Saenz v. Whitewater Voyages, Inc., A049465

• Decision Date: 31 December 1990
• Docket Number: No. A049465,A049465
• Citation: 276 Cal.Rptr. 672,226 Cal.App.3d 758
• Court: California Court of Appeals Court of Appeals
• Parties: Yvette Marie SAENZ, a Minor, etc., Plaintiff and Appellant, v. WHITEWATER VOYAGES, INC., Defendant and Respondent.

Page 672

276 Cal.Rptr. 672

226 Cal.App.3d 758

Yvette Marie SAENZ, a Minor, etc., Plaintiff and Appellant, v. WHITEWATER VOYAGES, INC., Defendant and Respondent.

No. A049465.

Court of Appeal, First District, Division 4, California.

Dec. 31, 1990.

Review Denied March 21, 1991.

Jeffrey Craig Thayer, Los Angeles, Ross Howell Sobel, Beverly Hills, for plaintiff and appellant.

Domenic D. Spinelli, Edson & Laplante, Sacramento, for defendant and respondent.

ANDERSON, Presiding Justice.

Edward Saenz (decedent) drowned at Murderer's Bar Rapid after falling out of a raft guided down the Middle Fork of the American River by employees of respondent commercial rafting company. The trial court entered summary judgment for the rafting company in the wrongful death action brought by decedent's heir (appellant ¹). We affirm on the basis that the decedent expressly assumed the risks attendant to whitewater rafting so as to relieve the rafting company of its duty of care toward him.

I. FACTUAL BACKGROUND

In early 1988 Pat DeBurgh organized a group of card dealers from "The Bicycle Club" to participate in a three-day whitewater rafting trip hosted by respondent Whitewater Voyages, Inc. (Whitewater). DeBurgh reserved the space, collected fares, and confirmed all arrangements for a June 20-22 trip down the Middle Fork of the American River. Decedent was one of the participants. He was 28 years old at the time, 5 feet 10 inches tall, and weighed 280 pounds. He told his father he was going "on a boating thing," "up on the American River."

On the morning of June 20 the Whitewater guides met the participants outside of Auburn and drove them by van to the put-in site. On the way they stopped for gas, and decedent and his friends bought some beer. At the "put-in site," members of the group, including decedent, completed and signed a "Release and Assumption of Risk Agreement" (release). ²

Trip leader David Butterfield gave a safety talk, covering such topics as what to do when thrown in the river, how to swim in that situation, how to get out from underneath the raft and the dangers of whitewater rafting. He warned: "[W]hitewater rafting is not a Disneyland ride and you can get hurt and even die." ³

The guides assisted the participants in adjusting their life jackets for a snug fit; decedent was fitted with an adult large/extra large type IV personal flotation device. He wore the device throughout the trip and was wearing it when he drowned. Participants were also told that helmets must be worn on all class IV rapids.

On the first day, decedent crewed on the raft guided by Butterfield. The crew encountered two class III ⁴ rapids as well as Tunnel Chute Rapid, a class IV rapid considered by William McGinnis, founder of Whitewater, to be "by far the most difficult and dangerous rapid of the three day trip." All passengers were given an opportunity to scout the rapid in advance, as well as the option of walking around the trail instead of running the rapid. Butterfield advised them not to "pay any attention to any peer pressure and to make this choice on their own."

Butterfield also explained how they must enter the eddy so as not to become trapped, and related that last year a woman sustained injuries when she fell out and was crushed against the wall of Tunnel Chute.

Toward the end of the first day decedent swam in relatively calm deep water for a short time. That night, some of the guides left to purchase beer for the guests.

The second day included several class III and class IV rapids as well as a portage around an unrunnable stretch of the river. Decedent was in Mark Thomas' raft that day. Thomas gave each participant the opportunity to guide the raft while travelling over calmer water; decedent took his turn.

Thomas also reviewed the possibility of falling out, and explained how to swim when that happens. Decedent fell out at the bottom of Menage a Trois, ⁵ a class IV rapid. He was pulled back into the raft after swimming about 30 seconds. The entire crew then portaged around Rucka Chucky Falls, which Thomas described as "a rather long" and "difficult portage."

Mark Artesani, a trip participant, reported that on the second night the "lead guide" drank beer, smoked marijuana and stepped on a hot coal and burned his foot.

Prior to starting out on the third morning, guide Thomas taught decedent and others how to swim a rapid, practicing on small ripple rapids near camp. Before they began rafting, Thomas reviewed that Murderer's Bar, the last class IV rapid, was optional and no one had to run it.

That afternoon the entire group parked for about 15 minutes before tackling the rapid. Trip leader Butterfield again told the participants they could "take out" at that point and ride back with the vans rather than running the rapid. Everyone scouted the rapid except decedent. He previously had indicated to his friends that he was tired and his legs were sore. Coworker Forney stated he "formed the impression ... that Edward Saenz was exhausted and along with the rest of the trip participants, realized Murderer's Bar rapid was the last rapid, and he wanted to get it over with."

After scouting the rapid Thomas spent about five minutes with decedent "directly" explaining the configuration of Murderer's Bar, how they would approach it, and what crew maneuvers were necessary. Thomas explained to decedent the dangers of the rapid, including the large rock they must avoid striking, as well as the eddy on the right of the rapid. Finally, Thomas explained the possibility of falling out and swimming and if this occurred, decedent should relax, take a breath and keep his feet up, pointed down river. Thomas asked decedent twice if he wanted to run the rapid; decedent replied affirmatively both times. ⁶ Thomas also repeated to the entire crew that they could "take out" with the vans rather than run the rapid. Decedent fell out of the raft going down Murderer's Bar and drowned. Mark Artesani, another participant riding in the raft ahead of decedent's raft, stated he and another guide were concerned that "we did not yet use throw bags" in this rapid "like other rapids" where they "would spread out on the sides" for safety.

II. DISCUSSION

Whitewater moved for summary judgment upon related theories of express and implied assumption of the risk. Because we find that summary judgment was properly granted on the former theory, we do not reach the applicability of the latter.

A. Background

Case law recognizes that assumption of the risk can be express or implied. Express assumption of risk is a contractual matter and comes into play where the plaintiff, in advance, expressly "agrees not to expect the potential defendant to act carefully...." (Coates v. Newhall Land & Farming, Inc. (1987) 191 Cal.App.3d 1, 7, 236 Cal.Rptr. 181.) In other situations a person implies consent to certain risks by voluntarily encountering a known danger.

Our Supreme Court's far-reaching decision in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 808, 119 Cal.Rptr. 858, 532 P.2d 1226, which replaced the "all-or-nothing" rule of contributory negligence with a system of comparative fault, changed many facets of our negligence rules, including facets of the assumption of risk doctrine. The court in Li explained: "[W]e have recognized in this state that this defense overlaps that of contributory negligence to some extent and in fact is made up of at least two distinct defenses. '... in one kind of situation, to wit, where a plaintiff unreasonably undertakes to encounter a specific known risk imposed by a defendant's negligence, plaintiff's conduct, although he may encounter that risk in a prudent manner, is in reality a form of contributory negligence.... Other kinds of situations within the doctrine of assumption of the risk are those, for example where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him. Such a situation would not involve contributory negligence, but rather a reduction of defendant's duty of care.' " (Id., at pp. 824-825, 119 Cal.Rptr. 858, 532 P.2d 1226.)

Under Li, the defense of unreasonable assumption of the risk merges with the scheme of assessing liability in proportion to fault. (Li v. Yellow Cab Co., supra, 13 Cal.3d at p. 825, 119 Cal.Rptr. 858, 532 P.2d 1226.) However, Li had no impact on express assumption of risk, which remains a complete bar to recovery in a negligence action. (Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467, 1477, fn. 3, 255 Cal.Rptr. 755.)

B. Express Assumption of the Risk

Whitewater maintains that the release ⁷ which decedent signed was an express assumption of risk which served to bar this wrongful death action. We agree.

A wrongful death plaintiff is subject to any defenses which the defendant could assert against the decedent, including the decedent's express agreement to waive the defendant's negligence and assume all risks. (Madison v. Superior Court (1988) 203 Cal.App.3d 589, 597, 250 Cal.Rptr. 299 [upholding release by decedent drowned while participating in scuba diving course].) The decedent's agreement to accept the risk of harm stemming from the defendant's negligent conduct is valid unless it contravenes public policy. (Coates v. Newhall Land & Farming, Inc., supra, 191 Cal.App.3d 1 at p. 8, 236 Cal.Rptr. 181 [validating release of decedent killed riding a dirt bike in off-highway vehicle park].) Whereas an agreement purporting to exempt a common carrier of persons from liability for negligence is against public policy (Walther v. Southern Pacific Co. (1911) 159 Cal. 769, 772, 116 P. 51), that policy does not impact Whitewater because Whitewater is a private carrier. ⁸ There is no public policy in California opposing "private, voluntary transactions in which one party, for a consideration, agrees to shoulder a risk which the law would otherwise have placed upon the other party...." (Tunkl v. Regents of University of California (1963) 60 Cal.2d...