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Tourist suffers injury while inner-tubing on Yakima River: Is rental company liable?

Tourist suffers injury while inner-tubing on Yakima River: Is rental company liable?

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In this week’s article we examine the case of Pellham v. Let’s Go Tubing, Inc., No. 34433-9III (Wash. Ct. App. (6/27/2017)) wherein the Washington Court of Appeals noted “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.”

For previous discussions of adventure travel and the enforceability of releases see Dickerson, Travel Law: Tough Mudder-adventure tourism taken to its extreme, ETN Global Travel Industry News (June 11, 2014) and Dickerson, Adventure travel: Soft, hard and extreme-disclaimers and releases, ETN Global Travel Industry News (July 17, 2014). For a similar case see Glenview Park District v. Melhus, 540 F, 2d 1321 (7th Cir. 1976) (canoeist who drowned during trip down river was promised that canoeing would be ‘perfectly safe’). See also: Dickerson, Travel Law, Section 5.04[4][A]: Breach of Warranty of Safety.

Terror Targets Update

New York City

In Feuer, Suspect in Times Square Bombing Leaves Trail of Mystery, ntyimes (12/11/2017) it was noted that “But on Monday morning, Mr. Ullah, 27, strapped a pipe bomb to his body and set out to detonate it in a Times Square subway station, the police said, not only causing chaos among crowds of commuters, but also leaving behind a trail of mystery that baffled those who knew him”.

Sweden

In Masked attackers firebomb Swedish synagogue with Molotov cocktails, travelwirenews,com (12/10/2017) it was noted that “A group of masked youths have attacked a synagogue in Gothenburg, Sweden, with Molotov cocktails, amid a global backlash against the US decision to recognize Jerusalem as the capital of Israel”.

Myanmar

In Beech, At Least 6,700 Rohingya Died in Myanmar Crackdown, Aid Group Says, nytimes (12/14/2017) it was noted that “Doctors Without Borders estimated on Thursday that at least 6,700 members of Myanmar’s Rohingya Muslim minority including 730 children below age 5, had met violent deaths there in the month after a military crackdown on their villages. The campaign against the Rohingya, which began in late August, has been called ‘ethnic cleansing’ by the United States and the United Nations. Survivors who fled to neighboring Bangladesh gave consistent accounts of executions, gang rapes and burned homes”.

HIV Spike In Brazil

In Darlington, Brazil Fights H.I.V. Spike in Youths With

Free Preventive Drug, nytimes (12/12/2017) it was noted that “Seeking to stem a sharp rise in H.I.V. cases among young people, Brazil began offering a drug this month that can prevent infection to those deemed at high risk. Brazil is the first country in Latin America, and among the first in the developing world, to adopt the pill Truvada, under a program known as PrEP, short for pre-exposure prophylaxis, as an integral part of its preventive health care policy”.

Zika Babies

In Belluck, As Zika Babies Become Toddlers, Some Can’t See, Walk or Talk, nytimes (12/14/2017) it was noted that “As the first babies born with brain damage from the Zika epidemic become 2-year-olds, the most severely affected are falling further behind in their development and will require a lifetime of care, according to a study published Thursday by the Centers for Disease Control and Prevention”.

Be Nice To The Queen’s Swans, Please

In Swans fund stabbed and beheaded in London, travelwirenews (12/13/2017) it was noted that “An investigation has been launched and a public patrol set up, after six swans were found beheaded in southeast London. The killing of mute swans, considered to be the property of Britain’s Queen, is illegal”.

Roma Circus In Paris

In Rougerie, A Roma Circus Makes a Home and Builds Bridges, in Paris, nytmes (12/11/2017) it was noted that “The Romanes family spends most of the year in the upscale 16th Arrondissement of Paris-in a small park where their circus caravans have a permanent spot and where they perform their show. The rest of the time, they take the show on the road, traveling all around France…The summer, the Ministry of Culture named Mrs. Romanes a knight of the Order of Arts and Letters, a high-standing recognition given to influential artists. She is the first Roma woman to receive the title in France…Every performance is prepared from scratch, without a defined story line. Each cast member works on his or her own, and then brings the stunts to the show, which evolves spontaneously over one hour every night”.

New US Travel Advisory System

In US to launch four-level travel advisory system, travelwirenes (12/9/2017) it was noted that “The US State Department said late Friday that part of its responsibility for the safety and security of its citizens overseas ‘is providing information to help US citizens make informed decisions about traveling abroad’…in January ‘we will launch our new products with travel advisories being issued for every country in the world to provide US citizens with relevant safety and security information. Travel advisories will give advice to US citizens by following a four-level classification system and providing clear actions to take. So, the level one is to ‘exercise normal precautions’, level two would be ‘exercise increased caution’, level three would be ‘reconsider travel’, and level four would be ‘do not travel’”.

Extreme Weather Events

In Plumer & Popovich, How Global Warming Fueled Five Extreme Weather Events, nytimes (12/14/2017) it was noted that “Extreme weather left its mark across the planet in 2016, the hottest year in recorded history. Record heat baked Asia and the Arctic. Droughts gripped Brazil and Southern Africa. The Great Barrier Reef suffered its worst bleaching event in memory, killing large swaths of coral. Now climate scientists are starting to tease out which of last year’s calamities can, and can’t, be linked to global warming. In a new collection of papers published Wednesday in the Bulletin of the American Meteorological Society, researchers around the world analyzed 27 extreme weather events from 2016 and found that human-caused climate change was a ‘significant driver’ for 21 of them”.

Uber Spy Masters

In Isaac, Uber Engaged in ‘Illegal’ Spying on Rivals, Ex-Employee Says, nytimes (12/15/2017) it was noted that “For years, Uber secretly spied on key executives, drivers and employees at rival ride-hailing companies as part of a larger intelligence-gathering operation that spanned multiple countries, according to a letter made public in a federal court on Friday. The 37-page letter, written on behalf of Richard Jacobs, a former Uber security employee, detailed what he described as the formation of separate internal teams designed ‘expressly for the purpose of acquiring trade secrets’ from major ride-sharing competitors around the world. ‘Uber has engaged, and continues to engage, in illegal intelligence gathering on a global scale’, Mr. Jacobs wrote…Uber is facing at least five separate federal investigations, including at least one over a software tool called ‘Greyball’, which the company created to evade law enforcement in cities around the world. It is also facing an investigation into whether the company broke the Foreign Corrupt Practices Act for bribery overseas, a claim Mr. Jacobs made in his letter”.

Ride-Hailing War In Southeast Asia

In Zhong, Southeast Asia’s Ride-Hailing War Is Being Waged on Motorbikes, nytimes (12/8/2017) it was noted that “On a recent morning driving his motorbike for one of Asia’s fastest-growing tech start-ups, Nasrun picked up and dropped off four schoolchildren, an office worker, medicine from a pharmacy, some dumplings with peanut sauce, a few documents and an order of Japanese food, the last of which he took to a woman at the Indonesian Stock Exchange…(he) works for Go-Jek, a $3 billion Indonesian start-up whose maximalist approach to the ride-hailing business has put rivals like Uber on notice, and gotten the attention of American investors and Chinese internet titans alike”.

Jerusalem Capital Of Palestine?

In Gall, Muslin Leaders Declare East Jerusalem the Palestinian Capital, nytimes (12/13/2017) nytimes it was noted that “Leaders and officials of Muslim nations declared East Jerusalem the Palestinian capital on Wednesday at a summit meeting in Istanbul, producing the strongest response yet to President Trump’s decision to recognize the city as Israel’s capital. The gathering of the 57-member Organization of Islamic Cooperation was held to formulate a unified response from the Muslim world to Mr. Trump’s decision last week”.

Solo Travelers Guide

In Rosenbloom, New Tools and Yours for Solo Travelers, nytimes (12/15/2017) it was noted that “From budget to luxury brands, rental companies to hotels, a number of industry groups have reported double digit upticks in solo travel over the last few years…More than half the people taking trips with Intrepid Travel, about 75,000 people a year, are now going solo…After all, it’s not necessarily easy to find companies that consider the wants and needs of people traveling solo. For instance, solo travelers have long had to pay a single supplement if they want their own room…There are, however, some companies that routinely offer solo spaces with low or no supplements on certain trips”.

Looting Our Public Lands

In Editorial Board, The Looting of America’s Public Lands, nytimes (12/9/2017) it was noted that “The protections put in place over the last half-century by both political parties to guarantee Americans clean air, clean water and bountiful open space have been coming apart at the seams since President Trump took office. The last few weeks have been particularly brutal for conservationists and, indeed, anyone who believes that big chunks of America’s public lands, however rich they may be in commercial resources, are best left in their natural state. On Monday, Mr. Trump withdrew some two million acres of spectacular landscape from two national monuments in Utah…This followed the Senate’s decision last weekend to authorize oil drilling in the coastal plain of the Arctic National Wildlife Refuge, an area full of wildlife, of talismanic significance to environmentalists and of greater economic importance to Native Americans”.

Native Americans Sue Over Bears Ears

In Native tribes sue Trump over Bears Ears Monument, travelwirenews (12/9/2017) it was noted that “A member of the Navajo Nation Council, Filfred fears what will happen to nearly 547,000 hectares (1.35 million acres) in the US state of Utah filled with ceremonial sites, dwellings, rock art and cultural resources that date back thousands of years….’Over 100,000 significant, scientific, historical [artifacts] are still out there’”.

Pierre Hotel History

In Pierre Hotel: Highest list price for NY hotel residence at $125 million, travelwirenews (12/9/2017) it was noted that “Did you read last year that the penthouse triplex at the Pierre Hotel in New York City was for sale for $125 million, the highest price ever listed for New York hotel residence? At 13,660 square feet, that works out to $9,150 per square foot…During the Depression, the Pierre Hotel went into bankruptcy in 1932 and was bought six years later by oilman J. Paul Getty for $2.5 million. In 1958, Getty converted the Pierre into a cooperative and subsequently sold some of the hotel’s suites to the likes of Gary Grant and Elizabeth Taylor”.

Travel Law Case Of The Week

In the Pellham case the Court noted that “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 Release Form

“The form provided (in part): I, the renter of this rental equipment, assume and understand that river tubing can be hazardous, and that rocks, logs, bridges, plants, 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…I realize that slips, falls, flips and other accidents do occur and serious injuries or death may result…
In consideration for this rental…I hereby release…Let’s Go Tubing, Inc….from any and all claims and liabilities arising out of or in connection with the use of this rental equipment”.

Fallen Tree Downriver

“{B]ecause of a low river level (defendant) transported Brian Pellham, his group members and other customers eight miles upstream to Ringer Loop…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…Thomas did not warn Pellham of the obstructing tree”.

The Accident

“At the launch site, Let’s Go Tubing handed each person a Frisbee to use as a paddle. Brian Pellham requested a life jacket, 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 dragged 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 causes damage to a low back disk and the damage creates pain radiating to his left foot”.

The Lawsuit & Defenses

“Brian Pellham sued Let’s Go Tubing for negligent failure to warn and Consumer Protection Act…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 the risk.

Assumption Of The Risk

“A negligence claim requires the plaintiff to establish (1) existence of a duty owed, (2) breach of that duty, (3) a resulting injury and (4) a proximate cause between the beach and the injury…The threshold determination of whether a duty exists is a question of law…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 of law, had no duty to warn Pellham of the danger, or, at the least, the rental company possessed only a restricted duty not to intentionally injury Pellham or engage in reckless misconduct”.

Various Forms Of Assumption Of Risk

“Express assumption of risk arises when a plaintiff expressly consents to relieve the defendant of a duty owed by the defendant to plaintiff regarding specific known risks…Implied primary assumption of the risk follows from the plaintiff engaging in risky conduct, from which the law implies consent. …Implied unreasonable assumption of the 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…Implied reasonable assumption of the risk is roughly the counterpart to implied unreasonable assumption or risk in that the plaintiff assumed a risk, but acted reasonably in doing so”.

Inherent Peril Assumption Of Risk

“We now focus on inherent peril assumption of risk (which) bars a claim resulting from specific known and appreciated risks impliedly assumed often in advance of any negligence of the defendant…Plaintiff’s consent to relieve the defendant of any duty is implied based on the plaintiff’s decision to engage in an activity the involves known risks….One who participates in sports impliedly assumes the risks inherent in the sport….Whether inherent peril assumption of risk applies depends on whether the plaintiff was injured by an inherent risk of an activity…The classic example of inherent peril assumption of the risk involves participation in sports when a participant knows that the risk of injury is a natural part of such participation…Inherent peril assumption extends to water sports …This assumption of risk includes inner tubing and canoe rentals (citing Record v. Reason, 73 Cal. App. 4th 472 (1999); Ferrari v. Bob’s Canoe Rentals, Inc., 143 A.D. 3d 937 (2016); DeWick v. Village of Penn Yan, 275 A.D. 2d 1011 (2000)). Bodies of water often undergo change, and changing conditions in the water do not alter the assumption of risk…There is no duty to warn of the presence of natural transitory conditions”.

Failure To Warn

“Brian Pellham alleges that Let’s Go Travel 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…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…One might argue that Let’s Go Tubing’s failure to warn increased the risk attended to the fallen log in the Yakima River….Brian Pellham presents no evidence that renters of watercrafts customarily warn of fallen natural objects in the water”.

Conclusion

“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 risk involved in river tubing…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 led to Pellham’s injuries….(As for plaintiff’s assertion of gross negligence) 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…We j0in the other jurisdictions in imposing an intentional and reckless standard, rather than a gross negligence standard, the plaintiff assumes the risks of inherent perils in a sporting or outdoor activity”.

The author, Thomas A. Dickerson, is a retired Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and has been writing about Travel Law for 41 years including his annually updated law books, Travel Law, Law Journal Press (2016), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), Class Actions: The Law of 50 States, Law Journal Press (2016) and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. For additional travel law news and developments, especially, in the member states of the EU see IFTTA.org

This article may not be reproduced without the permission of Thomas A. Dickerson.

Read many of Justice Dickerson’s articles here.

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