River Riders, Inc. v. Steptoe, 34206.

• Citation: 672 S.E.2d 376
• Decision Date: 10 December 2008
• Docket Number: No. 34206.,34206.
• Court: Supreme Court of West Virginia
• Parties: RIVER RIDERS, INC., and Matthew Knott, Petitioners, v. The Honorable Thomas W. STEPTOE, all Plaintiffs in the Christopher et al. v. River Riders, Inc., Civil Action No. 06-C-328, and All Plaintiffs in Freeman Civil Action No. 06-C-325, Respondents.

672 S.E.2d 376 RIVER RIDERS, INC., and Matthew Knott, Petitioners,
v.
The Honorable Thomas W. STEPTOE, all Plaintiffs in the Christopher et al. v. River Riders, Inc., Civil Action No. 06-C-328, and All Plaintiffs in Freeman Civil Action No. 06-C-325, Respondents. No. 34206. Supreme Court of Appeals of West Virginia. Submitted October 28, 2008. Decided December 10, 2008.

[672 S.E.2d 378]

Syllabus by the Court

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

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

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

4. "A writ of prohibition will not issue to prevent a simple abuse of discretion by a

[672 S.E.2d 379]

trial court." Syllabus Point 4, State ex rel. Shelton v. Burnside 212 W.Va. 514, 575 S.E.2d 124 (2002).

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

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

7. "[A] party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. § 1331(1) over a tort claim must satisfy conditions both of location and of connection with maritime activity. A court applying the location test must determine whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water. 46 U.S.C.App. § 740. The connection test raises two issues. A court, first, must `assess the general features of the type of incident involved,' [Sisson v. Ruby,] 497 U.S. [358], at 363, 110 S.Ct. [2892], at 2896[, 111 L.Ed.2d 292 (1990)], to determine whether the incident has `a potentially disruptive impact on maritime commerce,' id., at 364, n. 2, 110 S.Ct., at 2896, n. 2. Second, a court must determine whether `the general character' of the `activity giving rise to the incident' shows a `substantial relationship to traditional maritime activity.' Id., at 365, 364, and n. 2, 110 S.Ct., at 2897, 2896, and n. 2." Grubart, Inc. v. Great Lakes Dredge & Dock Company, 513 U.S. 527, 534, 115 S.Ct. 1043, 1048, 130 L.Ed.2d 1024 (1995).

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

Robert P. Martin, Esq., Justin C. Taylor, Esq., Jared M. Tully, Esq., Bailey & Wyant, P.L.L.C., Charleston, for Petitioners.

Michael A. Barcott, Esq., Holmes Weddle & Barcott, P.C., Seattle, WA, Pro Hac Vice Attorney for Petitioners.

Daniel R. Schuda, Schuda & Associates, Charleston, for Amicus Curiae West Virginia Professional River Riders.

Stephen G. Skinner, Esq., Laura C. Davis, Esq., Skinner Law Firm, Charles Town, for Respondent, Kathy L. Freeman.

Paul D. Bekman, Esq., Salsbury, Clements, Beckman, Marder & Adkins, LLC, Baltimore, MD, Pro Hac Vice Attorney for Respondents, The Christopher Plaintiffs.

Mark Jenkinson, Esq., Burke, Schultz, Harman, and Jenkinson, Martinsburg, for Respondents, The Christopher Plaintiffs.

BENJAMIN, Justice:¹

Petitioners, River Riders, Inc. and Matthew Knott, seek a writ of prohibition to vacate three pre-trial orders of the Circuit Court of Jefferson County that (1) excluded from the forthcoming trial the Release and Assumption of Risk Agreements that had been signed by fourteen plaintiffs prior to embarking on a whitewater rafting expedition provided by the Petitioners; (2) ruled that the rafting incident was governed by

672 S.E.2d 380

general maritime law, thus, precluding assumption of the risk as a defense; and (3) consolidated the civil action of the personal representative of the estate of the decedent with the civil action brought by thirteen injured persons. After careful consideration of the memoranda² and arguments in this proceeding, as well as the pertinent legal authorities, we grant the writ sought only to the extent of vacating the circuit court's ruling finding that the rafting incident is governed by maritime law.

I. FACTUAL AND PROCEDURAL HISTORY

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

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

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

672 S.E.2d 381

The Freeman plaintiff and the Christopher plaintiffs contend that River Riders failed to meet the statutory "standard of care" expected of members of the whitewater guide profession in direct violation of the West Virginia Whitewater Responsibility Act, W. Va. Code § 20-3B-3(b) (1987).⁶ In both actions, they assert that running a raft trip on September 30, 2004, simply was not reasonable under the circumstances, and that the expected standard of care would have obligated River Riders to cancel or reschedule the whitewater...