Lahey v. Covington, Civil Action No. 95-N-1396.
| Decision Date | 29 April 1996 |
| Docket Number | Civil Action No. 95-N-1396. |
| Citation | 964 F.Supp. 1440 |
| Parties | Carol LAHEY, Plaintiff, v. Rick COVINGTON d/b/a Twin Lakes Expeditions, Inc., and Douglas (Blues) Voisard, Defendants and Third-Party Plaintiffs, v. Rob MOBILIAN, Third-Party Defendant. |
| Court | U.S. District Court — District of Colorado |
Ira M. Long, Jr., Roos, Cohen & Long, P.C., Denver, CO, for Rob Mobilian.
James V. Pearson, Pearson, Milligan & Horowitz, P.C., Denver, CO, for Douglas (Blues) Voisard.
William A. Trine, Williams & Trine, P.C., Boulder, CO, for Carol Lahey.
This is a personal injury action. Plaintiff Carol Lahey alleges that she suffered serious injuries during a white-water rafting trip as a result of the negligence and willful and wanton conduct of Defendants and Third-Party Plaintiffs Rick Covington d/b/a Twin Lakes Expeditions, Inc., and Douglas (Blues) Voisard [hereinafter "defendants"]. Defendants allege that, pursuant to an indemnity agreement, both plaintiff and Third-Party Defendant Rob Mobilian ("Mobilian") are liable to defendants for any fees and costs they incur in connection with this lawsuit. The matter is before the court on (1) "Third-Party Defendant's Motion for Judgment on the Pleadings" filed November 15, 1995, and (2) "Defendants' and Third-Party Plaintiffs' Motion for Summary Judgment" filed January 19 1996. Jurisdiction is based on 28 U.S.C.A. § 1332 (West 1993).
At all times relevant to this case, Covington owned and operated Twin Lakes Expeditions, Inc., a white-water rafting company located in Twin Lakes, Colorado. Br. in Supp. of Mot. for Summ. J., Statement of Undisputed Material Facts ¶ A [filed Jan. 19, 1996] [hereinafter ]; admitted at Pl.'s Mem. Br. in Opp'n to Defs.' At all times relevant to this case, Voisard worked for Twin Lakes as a rafting guide. (Defs.' Summ. J. Br., Statement of Undisputed Material Facts ¶ B; admitted at Pl.'s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Material Facts ¶ B; Mobilian's Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Facts.)
At sometime prior to June 1, 1993, Mobilian scheduled a white-water rafting trip for himself and his family with Covington and Twin Lakes. (Defs.' Summ. J. Br., Statement of Undisputed Material Facts ¶ C; admitted at Pl.'s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Material Facts ¶ C; Mobilian's Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Facts.) Mobilian is plaintiff's brother. (See Answer, Countercl. and Third-Party Compl. ¶ 15 [filed Sept. 15, 1995]; Am. Answer to Third-Party Compl. ¶ 3 [filed Nov. 7, 1995].) On the morning of June 1, 1993, plaintiff, Mobilian, and family members arrived at Twin Lakes for the purpose of taking a white-water rafting trip. (See Pl.'s Resp. to Summ. J. Mot., Ex. A [Mobilian Dep. at 15-16].)
At the Twin Lakes office, plaintiff and Mobilian signed identical release agreements. (See Defs.' Summ. J. Br., Exs. A [copy of release signed by plaintiff], B [copy of release signed by Mobilian].) Plaintiff did not read the release before she signed it. (Pl.'s Resp. to Summ. J. Mot. at 18.) The releases provided:
I recognize that there is a significant element of risk in whitewater rafting or any adventure expedition, sport or activity associated with the outdoors which I have voluntarily applied to participate in.
I fully understand that any activity associated with Twin Lakes Expeditions may include hazards and exposures connected in the outdoors which do involve risk and that I am aware of the risks and dangers inherent with the activities that I and/or my family, including any minor children, are involved in. I am mentally and physically capable of participating in the activities contracted for and willingly assume the risk of injury as my responsibility, including loss of control, collisions with other participants, trees, rocks, and other man made or natural obstacles, whether they are obvious or not obvious.
....
As lawful consideration for being permitted by Twin Lakes Expeditions to participate in the activities involved, the undersigned, for himself and/or his heirs and assigns, hereby releases the State of Colorado, Bureau of Land Management, Twin Lakes Expeditions and employees of Twin Lakes Expeditions from any liability for claims or lawsuits brought by the undersigned and arising out of the activities provided by the concessioner.
I agree to defend, indemnify and hold harmless Twin Lakes Expeditions, the United States Forest Service and Parks Department, and all State or Government agencies, and private property [sic] the activities may be conducted on, and all of their officers, members, affiliated organizations, agents and employees for any injury or death caused by or resulting from me or my family's participation in the activities associated with Twin Lakes Expeditions both scheduled and unscheduled whether or not such injury or death was caused by their negligence or from any other causes. I assume complete and full responsibility for my family and myself, including any minor children, for bodily injury, loss of life, loss of personal property and expenses thereof.
I have carefully read the agreement, fully understand and accept the terms and conditions explained and stated herein and acknowledge that this release shall be effective and legally binding upon me, my heirs, my estate, assigns[,] legal guardians and my personal representatives during the entire period of participation in the activities.
DO NOT SIGN THE RELEASE IF YOU DO NOT UNDERSTAND OR DO NOT AGREE WITH ITS TERMS.
(Id.)
After signing the releases, plaintiff, Mobilian, and the others embarked on a white-water rafting trip. (See Pl.'s Resp. to Summ. J. Mot., Ex. A [Mobilian Dep. at 21].) They went to the "Numbers" section of the Arkansas River. (See Am. Compl. in Tort for Damages ¶ 10 [filed Aug. 24, 1995] [hereinafter "Am. Compl."]; Answer, Countercl. and Third-Party Compl. ¶ 10 [filed Sept. 15, 1995].) Plaintiff testified that, at the time of the trip, she understood that she faced the following risks: (1) she might fall into the river; (2) she might be swept away from her raft; (3) she might strike rocks in the river; and (4) she could be injured. (Defs.' Summ. J. Br., Statement of Undisputed Material Facts ¶ F; admitted at Pl.'s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Material Facts ¶ F; Mobilian's Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Facts.).
Covington testified that, on June 1, 1993, "Numbers" were a Class IV-plus set of rapids. (Pl.'s Resp. to Summ. J. Mot., Ex. D [Covington Dep. at 128 11. 16-18].) He described the condition of the river as "high" but not "any more challenging that day than any other day." (Id., Ex. D [Covington Dep. at 136 11. 6-11].) On June 1, 1993, the water flow at the "Numbers" measured 3.8 feet high on the Scott's Bridge Gauge. (Defs.' Summ. J. Br., Statement of Undisputed Material Facts ¶ L; admitted at Pl.'s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Material Facts ¶ L; Mobilian's Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Facts.) The Arkansas Headwater Recreation Area, apparently a white-water rafting regulatory group, recommends against commercial rafting through the "Numbers" when the water flow measures 4.0 feet high or more on the Scott's Bridge Gauge. (Summ. J. Br., Statement of Undisputed Material Facts ¶ M; admitted at Pl.'s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Material Facts ¶ M; Mobilian's Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Facts.) Covington testified that his company policy was not to take people rafting through the "Numbers" if the water was four feet high or more. (See Defs.' Summ. J. Br., Ex. H [Covington Dep. at 160 1. 23 to 161 1. 7]; Pl.'s Resp. to Summ. J. Mot., Ex. D [Covington Dep. at 169 11. 4].) He explained that "anything up to [four] feet ... was certainly not only acceptable, but a fine rafting level, exciting, and a guide's favorite, if you want to put it that way." (See Defs.' Summ. J. Br., Ex. H [Covington Dep. at 161 11. 4-7].)
During the trip, plaintiff was in a raft guided by Voisard. (Defs.' Summ. J. Br., Statement of Undisputed Material Facts ¶ K; admitted at Pl.'s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Material Facts ¶ K; Mobilian's Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Facts.) As plaintiff's raft entered "rapid number 4," Voisard was thrown out of the raft. (Defs.' Summ. J. Br., Statement of Undisputed Material Facts ¶ N; admitted at Pl.'s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Material Facts ¶ N; Mobilian's Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Facts.) Shortly thereafter, the raft capsized, tossing plaintiff into the river. (Id.) Plaintiff maintains that, as she was swept through the rapids, she incurred multiple injuries and, as a result, has had to undergo surgery and physical therapy. (Am. Compl. ¶ 29.)
On May 31, 1995, plaintiff filed a complaint against defendants in this court, alleging that defendants were liable for (1) negligence and (2) willful and wanton conduct. On August 24, 1995, plaintiff filed an amended complaint, in which she corrected her allegation regarding Covington's residence. (See Am. Compl.) On September 15, 1995, defendants filed an answer to the amended complaint, a counterclaim against plaintiff, and a third-party complaint against Mobilian. (See Answer, Countercl. and...
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