Brian Pellham v. Let's Go Tubing, Inc. , 199 Wash. App. 399 ( 2017 )

FILED
JUNE 27, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
BRIAN PELLHAM, )
) No. 34433-9-111
Appellant, )
)
V. )
)
LET'S GO TUBING, INC., DAVID ) PUBLISHED OPINION
JOHNSON AND JANE DOE JOHNSON, )
a married couple, and the marital )
community composed thereof, )
)
Respondents. )
FEARING, C.J. - This appeal asks: does an inner tube rental company owe a duty
to warn a renter about a fallen log in a river when the log is hidden from but near the
launch site, the river's current draws the tuber toward the log, the company knows of the
fallen log, the company warns other tubers of the log, and the company chooses the
launch site? To answer this question, interests, such as exhilarating and uninhibited
outdoor recreation, retaining the natural environment, and freedom to contract compete
with cautious business practices, full disclosure of risks, and compensation for injury.
Based on the doctrine of inherent peril assumption of risk, we answer the question in the
No. 34433-9-III
Pellham v. Let's Go Tubing, Inc.
negative. We affirm the trial court's summary judgment dismissal of renter Brian
Pellham's suit for person.al injury against the tube rental company, Let's Go Tubing, Inc.
FACTS
Brian Pellham sues for injuries suffered while inner tubing on the Yakima River.
Because the trial court dismissed Pellham' s suit on summary judgment, we write the facts
in a light favorable to Pellham.
Melanie Wells invited Brian Pellham and his domestic partner to join her and
three others on a leisurely unguided excursion floating the Yakima River. Wells arranged
the expedition and reserved equipment and transportation from Let's Go Tubing, Inc.
On July 30, 2011, Brian Pellham met the Wells party at the Let's Go Tubing's
Umtanum gathering site, where additional tubers waited. Before boarding a bus, each
participant signed a release of liability and assumption of risk form. Pellham felt rushed,
but read and signed the form. The form provided:
I, the renter of this rental equipment, assume and understand that
river tubing can be HAZARDOUS, and that rocks, logs, bridges, plants,
animals, other people, other water craft, exposure to the elements,
variations in water depth and speed of current, along with other structures
and equipment, and many other hazards or obstacles exist in the river
environment. In using the rental equipment or any facilities or vehicles
related thereto such dangers are recognized and accepted whether they are
marked or unmarked. River tubing can be a strenuous and physically
demanding activity. It requires walking, bending, lifting, paddling,
swimming, and awareness of the outdoor environment. I realize that slips,
falls, flips, and other accidents do occur and serious injuries or death may
result and I assume full responsibility for these risks. . . "IN
CONSIDERATION FOR THIS RENT AL AND ANY USE OF THE
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FACILITIES, VEHICLES, OR ENVIRONMENT RELATED TO THE
USE OF THIS EQUIPMENT, I HEREBY RELEASE HOLD HARMLESS
AND INDEMNIFY LET'S GO TUBING, INC. ITS SUBSIDIARIES AND
ITS AGENTS FROM ANY AND ALL CLAIMS AND LIABILITIES
ARISING OUT OF OR IN CONNECTION WITH THE USE OF THIS
RENTAL EQUIPMENT"
Clerk's Papers (CP) at 46 (capitalization and quotation marks in original). On other
occasions, such as a rafting trip, Brian Pellham signed a waiver. In his business, he
employs release forms.
Let's Go Tubing launches its customers from the Umtanum site unless the Yakima
River level runs low. With low water, the company buses customers to one of two other
Yakima River sites, Big Hom or Ringer Loop.
On July 30, 2011, Let's Go Tubing's shuttle bus, because of a low river level,
transported Brian Pellham, his group members, and other customers eight miles upstream
to Ringer Loop. Ringer Loop maintains a public concrete boat ramp and public restroom.
The total number of customers on the excursion approached twenty. During transport,
Steff Thomas, the Let's Go Tubing bus driver, told Melanie Wells and a handful of others
seated at the front of the bus to push into the middle of the river, once he or she embarks,
because a fallen tree obstructed the river immediately downriver but out of sight from the
launch site. We do not know the number of customers the driver warned. Thomas did
not warn Pellham of the obstructing tree. Nor did anyone else. Someone, possibly
Thomas, warned everyone not to leave the river except at designated spots because
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private owners own most of the river bank.
At the launch site, Let's Go Tubing handed each person a Frisbee to use as a
paddle. Brian Pellham requested a lifejacket, but Steff Thomas ignored him. Fifteen
inner tubers entered the river first. Pellham and four others followed in a second group
with their tubes tied together. They encountered a swift current. As soon as the flotilla
of five rounded the first bend in the river, they saw a fallen tree extending halfway across
the river. Many branches extended from the tree trunk. Each paddled furiously with his
Frisbee, but the fleet of five tubes struck the tree. Brian Pellham held the tree with his
left hand and attempted to steer around the tree. The current grabbed the inner tubes and
Pellham fell backward into the river. The fall broke Pellham's eardrum. The current
forced Pellham under the tree and the water level. When Pellham resurfaced, his head
struck a large branch. He sustained a whiplash. His chest also hit the branch.
Brian Pellham swam to shore and ended his river excursion. Pellham told Steff
Thomas of his dangerous encounter, and the driver admitted he knew about the fallen tree
but laws prevented Let's Go Tubing from removing the obstacle.
Brian Pellham later underwent a neck fusion surgery. The accident also caused
damage to a low back disk, and the damage creates pain radiating to his left foot.
PROCEDURE
Brian Pellham sued Let's Go Tubing for negligent failure to warn and Consumer
Protection Act, chapter 19.86 RCW, violations. Let's Go Tubing answered the complaint
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and raised affirmative defenses, including release of liability and assumption of the risk.
The company filed a motion for summary judgment dismissal based on the release and on
l assumption of risk. In response to the motion, Pellham argued that he did not waive
I liability because Let's Go Tubing committed gross negligence. He also argued he did not
I\ expressly or impliedly assume the risk of floating into a hazard. Pellham agreed to
f dismissal of his consumer protection claim. The trial court granted summary dismissal of
all of Pellham's claims.
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LAW AND ANALYSIS
On appeal, Brian Pellham contends the trial court erred in dismissing his claim
I
I because he presented sufficient evidence of gross negligence because Let's Go Tubing
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!j chose the excursion location, knew the existence of a hazard, and failed to warn Pellham
I
t of the hazard. He argues that the rental company's gross negligence supersedes any
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release of liability and assumption of the risk contained in the form he signed. On appeal,
I' he does not argue liability against Let's Go Tubing for failing to provide a life vest.
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Let's Go Tubing responds that summary judgment was appropriate because
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Il
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Pellham failed to establish a duty, the liability release disposes of the claim, and
i Pellham's evidence does not create a genuine issue as to any fact material to establishing
gross negligence. We affirm based on the inherent risks in river tubing. Because of
Pellham's voluntary participation in the outdoor recreation activity, he assumed the risk
of a fallen log and swift current. Conversely, Pellham' s assumption of the risk created no
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duty in Let's Go Tubing to warn or prevent injury to Pellham from trees in the river.
Because we rely on the inherent risks in river tubing, we do not address whether the
written agreement signed by Pellham bars his suit.
Because we hold that Brian Pellham assumed the risk and thereby rendered Let's
Go Tubing duty less, we do not address whether Pellham created an issue of fact with
regard to gross negligence. We conclude that, to avoid application of inherent peril
assumption of risk, Pellham needed to show intentional or reckless misconduct of the
rental company, and Pellham does not show or argue either.
Summary Judgment Principles
We commence with our obligatory recitation of summary judgment principles.
This court reviews a summary judgment order de nova, engaging in the same inquiry as
the trial court. Highline School District No. 401 v. Port ofSeattle, 87 Wash. 2d 6, 15, 548
P.2d 1085 (1976); Mahoney v. Shinpoch, 107 Wn.2d 679,683, 732 P.2d 510 (1987).
Summary judgment is proper if the records on file with the trial court show "there is no
genuine issue as to any material fact" and "the moving party is entitled.to a judgment as a
matter oflaw." CR 56(c). This court, like the trial court, construes all evidence and
reasonable inferences in the light most favorable to Brian Pellham, as the nonmoving
party. Barber v. Bankers Life & Casualty Co., 81 Wash. 2d 140, 142, 500 P.2d 88 (1972);
Wilson v. Steinbach, 98 Wash. 2d 434, 437, 656 P.2d 1030 (1982). A court may grant
summary judgment if the pleadings, affidavits, and depositions establish that there is no
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genuine issue as to any material fact and the moving party is entitled to judgment as a
matter oflaw. Lybbert v. Grant County, 141 Wash. 2d 29, 34, 1 P.3d 1124 (2000).
Defenses on Review
Let's Go Tubing seeks affirmation of the summary judgment dismissal of Brian
Pellham's claim based both on an absence of duty and Pellham's assumption of risk. In
tum, Pellham argues that, under RAP 2.5(a), the rental company may not assert a lack of
duty because Pellham did not raise this defense before the trial court.
We need not address Brian Pellham's objection to Let's Go Tubing's argument of
lack of duty. We base our decision on inherent peril assumption of risk and the rental
company raised the defense of assumption of risk below. Anyway, assumption of risk in
this context is equivalent to a lack of duty. Assumption of the risk in the sports
participant context is in reality the principle of no duty and hence no breach and no
underlying cause of action. Brown v. Stevens Pass, Inc., 97 Wn. App, 519,523,984 P.2d
448 (1999); Codd v. Stevens Pass, Inc., 45 Wash. App. 393, 401-02, 725 P.2d 1008 (1986).
Assumption of Risk
A negligence claim requires the plaintiff to establish ( 1) the existence of a duty
owed, (2) breach of that duty, (3) a resulting injury, and (4) a proximate cause between
the breach and the injury. Tincani v. Inland Empire Zoological Society, 124 Wash. 2d 121,
127-28, 875 P.2d 621 (1994). Thus, to prevail on his negligence claim, Brian Pellham
must establish that Let's Go Tubing owed him a duty of care. Folsom v. Burger King,
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135 Wn.2d 658,671,958 P.2d 301 (1998). The tort concept of duty overlaps with the
contract and tort principles of assumption of risk. As previously mentioned, sometimes
assumption of risk relieves the defendant of a duty. Brown v. Stevens Pass, Inc., 97 Wn.
App. at 523 (1999); Codd v. Stevens Pass, Inc., 45 Wash. App. at 402 (1986).
The threshold determination of whether a duty exists is a question of law. Tincani
v. Inland Empire Zoological Society, 124 Wash. 2d at 128; Coleman v. Hoffman, 115 Wn.
App. 853, 858, 64 P.3d 65 (2003). We hold that, because of Brian Pellham's assumption
of the risk of fallen trees in the water, Let's Go Tubing, as a matter oflaw, had no duty to
warn Pellham of the danger, or, at the least, the rental company possessed only a
restricted duty to not intentionally injure Pellham or engage in reckless misconduct.
We first briefly explore the variegated versions of assumption of risk in order to
later analyze the application of inherent peril assumption or risk. The term "assumption
of the risk" expresses several distinct common law theories, derived from different
sources, which apply when a plaintiff knowingly exposes himself to particular risks.
Allen v. Dover Co-Recreational Softball League, 148 N.H. 407, 807 A.2d 1274, 1281
(2002); Francis H. Bohlen, Voluntary Assumption of Risk (pt. 1), 20 HARV. L. REV. 14,
15-30 (1906); W. PAGE KEETON ET AL., PROSSER AND KEETON ONTHELAWOFTORTS §
68 (5th ed. 1984). Stated differently, the general rubric of assumption of risk does not
signify a singular doctrine but rather encompasses a cluster of discrete concepts. Kirk v.
Washington State University, 109 Wash. 2d 448, 453, 746 P.2d 285 (1987). Washington
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law and most other states' jurisprudence recognize four taxonomies of the assumption of
risk doctrine: (1) express, (2) implied primary, (3) implied unreasonable, and (4) implied
reasonable. Gregoire v. City of Oak Harbor, 170 Wash. 2d 628, 636, 244 P.3d 924 (2010);
Gleason v. Cohen, 192 Wash. App. 788, 794, 368 P .3d 531 (2016); 16 DAVID K. DEWOLF
& KELLER W. ALLEN, WASHINGTON PRACTICE: TORT LAW AND PRACTICE§ 9: 11, at
398-99 (4th ed. 2013).
Before the enactment of comparative negligence and comparative fault statutes,
practitioners and courts encountered little reason to distinguish the four versions of
assumption of risk, because at common law all assumption of the risk completely barred
recovery. Scott v. Pacific West Mountain Resort, 119 Wash. 2d 484, 496, 834 P.2d 6
(1992). Today, the first two categories of assumption of risk, express assumption and
implied primary assumption, on the one hand, continue to operate as a complete bar to a
plaintiffs recovery. Kirk v. Washington State University, 109 Wash. 2d at 453-54; Gleason
v. Cohen, 192 Wash. App. at 794. On the other hand, implied unreasonable and implied
reasonable assumption meld into contributory negligence and merely reduce the
plaintiffs recoverable damages based on comparative fault pursuant to RCW 4.22.005
and .015. Scott v. Pacific West Mountain Resort, 119 Wash. 2d at 497. The last two types
are merely alternative names for contributory negligence. Gregoire v. City of Oak
Harbor, 170 Wash. 2d at 636 (2010). Our decision relies on implied primary assumption,
but we will discuss other renderings of assumption of risk in order to sculpt our decision.
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Express assumption of risk arises when a plaintiff explicitly consents to relieve the
defendant of a duty owed by the defendant to the plaintiff regarding specific known risks.
Gregoire v. City of Oak Harbor, 170 Wash. 2d at 636; Kirk v. Washington State University,
109 Wash. 2d at 453. Implied primary assumption of risk follows from the plaintiff
engaging in risky conduct, from which the law implies consent. Kirk v. Washington State
University, 109 Wash. 2d at 453; Erie v. White, 92 Wash. App. 297, 303, 966 P.2d 342 (1998).
Implied unreasonable assumption of risk, by contrast, focuses not so much on the duty
and negligence of the defendant as on the further issue of the objective unreasonableness
of the plaintiff's conduct in assuming the risk. Kirk v. Washington State University, 109
Wash. 2d at 454. Implied reasonable assumption of risk is roughly the counterpart to
implied unreasonable assumption of risk in that the plaintiff assumed a risk, but acted
reasonably in doing so. Kirk v. Washington State University, 109 Wash. 2d at 454.
We confront difficulty in distinguishing among at least three of the four categories
because of the nondescript identifiers and near homophonic labels of some
classifications. Therefore, we recommend that the Supreme Court rechristen the
categories as express assumption, inherent peril assumption of risk, and increased danger
assumption of risk. The gist of implied reasonable and implied unreasonable assumption
of risk is that the defendant performed conduct that increased the risk of an activity or
situation beyond the risks inherent in the activity or situation and the plaintiff reasonably
or unreasonably encountered this increased risk. The traditional categories of implied
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unreasonable and implied reasonable assumption of risk hold no meaningful distinction
since both reduce rather than bar the plaintiffs recovery, and so we urge combining the
two concepts into increased danger assumption of risk. We hereafter use these new
terms.
Inherent Peril Assumption of Risk
We now focus on inherent peril assumption of risk. Inherent peril assumption bars
a claim resulting from specific known and appreciated risks impliedly assumed often in
advance of any negligence of the defendant. Scott v. Pacific West Mountain Resort, 119
Wash. 2d at 497 (1992); Boyce v. West, 71 Wash. App. 657, 666-67, 862 P.2d 592 (1993).
Plaintiffs consent to relieve the defendant of any duty is implied based on the plaintiffs
decision to engage in an activity that involves those known risks. Egan v. Cauble, 92
Wn. App. 372,376,966 P.2d 362 (1998); Gleason v. Cohen, 192 Wash. App. at 797
(2016). One who participates in sports impliedly assumes the risks inherent in the sport.
Scott v. Pacific West Mountain Resort, 119 Wash. 2d at 498; Boyce v. West, 71 Wash. App. at
667.
Whether inherent peril assumption of risk applies depends on whether the plaintiff
was injured by an inherent risk of an activity. Gleason v. Cohen, 192 Wash. App. at 797.
The plaintiff assumes the dangers that are inherent in and necessary to a particular
activity. Tincani v. Inland Empire Zoological Society, 124 Wash. 2d at 144 (1994); Scott v.
Pacific West Mountain Resort, 119 Wash. 2d at 500-01; Gleason v. Cohen, 192 Wash. App. at
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I 797; Lascheidv. City of Kennewick, 137 Wash. App. 633, 641-42, 154 P.3d 307 (2007);
Taylor v. Baseball Club of Seattle, LP, 132 Wash. App. 32, 37-39, 130 P.3d 835 (2006);
Dorr v. Big Creek Wood Products, Inc., 84 Wash. App. 420,427,927 P.2d 1148 (1996).
The classic example of inherent peril assumption involves participation in sports
when a participant knows that the risk of injury is a natural part of such participation.
Gleason v. Cohen, 192 Wash. App. at 798. One who engages in sports assumes the risks
which are inherent in the sport. Scott v. Pacific West Mountain Resort, 119 Wash. 2d at
498; Gleason v. Cohen, 192 Wash. App. at 798. To the extent a risk inherent in the sport
injures a plaintiff, the defendant has no duty and there is no negligence. Scott v. Pacific
West Mountain Resort, 119 Wash. 2d at 498; Gleason v. Cohen, 192 Wash. App. at 798. A
defendant simply does not have a duty to protect a sports participant from dangers that
are an inherent and normal part of a sport. Scott v. Pacific West Mountain Resort, 119
Wash. 2d at 498; Gleason v. Cohen, 192 Wash. App. at 798.
Inherent peril assumption extends to water sports. One who engages in water
sports assumes the reasonably foreseeable risks inherent in the activity. De Wick v.
Village of Penn Yan, 275 A.D.2d 1011, 713 N.Y.S.2d 592,594 (2000). This assumption
of risk includes inner tubing on water and canoe rentals. Record v. Reason, 73 Cal. App.
4th 4 72, 86 Cal. Rptr. 2d 54 7 ( 1999); Ferrari v. Bob's Canoe Rental, Inc., 143 A.D.3d
937, 39 N.Y.S.3d 522 (2016). Bodies of water often undergo change, and changing
conditions in the water do not alter the assumption of risk. De Wick v. Village of Penn
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Yan, 713 N.Y.S.2d at 594. There is no duty to warn of the presence of natural transitory
conditions. DeWickv. Village of Penn Yan, 713 N.Y.S.2d at 594.
De Wick v. Village of Penn Yan, 713 N.Y.S.2d 592 is illustrative of the application
of inherent peril assumption in the context of water. Trina Kerrick and Daniel De Wick
drowned in Keuka Lake on June 19, 1995. Kerrick allegedly gained access to the lake
from the beach at Indian Pines Park, which was owned by defendant Village of Penn
Yan. While wading in the water, she stepped from a sandbar where the lake bottom
drops off and became caught in an undertow or current. De Wick drowned trying to save
her. Neither could swim. The accident occurred on a hot day, four days before the beach
officially opened for the season. The plaintiffs alleged that the village failed to warn
specifically about the dangers of the drop-off and swift current. The court summarily
dismissed the suit. The risk of reaching a drop-off was a reasonably foreseeable risk
inherent in wading into a lake.
Inherent peril assumption, as does express assumption of risk, demands the
presence of three elements. The evidence must show (1) the plaintiff possessed full
subjective understanding, (2) of the presence and nature of the specific risk, and
(3) voluntarily chose to encounter the risk. Kirk v. Washington State University, 109
Wash. 2d at 453 (1987). The participant must know that the risk is present, and he or she
must further understand its nature; his or her choice to incur it must be free and
voluntary. Brown v. Stevens Pass, Inc., 97 Wash. App. at 523. In the usual case, his or her
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knowledge and appreciation of the danger will be a question for the jury; but where it is
clear that any person in his or her position must have understood the danger, the issue
may be decided by the court. Brown v. Stevens Pass, Inc., 97 Wash. App. at 523; KEETON
ET AL., supra, § 68, at 489.
The rule of both express and inherent peril assumption of risk requires a finding
that the plaintiff had full subjective understanding of the presence and nature of the
specific risk. Kirk v. Washington State University, 109 Wash. 2d at 453. Depending on
how specific the risk must be, this statement of the rule taken literally would abrogate the
rule of inherent peril assumption because one rarely, if ever, anticipates the full
particulars of an accident producing injury. One can never predict all of the variables that
combine to cause an accident and injury. Also, the doctrine might not apply in wrongful
death cases, because the judge or jury will lack evidence of the subjective understanding
of the decedent. Washington courts' applications of the rule suggest, however, that the
plaintiff need only know the general nature of the risk. One case example is Boyce v.
West, 71 Wash. App. 657 (1993).
In Boyce v. West, a mother brought a suit against a college and its scuba diving
instructor after the death of her son who died during a scuba diving accident while
engaging in the college course. The mother claimed the instructor negligently taught and
supervised her son. The son, Peter Boyce, signed a document acknowledging the
possibility of death from scuba diving and assuming all risks in connection with the
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course, whether foreseen or unforeseen. This court affirmed summary judgment
dismissal of the claims against the school and the instructor. The court reasoned that
negligent instruction and supervision are risks associated with being a student in a scuba
diving course and were encompassed by the broad language of the contract. Although
Peter may not have specifically considered the possibility of instructor negligence when
he signed the release, this lack of consideration did not invalidate his express assumption
of all risks associated with his participation in the course. Knowledge of a particular risk
is unnecessary when the plaintiff, by express agreement, assumes all risks.
Boyce v. West entails express assumption of risk, but the same rule of subjective
knowledge of risk applies to both express assumption and inherent peril assumption.
Based on Boyce v. West and cases involving water sports, we hold that Brian Pellham
assumed the risks involved in river tubing, including the fallen tree. Pellham may not
have precisely and subjectively known how the combination of a swift current, bend in
the river, and a fallen tree would produce his injury. Nevertheless, he knew of the
potential of all factors. He may not have known of the location of any fallen tree in the
river, but he knew of the potential of a fallen tree somewhere in the river. He had more
reason to know of the dangers that caused his injury when he started his excursion than
Peter Boyce had reason to know of the risks that led to his death when Boyce signed his
college course form. In the setting of inherent peril assumption, New York courts have
ruled that, if the participant fully comprehends the risks of the activity or if those risks are
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obvious or reasonably foreseeable, he or she has consented to those risks and the
defendant has performed its duty. Ferrari v. Bob's Canoe Rental, Inc., 143 A.D.3d at
938 (2016); Turcotte v. Fell, 68 N.Y.2d 432,439, 502 N.E.2d 964, 510 N.Y.S.2d 49
(1986).
While participants in sports are generally held to have impliedly assumed the risks
inherent in the sport, such assumption of risk does not preclude a recovery for negligent
acts that unduly enhance such risks. Scott v. Pacific West Mountain Resort, 119 Wash. 2d at
501; Gleason v. Cohen, 192 Wash. App. at 798. This principle leads us to a discussion of
increased danger assumption.
Courts have struggled to properly distinguish between inherent peril assumption of
risk (implied primary assumption of risk), which bars the plaintiffs claim, and increased
danger assumption of risk (implied unreasonable assumption of risk), which simply
reduces the plaintiffs damages. Barrett v. Lowe's Home Centers, Inc., 179 Wash. App. 1,
6, 324 P.3d 688 (2013). This court warned long ago that courts must carefully draw the
line between these two types of assumption of risk. Gleason v. Cohen, 192 Wash. App. at
795; Dorr v. Big Creek Wood Products, Inc., 84 Wash. App. at 425-26 (1996). A rigorous
application of inherent peril assumption of risk could undermine the purpose of
comparative negligence. Kirk v. Washington State University, 109 Wash. 2d at 455-56.
Significantly, inherent peril assumption is the exception rather than the rule in
assumption of risk situations.
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Increased danger assumption of risk does not involve a plaintiffs consent to
relieve the defendant of a duty. Gleason v. Cohen, 192 Wash. App. at 796. In this type of
assumption of risk, the defendant breached a duty that created a risk of harm, and the
plaintiff chose to take that risk. Gleason v. Cohen, 192 Wash. App. at 796. Specifically,
increased danger assumption involves the plaintiffs voluntary choice to encounter a risk
created by the defendant's negligence. Scott v. Pacific West Mountain Resort, 119
Wash. 2d at 499; Gleason v. Cohen, 192 Wash. App. at 796. Increased danger assumption of
risk arises when the plaintiff knows of a risk already created by the negligence of the
defendant, yet chooses voluntarily to encounter it. Scott v. Pacific West Mountain Resort,
119 Wash. 2d at 499 (1992); Gleason v. Cohen, 192 Wash. App. at 798. In such a case, a
plaintiffs conduct is not truly consensual, but is a form of contributory negligence, in
which the negligence consists of making the wrong choice and voluntarily encountering a
known unreasonable risk. Gleason v. Cohen, 192 Wash. App. at 796.
Dorr v. Big Creek Wood Products, Inc., 84 Wash. App. 420 (1996) presents a good
illustration of increased danger assumption of risk. Michael Dorr entered a forest where
his friend John Knecht cut trees. Dorr knew of the phenomenon of "widow makers,"
large limbs caught in surrounding trees after a tree is felled. Nevertheless, after Knecht
cut a tree, Knecht waved Dorr forward to meet him. As Dorr proceeded, a large limb fell
on him. This court affirmed a verdict favoring Dorr. Although Dorr in general assumed f
the risk of "widow makers," Knecht's misleading directions led to implied unreasonable
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or secondary assumption of risk. The jury could still find and did find Dorr
comparatively at fault for proceeding with the knowledge of "widow makers," but Dorr's
fault would be compared with Knecht's fault. The negligence of Knecht arose after Dorr
entered the forest.
Brian Pellham alleges that Let's Go Tubing was negligent by reason of sending
him and others on a tube in fast moving water with a downed tree in the middle of the
water without warning to the tuber. Let's Go Tubing did not create the risk and could not
remove the risk. Although Pellham knew of the risks of logs and current, Pellham did not
know of the precise risk when he first encountered it. When he noticed the risk, he
lacked time to avoid the hazard. Pellham did not voluntarily proceed after knowing of
the alleged negligence of Let's Go Tubing. Any alleged negligence of Let's Go Tubing
occurred before Pellham entered the river. Therefore, increased danger assumption of
risk does not apply.
Let's Go Tubing performed no act that created the swift current or felled the log
into the water. The cases that decline application of inherent peril assumption involve a
positive act of the defendant such as the implanting of a post or snow shack adjacent to a
ski run. Scott v. Pacific West Mountain Resort, 119 Wash. 2d 484 (1992); Brown v. Stevens
Pass, Inc., 97 Wash. App. at 521 ( 1999).
One might argue that Let's Go Tubing's failure to warn increased the risk attended
to the fallen log in the Yakima River. A defendant may be held liable when a reasonable
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person would customarily instruct a plaintiff in respect to the dangers inherent in an
activity. Allen v. Dover Co-Recreational Softball League, 807 A.2d at 1288. Thus, a
defendant may be held liable if the plaintiff alleges that a reasonable person would
customarily warn, advise, inform, and instruct regarding the risk of injury to participants
and the manner in which such risks could be minimized and their failure to do so caused
the plaintiff's injuries. Allen v. Dover Co-Recreational Softball League, 807 A.2d at
1288. Brian Pellham presents no evidence that renters of watercrafts customarily warn of
fallen natural objects in the water.
The document signed by Brian Pellham contained terms in addition to releasing
Let's Go Tubing from liability. In the instrument, Pellham also recognized that the
hazards of river tubing included the existence of rocks, logs, plants, and variations in
water depth and speed of current. Pellham agreed to assume full responsibility for all
risks involved in river tubing including serious injuries and death resulting from the
hazards. Although we do not base our holding on express assumption of risk, we note
that the release's recitation of dangers warned Pellham of the inherent perils attended to
tubing and those dangers that led to Pellham's injuries.
Gross Negligence
Brian Pellham argues that the waiver form he signed does not bar a claim for gross
negligence. The parties, in turn, devote much argument to the issue of whether Pellham
creates a question of fact as to gross negligence. Since we do not rely on express
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No. 34433-9-111
Pellham v. Let's Go Tubing, Inc.
assumption of risk, we need not directly address this argument. Instead, we must ask and
answer whether a tuber may overcome the defense of inherent peril assumption of risk by
showing gross negligence by the tube rental company.
When inherent peril assumption of risk applies, the plaintiffs consent negates any
duty the defendant would have otherwise owed to the plaintiff. Scott v. Pacific West
Mountain Resort, 119 Wash. 2d at 498 (1992); Gleason v. Cohen, 192 Wash. App. at 798
(2016). Based on this premise of inherent peril assumption, the defendant should avoid
liability for gross negligence. Gross negligence constitutes the failure to exercise slight
care. Nist v. Tudor, 67 Wash. 2d 322, 331, 407 P.2d 798 (1965). The lack of duty resulting
from inherent peril assumption should extend to an absence of any obligation to exercise
slight care.
At the same time, gross negligence claims survive a release against liability. A
sporting participant's assumption of inherent risks effectively acts as a release from
liability. Since gross negligence claims survive a release, gross negligence maybe should
survive inherent peril assumption of risk.
No Washington case directly holds that a claim for gross negligence survives the
plaintiffs express assumption of risk. Nevertheless, in at least two decisions,
Washington courts assumed that a gross negligence cause of action endured. Boyce v.
West, 71 Wash. App. 657 (1993); Blide v. Rainier Mountaineering, Inc., 30 Wash. App. 571,
636 P.2d 492 (1981). In Boyce v. West, the surviving mother failed to present evidence
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No. 34433-9-111
Pellham v. Let's Go Tubing, Inc.
of gross negligence. In Blide v. Rainier Mountaineering, Inc., an injured climber did not
argue gross negligence. Other jurisdictions have held that express assumption of risk
does not bar a claim for gross negligence since public policy does not allow one to
exonerate oneself from gross negligence. Coomer v. Kansas City Royals Baseball Corp.,
437 S.W.3d 184, 193 n.3 (Mo. 2014); Kerns v. Hoppe, 128 Nev. 910, 381 P.3d 630
(2012); Perez v. McConkey, 872 S.W.2d 897, 904 (Tenn. 1994).
Since express assumption of risk and inherent peril assumption of risk both result
in the bar of the plaintiffs claim and arise from the plaintiffs voluntary assumption of
risk, one might argue that a gross negligence claim should survive assumption of risk by
inherent peril if it survives express assumption of risk. Nevertheless, the two varieties of
assumption of risk promote different interests and raise disparate concerns. A signed
assumption of all risks could be the result of unequal bargaining power and apply to
activities that involve little, or no, risks. The bargaining power with regard to inherent
peril assumption is immaterial. Assumption follows from hazards the plaintiff
voluntarily assumes because of the thrill and enjoyment of an activity.
We find no foreign decisions in which the court holds that a cause of action for
gross negligence survives the application of inherent peril assumption of risk in the
context of sports or outdoor recreation. Instead, other courts addressing the question
consistently limit the liability of the defendant, when inherent peril assumption -applies, to
intentional or reckless conduct of the defendant. Ellis v. Greater Cleveland R. T.A., 2014-
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No. 34433-9-III
Pellham v. Let's Go Tubing, Inc.
Ohio-5549, 25 N.E.3d 503, 507 (Ct. App.); Custodi v. Town ofAmherst, 20 N.Y.3d 83,
980 N.E.2d 933, 957 N.Y.S.2d 268 (2012); Cole v. Boy Scouts ofAmerica, 397 S.C. 247,
725 S.E.2d 476,478 (2011); Pfenning v. Lineman, 947 N.E.2d 392,404 (Ind. 2011);
Yoneda v. Tom, 110 Haw. 367, 133 P.3d 796, 808 (2006); Peart v. Ferro, 119 Cal. App.
4th 60, 13 Cal. Rptr. 3d 885, 898 (2004); Allen v. Dover Co-Recreational Softball
League, 807 A.2d at 1281 (2002); Behar v. Fox, 249 Mich. App. 314,642 N.W.2d 426,
428 (2001); Estes v. Tripson, 188 Ariz. 93,932 P.2d 1364, 1365 (Ct. App. 1997); Savino
v. Robertson, 273 Ill. App. 3d 811,652 N.E.2d 1240, 1245, 210 Ill. Dec. 264 (1995);
King v. Kayak Manufacturing Corp., 182 W. Va. 276,387 S.E.2d 511,518 (1989). A
recklessness standard encourages vigorous participation in recreational activities, while
still providing protection from egregious conduct. Behar v. Fox, 642 N.W.2d at 428
(2001). We join the other jurisdictions in imposing an intentional and reckless standard,
rather than a gross negligence standard, when the plaintiff assumes the risks of inherent
perils in a sporting or outdoor activity.
Gross negligence consists of the failure to exercise slight care. Nist v. Tudor, 67
Wash. 2d at 331 (1965). Reckless misconduct denotes a more serious level of misconduct
than gross negligence. An actor's conduct is in "reckless disregard" of the safety of
another if he or she intentionally does an act or fails to do an act that it is his or her duty
to the other to do, knowing or having reason to know of facts that would lead a
reasonable person to realize that the actor's conduct not only creates an unreasonable risk
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Pellham v. Let's Go Tubing, Inc.
of bodily harm to the other but also involves a high degree of probability that substantial
harm will result to him or her. Adkisson v. City of Seattle, 42 Wash. 2d 676, 685, 258 P.2d
461 (1953); Brown v. Department of Social & Health Services, 190 Wash. App. 572, 590,
360 P.3d 875 (2015). Brian Pellham does not allege that Let's Go Tubing engaged in
reckless conduct. No evidence supports a conclusion that the tube rental company bus
driver purposely omitted a warning to Pellham with knowledge that Pellham would suffer
substantial harm.
CONCLUSION
We affirm the trial court's summary judgment dismissal of Brian Pellham's suit
against Let's Go Tubing.
Fearing, C.J.
WE CONCUR:
I
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