Brian Pellham v. Let's Go Tubing, Inc.
199 Wash. App. 399, 398 P.3d 1205 (2017)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
The doctrine of inherent peril assumption of risk negates a recreational activity provider's duty to warn participants of dangers inherent to the activity, thereby barring negligence claims unless the provider engaged in intentional or reckless misconduct.
Facts:
- Brian Pellham joined Melanie Wells and others for an unguided inner tube excursion on the Yakima River, arranging equipment and transport from Let's Go Tubing, Inc.
- Before the trip, Pellham and other participants signed a liability waiver acknowledging risks such as rocks, logs, and variable water conditions inherent in river tubing.
- On July 30, 2011, due to low water levels, Let's Go Tubing transported the group to an alternate launch site, Ringer Loop, via shuttle bus.
- Let's Go Tubing's bus driver, Steff Thomas, warned some passengers at the front of the bus about a fallen tree obstructing the river just downstream from the launch, but Brian Pellham was not among those specifically warned.
- Brian Pellham and his group launched their tubes into a swift current.
- Upon rounding the first bend in the river, Pellham's group encountered the fallen tree, struck it, and Pellham fell backward into the river, sustaining a broken eardrum, whiplash, and chest injuries from hitting branches.
- After the incident, Pellham informed Thomas, who acknowledged knowing about the tree but stated Let's Go Tubing was legally prevented from removing it.
- Pellham later required neck fusion surgery and suffered damage to a low back disk.
Procedural Posture:
- Brian Pellham sued Let's Go Tubing, Inc. in trial court for negligent failure to warn and Consumer Protection Act violations.
- Let's Go Tubing, Inc. raised affirmative defenses including release of liability and assumption of the risk, and filed a motion for summary judgment dismissal.
- Pellham opposed the motion, arguing that gross negligence superseded the waiver and that he had not expressly or impliedly assumed the specific risk.
- Pellham agreed to dismiss his Consumer Protection Act claim.
- The trial court granted summary dismissal of all of Pellham's remaining claims.
- Brian Pellham (Appellant) appealed the trial court's summary judgment dismissal to the Washington Court of Appeals, Division III.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does an inner tube rental company owe a duty to warn a customer about a known, but hidden, natural hazard (like a fallen log) in a river, or is such a danger an inherent risk assumed by the participant, thus barring a negligence claim?
Opinions:
Majority - Fearing, C.J.
No, an inner tube rental company does not owe a duty to warn a customer about a known, but hidden, natural hazard like a fallen log in a river, because such a danger is an inherent risk assumed by the participant, barring negligence claims unless the provider engaged in intentional or reckless misconduct. The court applied the doctrine of 'inherent peril assumption of risk,' formerly 'implied primary assumption of risk,' which holds that a plaintiff's voluntary participation in a risky activity implies consent to relieve the defendant of a duty regarding the inherent risks of that activity. The court emphasized that participants in sports and outdoor recreation implicitly assume the dangers 'inherent in and necessary to a particular activity,' which extends to water sports like river tubing and includes natural, transitory conditions such as fallen logs and swift currents. The court clarified that the plaintiff need only know the 'general nature of the risk,' not the precise details of how an accident might occur. While Pellham may not have known the specific tree's location, he knew of the general potential for logs and swift currents, which were stated in the waiver he signed. The court distinguished this from 'increased danger assumption of risk,' where a defendant's negligence creates or unduly enhances a risk, which would only reduce damages under comparative fault, finding that Let's Go Tubing did not create the swift current or fell the log. Finally, the court held that to overcome inherent peril assumption of risk, a plaintiff must show intentional or reckless misconduct by the defendant, a higher standard than gross negligence, aligning with other jurisdictions to encourage recreational participation while still protecting against egregious conduct. Pellham did not allege or present evidence of such intentional or reckless misconduct.
Analysis:
This case significantly reinforces the inherent peril assumption of risk doctrine in Washington, particularly for outdoor recreational activities. It clarifies that a defendant has no duty to protect participants from risks inherent to an activity, even if the defendant knew of a specific natural hazard and failed to warn. The court's distinction between 'inherent peril' and 'increased danger' assumption of risk is crucial for future cases, defining when a negligence claim is completely barred versus merely subject to comparative fault. Furthermore, the decision raises the bar for plaintiffs seeking to overcome inherent peril assumption, requiring proof of intentional or reckless misconduct rather than gross negligence, thereby making it harder to sue recreational providers for injuries arising from natural hazards.
