Pellham v. Let's Go Tubing, Inc., 34433-9-III
| Decision Date | 27 June 2017 |
| Docket Number | No. 34433-9-III,34433-9-III |
| Citation | 398 P.3d 1205,199 Wash.App. 399 |
| Court | Washington Court of Appeals |
| Parties | Brian PELLHAM, Appellant, v. LET'S GO TUBING, INC., David Johnson and Jane Doe Johnson, a married couple, and the marital community composed thereof, Respondents. |
199 Wash.App. 399
398 P.3d 1205
Brian PELLHAM, Appellant,
v.
LET'S GO TUBING, INC., David Johnson and Jane Doe Johnson, a married couple, and the marital community composed thereof, Respondents.
No. 34433-9-III
Court of Appeals of Washington, Division 3.
JUNE 27, 2017
Richard David Wall, Richard D. Wall, P.S., 1604 W. Dean Ave., Spokane, WA, 99201-1825, for Appellant.
Kristen Dorrity, Andrews Skinner, P.S., 645 Elliott Ave. W., Ste. 350, Seattle, WA, 98119-3911, for Respondents.
Fearing, C.J.
¶1 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 negative. We affirm the trial court's summary judgment dismissal of renter Brian Pellham's suit for personal injury against the tube rental company, Let's Go Tubing, Inc.
FACTS
¶2 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.
¶3 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.
¶4 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 RENTAL AND ANY USE OF THE 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.
¶5 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 Horn or Ringer Loop.
¶6 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 private owners own most of the river bank.
¶7 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.
¶8 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.
¶9 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
¶10 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 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 assumption of risk. In response to the motion, Pellham argued that he did not waive liability because Let's Go Tubing committed gross negligence. He also argued he did not expressly or impliedly assume the risk of floating into a hazard. Pellham agreed to dismissal of his consumer protection claim.
The trial court granted summary dismissal of all of Pellham's claims.
LAW AND ANALYSIS
¶11 On appeal, Brian Pellham contends the trial court erred in dismissing his claim because he presented sufficient evidence of gross negligence because Let's Go Tubing chose the excursion location, knew the existence of a hazard, and failed to warn Pellham of the hazard. He argues that the rental company's gross negligence supersedes any release of liability and assumption of the risk contained in the form he signed. On appeal, he does not argue liability against Let's Go Tubing for failing to provide a life vest.
¶12 Let's Go Tubing responds that summary judgment was appropriate because Pellham failed to establish a duty, the liability release disposes of the claim, and 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 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.
¶13 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
¶14 We commence with our obligatory recitation of summary judgment principles. This court reviews a summary judgment order de novo, engaging in the same inquiry as the trial court. Highline School District No. 401 v. Port of Seattle, 87 Wash.2d 6, 15, 548 P.2d 1085 (1976) ; Mahoney v. Shinpoch, 107 Wash.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...
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Lister v. Hyatt Corp., CASE NO. C18-0961JLR
...of risk doctrine: (1) express, (2) implied primary, (3) implied unreasonable, and (4) implied reasonable." Pellham v. Let's Go Tubing, Inc., 398 P.3d 1205, 1212 (Wash. Ct. App. 2017) (citing Gregoire v. City of Oak Harbor, 244 P.3d 924 (Wash. 2010)). The first two categories—express and imp......
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Lister v. Hyatt Corp.
...of risk doctrine: (1) express, (2) implied primary, (3) implied unreasonable, and (4) implied reasonable." Pelham v. Let's Go Tubing, Inc., 398 P.3d 1205, 1212 (Wash. Ct. App. 2017) (citing Gregoire v. City of Oak Harbor, 244 P.3d 924, 928 (Wash. 2010)). The first two categories act as a co......