 of the tubing route on the Amite River, owed a duty to its patrons [*12] to employ safety measures to prevent drowning and to discover any unreasonably dangerous condition and to either correct the condition or warn of its existence. In order to prevail on a claim of negligence under Articles 2317 and 2317.1, the plaintiff will have the ultimate burden at trial of proving by a preponderance of the evidence each of the following elements: (1) Tiki is the custodian of the portion of the Amite River that includes the tubing route; (2) that portion of the Amite River is defective and that the defect presented an unreasonable risk of harm; (3) Tiki knew or should have known of the defect; (4) the plaintiff was damaged by the defect; and (5) Tiki could have prevented the damage to the plaintiff by the exercise of reasonable care, which Tiki failed to exercise. See Riggs v. Opelousas General Hosp. Trust Authority, 08-591 (La. App. 3 Cir. 11/5/08), 997 So. 2d 814, 817. Failure to prove any one of these elements will defeat the [Pg 10] plaintiff’s claim and thus establish the defendant’s entitlement to summary judgment. See Grogan v. Women’s and Children’s Hospital, Inc., 07-1297 (La. App. 3 Cir. 4/16/08), 981 So. 2d 162, 165.
3 There are no allegations or evidence [*13] suggesting that Tiki owned the area of the river, or the land abutting that portion of the river, in which Raja drowned.
The Louisiana Supreme Court has instructed that determining who has custody of a thing is a fact-driven determination. Dupree v. City of New Orleans, 99-3651 (La. 8/31/00), 765 So. 2d 1002, 1009. Courts should consider: (1) whether the person bears such a relationship as to have the right of direction and control over the thing; and (2) what, if any, kind of benefit the person derives from the thing. Dupree, 765 So. 2d at 1009. “The person who has custody or garde of a thing is he who has the legal duty to prevent its vice or defect from harming another.” Id. at 1009. This court has held that a state-owned river cannot be in the custody of a landowner. See Tobey v. State, 454 So. 2d 144, 145 (La. App. 1st Cir. 1984) (a tubing accident did not result from any condition of the land).
Even if the plaintiff were to establish that material issues of fact remain in dispute regarding custody of the tubing route on the Amite River, the plaintiff also must prove that the portion of the Amite River at issue suffered from a vice or defect in order to recover damages under Articles 2317 [*14] and 2317.1. A defect is defined as a condition that creates an unreasonable risk of harm. Moory v. Allstate Ins. Co., 04-0319 (La. App. 1 Cir. 2/11/05), 906 So. 2d 474, 480, writ denied, 05-0668 (La. 4/29/05), 901 So. 2d 1076. The record establishes that Raja drowned in an area of the river described as a drop or a deep pocket. This court has held that the “existence of a hole in a natural lake, that renders the depth of the lake deeper than other portions, would not, ipso facto, constitute a defective [Pg 11] condition.”4 Johnson v. City of Morgan City, 99-2968 (La. App. 1 Cir. 12/22/00), 787 So. 2d 326, 330-31, writ denied, 01-0134 (La. 3/16/01), 787 So. 2d 315. Further, “variations in water depth within natural swimming areas are standard.” Johnson, 787 So. 2d at 330. Citing this court in Johnson, the Fourth Circuit has concluded that there is no distinction between a hole in a lake and a drop off in a river. Sevin v. Parish of Plaquemines, 04-1439 (La. App. 4 Cir. 4/27/05), 901 So. 2d 619, 623-24, writ denied, 05-1790 (La. 1/27/06), 922 So. 2d 550. The plaintiff fails to establish that the deeper pocket in this natural body of water constitutes a defect for purposes of Article 2317.1.
4 Moreover, [*15] not every defect gives rise to statutory liability under Articles 2317 and 2317.1. Ruschel v. St. Amant, 11-78 (La. App. 5 Cir. 5/24/11), 66 So. 3d 1149, 1153. The defect must be of such a nature as to constitute a dangerous condition that reasonably would be expected to cause injury to a prudent person using ordinary care under the circumstances. Ruschel, 66 So. 3d at 1153.
The plaintiff argues that Tiki had a duty to provide an adequate and correct warning to customers regarding the dangers of tubing and the depth and current of the Amite River, and also had a duty to post lifeguards along the tubing route.5 Tubing has been defined as an activity that is obviously and inherently dangerous. See Tobey, 454 So. 2d at 146. Drowning because of currents is a natural and inevitable risk to swimmers in a natural body of water. See Hall v. Lemieux, 378 So. 2d 130, 132 (La. App. 4th Cir. 1979), [Pg 12] writ denied, 381 So. 2d 1220 (La. 1980). When a risk is obvious, there is no duty to warn or protect against it. Moory, 906 So. 2d at 478. Akhtar described Raja as “not a good swimmer.”6 Despite his limited swimming abilities and knowing that the water was over his head in parts, Raja voluntarily [*16] left his tube to swim freely in the river without a life jacket, allowing the current to carry him away from his tube.
5 Louisiana’s general negligence liability provision is found in Louisiana Civil Code article 2315. Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under Article 2315. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La. 4/3/02), 816 So. 2d 270, 275. In order for liability to attach under a duty-risk analysis, the plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard of care (the breach of duty element); (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiff’s injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiff’s injuries (the scope of protection element); and (5) actual damages (the damage element). Pinsonneault, 816 So. 2d at 275-76.
6 During the few times that Akhtar and Raja swam together in a pool, Raja would swim one pool length at a time, keeping [*17] his head out of the water the entire time. Raja would go in water over his head; however, he would hold onto a “pipe.”
Finally, citing to Harris v. Pizza Hut of La., Inc., 455 So. 2d 1364 (La. 1984), the plaintiff argues that Tiki assumed a duty when its employees attempted life-saving measures on Raja and then breached that duty by improperly performing CPR on Raja. In Harris, the supreme court held that a restaurant had a duty, once it hired a security guard, to have that guard protect patrons from the criminal activities of third persons in a reasonable and prudent manner. Id. at 1369. This court has recognized that the negligent breach of an assumed duty may create civil liability. McGowan v. Victory and Power Ministries, 99-0235 (La. App. 1 Cir. 3/31/00), 757 So. 2d 912, 914. If a person voluntarily or gratuitously undertakes a task that he otherwise has no duty to perform, he must nevertheless perform that task in a reasonable or prudent manner. McGowan, 757 So. 2d at 914; see La. Civ. Code Ann. art. 2315.
Tiki employees acknowledged having no formal CPR training. Akhtar stated that he had been trained in CPR, and Akhtar was performing breathing assistance on Raja, while several [*18] others–including Tiki employees–assisted with chest compressions on Raja. The affidavit of the [Pg 13] plaintiff’s expert, Dr. Adam Broussard, set forth the CPR guidelines and concluded that, based on Jacob’s deposition, “the responders did not correctly perform CPR.” Dr. Broussard’s affidavit establishes that early CPR “performed correctly is the single most important intervention that can be performed in the field by a lay person.”
Raja was pulled from the water after being submerged for at least ten minutes. Akhtar stated that when Raja was brought up to the surface, he was not moving and not conscious. Akhtar began breathing into Raja with the assistance of four others, who took turns doing chest compressions. Akhtar observed that after the second person’s turn with chest compressions, Raja was warm to the touch and a pulse was discernible. Although Dr. Broussard’s affidavit establishes that CPR was performed improperly, his affidavit does not establish that the efforts of Tiki employees were unreasonable, imprudent, or, more importantly, a cause-in-fact of Raja’s death or that there was a reasonable probability that proper CPR would have been lifesaving in these circumstances.
The [*19] plaintiff failed to produce factual evidence sufficient to establish that she would be able to meet her burden at trial of proving by a preponderance of the evidence all of the elements of a cause of action in negligence or gross negligence. Despite not being a good swimmer, Raja willingly entered the river without a life jacket and chose to swim away from his tube. It was Raja’s own imprudent actions that led to his tragic death. See Sevin, 901 So. 2d at 624. For the above-stated reasons, we affirm the trial court’s grant of summary judgment in favor of the defendant, Tiki [Pg 14] Tubing, L.L.C, dismissing the suit filed against it by Neelam Parveen, individually and on behalf of Mansoor Raja and their minor children. Costs of this appeal are assessed to the plaintiff, Neelam Parveen.