Washington Case Law Update: Court of Appeals Reworks Assumption of Risk Doctrine, Holds that Inherent Peril Assumption of Risk Bars Negligence Claim
From the desk of Kyle D. Riley: In many states, when a person engages in a recreational activity, that person typically assumes the risks inherent to the activity and cannot sue others for injuries sustained while participating. In this case, the Division III of the Washington Court of Appeals reworks the assumption of risk doctrine and then applies its revisions to the case at hand. The case will likely go to the Supreme Court, where the revised doctrine will be adopted or rejected. Read on to learn more.
Claims Pointer: In this case arising out of a river tubing accident, the Washington Court of Appeals held that the plaintiff’s negligence claim was barred because the plaintiff assumed the risks of the inherent perils associated with tubing on a river. The case serves as an excellent summary of the assumption of risk doctrines, an important consideration when defending negligence claims arising out of sporting events or other recreational activities.
Pellham v. Let’s Go Tubing, Inc., et al., No. 34433-9-III, Washington Court of Appeals, Div. III (June 27, 2017)
Brian Pellham (“Pellham”) was invited by friends to participate in an unguided trip floating on the Yakima River. He met with his friends at the Let’s Go Tubing, Inc. (“LGT”) Umtanum gathering site, where LGT launches its customers unless the river level is low. Because the river level was low that day, LGT transported its customers eight miles upstream to Ringer Loop. Before boarding the bus to Ringer Loop, Pellham and every other participant signed a release of liability and an assumption of risk form.
During the drive to Ringer Loop, LGT’s bus driver told several customers to push into the middle of the river immediately after launching to avoid a fallen tree that was hidden from view downriver. No one warned Pellham specifically about the tree, and Pellham struck the tree, sustaining significant injuries. Pellham sued LGT for negligent failure to warn. In its answer, LGT raised affirmative defenses, including release of liability and assumption of risk. LGT then moved for summary judgment based on both the signed release and on assumption of risk. The trial court granted summary judgment dismissal of Pellham’s claims, and Pellham appealed.
Because the doctrine of assumption of risk can relieve a defendant of its duty of care, the Washington Court of Appeals began its analysis by examining whether Pellham assumed the risk at issue. Most states, including Washington, generally recognize four categories of “assumption of risk,” a term that encompasses several different common law theories that apply when a plaintiff knowingly exposes himself to particular risks: (1) express, (2) implied primary, (3) implied unreasonable, and (4) implied reasonable. Express assumption of risk arises when a plaintiff explicitly consents to relieve the defendant of a duty owed by the defendant to the plaintiff regarding specific known risks. Implied primary assumption of risk arises when the plaintiff engages in risky conduct, from which the law implies consent. Both types require the evidence to show that the plaintiff (1) had full subjective understanding (2) of the presence and nature of the specific risk, and (3) voluntarily chose to encounter the risk. Both also operate as a complete bar to a plaintiff’s recovery on the theory that when the plaintiff assumes the risk, the defendant no longer has a duty of care and therefore cannot be negligent. These categories typically arise in the context of risky recreational activities such as skiing, scuba diving, or tubing down a river.
By contrast, implied unreasonable assumption of risk focuses on the issue of the objective unreasonableness of the plaintiff’s conduct in assuming the risk. It is generally recognized as a form of contributory negligence, and in Washington, it has been subsumed under contributory negligence. Finally, implied reasonable assumption of risk is a counterpart to implied unreasonable assumption of risk in that the plaintiff assumed a risk but acted reasonably in doing so. It has also given the courts the most difficulty, and it has resulted in differing treatment by courts and commentators. The gist of these two categories is that the defendant’s conduct increased the risk of an activity or situation beyond the risks inherent in the activity or situation, and the plaintiff either reasonably or unreasonably encountered this increased risk. Both categories operate to reduce rather than bar the plaintiff’s recovery.
Given this somewhat confusing categorization, the Court of Appeals recommended to the Supreme Court that these categories be condensed and renamed as express assumption of risk, inherent peril assumption of risk, and increased danger assumption of risk, with the last category combining implied unreasonable and implied reasonable into one. Under inherent peril assumption of risk (formerly “implied primary assumption of risk”), a claim is barred where it arises from injury caused by specific known and appreciated risks impliedly assumed by the plaintiff prior to any potentially negligent acts of the defendant. The doctrine applies only if the evidence shows: (1) the plaintiff possessed a full subjective understanding (2) of the presence and nature of the specific risk, and (3) voluntarily chose to encounter the risk. Just as implied primary assumption of risk typically applies to risky recreational activities, the inherent peril assumption of risk applies where the plaintiff knows that the risk of injury is an inherent part of participating in the activity. To the extent that a risk inherent in the activity injures the plaintiff, the defendant has no duty and therefore cannot be negligent. While the plaintiff’s subjective knowledge and appreciation of the danger will typically be a question for the jury, it may be decided by the court where it is clear that any person in the plaintiff’s position must have understood the danger.
Under this rubric, the Court of Appeals held that Pellham assumed the risks involved in river tubing, including the fallen tree. While Pellham may not have precisely and subjectively known how the combination of a swift current, a bend in the river, and a fallen tree would produce his injury, he nevertheless knew of the potential of all factors. As the court explained, while Pellham may not have known of the specific location of any fallen tree in the river, he knew of the potential of a fallen tree somewhere in the river. Because Pellham did not allege that LGT engaged with reckless conduct (which the court explained would potentially overcome application of the inherent peril assumption of risk doctrine), and because the evidence did not support a conclusion that LGT’s bus driver purposely omitted a warning to Pellham with knowledge that Pellham would suffer substantial harm, the doctrine of inherent peril assumption of risk applied, and the trial court’s summary judgment dismissal of Pellham’s claims was appropriate.
View full opinion at: https://www.courts.wa.gov/opinions/pdf/767488.pdf
Case updates are intended to inform our clients and others about legal matters of current interest. They are not intended as legal advice. Readers should not act upon the information contained in this article without seeking professional counsel.
To email Kyle Riley, please click here.
To view the most recent Oregon Case Law Update: UM/UIM Insurer May Dispute Damages without Losing Safe Harbor please click here.