Morgan, et al., v. Water Toy Shop, Inc., et al., 2018 U.S. Dist. LEXIS 61546

Morgan, et al., v. Water Toy Shop, Inc., et al., 2018 U.S. Dist. LEXIS 61546

Jasmine Nicole Morgan, et al., Plaintiffs,

v.

Water Toy Shop, Inc., et al., Defendants.

Civil No. 16-2540 (PAD)

United States District Court, D. Puerto Rico

March 30, 2018

OPINION AND ORDER

PEDRO A. DELGADO HERNÁNDEZ, United States District Judge

This case arises out of a tragic accident, a collision between two jet skis -one ridden by plaintiffs Jasmin Nicole Morgan and Jarita Kennedy, and the other by Mark A. Castro- in the territorial waters of Puerto Rico (Docket No. 1).[1] In essence, the complaint alleges that: (1) Castro was grossly negligent in operating the jet ski, seriously injuring plaintiffs (id. at ¶ 51); and (2) Water Toy Shop, Inc., Acosta Water Sports, Inc., and Axel Acosta, who rented the jet skis, did not adequately train Castro to operate the jet ski, and as owners of the jet ski that Castro was riding are liable for the damages claimed. Id.

Before the court is defendants Water Toy Shop’s, Axel Acosta’s and Ironshore Indemnity, Inc.’s “Motion for Summary Judgment and Memorandum of Law in Support Thereof” (Docket No. 52), which plaintiffs opposed (Docket No. 61). Defendants replied (Docket Nos. 69), and plaintiffs surreplied (Docket No. 73). For the reasons explained below, the motion is GRANTED and plaintiffs’ claims against the appearing defendants DISMISSED.[2]

I. SUMMARY JUDGMENT STANDARD

Pursuant to Fed.R.Civ.P. 56, summary judgment is appropriate when the record shows no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party. A fact is material if it has the potential of determining the outcome of the litigation. Farmers Ins. Exchange v. RNK, Inc., 632 F.3d 777, 782 (1st Cir. 2011)(quoting Rodríguez-Rivera v. Federico Trilla Regional Hosp. of Carolina, 532 F.3d 28, 30 (1st Cir. 2008)).

In assessing a motion for summary judgment, the court must view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party’s favor. Griggs-Ryan, 904 F.2d at 115 (citations omitted). There is no room for credibility determinations, no room for the measured weighing of conflicting evidence such as the trial process entails, and no room for the judge to superimpose his own ideas of probability and likelihood . Greenburg v. Puerto Rico Maritime Shipping Authority, 835 F.2d 932, 936 (1st Cir. 1987). The court may, however, safely ignore conclusory allegations, improbable inferences, and unsupported speculation. Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990) (citations omitted).

II. UNCONTESTED FACTS[3]

Plaintiffs are residents of Washington, D.C. See, Docket No. 52-1, “Statement of Uncontested Material Facts in Support of Motion for Summary Judgment” (“SUMF” at ¶ 1). While vacationing in Puerto Rico, they rented a jet ski from Archie Jet Ski Rental (SUMF ¶ 4), the name used to advertise Water Toy Shop and Acosta Water Sports, two separate corporations that operate different jet ski rental stands in the Isla Verde beach area in Carolina, Puerto Rico. See, PSUMF at ¶ 6 and defendants’ response at Docket No. 69-1 pp. 26-27.[4] Water Toy owned the jet skis involved in the accident, and operated the stand where the jet skis were rented. SUMF ¶ 5; PSUMF ¶¶ 14, 6, 36.

In order to rent the jet ski, both plaintiffs signed a “Personal Watercraft Rental Operations Release of Liability, Waiver of Claims, Express Assumption of Risk and Indemnity Agreement” (“Rental Agreement”) and a “Declaration of Fitness to Operate Personal Watercraft” (“Declaration of Fitness”). SUMF ¶ 7, ¶10.[5] The Rental Agreements read as follows:

PERSONAL WATERCRAFT RENTAL OPERATIONS RELEASE OF LIABILITY, WAIVER OF CLAIMS, EXPRESS ASSUMPTION OF RISK AND INDEMNITY AGREEMENT

Please and be certain you understand the implications of signing. Express Assumption of Risk Associated with use of rental of Personal Watercraft and Related Activities I,, do hereby affirm and acknowledge that I have been fully informed of the inherent hazards and risks associated with motorized (e.g., jet ski) or non-motorized (e.g., kayak) and related water sport activities to which I am about to engage, including but not limited to:

1) changing water flow, tides, currents, wave action, and ship’s wakes;

2) collision with any of the following:

a) other participants,

b) the watercraft,

c) other watercraft,

d) man made or natural objects,

e) shuttle boat;

3) wind shear, inclement weather, lightning, variances and extremes of wind, weather and temperature;

4) my sense of balance, physical condition, ability to operate equipment, swim and/or follow directions;

5) collision, capsizing, sinking, or other hazard that may result in wetness, injury, exposure to the elements, hypothermia, impact of the body upon the water, injection of water into my body orifices, and/or drowning;

6) the presence of insects and marine life forms;

7) equipment failure or operator error;

8) heat or sun related injuries or illnesses, including sunburn, sun stroke or dehydration;

9) fatigue, chill and/or reaction time and increased risk of accident.

I specifically acknowledge that I read, understand and agree to abide by the Personal Watercraft Operational instructions at all times and that I have been trained in the safe use of watersport equipment to my complete satisfaction, and I am physically/mentally able to participate in the water sport activities to which I am about to engage.

I specifically waive any defense insofar as this contract is concerned that may arise as a result of any state or local law and/or regulation or policy that may impact its enforceability.

RELEASE OF LIABILITY, WAIVER OF CLAIMS AND INDEMNITY AGREEMENT.

In consideration of being allowed to participate in the above-described activities, as well as the use of any of the facilities and the use of the equipment of the below listed releases, I hereby agree as follows:

1) To waive and release any and all claims based upon negligence, active or passive, with the exception of intentional, wanton, or willful misconduct that I may have in the future against all of the following named persons or entities herein referred to as releasees.

Water Toy Shop, Inc. Owner (Company and/ or Individual)

___ (Scheduled Personal Watercraft)

___ (Scheduled Shuttle Boat (if applicable)

2) To release the releasees, their officers, directors, employees, representatives, agents, and volunteers, and vessels from any liability and responsibility whatsoever and for any claims or causes of action that I, my estate, heirs, executors, or assigns may have for personal injury, property damage, or wrongful death arising from the above activities, whether caused by active or passive negligence of the releassees or otherwise, with the exception of gross negligence. By executing this document, I agree to hold the releases harmless and indemnify them in conjunction with any injury or loss of life that may occur as a result of engaging in the above activities.

3) By entering into this agreement, I am not relying on any oral or written representation or statements made by the releasees, other than what is set forth in this Agreement.

I hereby declare that I am of legal age and am competent to sign this Agreement or, if not, that my parent or legal guardian shall sign on my behalf and that my parent or legal guardian is in complete understanding and concurrence with this Agreement.

I have read this Agreement, understand it, and I agree to be bound by it. SUMF at ¶¶ 8, 20 (bold emphasis in the original, underlined emphasis added).[6] The Declarations of Fitness state: “by signing this form I still choose to participate in the activity with the rental property and agree to waive all responsibilities to all the above mentioned parties concerning any consequences that would result from my actions.” SUMF at ¶ 9.[7] Morgan did not read the contents of the Rental Agreement and Declaration of Fitness before signing them, or at any time before boarding the rented jet ski, despite having around one hour to spare between the time she signed the documents and when she boarded the jet ski.[8] Neither did she ask Water Toy personnel anything about the document. SUMF at ¶ 11.

Before Castro was allowed to rent the jet ski, he was asked for his I.D. in order to verify that he was old enough to rent a jet ski, which he was; he signed a Rental Agreement and Declaration of Fitness; and was informed of the boundaries within which he could ride, the applicable speed limit and to stay clear of other people. SUMF at ¶ 13, 15.[9] To that end, Mr. Héctor Peralta informed Castro the price for the jet ski ride; explained that he could only ride between the ESJ Tower and the Water Club Hotel; warned him stay away from the swimming area; told him to go slow until he passed the buoys; cautioned him not to get close to a nearby natural reserve and to stay away from other objects or persons because jet skis don’t have breaks; described how the jet skis worked; let him know that when his time was up an employee would let him know; and provided him copy of a Rental Agreement and Declaration of Fitness, explaining their contents and having him sign them. SUMF at ¶ 16.[10]

Additionally, Mr. Jonathan Pérez informed Castro of the boundaries he had to observe whilst riding, by pointing out the ESJ Tower, the Water Club Hotel and the buoys; told him not to ride too far away so that help could get to him straight away in case something happened; warned him not to go over five miles per hour as he left the buoys area in front of the Water Toy stand and when he rode back to it to return his jet ski; and asked him to stay far away from people to avoid any accident. SUMF at ¶ 17.[11] Plaintiffs were taking a break in their jet ski, drifting next to the buoys in front of the Water Toy stand, when Castro’s jet ski collided with theirs at high speed, without warning. SUMF at ¶ 19.

III. DISCUSSION

A. General Principles

Plaintiffs claim defendants are liable to them under Puerto Rico law (Docket No. 61, pp. 2-3), which defendants deny (Docket No. 51, p. 1), stating that general principles of maritime law rather than local law apply in this case, and under those principles they are not liable. Id. at p. 2. Because this case “involves a watercraft collision on navigable waters, it falls within admiralty’s domain.” Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 206 (1996). With admiralty jurisdiction comes the application of substantive admiralty law. Id. Federal maritime law may be supplemented by state law to the extent that it “would not disturb the uniformity of maritime law.” Kossick v. United Fruit Co., 365 U.S. 731, 738 (1961).

In maritime law, “the owner of a ship in navigable waters owes to all who are on board for purposes not inimical to his legitimate interests [e.g., passengers] the duty of exercising reasonable care under the circumstances of each case.” Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632 (1959); Muratore v. M/S Scotia Prince, 845 F.2d 347, 353 (1st Cir. 1988)(under maritime law, “a carrier owes a duty of exercising reasonable care towards its passengers under the circumstances”). The degree of required care must be in proportion to the apparent risk. See, Muratone, 845 F.3d at 353 (discussing concept)(citing Prosser, Law of Torts, Section 34, at 180 (4th ed. 1971)).

Plaintiffs contend that defendants are directly and vicariously liable under Puerto Rico law because Congress allowed Puerto Rico to adopt liability standards inconsistent with maritime law (Docket No. 61 at pp. 12-20). Congress can alter, qualify, or supplement admiralty law as it sees fit, provided it neither excludes a thing that falls clearly within the admiralty and maritime law nor includes a thing that clearly falls without, as long as the statute is coextensive with and operates uniformly in the whole of the United States. See, Zych v. Unidentified Wrecked and Abandoned Vessel, Believed to be the Seabird, 19 F.3d 1136, 1140 (7th Cir. 1994)(examining congressional power to revise and supplement maritime law).

However, Puerto Rico is an unincorporated territory of the United States. See, Maysonet-Robles v. Cabrero, 323 F.3d 43, 53 (1st Cir. 2003)(so describing Puerto Rico). It belongs to, but is not part of the United States, a category considered “foreign … in a domestic sense.” See, United States v. Lebrón-Cáceres, 157 F.Supp.3d 80, 88 & n.11 (D.P.R. 2016)(discussing Puerto Rico’s territorial status)(quoting Downes v. Bidwell, 182 U.S. 244, 287, 341-342, 346-347 (1901)). Accordingly, “… Congress can, pursuant to the plenary powers conferred by the Territorial Clause [U.S. Const. art. IV, § 3, cl. 2], legislate as to Puerto Rico in a manner different from the rest of the United States.” U.S. v. Rivera-Torres, 826 F.2d 151, 154 (1st Cir. 1987).[12]

In 1917, Congress enacted Puerto Rico’s second organic act, commonly known as the Jones Act, 39 Stat. 951, Act of March 2, 1919.[13] Under Section 37 of the Jones Act, the legislative authority of Puerto Rico extended “to all matters of a legislative character not locally inapplicable.” In turn, Section Eight read:

The harbor areas and navigable streams and bodies of water and submerged lands underlying the same in and around the island of Puerto Rico and the adjacent islands and waters, owned by the United States on March 2, 1917, and not reserved by the United States for public purposes, are placed under the control of the government of Puerto Rico … All laws of the United States for the protection and improvement of the navigable waters of the united States and the preservation of the interests of navigation and commerce, except so far as the same may be locally inapplicable, shall apply to said island and waters to its adjacent islands and waters.

Both provisions were reenacted as part of the Federal Relations Act. See, 48 U.S.C. §§ 749 and 821.[14] Interpreting and applying them in the context of admiralty and maritime law, the First Circuit held in Guerrido v. Alcoa Steamship Co., 234 F.2d 349 (1956), that the rules of admiralty and maritime law of the United States “are presently in force in the navigable waters of the United States in and around the island of Puerto Rico to the extent that they are not locally inapplicable either because they were not designed to apply to Puerto Rican waters or because they have been rendered inapplicable to these waters by inconsistent Puerto Rican legislation, ” provided that legislation does not “supplant a rule of maritime law which Congress in the exercise of its constitutional power has made applicable to Puerto Rican waters.” Id. at p. 355 (Emphasis added).[15] In line with Garrido, plaintiffs argue that defendants authorized Castro to operate the jet ski, and as a result, are liable for the resulting damages under Articles 1802 and 1803 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31 §§ 5141-5142, and Puerto Rico Law 430 of December 21, 2000, P.R. Laws Ann. tit. 12 §§ 1401-1411 (Docket No. 61, pp. 4-7, 15-20). Because it is undisputed that Water Toy owned and rented the jet skis, unless otherwise stated the court circumscribes the discussion of potential liability to that entity.

B. Puerto Rico Law

Article 1802 imposes liability for personal acts, not for acts of others, providing in part that “a person who by an act or omission causes damage to another through fault or negligence shall be obliged to repair the damage so done.” P.R. Laws Ann. tit. 31 § 5141. See, Burgos-Oquendo v. Caribbean Gulf Refining Corp., 741 F.Supp. 330, 332 (D.P.R. 1990)(discussing concept). To establish liability, the plaintiff must show: (i) a duty of care requiring defendant to conform to a certain standard of conduct; (ii) breach of that duty; (iii) damages; and (iv) a causal connection between the breach and the damages. See, De-Jesús-Adorno v. Browning Ferris Industries of Puerto Rico, Inc., 160 F.3d 839, 842 (1st Cir. 1995)(so explaining).

In general, the duty of care is defined by the tenet that one must act as would a prudent and reasonable person under the same circumstances. See, Vázquez-Filippetti v. Banco Popular de Puerto Rico, 504 F.3d 43, 49 (1st Cir. 2007)(so observing). This includes complying with statutes, regulations, and ordinances relevant to the action. See, Sánchez v. Seguros Triple S, Inc., 687 F.Supp.2d 6, 9 (D.P.R. 2010)(setting forth and applying formulation). The standard applies to those who operate businesses for profit, commanding them to exercise reasonable care toward business invitees. See, Calderón-Ortega v. U.S., 753 F.3d 250, 252 (2014)(recognizing obligation).

In turn, Article 1803 codifies a special type of vicarious liability, a type of liability based in part on the acts or omissions of others. See, P.R. Laws Ann. tit. 31 § 5142. To that end, it states that the obligation imposed by Article 1802 “is demandable not only for personal acts and omissions, but also for those of the persons for whom …[the defendant is] responsible, ” including under that rubric the liability of the father or mother for damages caused by minor children; of guardians for the damage cause by the person under their authority who live with them; of employers for the damage caused by an employee acting in the course of his employment; of masters or directors of arts and trades for damage caused by their pupils or apprentices; and of the Government of Puerto Rico under certain pre-established circumstances. Id. The enumeration is taxative, not of an exemplary nature. See, Burgos-Oquendo, 741 F.Supp. at 333 (so acknowledging). Imposition of vicarious liability in other instances must be anchored in alternate precepts or legislation, like Law 430. See, id. (dismissing complaint brought against lessor under Article 1803 in absence of provision establishing responsibility in the lessor for actions of the lessee).

At common law, vicarious liability implies that by reason of some preexisting relation between two parties, one of them may be held automatically liable to a third party for the negligence of the other even if he is free from fault. See, Prosser and Keeton, The Law of Torts, West Publishing Co., 1984, p. 499 (explaining concept). The doctrine applies in admiralty unless excluded by statute. See, Thomas J. Schoenbaum, supra at p. 188 (so noting). In that context, the negligence of employees is imputed to the owner of the vessel upon a finding of master-servant relationship, but in absence of that relationship, the shipowner is not liable in personam for the negligence of persons to whom the vessel is entrusted. Id. Under Article 1803, however, liability does not attach if the defendant shows that he employed the diligence expected of a good father of family, the bonus pater familias, to prevent the damage. Id. Diligence is predicated on how a prudent and reasonable man would have acted in connection with the obligations arising from the situations enumerated in Article 1803. See, Pueblo v. Rivera Rivera, 23 P.R. Offic. Trans. 641, 1989 WK 607294, *§ V (Rebollo López, J., concurring)(analyzing standard).

By contrast, Law 430 operates much like vicarious liability does at common law, providing in part that “[t]he owner of any ship or navigation vessel shall be responsible for damages caused when operating any of these, with fault or negligence, and when it is operated or under control of any person who, with the main purpose of operating or allowing it to be operated by a third party, obtains possession of it through express or tacit authorization of the owner.” P.R. Laws Ann. tit. 12 § 1406(6)(h). By extension, it imposes liability on the principal -the vessel’s owner- for the damages caused by the wrongful operation of the vessel when that vessel has been operated with the owner’s express or tacit authorization, irrespective of whether the owner has acted -in the words of Article 1803 of the Civil Code- with the diligence of a good father of family to avoid the damage.

As enacted, the provision is preempted by the Limitation of Liability Act of 1851, as amended, 46 U.S.C. § 30501 et seq., because it conflicts with the negligence standard set in the federal statute. See, In the Matter of Rockaway Jet Ski, LLC, 2016 WL 8861617, *603-*604, (holding New York’s Navigation Act § 48 preempted by Limitation Act, as it imposes vicarious liability on the owners of personal watercrafts if the watercraft is operated by a person who used it with the owner’s permission, irrespective of the owner’s wrongdoing)(quoting In re Hartman, 2020 WL 1529488, *4 n.10 (D.N.J. Apr. 15, 2010)(to the extent the claimant argues that the jet ski owner is strictly liable under state law, the claim is preempted because the state’s strict liability standard directly conflicts with the negligence standard of the Limitation Act)). For the same reason, so too here. And given that the Limitation Act applies in Puerto Rico, [16] its preemptive effect comports with Garrido, banning reliance on Law 430 to impose vicarious liability on the vessel owner in the absence of the owner’s negligence.

Against this background, plaintiffs argue that Water Toy Shop violated Law 430 in: (1) operating an illegal additional kiosk a quarter of a mile east of the area specified in the permit issued by the Puerto Rico Department of Natural Resources (“DNR”); (2) renting a jet ski that was not expressly identified in the permit; (3) using a rental ski as a patrol boat operated by a licensed individual who nevertheless had not received the required first aid training; (4) operating a rental stand without a valid navigation license; (5) keeping defective records lacking customers’ identification, addresses, tag of the jet ski used and date and time it was returned; and (6) renting skis without informing customers of navigation rules, safety briefing and prohibited activities (Docket No. 61 at pp. 5-7), making it liable for the collision and resulting damages. But merely violating a statute or regulation is not a synonym for liability in Puerto Rico, since in order for liability to attach, there must be a causal relationship – adequate cause – between the violation and the damages. See, González v. Puerto Rico Elec. Power Authority, 1993 WL 525644, *8 (D.P.R. Nov. 23, 1993)(so holding)(citing Pacheco v. A.F.F., 12 P.R. Offic. Trans. 367 (1982)).[17]

Adequate cause is not an event in the absence of which the damage would not have occurred, but that which in general experience causes it. See, Cárdenas Mazán v. Rodríguez Rodríguez, 125 D.P.R. 702, 710 (1990) (so stating); Ganapolsky v. Boston Mut. Life Ins. Co., 138 F.3d 446, 447-448 (1st Cir. 1998)(accidental injury to plaintiff’s left foot resulting from tripping on a two-inch step at entrance to men’s room in a theater not adequate cause of gangrene requiring foot’s amputation, as the infection that lead to the gangrene normally does not arise from tripping on a step). As such, causation is a function of foreseeability, requiring plaintiff to show that the injury was reasonably foreseeable. See, Marshall v. Pérez Arzuaga, 828 F.2d 845, 847 (1st Cir. 1987)(discussing foreseeability as part of the “causal nexus” element of tort action); Vázquez-Filipetti, 504 F.3d at 49 (highlighting centrality of foreseeability to a successful tort claim).[18]

Within this framework, that violations may have occurred in connection with items (1) to (5)-an unsubstantiated assumption at best- is not causally linked to Castro’s crashing of his jet ski onto plaintiffs’, for there is no evidence in the record showing it was foreseeable for a reasonable person to anticipate that a jet-ski collision would result from those violations.[19] Foreseeability cannot be established through the simple fact that an accident occurred. Id. (so recognizing).[20]The situation is no different in admiralty. See, Poulis-Minott v. Smith, 388 F.3d 354, 363 (1st Cir. 2004)(dismissing claim in admiralty for lack of proof that under the circumstances, there was a reasonable possibility that compliance with the regulatory standard would have prevented the accident).[21]

Water Toy’s obligation to provide Castro with an oral or written orientation on the navigation rules the Commissioner of Navigation of Puerto Rico prepared in accordance with Law 430 stands on a different footing, as it directly implicates the provision of information necessary to safely operate the jet ski. See, Wills v. Amerada Hess Corp., 379 F.3d 32, 42-45 (2d Cir. 2004)(distinguishing between statutory or regulatory provisions naturally and logically linked to maritime safety and those not so linked). The uncontested facts, however, show that Water Toy did provide adequate training to Castro in connection with the operation of the jet ski as well as of the applicable navigation rules. See, SUMF at ¶ 15-17. And the Rental Agreement Castro executed additionally confirms that he: (1) was fully informed of the inherent risks associated with jet skis; (2) understood and agreed to abide by the personal watercraft operational instructions he was given; and (3) was trained in the safe use of water sport equipment to his complete satisfaction. All in all, the record does not sustain a finding of liability against Water Toy deriving from a negligent act causally connected to the damages claimed.

C. Waivers

Beyond the issue of liability, plaintiffs executed a waiver precluding liability as to Water Toy and Axel Acosta – Water Toy’s sole owner and president, representative and agent – except for gross negligence, which the complaint only imputed to Castro. Plaintiffs attack the waiver, essentially characterizing it as unenforceable (Docket No. 61, at pp. 20-31). Voluntary waivers of liability for negligence in maritime activities are enforceable provided they: (1) are consistent with public policy; (2) do not configure a contract of adhesion; and (3) are drafted in clear and unambiguous language. See, Olmo v. Atlantic City Parasail, 2016 WL 1704365, *9 (D.N.J. April 28, 2016)(articulating and applying test)(citing Olivelli v. Sappo Corp., Inc., 225 F.Supp.2d 109, 116 (D.P.R. 2002)). By these standards, the waivers that plaintiffs signed are valid and enforceable.

First, exculpatory clauses waiving liability for negligence in maritime recreational activities are consistent with public policy. See, Cobb v. Aramark Sports and Entertainment Services, LLC, 933 F.Supp.2d 1295, 1299 (D. Nevada 2013)(so acknowledging); Olmo, 2016 WL 1704365, at *10 (same).[22] Thus, parties may enter into agreements to allocate risks inherent in those activities, allowing operators to contractually disclaim liability for their own negligence. See, Brozyna v. Niagara Gorge Jetboarding, Ltd., 2011 WL 4553100, *4-*5 (W.D. N.Y. Sept. 29, 2011)(explaining exculpatory waivers).[23] Relying on In the Matter of Rockaway Jet Ski LLC, 2016 WL 8861617, however, plaintiffs argue the waiver violates public policy because it has been invoked to prevent them from asserting negligence claims based on the violation of Law 430, a safety statute which, at bottom, does not contain a waiver authorization clause (Docket No. 61, at pp. 23, 27).

In Rockaway, the court evaluated whether an exculpatory clause can release negligence claims premised on the violation of a state safety statute, New York Navigation Law 73(a)(2), which (1) required businesses renting personal watercraft to provide a video or in-water demonstration of how to safely operate watercraft; and (2) prohibited those businesses from renting a personal watercraft to an individual unless that individual demonstrated ability to (i) operate the personal watercraft, and (ii) use applicable safety equipment. Id. at *595-*596. The court surveyed relevant caselaw, finding that some jurisdictions considering the same question did not permit parties to waive negligence claims premised on the violation of safety statutes, whereas other jurisdictions permitted the waivers. Id. at *598-*599. It sided with the former, noting “the apparent absence of an established admiralty rule on this question, ” (id. at *601); that statutory violations amount to negligence per se; and that waivers of a negligence per se claim violate public policy. Id. at *602.

Applying the reasoning to Law 430, the only statutory item involving safety is the one requiring information to safely operate the jet ski. But renting out a jet ski without taking steps to provide for its safety operation falls within the realm of negligence regardless of whether it is statutorily required. See, In re Hartman, 2010 WL 1529488, *4 (D.N.J. Apr. 15, 2010)(no need to resort to state safety statute to establish negligence in case originating in jet ski accident, because irrespective of statute, ski owner owed plaintiff a duty of care). And as pointed out above, those actions may be waived. See, Waggoner, 141 F.3d at *8-*9 (rejecting argument that exculpatory clause in recreational boat rental contract violated public policy based in part on Restatement (Second) of Contracts’ explanation that “a party to a contract can ordinarily exempt himself from liability for harm caused by his failure to observe the standards of reasonable care imposed by the law of negligence”). Moreover, although Law 430 imposes vicarious liability, that type of liability is less about boat safety and more about ensuring compensation for injured parties. See, Rockaway, 2016 WL 8861617 at *604 (so observing in validating waiver to protect vessel owner from vicarious liability imposed by state navigation law). In the end, Law 430 does not prohibit waivers, and neither does public policy.

Second, adhesion contracts are “take it or leave it” contracts with no opportunity for negotiation between parties with unequal bargaining power. Id. at *6 (delineating elements of adhesion). The definition does not fit waivers used in connection with voluntary recreational pursuits rather than rendition of essential services such as medical care, where courts would be more likely to find that a contract of adhesion exists. See, Olmo, 2016 WL 1704365 at *10 (so recognizing). For the same reason, liability waivers for voluntary recreational activities in navigable waters are not considered adhesion contracts, as the plaintiff has the option of signing or turning around and declining to do business with the defendant. Id. (waiver in case involving parasailing and related activities). So too here, for plaintiffs were free to choose another jet ski rental company or leave the beach without ridding a jet ski at all. See Olivelli, 225 F.Supp.2d at 110-11, 118-120 (waiver of liability not considered adhesion contract in part because scuba diving is a strictly voluntary recreational pursuit and deceased was free to decline defendant’s services if she did not wish to assent to the terms of the waiver); Brozyna, 2011 WL 4553100 at *6 (same with respect to jetboating excursion, as plaintiff had to option to decline to participate in the excursion); Murley ex rel. Estate of Murley v. Deep Explorers, Inc., 281 F.Supp.2d 580, 589-590 (E.D.N.Y. 2003)(if scuba diver did not agree to or understand any of the clauses of the release, he was free to write “VOID” or decline defendant’s services).[24]

Third, the waivers are clear and unambiguous. Their language (1) identified the specific risks inherent to and associated with riding a jet ski;[25] (2) explained and highlighted the fact that, by executing the Agreement, plaintiffs waived and released any and all claims based upon negligence against Water Toy, its officers, directors, employees, representatives, agents, and volunteers and vessels; and (3) stated that plaintiffs accepted responsibility for the consequences of riding the rented jet skis. The language should have put plaintiffs on notice of its legal significance and effect. Murley, 281 F.Supp.2d at 580-581, 591 (validating liability release with similar characteristics in dismissing action arising out of scuba diving accident that resulted in diver’s death). Even more, both plaintiffs and Castro signed the Agreements before boarding their respective jet skis, acknowledging that they (1) were fully informed of the hazards and risks associated with the jet ski and related water sports activities, including collision with other participants or watercrafts; (2) read, understood, and agreed to abide by the “Personal Watercraft Operational” instructions at all times; (3) were trained in the safe use of watersports equipment to their complete satisfaction; and (4) were physically and mentally able to participate in the water sports activities.

Fourth, plaintiffs are college-educated U.S. citizens, who were interested in participating in a recreational, hazardous maritime activity, one conditioned upon the jet ski’s owner and renter being released from liability as set forth in the waivers, a condition plaintiffs voluntarily agreed to.[26] Plaintiffs state that Ms. Morgan signed the documents without reading them (Docket No. 61-1 at ¶ 11). Nonetheless, the defendant is entitled to rely in good faith upon the reasonable appearance of consent that plaintiff created. See, Chieco v. Paramarketing, Inc., 228 A.D.2d 462, 643 N.Y.S.2d 668 (2d Dept. 1996)(holding release and waiver for paragliding lesson valid despite plaintiff’s allegation that he did not read or understand the document), cited in Murley, 281 F.Supp.2d at 591; Dan B. Dobbs, The Law of Torts, 217-218 (West 2000) (discussing defendant’s reasonable reliance on plaintiff’s acts and words to infer binding consent). Private and uncommunicated reservations to a waiver does not subject defendant to liability. See, Dan B. Dobbs, supra (so noting). Therefore, plaintiffs cannot escape the consequences of their voluntary decisions, bypassing the contracts they signed to avoid the legal consequences of their free choice, for there is no evidence of deceit, violence or intimidation exerted on plaintiffs to coerce or wrongfully induce them to sign the waivers, or that they did so by mistake, thinking they were signing something else. See, P.R. Laws Ann. tit. 31 § 3404 (codifying elements voiding consent under Puerto Rico law, to include violence, intimidation, deceit and error); Cutchin v. Habitat Curacao-Maduro Dive Fanta-Seas, Inc., 1999 WL 33232277, *3 (S.D. Fla. Feb. 8, 1999)(applying pre-accident waiver to dismiss action arising from diving accident, as there was no evidence showing that plaintiff was coerced to sign the document); Murley, 281 F.Supp.2d at 590 (dismissing suit based on scuba diver’s death in part because there was no evidence that defendants procured release by fraud or that deceased signed release under duress); .

Plaintiffs posit the waivers mention negligence but not fault, and cannot bar their action because the complaint alleges that their damages result from defendants’ “fault” or “negligence” (Docket No. 61 at p. 25). These terms have specific meanings in the civil code context of Puerto Rico law. See, CMI Capital Market Investment, LLC v. González-Toro, 520 F.3d 58, 64 (1st Cir. 2008)(so recognizing). Fault consists in the failure to exercise due diligence, the use of which would have prevented the wrongful result, and requires the execution of a positive act causing a damage to another person different from the one who executed it. Id. Negligence supposes an omission producing the same effect as fault (id.), predicated as with fault, on the failure to exercise due diligence. See, Sánchez v. Esso Standard Oil de Puerto Rico, Inc., 2010 WL 3069551, *4 (D.P.R. Aug. 2, 2010)(discussing terms). Both concepts “have in common that the act be executed or the omission incurred without an injurious intent, ” González-Toro, 520 F.3d at 64, and for the same reason, have been described as “faces of the same coin.” Sánchez, 2010 WL 3069551 a *4 (quoting Gierbolini v. Employers Fire Ins. Co., 4 P.R. Offic. Trans. 1197, 1201 (1976).

On this reading, it is apparent that to the extent the waiver mentions negligence it necessarily contemplates the failure to exercise due diligence, the same operative feature underlying fault, reflecting the waiver’s reference to both active and passive negligence. See, Malave-Felix v. Volvo Car Corp., 946 F.2d 967, 971 (1st Cir. 1991)(“An actor is at fault, or negligent, when he fails to exercise due diligence to prevent foreseeable injury”)(emphasis added). Even more, plaintiffs’ factual allegations are couched in negligence, not fault. See, Complaint, ¶ 30 (“As a consequence of the accident caused by the negligence of all defendants, … [Ms. Morgan] has suffered mental anguish, physical injuries and scars;” ¶ 43 (“As a consequence of the accident caused by the negligence of all defendants,, , [Ms. Kennedy] has suffered mental anguish, and physical injuries”).

Plaintiffs allege the waiver does not mention Axel Acosta, the insurance company, or Acosta Water Sports (Docket No. 61, pp. 27-28). Nonetheless, the waiver expressly releases Water Toy Shop’s officers, directors, and agents, and Axel Acosta is Water Sports’ president and resident agent (Docket No. 61-1 at ¶ 23). In addition, the insurance company’s exposure is linked to that of its insured. If the action fails as to Water Toy Shop and Axel Acosta, there is no viable claim against their insurer. Acosta Water Sports would not benefit from the waiver, though, as it is not one of the releases. Only one conclusion follows: the waivers and releases are valid, and must be enforced except as to Acosta Water Sports.

IV. CONCLUSION

For the reasons stated, the motion for summary judgment (Docket No. 52) is GRANTED and the claims against Water Toy, Axel Acosta and Ironshore Indemnity DISMISSED WITH PREJUDICE. Since it is uncontested that Acosta Water Sports is not the owner of the jet skis at issue, and did not seem to have incurred in any wrongdoing related to the accident, plaintiffs shall show cause, by April 20, 2018 as to why their claims against Acosta Water Sports should not be dismissed as well. In their motion, plaintiffs shall include relevant caselaw arising out of analogous facts and procedural settings in support of their position.

SO ORDERED.

———

Notes:

[1] Collisions have been described as “the most feared catastrophe of every mariner.” Thomas J. Schoenbaum, Admiralty and Maritime Law, Vol. 2, 103 (West 5th ed. 2011).

[2] Castro was sued and served with process, but failed to appear and the Clerk entered default against him (Docket No. 77).

[3] Except otherwise noted, the facts included in this section are drawn from the parties’ Local Rule 56 submissions (Docket No. 52-1, Docket No. 61-1, Docket No. 69-1). Local Rule 56 is designed to “relieve the district court of any responsibility to ferret through the record to discern whether any material fact is genuinely in dispute.” CMI Capital Market Investment, LLC v. Gonzalez-Toro, 520 F.3d 58, 62 (1st Cir. 2008). It requires a party moving for summary judgment to accompany its motion with a brief statement of facts, set forth in numbered paragraphs and supported by citations to the record, that the movant contends are uncontested and material. Local Rule 56(b) and (e). The opposing party must admit, deny, or qualify those facts, with record support, paragraph by paragraph. Id. 56(c), (e). The opposing party may also present, in a separate section, additional facts, set forth in separate numbered paragraphs. Id. 56(c). While the district court may “forgive” a violation of Local Rule 56, litigants who ignore the rule do it “at their peril.” Mariani-Colón v. Department of Homeland Sec. ex rel. Chertoff, 511 F.3d 216, 219 (1st Cir. 2007).

[4] At his deposition, Axel Acosta explained that these corporations operate separately, with their own permit and insurance. Their personnel, however, is interchangeably used. See, Plaintiffs’ Exhibit 3 at p. 84, lines: 6-20. Water Toy Shop owns the stand adjacent to the San Juan Hotel, whereas Acosta Water Sports owns the stand adjacent to the Intercontinental Hotel. See, PSUMF ¶¶ 6, 36.

[5] Plaintiffs stated they were rushed into signing the documents. However, that do not contest the fact that both of them signed the documents. Moreover, the deposition testimony submitted in support of their contention does not prove that they were rushed to sign documents, but that they “were rushing” (Defendants’ Exh. 2 at p. 94). At any rate, in their opposition to the motion for summary judgment, plaintiffs seem to have abandoned the “rushing” characterization of the events, focusing instead on the alleged invalidity of the releases (Docket No. 61 at pp. 20-29).

[6] Plaintiffs’ explanation as to who gave them the documents does not controvert the language of the Rental Agreements that each plaintiff signed. Their undeveloped and unsupported contention as to the “content and admissibility of the documents” – without any analysis, case law or support whatsoever – does not contest the statement either.

[7] The “disputed” and generalized statement made by plaintiffs “as to the content and admissibility of the documents” does not contest the language of the Rental Agreement and Declaration of Fitness.

[8] Plaintiff testified during her deposition that “thirty to forty five maybe an hour” elapsed (Docket No. 52-3 at p. 100, lines 14-17).

[9] Plaintiffs “disputed” this statement as follows: “Disputed as to hearsay and admissibility of the documents. With the exception of the witness testimonies, Defendants have not yet produced a single piece of evidence that can confirm the identity, address or telephone number of the person who caused the collision, someone allegedly named Mark Castro.” See, Docket No. 61-1. But in addition to the general language disputing this statement, plaintiffs provided no discussion or authority in support of the argument. As such, the statement is deemed admitted. See, U.S. v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)(“It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones”). Moreover, their “dispute” language does not comply with Local Rule 56 either. See also, Natal-Pérez v. Oriental Bank & Trust, —F.3d.—-, 2018 WL 618598, *1-*2 (D.P.R. January 30, 2018)(explaining what constitutes a proper denial or qualification under Local Rule 56).

[10] Plaintiffs’ denial does not comply with Local Rule 56. This time, they refer the court’s attention to certain portions of plaintiffs’ Exhibit 6. But nothing in those pages serve to properly controvert defendants’ SUMF ¶ 16. Therefore, the statement is deemed admitted.

[11] Plaintiffs did not admit, deny or qualify this statement as required by Local Rule 56. Moreover, their explanation does not contest this statement.

[12] The Territorial Clause gives Congress authority to “make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” As a territorial entity subject to congressional authority under the Territorial Clause, Puerto Rico nevertheless boasts “a relationship to the United States that has no parallel in … [United States’] history.” Puerto Rico v. Sánchez-Valle, —U.S.—-, 136 S.Ct. 1863, 1876 (2016). In a well-documented and comprehensive commentary, “Why Puerto Rico Does Not Need Further Experimentation With Its Future: A Reply To The Notion of ‘Territorial Federalism’, ” 131-3 Harvard Law Review Forum (January 2018), Juan R. Torruella examines the different phases of Puerto Rico’s territorial relationship with the United States, divided into what the author has labeled “the four ‘experiments’ in the colonial governance of Puerto Rico by the United States.” Id. at pp. 65-66.

[13] For a description of the main features of the Jones Act, see, Lebrón-Cáceres, 157 F.Supp.3d at 92. Juan R. Torruella, supra, focuses on the historical context of the statutory enactment. The first organic act, known as the Foraker Act, 31 Stat. 77-86, had been enacted in 1900, two years after the United States invaded Puerto Rico during the Hispanic American War. It established a civilian government in the territory, replacing the military government that had exerted control over Puerto Rico from October 1898. See, Lebrón-Cáceres, 157 F.Supp.3d at 91-92 & n.17 (sketching statute); Juan R. Torruella, supra (surveying historical setting).

[14] Lebrón-Cáceres, 157 F.Supp.2d at 92-93, 99-101, and Juan R. Torruella, supra, provide useful information about this statute.

[15] Gustavo A. Gelpí, “Maritime Law in Puerto Rico, An Anomaly in a Sea of Federal Uniformity, ” published as part of The Constitutional Evolution of Puerto Rico and Other U.S. Territories (1898-Present), Interamerican University of Puerto Rico, Metropolitan Campus (2017), p. 57, discusses Garrido and other judicial decisions in light of the interplay between Federal maritime law and Puerto Rico.

[16] See, Aponte v. Caribbean Petroleum, 141 F.Supp.3d 166, 171 (D.P.R. 2015)(applying Limitation Act in Puerto Rico).

[17] The term “adequate cause” is similar to “proximate cause.” See, Rodríguez v. Puerto Rico, 825 F.Supp.2d 341, 347 (D.P.R. 2011)(so noting)(citing Tokyo Marine and Fire Ins. Co., Ltd. v. Pérez &Cia. de Puerto Rico, Inc., 142 F.3d 1, 7 &n. 5 (1st Cir. 1998)(referring to Puerto Rico decisions explaining adequate cause)).

[18] Foreseeability allows courts to reconcile physical or natural cause and effect relationships with the causation necessary to establish civil liability. See, González, 1993 WL 525644 at *4 (so explaining). If that were not so, “damages following a breach … [would] be linked to each other in an endless chain of events.” Federal Deposit Insurance Corporation v. Arrillaga-Torrens, 212 F.Supp.3d 312, 353 (D.P.R. 2016).

[19] At the most, those alleged violations would warrant administrative sanctions under Section 1407 of Law 430. Yet there is no evidence that the DRN sanctioned, fined, suspended or revoked Water Toy’s permit for those reasons.

[20] See also, Marshall, 828 F.2d at 848 (comparing Negrón v. Orozco, 113 D.P.R. 921 (1983)(finding Puerto Rico Police liable for a shooting death in a police station because intervening act, though criminal and intentional, was reasonably foreseeable) with Rivera v. Cruz, 87 J.T.S. 51(1987)(no liability since defendant had no reason to anticipate the criminal act)).

[21] Poulis-Minott measured liability against the so-called Pennsylvania Rule, pursuant to which if a plaintiff in admiralty establishes both that the defendant breached a statutory duty and the breach is relevant to the causal question, the defendant assumes the burden of proving that its breach could not have caused plaintiff’s damages. See, Poulis-Minott, 388 F.3d at 363 (describing Pennsylvania Rule). The Rule aims to enforce strict compliance with maritime regulations pertaining to the safe operation of ships. Id. So to invoke it, the plaintiff must show a relationship between the regulatory violation and the injury. Id. Plaintiffs never invoked the Pennsylvania Rule, but assuming they had done so, there is no evidence linking a safety-related statutory violation with the accident.

[22] Public policy does prohibit a party to a maritime contract to shield itself contractually from liability for gross negligence. See, Royal Ins. Co. of America v. Southwest Marine, 194 F.3d 1009, 1016 (9th Cir. 1999)(discussing issue). The prohibition does not apply here, because as pointed out in the text, the complaint only raised gross negligence allegations as to Castro.

[23] Congress could block the enforceability of these waivers like it did in 46 U.S.C. § 183(c), which prohibits a vessel owner from limiting its liability for its own negligence when carrying passengers between ports of the United States or from a port of the United States to a foreign port. But that provision applies only to common carriers. See, Waggoner v. Nags Head Water Sports, Inc., 141 F.3d 1162, *5-*6 (4th Cir. 1998)(unpublished)(so holding). No common carrier was involved in the case sub judice.

[24] Still and all, “adhesion does not imply nullity of contract” in Puerto Rico. Nieves v. Intercontinental Life Ins. Co. of Puerto Rico, 964 F.2d 60, 63 (1st Cir. 1992). If the wording of the contract is explicit and its language clear, its terms and conditions are binding on the parties. Id. As will be discussed, the waivers here satisfy this requirement.

[25] Those risks included (1) changing water flow, tides, currents, wave action, and ship’s wakes; (2) collision with any of the following: a) other participants, b) the watercraft, c) other watercraft, d) man made or natural objects, e) shuttle boat; (3) wind shear, inclement weather, lightning, variances and extremes of wind, weather and temperature; (4) my sense of balance, physical condition, ability to operate equipment, swim and/or follow directions; (5) collision, capsizing, sinking, or other hazard that may result in wetness, injury, exposure to the elements, hypothermia, impact of the body upon the water, injection of water into my body orifices, and/or drowning; (6) the presence of insects and marine life forms; (7) equipment failure or operator error; (8) heat or sun related injuries or illnesses, including sunburn, sun stroke or dehydration; (9) fatigue, chill and/or reaction time and increased risk of accident.

[26] Morgan had signed similar documents in order to rent jet skis before the accident. At the time of the accident, she had a Bachelor’s degree in Biology, and Kennedy had a High School diploma with one year of nursing school. SUMF at ¶ 2.

———


Whitewater rafting, 13 injuries one death and release in WV are upheld. Management-level employees of DC health care company rafted river in allegedly high water causing injuries.

West Virginia Supreme court holds that admiralty or maritime law does not apply to whitewater rafting.

River Riders, Inc., v. Steptoe, et al, 223 W. Va. 240; 672 S.E.2d 376; 2008 W. Va. LEXIS 116; 2009 AMC 2157

Date of the Decision: December 10, 2008

Plaintiff on Appeal, Defendants at the trial court: River Riders, Inc., and Matthew Knott, Petitioners

Defendant: The Honorable Thomas W. Steptoe

Third parties on appeal: plaintiff’s at the trial court: Executor of the estate of the deceased and the 13 injured plaintiffs

Plaintiff Claims: failed to meet the statutory “standard of care” expected of members of the whitewater guide profession in direct violation of the West Virginia Whitewater Responsibility Act, W. Va. Code

Defendant Defenses: release

Issue on Appeal: Whether the trial court had improperly held the whitewater rafting trip was subject to federal admiralty law.

Holding:

This is an interesting case from a procedural perspective as well as a factual one. The issue on appeal is not a review of a complete ruling by the trial court but of a ruling that the defendants, and the court felt would influence the final decision. Meaning the defendant could convince the appellate court that the trial court’s ruling was probably wrong and unless corrected now, the entire trial would have to be done again.

The facts are people went rafting on the Shenandoah River in West Virginia. Before embarking on the trip each person signed a “Release, Assumption of Risk and Indemnity Agreement.” The water was higher than average on the day of the raft trip; 12.5 feet compared to an average of 2 to 4 feet. During the raft trip four of the rafts dumped, sending several people into the water, including the deceased and thirteen other rafters into the river.

Two separate lawsuits were filed over the incident. The first was by the estate of the deceased. The second lawsuit was filed by the other thirteen injured rafters.

The complaints of the plaintiff allege several issues:

…River Riders failed to meet the statutory “standard of care” expected of members of the whitewater guide profession in direct violation of the West Virginia Whitewater Responsibility Act, W. Va. Code §20-3B-3(b) (1987).

…that running a raft trip on September 30, 2004, simply was not reasonable under the circumstances, and that the expected standard of care would have obligated River Riders to cancel or reschedule the whitewater expedition on that day because of the river’s high and turbulent waters caused by a recent hurricane that had swept through the area.

…failing to call off or postpone the trip until conditions were safe to go out on the river, by failing to recognize that the operating capabilities of its rafts with the inexperienced customers would be unsafe and hazardous in high, swift and rough water conditions; and by wrongfully electing to navigate the Shenandoah River and in particular the Shenandoah Staircase.

The complaint for the wrongful death included the following claims:

two separate counts: one for negligence, gross negligence, reckless and wanton conduct; the other for negligence per se. Citing fifteen alleged acts or omissions, Count One alleges that the duties owed by River Riders to Mr. Freeman included the duty to conform to the standard of care expected of members of their profession, the duty to conform to safety and other requirements set forth in the West Virginia Code, the duty to conform to rules promulgated by the commercial whitewater advisory board, and the duty not to act in a reckless or wanton manner. Count Two alleges two additional acts or omissions constituting negligence per se, including citations by the West Virginia Division of Natural Resource for failure to mark a commercial water craft and failure to have a valid CPR card as required by W. Va. Code §20-2-23a

Prior to trial, the plaintiff’s filed a motion in limine to exclude the release agreement which the court granted. The court relied upon a prior West Virginia Supreme Court case that held since there was a statute supporting and providing defenses for the whitewater rafting industry, a release was no long available as a defense. Murphy v. North American River Runners, Inc., 186 W. Va. 310, 412 S.E.2d 504 (1991)

Another motion in limine was filed by the plaintiff’s arguing that assumption of risk could not be a defense because the case was governed by maritime law.

Finally, the plaintiff’s filed a motion to consolidate both lawsuits into one and have one trial. This motion was also granted by the court.

The defendants then filed motions with the West Virginia Supreme court arguing that the motions of the trial court were wrong, and the court had to intervene for a fair trial to occur. This motion was called a Writ of Prohibition.

The West Virginia Supreme Court granted the Writ but only as to the issue of whether or not maritime law applied to a whitewater rafting case in West Virginia.

This Court has, on limited occasions, considered challenges from evidentiary rulings in unique circumstances where the matter at issue rose to a level of considerable importance and compelling urgency.

The court declined to review the other issues because a writ of prohibition was not the proper way to argue the issues and timing of those issues were best left to the appeal of the case.

Summary of the case

To be subject to Federal maritime law a two-prong test must be met, “whether the rafting mishap and ensuing tort claims arising therefrom satisfied both prerequisite conditions of 1) location on the navigable waters and 2) connection with maritime activity.”

In determining whether or not the accident occurred on navigable waters the trial court should have included an analysis of “…whether the incident constituted “a potentially disruptive impact on maritime commerce” and that it had a “substantial relationship to traditional maritime activity” and determined the “the activity of whitewater rafting does not constitute traditional maritime activity and is therefore, not governed by maritime law.”

…given the fact that the Shenandoah River maintains average depths of two feet, 18 it is hard to envision how the act of whitewater rafting could have a potentially disruptive impact on maritime commerce, to  the extent that this area was unlikely a highly traveled thoroughfare over which trade and travel is conducted.

Nor could the court find any decision where admiralty law had been applied to whitewater rafting.

Whitewater rafting is a recreational activity where participants seek the adventure of paddling a rubber raftin rapidly moving whitewater streams and rivers. Such use of streams and rivers carrying people, not as traveling passengers, but rather as participants seeking adventure, makes it difficult to conceive that whitewater rafting bears a substantial relationship to traditional maritime activity.

The appellate court sent the case back down with two of the rulings intact.

So Now What?

Admiralty law is a separate area of the law. It was developed prior to the formation of the United States for commerce between countries. It has very different rules for liability, worker’s compensation and other legal issues. In the US, admiralty law also applies to travel on major rivers and waterways. When and how admiralty law is applied is dependent upon the federal statute and the type of admiralty activity. As an example there are more than a dozen different definitions of navigable for different maritime activities.

Admiralty law came from commerce. Admiralty law has been applied to recreational activities in the past, such as using personal water craft, however, in all of those cases; the activity was on the ocean or large bodies of water.

Admiralty law could be used in some states on some rafting rivers as a defense, if handled by a law firm knowledgeable in admiralty law. If the jurisdictional issues are met, a defendant can go to court within six months of an accident and file a notice (open a case) and post a bond. The reason for doing this is, under admiralty law, the damages available to the plaintiff’s is limited to the value of the vessel and its contents after the accident. However, by doing this the raft company may be admitting liability and must prove it was an admiralty issue.

This law as created to limit the damages of a ship owner to not bankrupt the owner or the industry. A $10,000 raft, frame and gear are a relatively cheap and easy way to get out from under a potential claim. However, if you fail to meet the requirements but are still subject to admiralty law, you do not have several defenses normally relied upon to stop claims: releases and assumption of the risk.

To some extent, we are left hanging by the decision on whether a release is valid as a defense in a rafting accident in West Virginia. However, the decision on whether the federal maritime law is applicable is valuable.

What do you think? Leave a comment.

If you like this let your friends know or post it on FaceBook, Twitter or LinkedIn

Copyright 2014 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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

<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Admiralty Law, Maritime Law, Whitewater Rafting, Rafting, Shenandoah River, West Virginia, Writ of Prohibition,

 

 

WordPress Tags: Whitewater,injuries,death,Management,employees,health,river,West,Virginia,Supreme,Riders,Matthew,Knott,Honorable,Thomas,Steptoe,LEXIS,Date,Decision,December,Plaintiff,Appeal,Defendants,Petitioners,Defendant,Third,Executor,estate,plaintiffs,Claims,profession,violation,Code,Defenses,Issue,Whether,perspective,Shenandoah,person,Release,Assumption,Risk,Agreement,feet,lawsuits,incident,lawsuit,complaints,September,expedition,hurricane,area,capabilities,customers,Staircase,complaint,negligence,omissions,Count,duties,Freeman,requirements,manner,citations,Division,Natural,Resource,failure,card,Prior,Court,statute,industry,Murphy,North,American,Runners,Writ,Prohibition,rulings,importance,urgency,Summary,Federal,prong,mishap,tort,prerequisite,location,connection,accident,analysis,impact,commerce,relationship,fact,extent,thoroughfare,participants,adventure,rubber,rivers,passengers,formation,States,worker,compensation,waterways,example,definitions,vessel,owner,gear,Leave,FaceBook,Twitter,LinkedIn,Recreation,Edit,Email,Google,RecreationLaw,Page,Outdoor,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,AdventureTourism,AdventureTravelLaw,AdventureTravelLawyer,AttorneyatLaw,BicyclingLaw,Camps,ChallengeCourse,ChallengeCourseLaw,ChallengeCourseLawyer,CyclingLaw,FitnessLaw,FitnessLawyer,HumanPoweredRecreation,JamesHMoss,JimMoss,OutdoorLaw,OutdoorRecreationLaw,OutsideLaw,OutsideLawyer,RecLaw,RecLawBlog,LawBlog,RecLawyer,RecreationalLawyer,RecreationLawBlog,RecreationLawcom,Lawcom,RiskManagement,RockClimbingLawyer,RopesCourse,RopesCourseLawyer,SkiAreas,SkiLaw,SummerCamp,Tourism,TravelLaw,YouthCamps,ZipLineLawyer,Maritime,appellate,limine,upon

 


River Riders, Inc., and Matthew Knott, v. The Honorable Thomas W. Steptoe, et al, 223 W. Va. 240; 672 S.E.2d 376; 2008 W. Va. LEXIS 116; 2009 AMC 2157

River Riders, Inc., and Matthew Knott, v. The Honorable Thomas W. Steptoe, et al, 223 W. Va. 240; 672 S.E.2d 376; 2008 W. Va. LEXIS 116; 2009 AMC 2157

River Riders, Inc., and Matthew Knott, Petitioners v. The Honorable Thomas W. Steptoe, all Plaintiffs in the Christopher et al v. River Riders, Inc., Civil Action No. 06-C-328, And All Plaintiffs in Freeman Civil Action NO. 06-C-325, Respondents

No. 34206

SUPREME COURT OF APPEALS OF WEST VIRGINIA

223 W. Va. 240; 672 S.E.2d 376; 2008 W. Va. LEXIS 116; 2009 AMC 2157

October 28, 2008, Submitted

December 10, 2008, Filed

SYLLABUS

[**378] [*242] BY THE COURT

1. “In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal’s order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.” Syllabus Point 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).

2. [***2] “In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance.” Syllabus Point 2, State ex rel. Tucker County Solid Waste Authority v. West Virginia Division of Labor, 222 W. Va. 588, 668 S.E.2d 217, 2008 WL 2523591 (W. Va. 2008).

3. “In the absence of compelling evidence of irremediable prejudice, a writ of prohibition will not lie to bar trial based upon a judge’s pretrial ruling on a matter of evidentiary admissibility.” Syllabus Point 3, State ex rel. Shelton v. Burnside, 212 W. Va. 514, 575 S.E.2d 124 (2002).

4. “A writ of prohibition will not issue to prevent a simple abuse of [***3] discretion by a [**379] [*243] trial court.” Syllabus Point 4, State ex rel. Shelton v. Burnside 212 W. Va. 514, 575 S.E.2d 124 (2002).

5. “A party seeking to petition this Court for an extraordinary writ based upon a non-appealable interlocutory decision of a trial court, must request the trial court set out in an order findings of fact and conclusions of law that support and form the basis of its decision. In making the request to the trial court, counsel must inform the trial court specifically that the request is being made because counsel intends to seek an extraordinary writ to challenge the court’s ruling. When such a request is made, trial courts are obligated to enter an order containing findings of fact and conclusions of law. Absent a request by the complaining party, a trial court is under no duty to set out findings of fact and conclusions of law in non-appealable interlocutory orders.” Syllabus Point 6, State ex rel. Allstate Ins. Co. v. Gaughan, 203 W. Va. 358, 508 S.E.2d 75 (1998).

6. Federal admiralty law governs a tort action if the wrong occurred on navigable waters, and if the incident involved had the potential to disrupt maritime activity and the general character of the activity [***4] giving rise to the incident had a substantial relationship to traditional maritime activity.

7. “[A] party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. §1333(1) over a tort claim must satisfy conditions both of location and of connection with maritime activity. A court applying the location test must determine whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water. 46 U.S.C. App. §740. The connection test raises two issues. A court, first, must ‘assess the general features of the type of incident involved,’ 497 U.S., at 363, 110 S.Ct., at 2896, to determine whether the incident has ‘a potentially disruptive impact on maritime commerce,’ id., at 364, n. 2, 110 S.Ct., at 2896, n. 2. Second, a court must determine whether ‘the general character’ of the ‘activity giving rise to the incident’ shows a ‘substantial relationship to traditional maritime activity.’ Id., at 365, 364, and n. 2, 110 S.Ct., at 2897, 2896, and n. 2.” Grubart v. Great Lakes Dredge & Dock Company, 513 U.S. 527, 534, 115 S.Ct. 1043, 1048, 130 L. Ed. 2d 1024 (1995).

8. The activity of whitewater rafting does not constitute traditional maritime activity [***5] and is therefore not governed by federal admiralty law.

COUNSEL: For Petitioners: Robert P. Martin, Esq., Justin C. Taylor, Esq., Jared M. Tully, Esq., Bailey & Wyant, P.L.L.C., Charleston, West Virginia; Michael A. Barcott, Esq., Holmes Weddle & Barcott, P.C., Seattle, Washington.

For Kathy L. Freeman, Respondent: Stephen G. Skinner, Esq., Laura C. Davis, Esq., Skinner Law Firm, Charles Town, West Virginia.

For The Christopher Plaintiffs, Respondent: Michael P. Smith, Esq., Salsbury, Clements, Beckman, Marder & Adkins, LLC, Baltimore, Maryland; Mark Jenkinson, Esq., Burke, Schultz, Harman, and Jenkinson, Martinsburg, West Virginia.

JUDGES: JUSTICE BENJAMIN delivered the Opinion of the Court. CHIEF JUSTICE MAYNARD concurs and reserves the right to file a concurring opinion. JUSTICE ALBRIGHT not participating. SENIOR STATUS JUSTICE McHUGH sitting by temporary assignment.

OPINION BY: BENJAMIN

OPINION

Petition for a Writ of Prohibition

WRIT GRANTED AS MOULDED

BENJAMIN, Justice: 1

1 Pursuant to an administrative order entered on September 11, 2008, the Honorable Thomas E. McHugh, Senior Status Justice, was assigned to sit as a member of the Supreme Court of Appeals of West Virginia commencing September 12, 2008, and continuing until [***6] the Chief Justice determines that assistance is no longer necessary, in light of the illness of Justice Joseph P. Albright.

Petitioners, River Riders, Inc. and Matthew Knott, seek a writ of prohibition to vacate three pre-trial orders of the Circuit Court of Jefferson County that (1) excluded from the forthcoming trial the Release and Assumption of Risk Agreements that had been signed by fourteen plaintiffs prior to embarking on a whitewater rafting expedition provided by the Petitioners; (2) ruled that the rafting incident was governed by [**380] [*244] general maritime law, thus, precluding assumption of the risk as a defense; and (3) consolidated the civil action of the personal representative of the estate of the decedent with the civil action brought by thirteen injured persons. After careful consideration of the memoranda 2 and arguments in this proceeding, as well as the pertinent legal authorities, we grant the writ sought only to the extent of vacating the circuit court’s ruling finding that the rafting incident is governed by maritime law.

2 We wish to acknowledge the participation of the West Virginia Professional River Outfitters amicus curiae in support of Petitioners and appreciate their [***7] participation in this action.

I.

FACTUAL AND PROCEDURAL HISTORY

This original proceeding in prohibition arose out of a commercial whitewater rafting accident on the Shenandoah River in Jefferson County, West Virginia, which resulted in the death of one person and injuries to thirteen others, all paying participants in a rafting expedition taken with River Riders, Inc., a licensed commercial whitewater outfitter. 3 As a result of the accident, two separate lawsuits against River Riders ensued. The first action was filed by Kathy L. Freeman [hereinafter referred to as the “Freeman plaintiff”], as personal representative of the estate of her husband, the decedent, Roger Freeman. 4 The second action was filed by the thirteen injured persons and seven of their spouses [hereinafter collectively referred to as the “Christopher plaintiffs”] who claimed loss of consortium. 5

3 The accident, which occurred on September 30, 2004, involved four inflatable rafts which dumped Roger Freeman and thirteen of the Christopher plaintiffs into the Shenandoah River, causing Mr. Freeman to drown, and causing various personal injuries to the others. All but two of the fourteen were management employees of Kaiser [***8] Permanente of suburban Washington, D.C. It is claimed that on this particular day, the level of water on the Shenandoah River was approximately 12.5 feet, compared to a normal average level of 2 to 4 feet during that time of year.

4 The Freeman lawsuit also names Matthew Knott, owner of River Riders, as a defendant. Mr. Knott is also alleged to have been a commercial whitewater guide who guided one of the rafts on the ill-fated expedition and who served as the trip’s leader.

5 In the second of the complaints, Timothy Friddle, husband of Cristina Renee Friddle, is named as a plaintiff. They claim “loss of consortium and services, and interference with and injury to their marital relationship.” Timothy Friddle is not, however, named as a spouse and as plaintiff in the Memorandum which these plaintiffs filed with this Court in this proceeding. The Petitioners represent that Mr. Friddle has been voluntarily dismissed from the action.

Prior to embarking on the rafting expedition, Roger Freeman and each of the injured Christopher plaintiffs signed a “Release, Assumption of Risk and Indemnity Agreement” [hereinafter sometimes referred to as “Release Agreement”] provided to them by River Riders. [***9] In that agreement, each signatory (1) acknowledged that he or she had requested to be allowed to participate in whitewater rafting provided by River Riders; and expressed his or her understanding, among other things, that “[whitewater rafting] activities and services pose substantial risks of injury or death. . . as the result of exposure; . . . or being in whitewater rivers and streams; . . . the negligence, gross negligence, or bad judgment by [the signatory], River Riders, Inc., or other participants; the failure or misuse of equipment; . . . and other known and foreseeable risks of [whitewater rafting].” (Emphasis in original). The signatories to the Release Agreement also agreed, in part, that:

In consideration of and as partial payment for being allowed to participate in [whitewater rafting] provided by River Riders, Inc., I ASSUME, to the greatest extent permitted by law, all of the risks, whether or not specifically identified herein, of all the activities in which I participate and services I use [whitewater rafting]; I RELEASE River Riders, Inc. from any and all liability, including, but not limited to, liability arising from negligence, gross negligence, willful and wanton [***10] and intentional conduct; . . .

[**381] [*245] The Freeman plaintiff and the Christopher plaintiffs contend that River Riders failed to meet the statutory “standard of care” expected of members of the whitewater guide profession in direct violation of the West Virginia Whitewater Responsibility Act, W. Va. Code §20-3B-3(b) (1987). 6 In both actions, they assert that running a raft trip on September 30, 2004, simply was not reasonable under the circumstances, and that the expected standard of care would have obligated River Riders to cancel or reschedule the whitewater expedition on that day because of the river’s high and turbulent waters caused by a recent hurricane that had swept through the area. 7 Specifically, Respondents argue that River Riders was negligent and careless and failed to conform to the standard of care by failing to call off or postpone the trip until conditions were safe to go out on the river, by failing to recognize that the operating capabilities of its rafts with the inexperienced customers would be unsafe and hazardous in high, swift and rough water conditions; and by wrongfully electing to navigate the Shenandoah River and in particular the Shenandoah Staircase. 8

6 In 1987, [***11] the Legislature enacted the Whitewater Responsibility Act, codified as W. Va. Code §§20-3B-1 et seq.(1987). Therein, [HN1] the Legislature stated that it “recognizes that there are inherent risks in the recreational activities provided by commercial whitewater outfitters and commercial whitewater guides which should be understood by each participant. It is essentially impossible for commercial whitewater outfitters and commercial whitewater guides to eliminate these risks. It is the purpose of this article to define those areas of responsibility and affirmative acts for which commercial whitewater outfitters and commercial whitewater guides are liable for loss, damage or injury.” W. Va. Code §20-3B-1.

The Act [HN2] declares that “[n]o licensed commercial whitewater outfitter or commercial whitewater guide acting in the course of his employment is liable to a participant for damages or injuries to such participant unless such damage or injury was directly caused by failure of the commercial whitewater outfitter or commercial whitewater guide to comply with duties placed on him by article two of this chapter, by the rules of the commercial whitewater advisory board, or by the duties placed on such [***12] commercial whitewater outfitters or commercial whitewater guide by the provisions of this article.” W. Va. Code §20-3B-5(a).

Among the duties imposed by the Whitewater Responsibility Act upon all commercial whitewater guides providing services for whitewater expeditions in this state is that they “while providing such services, conform to the standard of care expected of members of their profession.” W. Va. Code §20-3B-3(b).

7 The Freeman plaintiff represents to the Court that the liability issues are exactly the same in both cases.

8 The wrongful death complaint filed by the Freeman plaintiff contains two separate counts: one for negligence, gross negligence, reckless and wanton conduct; the other for negligence per se. Citing fifteen alleged acts or omissions, Count One alleges that the duties owed by River Riders to Mr. Freeman included the duty to conform to the standard of care expected of members of their profession, the duty to conform to safety and other requirements set forth in the West Virginia Code, the duty to conform to rules promulgated by the commercial whitewater advisory board, and the duty not to act in a reckless or wanton manner. Count Two alleges two additional acts [***13] or omissions constituting negligence per se, including citations by the West Virginia Division of Natural Resource for failure to mark a commercial water craft and failure to have a valid CPR card as required by W. Va. Code §20-2-23a (1999) and 58 C.S.R. 12 (2008).

The complaint filed by the Christopher plaintiffs contains twenty counts, seven of which assert loss of consortium claims. The remaining thirteen counts are negligence claims under general maritime law, one for each injured plaintiff.

Prior to the forthcoming trial in this matter, the Freeman plaintiff filed a Motion in Limine to exclude the Release Agreement 9 that had been signed by Mr. Freeman. On January 30, 2008, the circuit court, in finding that the issues at trial on liability were whether the defendants met the standard of care required under the Whitewater Responsibility Act, entered an order granting the Motion in Limine prohibiting the defendants from introducing the Release Agreement, making any reference to it, or eliciting any information regarding it at trial. The circuit court based it ruling on the language of W. Va. Code §20-3B-3(b), and on this Court’s prior decision in Murphy v. North American River Runners, Inc., 186 W. Va. 310, 412 S.E.2d 504 (1991) [***14] 10 and on Johnson v. New [**382] [*246] River Scenic Whitewater Tours, Inc., 313 F.Supp.2d. 621 (S.D. W.Va. 2004).

9 The Freeman Plaintiff also filed a Motion for Judgment on the Pleadings which the circuit court denied.

10 In Murphy, this Court held that generally, [HN3] in the absence of an applicable statute, a plaintiff who expressly and, under the circumstances, clearly agrees to accept a risk of harm arising from a defendant’s negligent or reckless conduct may not recover for such harm, unless the agreement is invalid as contrary to public policy. 186 W. Va. 310, 412 S.E.2d 504.

Thereafter, on April 15, 2008, the circuit court likewise granted a Motion in Limine Regarding Release and Assumption of the Risk filed by the Christopher plaintiffs, which excluded the release agreement from trial. The circuit court, finding that maritime law governed the case, held that assumption of the risk was not an available defense. Specifically, the court held:

Second, this Court is of the opinion that assumption of the risk is not an available defense in this maritime action. Because the incident occurred on the Shenandoah River, a navigable body of water, it is governed by general maritime law. Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 206, 116 S. Ct. 619, 133 L. Ed. 2d 578 (1996). [***15] Assumption of the risk is not a defense in admiralty or maritime law. DeSole v. United States, 947 F.2d 1169, 1175 (4th Cir. 1991). In fact, “[t]he tenants of admiralty law, which are expressly designed to promote uniformity, do not permit assumption of risk in cases of person [sic] injury whether in commercial or recreational situation.” Id. The foundation of this principle has been recognized for more than 70 years. In The Arizona v. Anelich, Justice Harlan F. Stone, stated in support of his position that assumption of the risk was not a proper defense in cases of unseaworthiness, “No American case appears to have recognized assumption of risk as a defense by such a suit.” 298 U.S. 110, 122, 56 S. Ct. 707, 80 L. Ed. 1075 (1936). Accordingly, Defendant is prohibited from asserting the defense of assumption of the risk or making any argument in support of this defense at trial.

To the left of the judge’s signature on the order, there appeared a stamped “Note to Counsel”, which reads, “[t]he court has received no pleadings in opposition to this motion during the time period contemplated by trial court rule 22 order.” Subsequent to the circuit court’s ruling on those issues, Petitioners filed a Motion for Relief from [***16] the circuit court’s order on April 23, 2008, to clarify that it had in fact filed a response to plaintiffs’ motion in limine, but that it was untimely filed due to excusable neglect. 11 Petitioners urged the circuit court to consider its reply.

11 Petitioners contended that the mailing, rather than faxing, of their responses to the motion on the last day of filing was a clerical error that should not result in completely ignoring their response to the motion, which resulted in the exclusion of a recognized common law defense in West Virginia, among other findings.

In a third order entered on May 19, 2008, the circuit court granted the Christopher plaintiffs’ motion to consolidate their case with the case of the Freeman plaintiff under Case No. 06-C-328. In granting the motion, the circuit court considered the four factors set forth in Syllabus Point 2, State ex rel. Appalachian Power Company v. Ranson, 190 W. Va. 429, 438 S.E.2d 609 (1993) in exercising its discretion when deciding issues of consolidation under Rule 42(a) of the West Virginia Rules of Civil Procedure. The circuit court expressly declined Petitioner’s request to bifurcate the cases on the issue of damages, stating that [***17] “the issue of liability and damages are intertwined and not reasonably susceptible of being bifurcated.”

Following the entry of the third order, Petitioners invoked the original jurisdiction of this Court in prohibition seeking a writ to vacate the three circuit court orders of January 30, 2008, April 15, 2008, and May 19, 2008. Petitioners assert that the circuit court’s rulings are incorrect for several reasons: (1) the Release Agreements are admissible as evidence because they contain warnings of the inherent risks of participating in whitewater rafting, and to the extent the Agreements contain inadmissible or unenforceable provisions, those provisions could be redacted therefrom; (2) maritime jurisdiction does not extend to this whitewater rafting case on the Shenandoah River because the Whitewater Responsibility Act is controlling, as the Shenandoah River is not a navigable waterway since it cannot be used for [**383] [*247] commercial shipping; (3) the circuit court failed to make any findings of fact regarding the navigability of the Shenandoah River; (4) assumption of the risk would be an available defense of the actions pursuant to controlling West Virginia law; (5) mandating the application [***18] of maritime law negates the West Virginia Whitewater Responsibility Act, and deprives the defendants of the defense of assumption of the risk, thus rendering all whitewater outfitters uninsurable and crippling a vital State industry; and (6) consolidating the two cases for trial will cause unfair prejudice and insure juror confusion as a result of the intertwining of unrelated legal, factual and damage issues in that one case is a wrongful death case, and the others are personal injury cases. Specifically, Petitioners claim that the circuit court’s consolidation of the two cases will result in the application of maritime law to both actions, prohibiting the defense of assumption of the risk in both.

Conversely, the Christopher plaintiffs argue (1) that maritime law applies because the tort they complain of has a nexus to traditional maritime activity, and because the Shenandoah River is a navigable waterway; (2) that since there is no well- developed substantive maritime law of the issue of whitewater rafting safety, maritime law permits the circuit court to properly look to the West Virginia Whitewater Responsibility Act for guidance 12 and (3) that “[b]ecause there is no federal statute [***19] stating otherwise, the duty under maritime law is the same duty established under West Virginia’s Whitewater Responsibility Act – that commercial whitewater outfitters and commercial whitewater guides ‘conform to the standard of care expected of members of their profession.’ W. Va. Code §20-3B-3.” It appears that the only facet of maritime law that the Respondents wish to have applied to this case is that assumption of the risk is not a defense.

12 Citing Tassinari v. Key West Water Tours, L.C., 2007 U.S. Dist. LEXIS 46490, 2007 WL 1879172 (S.D. Fla. 2007)(unpublished opinion); Smith v. Haggerty, 169 F.Supp.2d 376 (E.D.Pa. 2001); and Coastal Fuels Marketing, Inc. v. Florida Exp. Shipping Co., Inc., 207 F.3d 1247, 1251 (11th Cir. 2000).

II.

STANDARD OF ISSUANCE OF WRIT OF PROHIBITION

[HN4] The standard for the issuance of a writ of prohibition is set forth in W. Va. Code §53-1-1 (1882): “The writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or having such jurisdiction, exceeds its legitimate powers.” In syllabus point 4 of State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996) we [***20] held:

[HN5] In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal’s order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.

Id., Syl. Pt. 4.

This Court has stated that “. . . [HN6] prohibition. . . against judges [***21] [is a] drastic and extraordinary remed[y] . . . As [an] extraordinary remed[y], [it is] reserved for really extraordinary causes.” State ex rel. United States Fid. & Guar. Co. v. Canady, 194 W. Va. 431, 436, 460 S.E.2d 677, 682 (1995)(citations omitted); State ex rel. Tucker County Solid Waste Authority v. West Virginia Division of Labor, 222 W. Va. 588, 668 S.E.2d 217, [**384] [*248] 2008 WL 2523591 (W. Va. 2008). Thus, we have held that:

[HN7] In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance.

Id. at Syl. Pt. 2 (citing Syllabus Point 1, Hinkle v. Black, 164 W. Va. 112, 262 S.E.2d 744 (1979)).

In [***22] syllabus point 3, State ex rel. Shelton v. Burnside, 212 W. Va. 514, 575 S.E.2d 124 (2002), this Court recognized “[i]n [HN8] the absence of compelling evidence of irremediable prejudice, a writ of prohibition will not lie to bar trial based upon a judge’s pretrial ruling on a matter of evidentiary admissibility.” (quoting Syl. Pt. 2, State ex rel. Williams v. Narick, 164 W. Va. 632, 264 S.E.2d 851 (1980)). “A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court.” Syl. Pt. 4, 212 W. Va. 514, 575 S.E.2d 124. “The writ does not lie to correct ‘mere errors’ and . . . it cannot serve as a substitute for appeal, writ of error or certiorari.” Narick, 164 W. Va. at 635, 264 S.E.2d at 854.

This Court further stated in Burnside that:

[t]here is a practical reason for not allowing challenges, by use of the writ of prohibition, to every pre-trial discretionary evidentiary ruling made by trial courts. Such use of the writ would effectively delay trials interminably while parties rushed to this Court for relief every time they disagree with a pre-trial ruling. The fact remains that “[t]he piecemeal challenge of discretionary rulings through writs of prohibition [***23] does not facilitate the orderly administration of justice.” Woodall, 156 W. Va. at 713, 195 S.E.2d at 721. Said another way, “writs of prohibition should not be issued nor used for the purpose of appealing cases upon the installment plan.” Wimberly v. Imel, 1961 OK CR 25, 358 P.2d 231, 232 (Okla. Crim. App., 1961).

212 W. Va. at 519, 575 S.E.2d at 129. Guided by these principles, we proceed to consider the parties’ arguments.

III.

DISCUSSION

Petitioners raise questions regarding three pretrial rulings made by the circuit court on two motions in limine and one motion to consolidate. We note as a preliminary matter that it is this Court’s general practice and procedure to decline to consider rulings on motions in limine. This Court has recognized that “[t]hese [HN9] motions necessarily involve the exercise of discretion, and the correctness of discretionary rulings should ordinarily be challenged at a time when the entire record is available to an appellate court. The piecemeal challenge of discretionary rulings through writs of prohibition does not facilitate the orderly administration of justice.” Woodall v. Laurita, 156 W. Va. 707, 713, 195 S.E.2d 717, 720-21 (1973). Thus, in the absence of jurisdictional [***24] defect, the administration of justice is not well served by challenges to discretionary rulings of an interlocutory nature. These matters are best saved for appeal. State ex rel. Allen v. Bedell, 193 W. Va. at 37, 454 S.E.2d at 82 (Cleckley, J. concurring). As Justice Cleckley cautioned in his concurrence in State ex rel. Allen v. Bedell:

[HN10] Mere doubt as to the correctness of a trial court’s ruling on a motion in limine regarding an evidentiary issue is an insufficient basis to invoke this Court’s writ power. To justify this extraordinary remedy, the petitioner has the burden of showing that the lower court’s jurisdictional usurpation was clear and indisputable and, because there is no adequate relief at law, the extraordinary writ provides the only available and adequate remedy. Thus, writs of prohibition, as well as writs of [**385] [*249] mandamus and habeas corpus, should not be permitted when the error is correctable by appeal.

193 W. Va. at 37, 454 S.E.2d at 82.

This Court has, on limited occasions, considered challenges from evidentiary rulings in unique circumstances where the matter at issue rose to a level of considerable importance and compelling urgency. 13 In reviewing the claims asserted [***25] by Petitioners herein, which allege that the circuit court, by virtue of a motion in limine, made jurisdictional rulings that serve to have a significant and lasting negative impact on the question of liability for an important segment of business within this State, we find it appropriate to accept this matter for consideration at this stage in the proceedings. 14

13 See State ex rel. Foster v. Luff, 164 W. Va. 413, 419, 264 S.E.2d 477, 481 (1980)(prohibition granted where trial court abused discretion in failing to authorize expenditure of adequate funds to allow defense to secure experts); State ex rel. Register-Herald v. Canterbury, 192 W. Va. 18, 449 S.E.2d 272 (1994)(prohibition granted to reverse order constituting prior restraint against newspaper); State ex rel. Tyler v. MacQueen, 191 W. Va. 597, 447 S.E.2d 289 (1994)(prohibition used to review disqualification of prosecutor’s office); State ex rel. Leach v. Schlaegel, 191 W. Va. 538, 447 S.E.2d 1 (1994)(prohibition granted to prevent relitigation of case which was foreclosed because of collateral estoppel); State ex rel. DeFrances v. Bedell, 191 W. Va. 513, 446 S.E.2d 906 (1994)(prohibition used to review decision on lawyer’s [***26] disqualification).

14 Respondents contend that the circuit court’s order of April 15, 2008, cannot be challenged by the Petitioners, or is not before this Court in this extraordinary proceeding, because the Petitioners did not timely oppose the Christopher plaintiffs’ motion in limine asking the circuit court to find that maritime law governed the case. Petitioners admit that a scheduling order required them to file their response to the motion in limine by April 10, 2008, but that through “clerical error” their response was mailed, not faxed, to the clerk and the court on April 10, 2008. Five days later, on April 15, 2008, the circuit court, having not received the mailed response, entered an order granting the motion. To the left of the judge’s signature on the order, there appears a stamped “Note to Counsel”, which reads, “[t]he court has received no pleadings in opposition to this motion during the time period contemplated by trial court rule 22 order.” Petitioners contend that the mailing, rather than faxing, of their responses to the motion on the last day of filing was a clerical error that should not result in completely ignoring their response to the motion, which resulted in [***27] the exclusion of a recognized common law defense in West Virginia, among other findings.

Rule 6(b) of the West Virginia Rules of Civil Procedure [HN11] provides, in part, that “[w]hen . . . by order of court an act is required or allowed to be done at or within a specified time . . . the court for cause shown may at any time in its discretion . . . (2) upon motion made after the expiration of the specified period permit the act to be done when the failure to act was the result of excusable neglect. . .” In Pritt v. Vickers, 214 W. Va. 221, 227, 588 S.E.2d 210, 216 (2003), the Court approvingly quotes this statement in 3 Moore’s Federal Practice §16.14: “[a] trial court may modify or amend a scheduling order only when ‘good cause’is shown and the court grants leave to modify.” See also Walker v. Option One Mortgage Corporation, 220 W. Va. 660, 665, 649 S.E.2d 233, 238 (2007)(trial courts should not permit parties to obtain extensions absent a showing of good cause). The record before us does not reveal that Petitioners filed a motion with the circuit court after the April 10, 2008, deadline to permit the belated filing of their response. If they did not, we cannot condone their failure, and [***28] their argument that this Court should, nevertheless, hear their argument that the circuit court incorrectly concluded that maritime law applies and that assumption of the risk is not a defense under that law. We will, however, consider the circuit court’s order of April 15, 2008, in this regard because it raises questions of whether the circuit court has jurisdiction of the subject matter in controversy. Issues of jurisdiction may be raised by this Court sua sponte. Ray v. Ray, 216 W. Va. 11, 13, 602 S.E.2d 454, 456 (2004). Also, “[t]his Court may, sua sponte, in the interest of justice, notice plain error.” Syl. Pt.1, Cartwright v. McComas, 223 W. Va. 161, 672 S.E.2d 297, 2008 W. Va. LEXIS 81, 2008 WL 4867068 (W. Va. 2008).

Having made the determination to consider this matter, we limit our review herein to the specific jurisdictional issue of the circuit court’s finding that the rafting incident is governed by maritime law. We decline to address on a writ of prohibition the other issues presented regarding the exclusion of the Releases signed by the plaintiffs and the circuit court’s consolidation of the two cases, to the extent that the circuit court’s rulings were discretionary. As stated above, this Court’s general rule provides that [***29] [HN12] prohibition is ordinarily inappropriate in matters involving a trial court’s pretrial ruling on the admissibility of evidence. State ex rel. Shelton v. Burnside, 212 W. Va. at 518, 575 S.E.2d at 128. Furthermore, “[a] [HN13] decision by a trial court to consolidate civil actions on [**386] [*250] any or all matters in issue under Rule 42(a) of the West Virginia Rules of Civil Procedure will be deferentially reviewed under an abuse of discretionary standard.” State ex rel. Appalachian Power Company v. MacQueen, III, 198 W. Va. 1, 4, 479 S.E.2d 300, 303 (1996).

[HN14] A trial court, pursuant to provisions of Rule 42, has a wide discretionary power to consolidate civil actions for joint hearing or trial and the action of a trial court in consolidating civil actions for a joint hearing or trial will not be reversed in the absence of a clear showing of abuse of such discretion and in the absence of a clear showing of prejudice to any one or more of the parties to civil actions which have been so consolidated.

Syl. Pt. 1, Holland v. Joyce, 155 W. Va. 535, 185 S.E.2d 505 (1971); State ex rel. Appalachian Power Company v. MacQueen, III, 198 W. Va. 1, 4, 479 S.E.2d 300, 303 (1996).

Herein, Respondents allege that the instant [***30] petition should not be considered because Petitioners never requested that the circuit court set forth a detailed order including findings of fact and conclusions of law that support and form the basis of its decision, or informed the circuit court that it intended to seek an extraordinary writ to challenge the court’s ruling. We held in State ex rel. Allstate Ins. Co. v. Gaughan, 203 W. Va. 358, 367, 508 S.E.2d 75, 84:

[HN15] A party seeking to petition this Court for an extraordinary writ based upon a non-appealable interlocutory decision of a trial court, must request the trial court set out in an order findings of fact and conclusions of law that support and form the basis of its decision. In making the request to the trial court, counsel must inform the trial court specifically that the request is being made because counsel intends to seek an extraordinary writ to challenge the court’s ruling. When such a request is made, trial courts are obligated to enter an order containing findings of fact and conclusions of law. Absent a request by the complaining party, a trial court is under no duty to set out findings of fact and conclusions of law in non-appealable interlocutory orders.

Syl. Pt. [***31] 6, 203 W. Va. 358, 508 S.E.2d 75.

While we recognize that there is generally a duty on the part of a party petitioning this Court for an extraordinary writ based upon a non-appealable interlocutory decision of a trial court to make a request that the trial court set forth findings of fact and conclusions of law prior to seeking prohibition, we will proceed to consider the maritime issue before us since it concerns a distinct issue of law involving the interpretation and application of a federal statute which may be resolved on the pleadings, orders and arguments before us. This Court has, on prior occasions, recognized that [HN16] when we are able to resolve issues before the Court without a detailed order, it is not necessary to remand for the circuit court to provide findings of fact and conclusions of law. See, e.g., Pruitt v. W. Va. Dep’t of Pub. Safety, 222 W. Va. 290, 664 S.E.2d 175 (2008)(citing Fayette County National Bank v. Lilly, 199 W. Va. 349, 484 S.E.2d 232 (1997))(this Court is able to resolve issues before us without a detailed order and thus have no reason to remand for the circuit court to provide findings of fact and conclusions of law). See also Toth v. Board of Parks and Recreation Com’rs, 215 W. Va. 51, 55, 593 S.E.2d 576, 580 (2003); [***32] Ward v. Cliver, 212 W. Va. 653, 656, 575 S.E.2d 263, 266 (2002). [HN17] Based upon the jurisprudence of the United States Supreme Court and the statutory laws of the State of West Virginia, we find, as a matter of law, that the activity of whitewater rafting does not invoke federal admiralty jurisdiction.

The question of whether or not the rafting accident on September 30, 2004, is governed by general maritime law presents a federal admiralty jurisdictional question. 15 Herein, [**387] [*251] the circuit court concluded that because the incident occurred on the Shenandoah River, a navigable body of water, it is governed by general maritime law. The circuit court order cites to the decision Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 206, 116 S.Ct. 619, 623, 133 L. Ed. 2d 578 (1996), as support for its ruling.

15 [HN18] The United States Constitution provides in relevant part that “[t]he judicial Power shall extend. . . to all Cases of admiralty and maritime jurisdiction. . .” U.S. Const. Art. III, §2, cl. 1. Pursuant to 28 U.S.C.A. §1333(1948 and 1949), “[t]he district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in [***33] all cases all other remedies to which they are otherwise entitled.” The United States Supreme Court interpreted this section in Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 222, 106 S.Ct. 2485, 2494, 91 L. Ed. 2d 174 (1986) stating:

[HN19] the “savings to suitors” clause . . . allows litigants to bring in personam maritime actions in state courts. See Judiciary Act of 1789, §9, 1 Stat. 76 (“savings to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it”); 28 U.S.C. §1333 . . . See also Madruga v. Superior Court, 346 U.S. 556, 560, n. 12, 74 S.Ct. 298, 300, n. 12, 98 L.Ed. 290 (1954) . . . The “savings to suitors” clause leaves state courts competent to adjudicate maritime causes of action in proceedings in personam and means that “a state, ‘having concurrent jurisdiction, is free to adopt such remedies, and to attach to them such incidents, as it sees fit’ so long as it does not attempt to [give in rem remedies or] make changes in the ‘substantive maritime law.'” [citations omitted]. Stated another way, the “savings to suitors” clause allows state courts to entertain in personam maritime causes of action, but in such cases the extent to which state [***34] law may be used to remedy maritime injuries is constrained by a so-called “reverse-Erie” doctrine which requires that the substantive remedies afforded by the States conform to governing federal maritime standards.

477 U.S. at 222, 106 S.Ct. at 2494. See also Wright, Miller, Cooper, 14A Fed. Prac. & Proc. Juris.3d §3672, and Am.Jur.2d Admiralty §108.

Yamaha, 516 U.S. 199, 116 S.Ct. 619, 133 L. Ed. 2d 578, involved a collision between a twelve-year-old on a rented jet-ski and another recreational vehicle in territorial waters of the United States off a hotel frontage in Puerto Rico. The Yamaha Court found that because the case involved a watercraft collision on navigable waters, it fell within admiralty’s domain. 516 U.S. at 206, 116 S.Ct. at 623. The Yamaha Court then cited to its other previous decisions in Sisson v. Ruby, 497 U.S. 358, 361-367, 110 S.Ct. 2892, 2895-2898, 111 L. Ed. 2d 292 (1990), and Foremost Ins. Co. v. Richardson, 457 U.S. 668, 677, 102 S.Ct. 2654, 2659, 73 L. Ed. 2d 300 (1982), which set forth [HN20] the admiralty or maritime jurisdiction test for tort claims. “The test ‘comprises two functional inquiries: first, the traditional “situs” analysis determining whether the tort was committed or the alleged injury occurred on navigable [***35] waters, and second, the more recently developed “nexus” analysis determining whether the alleged tort bears a significant relationship to traditional maritime activities.” Sisson, 497 U.S. at 361-367, 110 S.Ct. at 2895-2898.

Subsequently, in Grubart v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534, 115 S.Ct. 1043, 130 L. Ed. 2d 1024 (1995), the Supreme Court stated:

After Sisson, then, [HN21] a party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. §1333(1) over a tort claim must satisfy conditions both of location and of connection with maritime activity. A court applying the location test must determine whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water. 46 U.S.C. App. §740. The connection test raises two issues. A court, first, must “assess the general features of the type of incident involved,” 497 U.S., at 363, 110 S.Ct., at 2896, to determine whether the incident has “a potentially disruptive impact on maritime commerce,” id., at 364, n. 2, 110 S.Ct., at 2896, n. 2. Second, a court must determine whether “the general character” of the “activity giving rise to the incident” shows a “substantial relationship to [***36] traditional maritime activity.” Id., at 365, 364, and n. 2, 110 S.Ct., at 2897, 2896, and n. 2.

513 U.S. 527, 534, 115 S.Ct. 1043, 130 L. Ed. 2d 1024. Thus, according to Grubart, federal admiralty law governs a tort action if the wrong occurred on navigable waters, and if the incident involved had the potential to disrupt maritime activity and the general character of the activity giving rise to the incident had a substantial relationship to traditional maritime activity. 16

16 The Fourth Circuit has recognized the Grubart jurisdictional test. See Brock v. Lewis, 86 F.3d 1148 (4th Cir. 1996)(unpublished opinion). Other publications that provide discussion of the criteria for determining admiralty jurisdiction include:1 The Law of Maritime Personal Injuries §10.1 (5th ed.)(2007)(stating that “[t]here is no doubt that [HN22] under the current law recreational boating activities that give rise to personal injuries or death fall within admiralty jurisdiction if they satisfy the locus and nexus criteria for admiralty tort jurisdiction.”; See also Wright, Miller, Cooper, 14A Fed. Prac. & Proc. Juris.3d §3676; Admiralty Jurisdiction: Maritime Nature of Torts – Modern Cases, 80 A.L.R. Fed. 105 (2008).

[**388] [*252] Based upon the United [***37] States Supreme Court’s holding in Grubart, [HN23] in order for the circuit court to find that general maritime law applies, it should have properly determined whether the rafting mishap and ensuing tort claims arising therefrom satisfied both prerequisite conditions of 1) location on the navigable waters and 2) connection with maritime activity. Failing to conduct such an analysis, the circuit court’s order of April 15, 2008, concluded, in a single sentence, that “because the incident occurred on the Shenandoah River, a navigable body of water, it is governed by general maritime law.” From its order, the circuit court appears to have only considered the first prong of the Grubart test in arriving at its conclusion that maritime law applied. 17

17 It is not necessary for this Court to discuss the propriety of the circuit court’s findings regarding the location requirement to the extent that we find that the second part of the Grubart test is not satisfied. [HN24] A party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. §1333(1) over a tort claim must satisfy conditions both of location and of connection with maritime activity. With that said, we note that the circuit court provided [***38] no standards whereby it determined that the Shenandoah River is in fact a navigable river, and no facts to which it applied standards to make that determination. Based on the limited set of facts we have reviewed herein, we question how a river with average relevant depths of two feet that was used for whitewater rafting purposes could possibly be considered a navigable waterway for purposes of maritime jurisdiction.

In addition to determining whether the incident occurred on navigable waters, the circuit court should have also analyzed whether the incident constituted “a potentially disruptive impact on maritime commerce” and that it had a “substantial relationship to traditional maritime activity” in order to satisfy the second nexus criterion. Applying the second prong of the Grubart test to the circumstances of the instant case, we find that [HN25] the activity of whitewater rafting does not constitute traditional maritime activity and is therefore not governed by maritime law.

First, given the fact that the Shenandoah River maintains average depths of two feet, 18 it is hard to envision how the act of whitewater rafting could have a potentially disruptive impact on maritime commerce, to [***39] the extent that this area was unlikely a highly traveled thoroughfare over which trade and travel is conducted. 19 However, even assuming, for the sake of argument, that the incident that occurred during this whitewater rafting trip had a potentially disruptive impact on maritime commerce, it still did not bear a substantial relationship to traditional maritime activity.

18 This fact was represented by both the Petitioners and the Respondents.

19 See Grubart, 115 S.Ct. at 1051 (the relevant inquiry is whether the general features of the mishap place it within a class of incidents that pose more than a fanciful risk to commercial shipping.)

The cases before us involve an unfortunate incident that occurred during the course of a recreational outing on a river that was unusually swollen with flood waters resulting from a hurricane. They do not concern piloting, shipping, or navigational error, or other aspects of traditional maritime activity. Foster v. Peddicord, 826 F.2d 1370, 1376 (4th Cir. 1987). The requisite maritime connection is therefore missing.

It is particularly relevant that there is no existing federal or state precedent applying admiralty jurisdiction to the activity of whitewater [***40] rafting. Perhaps this is because the very nature of the activity of whitewater rafting is not the customary mode of travel or transportation with which maritime law has ever been concerned. Whitewater rafting is a recreational activity where participants seek the adventure of paddling a rubber raft in rapidly moving whitewater streams and rivers. Such use of streams and rivers carrying people, not as traveling passengers, but rather as participants seeking adventure, makes it difficult to conceive that whitewater rafting bears a substantial relationship to traditional maritime activity. For these reasons, we conclude that the circuit court committed clear error in determining [**389] [*253] that maritime law applies to the instant cases.

IV.

CONCLUSION

Accordingly, we grant the writ sought only to the extent of vacating the circuit court’s ruling finding that the rafting incident is governed by maritime law. We remand this matter to the circuit court for entry of an order consistent with this opinion.

Writ granted as moulded.

WordPress Tags: River,Riders,Matthew,Knott,Honorable,Thomas,Steptoe,LEXIS,Petitioners,Plaintiffs,Christopher,Civil,Action,Freeman,Respondents,SUPREME,COURT,APPEALS,WEST,VIRGINIA,October,December,SYLLABUS,writ,prohibition,absence,jurisdiction,tribunal,factors,relief,petitioner,error,guidelines,Although,factor,existence,Point,State,Hoover,Berger,adequacy,effort,money,litigants,lawyers,errors,contravention,Tucker,Solid,Waste,Division,Labor,Shelton,Burnside,discretion,decision,findings,fact,conclusions,basis,Absent,Allstate,Gaughan,Federal,tort,incident,relationship,location,connection,injury,vessel,impact,commerce,Second,Grubart,Great,Lakes,Dredge,Dock,Company,whitewater,COUNSEL,Robert,Martin,Justin,Taylor,Bailey,Wyant,Charleston,Michael,Barcott,Holmes,Weddle,Seattle,Washington,Kathy,Respondent,Stephen,Skinner,Laura,Davis,Firm,Charles,Town,Smith,Salsbury,Clements,Beckman,Marder,Adkins,Maryland,Mark,Jenkinson,Burke,Schultz,Harman,Martinsburg,JUDGES,JUSTICE,BENJAMIN,Opinion,CHIEF,MAYNARD,SENIOR,STATUS,McHUGH,assignment,Petition,Pursuant,September,member,assistance,Joseph,Circuit,Jefferson,Release,Assumption,Risk,Agreements,expedition,estate,memoranda,arguments,extent,participation,Professional,Outfitters,FACTUAL,PROCEDURAL,HISTORY,accident,Shenandoah,death,person,injuries,participants,lawsuits,plaintiff,husband,Roger,spouses,consortium,management,employees,Kaiser,Permanente,feet,lawsuit,owner,defendant,leader,complaints,Timothy,Friddle,Cristina,Renee,interference,spouse,Memorandum,Prior,Agreement,signatory,exposure,rivers,negligence,judgment,failure,equipment,Emphasis,signatories,payment,ASSUME,profession,violation,Code,hurricane,area,capabilities,customers,Staircase,Legislature,Therein,participant,purpose,article,areas,employment,duties,chapter,Among,expeditions,complaint,omissions,Count,requirements,manner,citations,Natural,Resource,card,Motion,Limine,January,defendants,reference,information,Murphy,North,American,Runners,Johnson,Scenic,Tours,Supp,Pleadings,statute,policy,Thereafter,April,Yamaha,Motor,Corp,Calhoun,DeSole,States,tenants,situation,foundation,principle,Arizona,Anelich,Harlan,argument,signature,Note,opposition,Subsequent,response,responses,exclusion,Case,Appalachian,Power,Ranson,consolidation,Rule,Rules,Procedure,rulings,warnings,waterway,industry,juror,nexus,guidance,facet,Tassinari,Water,Dist,Coastal,Fuels,Florida,STANDARD,ISSUANCE,controversy,Guar,Canady,Thus,Hinkle,Black,Williams,Narick,trials,writs,administration,Woodall,Said,installment,Imel,Okla,Crim,DISCUSSION,Laurita,Allen,Bedell,Cleckley,concurrence,Mere,corpus,importance,urgency,virtue,segment,proceedings,Foster,Luff,expenditure,experts,Register,Herald,Canterbury,newspaper,Tyler,disqualification,prosecutor,office,Leach,Schlaegel,collateral,DeFrances,lawyer,clerk,Five,expiration,Pritt,Vickers,statement,Practice,Walker,Option,Mortgage,Corporation,extensions,deadline,Issues,Also,McComas,determination,Releases,Holland,Joyce,Herein,interpretation,Pruitt,Fayette,National,Bank,Toth,Board,Parks,Recreation,Ward,Cliver,laws,Constitution,Cases,Const,district,Logistics,Tallentire,savings,clause,Judiciary,Stat,Madruga,Superior,incidents,Erie,doctrine,Miller,Cooper,Prac,Proc,Juris,collision,vehicle,hotel,frontage,Puerto,Rico,domain,decisions,Sisson,Ruby,Foremost,Richardson,analysis,Fourth,Brock,Lewis,publications,criteria,Maritime,Personal,Nature,Torts,Modern,mishap,prerequisite,From,prong,conclusion,requirement,purposes,addition,criterion,thoroughfare,aspects,Peddicord,precedent,mode,transportation,adventure,rubber,passengers,whether,correctable,third,upon,pretrial,evidentiary,appealable,interlocutory,three,outfitter,hereinafter,seven,four,therefrom,usurpation,jurisdictional,sponte,suitors,personam