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Cunningham v. Jackson Hole Mountain Resort Corporation, 2016 U.S. App. LEXIS 22608

Cunningham v. Jackson Hole Mountain Resort Corporation, 2016 U.S. App. LEXIS 22608

Lindy Grace Cunningham; Michael Chad Cunningham, Plaintiffs – Appellants, v. Jackson Hole Mountain Resort Corporation, a Wyoming corporation, Defendant – Appellee.

No. 16-8016

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

2016 U.S. App. LEXIS 22608

December 20, 2016, Filed

PRIOR HISTORY:  [*1] (D.C. No. 2:15-CV-00007-NDF). (D. Wyo.).

COUNSEL: For LINDY GRACE CUNNINGHAM, MICHAEL CHAD CUNNINGHAM, Plaintiff – Appellant: Gerard R. Bosch, Mary Alison Floyd, Law Offices of Jerry Bosch, LLC, Wilson, WY.

For JACKSON HOLE MOUNTAIN RESORT CORPORATION, a Wyoming Corporation, Defendant – Appellee: James Kent Lubing, Lubing Law Group, Jackson, WY.

JUDGES: Before KELLY, MATHESON, and McHUGH, Circuit Judges.

OPINION BY: Carolyn B. McHugh

OPINION

ORDER AND JUDGMENT*

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Lindy and Chad Cunningham sued Jackson Hole Mountain Resort Corporation (JHMR)1 for injuries Mrs. Cunningham sustained when she collided with a trail sign while skiing. The district court granted summary judgment for JHMR, concluding the Cunninghams’ claims were barred by the terms of a release Mrs. Cunningham signed when she rented ski equipment from JHMR’s ski shop. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

1 Throughout this opinion, we use the acronym JHMR to refer to both the Jackson Hole Mountain Resort property and the corporation that owns the resort, Jackson Hole Mountain Resort Corporation.

  1. BACKGROUND

During a January 2013 vacation to Teton Village, Wyoming, Lindy Cunningham rented ski equipment from a JHMR shop located at the base of the resort’s ski area. During the rental process, Mrs. Cunningham signed a rental agreement,2 which included the following language (the release):

I [the signor] further agree to forever release, discharge, waive, [*2]  save and hold harmless, indemnify, and defend JHMR . . . from and against any and all claims, demands, causes of action, liabilities, actions, and any and all medical expenses or other related expenses, including damage to persons and property, asserted by others, by me, or on my behalf, my estate, executors, heirs, or assigns brought under any theory of legal liability, INCLUDING NEGLIGENCE, arising directly or indirectly out of my use of the facilities, ski area or ski lifts at JHMR, or my presence on JHMR premises.

2 The Cunninghams contend there is a genuine dispute of fact regarding whether Mrs. Cunningham actually signed the rental agreement because, in response to requests for admission, Mrs. Cunningham asserted she viewed the agreement on a computer screen and not in the form presented during discovery. But there is no dispute Mrs. Cunningham’s physical signature appears on the rental agreement. And there is no dispute JHMR provides the same agreement to every rental customer on a computer screen before printing a hard copy for the customer’s signature. Moreover, this evidence relates solely to the third factor in our analysis of the release’s enforceability, which requires consideration of “whether the agreement was fairly entered into.” Schutkowski v. Carey, 725 P.2d 1057, 1060 (Wyo. 1986). As explained below, Mrs. Cunningham raised arguments only with respect to the fourth factor and therefore waived the arguments for which the signature evidence would be relevant. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 2011). Accordingly, the evidence does not provide a basis to reverse the district court’s grant of summary judgment.

On January 14, while skiing at JHMR, Mr. Cunningham followed behind Mrs. Cunningham, filming her on his helmet-mounted GoPro camera. Footage from the camera shows Mrs. Cunningham fall toward the right side of the trail, slide, and then collide with a trail sign. The accident severely injured Mrs. Cunningham’s spine, rendering her a quadriplegic.

The Cunninghams sued JHMR, claiming negligence, premises liability, negligent training and supervision, and loss of consortium. After limited discovery, the district court concluded the Cunninghams’ claims were barred by the release, and it therefore granted summary judgment in JHMR’s favor.

  1. DISCUSSION

[HN1] We review the district [*3]  court’s grant of summary judgment de novo. Sapone v. Grand Targhee, Inc., 308 F.3d 1096, 1100 (10th Cir. 2002). “Because this is a diversity case, we apply the substantive law of Wyoming, the forum state.” Id. Specifically, we “must ascertain and apply state law to reach the result the Wyoming Supreme Court would reach if faced with the same question.” Cooperman v. David, 214 F.3d 1162, 1164 (10th Cir. 2000). If “no state cases exist on a point, we turn to other state court decisions, federal decisions, and the general weight and trend of authority.” Grand Targhee, 308 F.3d at 1100 (citation omitted). Here, the district court concluded the release signed by Mrs. Cunningham was valid and enforceable under Wyoming law and encompassed all of the Cunninghams’ claims. In addition, the district court determined JHMR did not act willfully or wantonly.3 We affirm each of the district court’s determinations.

3 JHMR also argued the claims were barred by the Wyoming Recreation Safety Act (WRSA), Wyo. Stat. Ann. §§ 1-1-121 to -123, because Mrs. Cunningham hit a trail sign, which is an inherent risk of skiing. But the district court denied summary judgment on this basis, and neither party has appealed this determination. Accordingly, we do not address it here.

  1. Enforceability and Scope of the Release

[HN2] Wyoming courts will enforce clauses releasing parties from liability for injury or damages so long as the clause is not contrary to public policy. Schutkowski v. Carey, 725 P.2d 1057, 1059 (Wyo. 1986). And as relevant here, “[g]enerally, specific agreements absolving participants and proprietors from negligence liability during hazardous recreational activities are enforceable, subject to willful misconduct limitations.” Id.; see also Fremont Homes, Inc. v. Elmer, 974 P.2d 952, 956 (Wyo. 1999) (“Where willful and wanton [*4]  misconduct is shown, an otherwise valid release is not enforceable.”). To determine the enforceability of a particular exculpatory clause, the Wyoming Supreme Court applies a four-part test:

In reaching its determination a court considers . . . (1) whether a duty to the public exists; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language. Only exculpatory agreements meeting these requirements are enforceable.

Schutkowski, 725 P.2d at 1060; see also Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704, 710 (Wyo. 1987) (“An agreement passing scrutiny under these factors is valid, denying the signing party an action in negligence.”). In application, the Wyoming Supreme Court has essentially combined the first two factors, stating that “[a] duty to the public exists if the nature of the business or service affects the public interest and the service performed is considered an essential service.” Milligan v. Big Valley Corp., 754 P.2d 1063, 1066 (Wyo. 1988). The third factor has also been discussed in conjunction with the first two. See Schutkowski, 725 P.2d at 1060 (“The service provided by appellees was not a matter of practical necessity for any member of the public. It was not an essential service, so no decisive bargaining advantage existed.”). [*5]

On appeal, the Cunninghams make arguments related to the first three factors by asserting (1) JHMR owes a duty to the public because it operates on United States Forest Service land pursuant to a special use permit and is subject to federal regulation, (2) the release is contrary to public policy as expressed in the Wyoming Recreation Safety Act, and (3) the release unlawfully bars negligence actions arising from essential services such as the provision of emergency medical services at the JHMR clinic. But the Cunninghams did not raise these arguments before the district court. In their opposition to summary judgment, the Cunninghams focused exclusively on the fourth factor: whether the intention of the parties is expressed in clear and unambiguous language. In addition, the Cunninghams failed to present evidence to the district court in support of these new arguments, which is why they ask this court to take judicial notice of the requisite facts.4 Although the Cunninghams maintain they raised the public-duty issue below, the discussion was limited to isolated references in the facts section of their memorandum to the district court, which merely recited the ownership interest of the [*6]  Forest Service and the alleged existence of a special use permit. The Cunninghams did not provide analysis or argument to the district court related to JHMR’s public duty or the other two arguments now raised on appeal. Under these circumstances, the Cunninghams have forfeited these arguments, and we do not consider them for the first time on appeal. See Bancamerica Commercial Corp. v. Mosher Steel of Kan., Inc., 100 F.3d 792, 798 (10th Cir. 1996) (“Vague, arguable references to a point in the district court proceedings do not preserve the issue on appeal.” (alterations, ellipsis, and citation omitted)).

4 Because the Cunninghams’ proffered evidence relates only to arguments not preserved for appeal, we deny the motion for judicial notice.

We therefore limit our review to  [HN3] the fourth factor, which “requires us to determine whether the release agreement evidences the parties’ intent to abrogate negligence liability in clear and unambiguous language.” Boehm, 748 P.2d at 711. To make this determination, we must “closely scrutinize” the exculpatory clause. Schutkowski, 725 P.2d at 1060. In doing so, we must interpret the clause “using traditional contract principles and considering the meaning of the document as a whole.” Massengill v. S.M.A.R.T. Sports Med. Clinic, P.C., 996 P.2d 1132, 1135 (Wyo. 2000). In addition, “the nature of the service and the purpose of the release must be considered.” Schutkowski, 725 P.2d at 1062. Applying these principles, the district court concluded the rental agreement clearly and unambiguously released JHMR from liability for all of the Cunninghams’ [*7]  claims. We agree.

When Mrs. Cunningham signed the rental agreement, she released JHMR

from and against any and all claims, demands, causes of action, liabilities, actions, and any and all medical expenses or other related expenses, including damage to persons and property, asserted by others, by me, or on my behalf, my estate, executors, heirs, or assigns brought under any theory of legal liability, INCLUDING NEGLIGENCE, arising directly or indirectly out of my use of the facilities, ski area or ski lifts at JHMR, or my presence on JHMR premises.

.See Street v. Darwin Ranch, Inc., 75 F. Supp. 2d 1296, 1302 (D. Wyo. 1999) (“The Release blatantly and unambiguously [*8]  specifies that Plaintiff waived negligence claims against Defendant for all injuries resulting from participation in the recreational activity, making it even more clear than the exculpatory clauses found valid in Schutkowski and Milligan.” (internal cross-reference omitted)).

Nonetheless, the Cunninghams contend the release is unclear and/or ambiguous because the exculpatory language is “hidden,” the release is internally conflicted, and the release is overly broad. The Cunninghams also contend that, even if the release is clear and unambiguous, the parties mutually misunderstood the release to cover only rental-equipment-related injuries and that, by its terms, the release applies only to injuries arising from inherent hazards of skiing. We address each of these arguments in turn.

  1. “Hidden” Exculpatory Language

The Cunninghams first assert the exculpatory clause was too inconspicuous to be “clear and unambiguous.” We have found no case imposing a “conspicuousness” requirement to exculpatory clauses under Wyoming law.5 But even assuming enforcement of a sufficiently inconspicuous clause could offend public policy, the release here is not inconspicuous.

5 The only case the Cunninghams cite that identified such a requirement in the context of a liability waiver for recreational activity is  [*9] Kolosnitsyn v. Crystal Mountain, Inc., No. C08-05035-RBL, 2009 U.S. Dist. LEXIS 79111, 2009 WL 2855491 (W.D. Wash. Aug. 28, 2009). There, the district court considered whether Crystal Mountain’s liability release was conspicuous, but it did so under Washington state law, which deems exculpatory clauses “enforceable unless they violate public policy, are inconspicuous, or the negligence falls below standards established by law.” 2009 U.S. Dist. LEXIS 79111, [WL] at *3 (citing Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 834 P.2d 6, 10 (Wash. 1992)). Unlike Washington, Wyoming deems exculpatory clauses enforceable unless they violate public policy; it does not consider the two additional exceptions to enforceability that Washington recognizes. See, e.g., Massengill v. S.M.A.R.T. Sports Med. Clinic, P.C., 996 P.2d 1132, 1136 (Wyo. 2000).

The Cunninghams maintain the exculpatory language is buried in a long block of text, written in small typeface, and presented in the rental agreement under circumstances which make it appear as though the whole agreement pertains only to equipment rental. But the district court correctly explained, “While the Release is part of the Rental Agreement, it makes up the bulk of the agreement.” The entire rental agreement fills one side of one piece of paper, with the release provision placed front and center. The release is presented under a heading that states “RENTAL WARNING, RELEASE OF LIABILITY AND INDEMNITY AGREEMENT — PLEASE READ CAREFULLY BEFORE SIGNING.” Assumption of risk and waiver of liability are addressed in the first two paragraphs of the release, and they are clearly set apart from one another. Moreover, the first sentence of the release signals that its scope is broader than the rental of equipment, as it discusses the dangers of skiing in general. The exculpatory provision also stands out because the phrase “INCLUDING NEGLIGENCE” is written in all caps. Furthermore, the last paragraph of the release states in part, “I HAVE CAREFULLY READ THIS RELEASE, UNDERSTAND [*10]  ITS CONTENTS, AND UNDERSTAND THAT THE TERMS OF THIS DOCUMENT ARE CONTRACTUAL . . . . I AM AWARE THAT I AM RELEASING CERTAIN LEGAL RIGHTS THAT I OTHERWISE MAY HAVE . . . .” While the print is necessarily small, it is readable even in the further-shrunken form presented in the record on appeal. And as the district court observed, “there is nothing to suggest that [Mrs.] Cunningham requested larger print or indicated that she could not read the release.” For these reasons, even if conspicuousness is a requirement under Wyoming law, the release here was conspicuous.

  1. Internal Conflict

The Cunninghams next cite Rowan v. Vail Holdings, Inc., 31 F. Supp. 2d 889, 899-900 (D. Colo. 1998), and argue the release is ambiguous because it is both consistent and inconsistent with the Wyoming Recreation Safety Act (WRSA). But the Cunninghams’ reliance on Rowan is misplaced. There, the court found a release ambiguous in part because it specifically released the resort of liability for all risks, including the use of ski lifts. Id. at 899. The release then stated the plaintiff assumed the inherent risks of skiing as set forth in Colorado’s Ski Safety Act, a statute that explicitly states that use of ski lifts does not qualify as an “inherent risk.” Id. Thus, the release conflicted [*11]  with the relevant statutory language.

Here, by contrast, there is no conflict between the WRSA and the types of risks or injuries JHMR listed in the release.  [HN4] The WRSA does not exempt or identify specific inherent risks; it generally defines “inherent risks” as “those dangers or conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational opportunity.” Wyo. Stat. Ann. § 1-1-122(a)(i). And the release here, unlike the release in Rowan, does not incorporate by reference the WRSA. In light of these significant differences, Rowan does not support a finding of ambiguity here.

  1. Overbreadth

Next, the Cunninghams make multiple arguments related to the alleged overbreadth of the release. First, the Cunninghams argue the release is ambiguous because “it relates to all ‘activities’ and all ‘facilities’ and all ‘premises’ on ‘each and every day’ against a wide array of entities and individuals.” Because the exculpatory clause includes broad language covering all facilities and activities at the resort at any time of year, the Cunninghams conclude “[t]here is no way possible for a person to understand what this clause actually encompasses.”

At the outset, we question whether the Cunninghams adequately [*12]  preserved this argument. The Cunninghams’ opposition to summary judgment contains only a passing reference to the issue:

The []release language appears to apply to the signator’s “presence on JHMR premises.” Theoretically, if someone left the ski hill and came back for dinner at the resort and was injured as a result of [JHMR]’s negligence this release would apply. This is not clear or unambiguous or within [the] scope of renting skis.

And the Cunninghams presented no evidence in the district court of JHMR’s ownership or operation of other facilities and activities at the resort. The Cunninghams instead attempt to introduce such evidence on appeal through their motion for judicial notice.

But even if we consider this issue, the Cunninghams’ arguments fail on the merits. The release explicitly limits JHMR’s liability for “any and all claims, demands, causes of action, liabilities, actions . . . arising directly or indirectly out of my use of the facilities, ski area or ski lifts at JHMR.” Although this language is broad, there is nothing ambiguous about it. Indeed, the Wyoming Supreme Court rejected an analogous argument when it held that a release from liability for “legal claims or legal [*13]  liability of any kind whether foreseen or unforeseen” meant precisely what it said and thus clearly barred a plaintiff’s negligence claims. Milligan, 754 P.2d at 1068.

The Cunninghams also argue the release should be deemed void because it covers a broad range of potential injuries but is presented in a rental agreement, thus leading renters to believe they are releasing only claims for injuries caused by the rental equipment, while in fact, the release covers all injuries, including those unrelated to equipment. In support of their argument, the Cunninghams cite Kolosnitsyn v. Crystal Mountain, Inc., in which the court expressed concern about a person “unwittingly” signing away his rights because the rental-agreement release might have applied to injuries related to the rental equipment alone or to injuries related to use of the ski area. No. C08-05035-RBL, 2009 U.S. Dist. LEXIS 79111, 2009 WL 2855491, at *4 (W.D. Wash. Aug. 28, 2009) (unpublished).

But the decision in Kolosnitsyn was based on facts not present here. In Kolosnitsyn, the plaintiff rented equipment from a ski shop and while skiing at an adjoining resort suffered injuries not caused by his equipment. 2009 U.S. Dist. LEXIS 79111, [WL] at *1. When he sued the resort, it invoked a release the plaintiff had signed when renting his equipment, based on the resort’s ownership [*14]  of the ski shop and the release’s waiver of claims against “the ski/snowboard shop, its employees, [and its] owners.” 2009 U.S. Dist. LEXIS 79111, [WL] at *1-2 (emphasis added). The court found the release unenforceable because it did not clearly identify the adjoining resort as the ski shop’s “owner.” 2009 U.S. Dist. LEXIS 79111, [WL] at *4. Thus, the plaintiff would not have known from the release itself that he was waiving claims against the resort, including for the resort’s own negligence. Id.

Here, by contrast, the release expressly waives claims against JHMR itself–it bars “any and all claims,” including those “arising directly or indirectly” from “use of the facilities, ski area or ski lifts at JHMR.” Thus, Kolosnitsyn does not support the Cunninghams’ position. Moreover, although neither we nor Wyoming courts have addressed this precise issue, we have concluded that an exculpatory release signed in conjunction with the rental of sporting equipment can bar claims for injuries arising out of participation in the sport but unrelated to the equipment. See Mincin v. Vail Holdings, Inc., 308 F.3d 1105, 1108, 1109, 1112-13 (10th Cir. 2002) (applying Colorado’s four-factor test that Wyoming has since adopted and concluding a release signed in connection with a mountain-bike rental barred negligence claims against resort for biker’s injuries [*15]  unrelated to the bike or other rented equipment).

The Cunninghams also argue the release should be held invalid because it applies to skiers who rent equipment, but not to skiers who bring their own. Although this argument finds some support in the Kolosnitsyn decision, 2009 U.S. Dist. LEXIS 79111, 2009 WL 2855491, at *4, it does not fit squarely within the four-factor framework established by Wyoming law. Rather, it seems to be a general appeal to public policy. While the Wyoming Supreme Court does not enforce contracts that are contrary to public policy, it also “will not invalidate a contract entered into freely by competent parties on the basis of public policy unless that policy is well settled.” Andrau v. Mich. Wis. Pipe Line Co., 712 P.2d 372, 376 (Wyo. 1986) (internal quotation marks omitted). The Cunninghams have not shown a settled public policy in Wyoming that discourages releases like JHMR’s. Moreover, the evidence shows JHMR requires its season-pass holders to sign releases identical or similar to the one signed by Mrs. Cunningham. We therefore reject this argument.

  1. Mutual Mistake and Inherent Hazards

The Cunninghams next argue that even if the release is unambiguous, it does not bar their claims for two reasons. First, the Cunninghams maintain both they and JHMR believed the release [*16]  applied only to injuries related to rental equipment and therefore the parties were mutually mistaken as to the release’s scope. But the Cunninghams also concede they did not raise this argument before the district court. We therefore decline to address the argument because it has been forfeited and the Cunninghams did not argue plain-error review. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 2011).

Second, the Cunninghams briefly argue that, based on the reasoning of a Wyoming state district court in Beckwith v. Weber, Civ. Action No. 14726, the exculpatory language in the second paragraph of the release must be read to apply only to injuries arising from the “inherent hazards” discussed in the first paragraph of the release. But, as the district court concluded, Beckwith is distinguishable because the release there contained only a single sentence that did not mention a release of liability for negligence. By contrast, the release here clearly and unambiguously bars negligence claims against JHMR, not just claims arising out of the inherent risks of skiing. And even if the release could be limited to the inherent risks identified in the first paragraph of the release, such risks include “collisions with . . . man-made objects [*17]  and features.” Because Mrs. Cunningham collided with a man-made trail sign, she cannot succeed on this argument, even if the release could be read to apply only to the identified inherent risks.

In sum, we agree with the district court that the release clearly and unambiguously bars the Cunninghams’ claims. And because the ambiguity of the release was the only issue preserved for our review, we conclude the release is valid and enforceable under Wyoming law.

  1. Willful and Wanton Conduct

Finally, the Cunninghams argue the release is unenforceable because JHMR engaged in willful and wanton misconduct. See Milligan v. Big Valley Corp., 754 P.2d 1063, 1068 (Wyo. 1988) ( [HN5] “Where willful and wanton misconduct is shown, an otherwise valid release is unenforceable.”). Wyoming sets a high bar for establishing willful and wanton misconduct.

Willful and wanton misconduct is the intentional doing of an act, or an intentional failure to do an act, in reckless disregard of the consequences and under circumstances and conditions that a reasonable person would know, or have reason to know that such conduct would, in a high degree of probability, result in harm to another.

Hannifan v. Am. Nat’l Bank of Cheyenne, 2008 WY 65, 185 P.3d 679, 683 (Wyo. 2008) (emphasis omitted) (quoting Weaver v. Mitchell, 715 P.2d 1361, 1370 (Wyo. 1986)). It is “more aggravated than gross negligence.” Danculovich v. Brown, 593 P.2d 187, 191 (Wyo. 1979). “In order to [*18]  prove that an actor has engaged in willful misconduct, one must demonstrate that he acted with a state of mind that approaches intent to do harm.” Cramer v. Powder River Coal, LLC, 2009 WY 45, 204 P.3d 974, 979 (Wyo. 2009) (citation omitted).

Here, there is no evidence from which a reasonable jury could conclude JHMR acted willfully or wantonly when it placed the trail sign with which Mrs. Cunningham collided. It is undisputed that the sign has been in the same spot in substantially the same form for over thirty years. Yet there was no evidence presented that anyone other than Mrs. Cunningham has collided with the sign in that time. Although the Cunninghams’ experts criticized JHMR’s choices in placing and constructing the sign, as the district court concluded, “[a]t best, the alleged failings related to the placement and construction of the sign are negligent, not willful and wanton behavior.”

Moreover, the only case to which the Cunninghams draw an analogy–Rowan v. Vail Holdings, Inc., 31 F. Supp. 2d 889 (D. Colo. 1998)–is clearly inapposite. Rowan involved a skier who died after colliding with a picnic deck (1) that was at the bottom of a race course on which skiers “attained speeds in excess of 120 kilometers per hour,” id. at 892; (2) that was positioned such that skiers had “to make a hard left turn at the end of the course to avoid [*19]  the deck,” id. at 893-94; (3) that was unpadded, despite having been previously padded and despite available padding that easily could have been attached, id. at 893, 900; and (4) with which there had been several “close calls” and an actual injury on the same day the skier was killed and in the two days prior, id. at 900. In addition, the resort made the decedent and other skiers sign the release in the middle of the third day of their test runs, doing so only after receiving notice of multiple close calls and an actual injury, and claiming it routinely required releases but without producing evidence to support this claim. Id. at 898, 900. The present circumstances bear no similarity to the facts in Rowan. Where the trail sign here had been in place without known incident for over thirty years prior to Mrs. Cunningham’s accident, no reasonable jury could conclude JHMR engaged in willful and wanton misconduct by placing it there. Accordingly, the release is enforceable and bars the Cunninghams’ claims.6

6 Because Mr. Cunningham’s claim for loss of consortium is derivative of Mrs. Cunningham’s claims related to her injuries, his claim also fails. Massengill, 996 P.2d at 1137; Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704, 710 (Wyo. 1987).

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s order granting summary judgment in favor of JHMR. And we DENY the Cunninghams’ motion for judicial notice.

Entered for the Court

Carolyn B. McHugh

Circuit Judge

 

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

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

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

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

Plaintiff: Jon L. Wilkerson

Defendant: The City of SeaTac

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

Defendant Defenses: No Duty, and Washington Recreational Use Statute

Holding: For the City

Year: 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So Now What?

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

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

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

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

 

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

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

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

No. 66524-3-I

COURT OF APPEALS OF WASHINGTON, DIVISION ONE

2012 Wash. App. LEXIS 2592

April 17, 2012, Oral Argument

November 5, 2012, Filed

NOTICE:

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

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

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

PRIOR HISTORY: [*1]

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

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

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

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

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

OPINION BY: Ann Schindler

OPINION

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

FACTS

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

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

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

2 (Bicycle motocross.)

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

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

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

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

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

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

A I did.

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

A I did.

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

A Yes.

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

A Yes.

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

A Yes.

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

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

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

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

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

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

… .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

. . . .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ANALYSIS

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

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

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

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

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

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

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

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

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

. . . .

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

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

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

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

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

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

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

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

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

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

6 (Emphases added.)

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

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

7 (Emphases added.)

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

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

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

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

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

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

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

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

8

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

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

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

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

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

Jones, 693 F.2d at 1305.

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

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

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

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

. . . .

Park is closed from dusk to dawn unless otherwise posted

. . . .

Parking . . . is only permitted during park hours.

. . . .

Unauthorized vehicles will be impounded.

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

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

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

9 (Internal quotation marks and citation omitted.)

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

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

After modification, further reconsideration denied March 27, 2013.


Church was not liable for injuries on a canoe trip because the church did not control the land along the river.

There can be no negligence if there is no duty; no control means no duty.

Clark, v. Lumbermans Mutual Insurance Company, 465 So. 2d 552; 1985 Fla. App. LEXIS 12832; 10 Fla. L. Weekly 596

State: Florida, Court of Appeal of Florida, First District

Plaintiff: John Clark

Defendant: Lumbermans Mutual Insurance Company and Orange Park Assembly of God

Plaintiff Claims: duty to warn of the shallowness of the water in the beach area, failed to determine in advance the safe and unsafe areas to swim along the St. Mary’s River, and failed to point out proper sites for swimming and diving by the trip members, failed to adequately supervise the canoeing trip

Defendant Defenses: No duty

Holding: for the defendant

Year: 1985

This is a simple and sad case. A church organized a canoe trip through a livery. One of the obvious benefits of a summer canoe trip was swimming and playing in the water. The plaintiff and his friend in their canoe got to a beach first, beached their canoe and dove into the water.

The friend dove into the water first, and the plaintiff followed in the same direction and dove second. The plaintiff’s dive was different, not a shallow dive. He broke his neck and rendered himself a quadriplegic.

There were no obstructions in the water where the accident occurred and the 21-year-old plaintiff was knowledgeable about water sports and activities.

The plaintiff sued the church and the church’s insurance company. The trial court dismissed the complaint. The canoe livery was not part of this suit, and it is unknown if they were ever defendants. This appeal followed.

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

The basics of the plaintiff’s claims were the defendant church organized the trip. Therefore, they were responsible of all aspects of the trip. That control allegedly included the land along the trip as well as the participants. The plaintiff was 21 and argued the church was in control of him, even though he acted without the church’s knowledge or consent and before the “church” through an assistant minister arrived on the scene.

The court first went through the steps under Florida’s law to determine the requirements to dismiss a case. Motions to dismiss are rarely granted.

In order to prevail on a motion for summary judgment in a negligence action, the defendant must show either no negligence on his part proximately resulting in injury to the plaintiff, or that the plaintiff’s negligence was the sole proximate cause of his injury. 

Negligence requires more than the mere occurrence of an accident.

The plaintiff argued that the defendant church was in control of the trip, acting as a guide for the trip and by allowing he to access the beach was liable as a landowner for the beach. The plaintiff argued defendant church constructively possessed the beach.

The court did not accept this argument because the plaintiff arrived at the beach first and before the leader of the trip; the assistant minister who was a paid employee, arrived minutes later. Upon the “church’s” arrival no one tried to exercise defacto control over the beach or the activity which argued was control over the beach.

The next argument was the church was liable for not making sure the beach was safe. However, the plaintiff found the beach and dove without the church’s permission. On top of that, there were not obstructions in the river, which would make the beach or river unsafe.

The court also looked at the age of the plaintiff. The plaintiff “possessed sufficient maturity to appreciate the danger, and was not in a dependency relationship with the appellee church.”

Another argument was the one that created concern and interest. “Appellant also maintains that the church assumed a duty of due care by voluntarily acting as a “tour guide” in organizing and conducting the canoeing trip upon which appellant was injured…”

A prior case Florida case on appeal had held a tour service liable for the accident that occurred in a museum because they had the ability to check out where the tour was going. This legal theory is based on “an action undertaken for the benefit of another, even if performed gratuitously, must be performed in accordance with the duty to exercise due care.”

The court held that the tour company was a common carrier in the other decision, and it did not apply in this case because the circumstances did not create a duty on the part of the church. The liability of a common carrier is the highest owed to a party. Common carriers are usually defined as airlines, trains those transportation services where the customer has no ability to protect themselves or control their situation. The court also found:

Even assuming, arguendo, that the church owed a duty of adequate supervision to appellant, the breach of which would render it liable for ordinary negligence, appellant can be barred from recovery if his own action in diving into the shallow water was the sole proximate cause of his accident.

This statement sounds like an assumption of the risk argument, but is actually a duty statement. There is no liability, unless there is a duty. There cannot be a duty when one is acting on one’s own. “A plaintiff is barred from recovering damages for loss or injury caused by the negligence of another only when the plaintiff’s negligence is the sole legal cause of the damage.”

So Now What?

Sad when a young man spends the rest of his live in a wheel chair. However, the actions that caused his injuries were solely those of his own doing.

The argument that you are a guide when you undertake to organize a trip was interesting. A lot of this would hinge on how you are accomplishing this, what you were saying to get the trip put together. It is important when creating outings or trips like this to identify the responsibilities of the parties. Identify in advance, who is responsible for what. You should always identify that adults are always responsible for themselves.

That division of responsibility is best explained in writing and accepted in writing by the customer. That document is normally called a release.

The way you outline the responsibilities you or the organization you represent when you start organizing a trip will create the duties you will owe. The younger the people on the trip, (kids), and the more the people rely on your statements, the greater the chance you will be held to a duty. If you imply you are creating a duty, then you have created a duty and you will be liable for breaching that duty.

The bigger issue is the assigning of a greater duty by the courts based upon the type of tour being offered. You need to identify in advance that your actions in moving your customers from one location to the activity are done as part of the activity, not as a common carrier. Your liability in the transportation is incidental to the activity, or you may be held to a higher standard of care for all parts of the activity.

What do you think? Leave a comment.

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Clark, v. Lumbermans Mutual Insurance Company, 465 So. 2d 552; 1985 Fla. App. LEXIS 12832; 10 Fla. L. Weekly 596

Clark, v. Lumbermans Mutual Insurance Company, 465 So. 2d 552; 1985 Fla. App. LEXIS 12832; 10 Fla. L. Weekly 596

John Clark, Appellant, v. Lumbermans Mutual Insurance Company and Orange Park Assembly of God, Appellees

No. AU-168

Court of Appeal of Florida, First District

465 So. 2d 552; 1985 Fla. App. LEXIS 12832; 10 Fla. L. Weekly 596

March 7, 1985

COUNSEL: Adam H. Lawrence of Lawrence & Daniels, Miami; and Brent M. Turbow, Jacksonville, for Appellant.

Charles Cook Howell, III of Howell, Liles, Braddock & Milton, Jacksonville, for Appellee.

JUDGES: Smith, L., J. Mills and Nimmons, JJ., concur.

OPINION BY: SMITH

OPINION

[*553] John Clark, plaintiff below, appeals a final summary judgment in favor of the appellees in this negligence action. After an examination of the whole record, we conclude that no interpretation of the undisputed material facts would support a finding of liability for negligence on the part of the appellee Orange Park Assembly of God (hereinafter “church”). We affirm.

The following facts, taken from depositions filed in this cause, are germane to this appeal. Appellant suffered a broken neck and was rendered a quadriplegic during a diving accident on the St. Mary’s River, located in Nassau County, Florida. The accident occurred during a canoe trip and picnic sponsored, planned and conducted by the appellee church. The church had hired Mr. Gary Hines to be its “minister of youth.” Hines, [**2] a paid, full-time employee of the church, was to direct and coordinate the activities of the church’s youthful members. The trip in question took place June 13, 1981. Its logistics were planned and coordinated by Hines. Approximately 40 to 50 people, including appellant, ultimately participated in the trip. Appellant, a high school graduate, was twenty-one years of age at the time of his injury. He was, in his own words, in excellent health, a good swimmer who was familiar with various water sports.

On the day of appellant’s accident, trip members were transported by church bus and van to a canoe rental establishment located on the St. Mary’s River called the Canoe Outpost. Hines did not attempt extensive instructions to trip members regarding canoe operation or the physical characteristics of the river they were about to traverse. Trip members were instructed by Hines that suitable beaches for swimming existed on the river; however, Hines acknowledged that he had not made inquiries prior to the trip as to the location or suitability of any of the river’s beaches.

During the trip, appellant and a canoeing companion, Lee Brannen, sighted what they thought was a suitable place [**3] for swimming, and beached their canoes. Brannen testified that he ran out into the water approximately three steps and then executed a shallow, racing-type dive into the water, which was approximately chest deep on Brannen, who was six feet one inch tall. Brannen testified he felt it would be “crazy” to attempt a “deep dive,” as he had not yet ascertained the exact depth of the water. Appellant then attempted to execute a similar dive, following what both he and Brannen testified was essentially the same path Brannen had taken in making his dive. Both testified that appellant’s dive differed from Brannen’s. Brannen testified that appellant had not run as far into the water as Brannen had, and that appellant jumped somewhat higher prior to the dive in a manner Brannen characterized as a “piking” of appellant’s body, with the result that appellant’s head and arms preceded the rest of his body into the water. Unfortunately, the result of appellant’s attempted dive was a broken neck and consequent paralysis. The record is unclear as to what, exactly, caused appellant’s injuries, since appellant was unable to state categorically that he hit his head on the river bottom as a result [**4] of his dive. However, all deponents testified that the river bottom area where appellant dove was clear of obstructions.

Appellant instituted the pending action alleging, among other things, that the appellee church had violated its duty to warn of the shallowness of the water in the beach area, where appellant had attempted his dive, failed to determine in advance the safe and unsafe areas to swim along the [*554] St. Mary’s River, and failed to point out proper sites for swimming and diving by the trip members. Appellant also alleged that the church had failed to adequately supervise the canoeing trip.

Appellees moved for summary judgment, asserting that the church breached no legal duty owed the appellant; that appellant had actual knowledge of the allegedly dangerous condition of the beach where his accident occurred; and that appellant’s actions constituted the sole proximate cause of his injury. The trial court granted the motion for summary judgment, finding that the beach area where appellant’s accident occurred contained no latent or unknown dangers; that the appellee church did not breach any legal duty owed the appellant; and that appellant’s actions were the [**5] sole proximate cause of his injury. This appeal followed.

We are governed by certain well known principles applicable in negligence actions. [HN1] Issues of negligence and probable cause will normally be answerable only by a jury, and not by motion for summary judgment, unless the facts adduced “point to but one possible conclusion.” Cassel v. Price, 396 So.2d 258, 260 (Fla. 1st DCA 1981) (citations omitted), rev. den. mem., 407 So.2d 1102 (Fla. 1981). In order to prevail on a motion for summary judgment in a negligence action, the defendant must show either no negligence on his part proximately resulting in injury to the plaintiff, or that the plaintiff’s negligence was the sole proximate cause of his injury. Goode v. Walt Disney World Co., 425 So.2d 1151, 1154 (Fla. 5th DCA 1982), rev. den. mem., 436 So.2d 101 (Fla. 1983). However, as often stated, “the mere occurrence of an accident does not give rise to an inference of negligence, and is not sufficient for a finding of negligence on the part of anyone.” Cassel v. Price, supra, at 264 (citations omitted). Judged by these standards, we find that the trial court correctly granted appellees’ motion for summary judgment.

[**6] Initially, we find without merit appellant’s attempt to affix liability based upon breach of a duty of due care by the church as a “possessor” or “occupier” of land. Appellant contends that the church, by allowing appellant and other members of the trip to utilize the beach where appellant was injured, constructively “possessed” this portion of the beach area, citing Arias v. State Farm Fire and Casualty Company, 426 So.2d 1136 (Fla. 1st DCA 1983). We disagree. In Arias, the plaintiff was injured after a “john boat” in which she was a passenger collided with a partially submerged diving dock located in a lake directly in front of lakefront property owned by a defendant on Lake Hampton, in Bradford County. The defendant in Arias argued that since the land beneath the lake was owned by the state, rather than by the defendant, he was not in a position to exercise control over the land upon which the submerged dock rested, and hence he owed the plaintiff no duty to warn of the hazard. The Arias court rejected this contention, stating:

[HN2] The liability of an occupant of real property for injuries caused by an alleged dangerous defective condition on the premises [**7] depends generally upon his control of the property, regardless of whether he had title thereto, or whether he has a superior right to possession of property which is in the possession and control of another. (citation omitted)

Id. at 1138.

There are no facts in this case which would tend to satisfy the elements of “possession” or “control” which led to the court’s decision in Arias. The facts in Arias were that the nearly submerged dock was located several hundred feet directly in front of the defendant’s lakefront property, and that while it was located in the lake before defendant bought the property, the defendant had modified it by placing a thin shelled cement surface on the dock. The Arias court held that it could not be determined, as a matter of law, that the defendant had “failed to maintain the requisite control over the boat dock.” 426 So.2d at 1138. Here, by contrast, the church had no actual or constructive “presence” at the beach prior to the accident. [*555] Appellant and Brannen were the first two canoeists to reach the beach, and hence “occupy” it. Hines arrived a number of minutes after the appellant and other members of the group, [**8] and made no attempt to exercise “de facto” control over the beach or over activities on the beach.

Moreover, the view that potential liability may exist under facts such as found in Arias is premised upon the existence of a hidden danger of which the land owner or occupier has or should have superior knowledge, as compared to the injured party. Here, no evidence was produced to establish the existence of any hidden dangers at the situs of the accident. It was uncontradicted that the river bottom and the beach contained no rocks or obstructions. Nor can the depth of the water itself have been considered a hidden danger, since both appellant and Brannen testified that they were well aware of its relatively shallow depth. Switzer v. Dye, 177 So. 2d 539 (Fla. 1st DCA 1965). Appellant testified that he was aware of the danger of diving into shallow water, and was aware that the water depth at the beach where he was injured was indeed properly characterized as shallow. Hence, there existed in the case at bar no “hidden danger” so as to trigger the rule in Arias.

We think the same result is required here if the potential liability of the church is considered in relation [**9] to its duty to investigate the river for dangerous conditions. The “harmful condition” of the beach (assuming, without accepting, the correctness of this characterization by appellant) was recognized and hence was obvious to all who testified below. Therefore, no breach of duty occurred, since the “harmful condition” was in fact obvious to appellant, who indisputably possessed sufficient maturity to appreciate the danger, and was not in a dependency relationship with the appellee church. See Bradshaw v. Rawlings, 612 F.2d 135 (3d Cir. 1979), cert. den., 446 U.S. 909, 100 S. Ct. 1836, 64 L. Ed. 2d 261 (1980); cf. Rupp v. Bryant, 417 So.2d 658 (Fla. 1982) (school children between the ages of seventeen and eighteen considered to be under an in loco parentis relationship vis-a-vis school officials).

Appellant also maintains that the church assumed a duty of due care by voluntarily acting as a “tour guide” in organizing and conducting the canoeing trip upon which appellant was injured, citing Kaufman v. A-1 Bus Lines, Inc., 416 So.2d 863 (Fla. 3d DCA 1982) (Kaufman II). There, the plaintiff was injured when she fell off a cat-walk while touring a museum visited by [**10] tour groups sponsored by the defendant. The Third District had previously affirmed the Kaufman trial court’s dismissal of Ms. Kaufman’s initial complaint, but did so without prejudice to her right to file an amended complaint alleging defendant’s actual knowledge of the allegedly dangerous condition that caused her injury. Kaufman v. A-1 Bus Lines, Inc., 363 So. 2d 61 (Fla. 3d DCA 1978) (Kaufman I). Subsequently, Ms. Kaufman filed an amended complaint alleging that the defendant’s actual knowledge of the allegedly dangerous condition causing her injury created a duty to warn on the defendant’s part. The court in Kaufman II found that the defendant could be held liable for negligence while acting as a tour guide, based on the well-known proposition that [HN3] an action undertaken for the benefit of another, even if performed gratuitously, must be performed in accordance with the duty to exercise due care. 416 So. 2d at 864; see also Padgett v. School Board of Escambia County, 395 So.2d 584 (Fla. 1st DCA 1981).

We agree with appellant that a church’s sponsorship and organization of a canoeing trip could give rise to a legal duty to exercise reasonable care in exercising [**11] these responsibilities. Padgett, supra. We observe, however, that Kaufman II is distinguishable from the case at bar due to the Kaufman II defendant’s status as a common carrier. Furthermore, in view of the undisputed evidence concerning the circumstances under which the accident occurred, we do not find it necessary to examine the [*556] extent of the church’s duty in this case, or to categorize the relationship between plaintiff and defendant here, which would otherwise guide our decision in determining whether the church carried its burden of showing the absence of evidence indicating a breach of duty by the church causing injury to appellant, as required to entitle it to summary judgment. 1

1 Cf., Section 768.13, Florida Statutes (1981), the “Good Samaritan Act,” with commercial transactions (Kaufman II, the “tour guide” situation) and dependency relationships (Rupp; schools in an in loco parentis relationship with students).

Even assuming, arguendo, that the church [**12] owed a duty of adequate supervision to appellant, the breach of which would render it liable for ordinary negligence, appellant can be barred from recovery if his own action in diving into the shallow water was the sole proximate cause of his accident. Phillips v. Styers, 388 So. 2d 221 (Fla. 2d DCA 1980), quoting Hoffman v. Jones, 280 So. 2d 431, 438 (Fla. 1973): ” [HN4] A plaintiff is barred from recovering damages for loss or injury caused by the negligence of another only when the plaintiff’s negligence is the sole legal cause of the damage.” We hold that appellant was properly barred from proceeding further with his claim because the evidence below is susceptible to no conclusion other than that he had sufficient intelligence, experience, and knowledge to – and in fact did – both detect and appreciate the physical characteristics of the swimming place in question and the potential danger involved in attempting his shallow water dive. See, Lister v. Campbell, 371 So. 2d 133 (Fla. 1st DCA 1979), Hughes v. Roarin 20’s, Inc., 455 So. 2d 422 (Fla. 2d DCA 1984). 2

2 See, also, Bourn v. Herring, 225 Ga. 67, 166 S.E.2d 89 (1969), appeal dismissed, 400 U.S. 922, 91 S. Ct. 192, 27 L. Ed. 2d 183 (1970) (church and its representatives held not liable for negligent supervision of Sunday school picnic at lake resort during which youth drowned while attempting to swim from platform in deep water back to shore).

[**13] For the foregoing reasons, the judgment below is

AFFIRMED.

MILLS and NIMMONS, JJ., CONCUR.