Page 39 - 2024 March April Magazine

The Dangers of Tubing
Tricia Daniel/Shutterstock
In Pellham v. Let’s Go Tubing, Inc.
199 Wn. App. 399 (2017), the court considered whether an inner tube rental company owed a duty to warn customers about a fallen log in the Yakima River which was hidden from but near the launch site. The company knew the river current drew tubers toward the log and expressly warned some customers but not Pellham.
Before embarking, Pellham signed a Release of Liability which included these terms:
I understand that river tubing can
be HAZARDOUS, and that rocks, logs, bridges, plants, animals, other people, other watercraft, 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.
In using the rental equipment or any facilities or vehicles related thereto such dangers are recognized and accepted whether they are marked or unmarked. River tubing can be a strenuous and physically demanding activity. It requires walking, bending, lifting, paddling, swimming, and awareness of the outdoor environment. I realize that slips, falls, flips, and other accidents do
occur and serious injuries or death may result and I assume full responsibility for these risks.
Pellham started tubing from the spot where he was dropped off by the rental company and was quickly pulled by the current around a corner and into the fallen, partially submerged log. He had requested a life jacket but they were not required by law and Let’s Go Tubing did not provide one. All he had for a paddle was a frisbee. Pellham got entangled and dragged down by the current. While fighting for his life and in his fight for life, Pellham smashed his head on the log and suffered a serious spinal injury.
Pellham filed suit against Let’s Go Tubing in Yakima County Superior Court alleging gross negligence and failure to warn. The trial court dismissed the case citing express and primary assumption of risk. In affirming the dismissal, Division III held that Pellham had assumed the “inherent risks” of river tubing which include fallen logs and swift currents without even having to reach the validity and enforceability of the written release of liability.
The Reckless Misconduct Exception
In Pellham, the plaintiff argued that the assumption of risk defense should not be available to a defendant whose acts or omissions rise to the level of gross as opposed to ordinary negligence.12
12 'Negligence' is the failure to exercise ordinary care. It is the doing of some act that a reasonably careful person would not do under the same or similar circum- stances or the failure to do some act that a reasonably careful person would have done under the same or similar circumstances. WPI 10.01.'Gross negligence' is the failure to exercise slight care. It is negligence that is substantially greater than ordinary negligence. Failure to exercise slight care does not mean the total absence
Division 3 rejected the argument holding that the plaintiff ’s assumption of risk was available as a defense unless the defendant’s acts and omissions went beyond gross negligence into the realm of intentional or reckless misconduct.13 If Washington law applied, the OceanGate release of liability agreement could be unenforceable.
What Now
The United States Coast Marine Board
of Investigation (MBI) is conducting
an investigation into the cause of
the implosion with the assistance of authorities from Canada, France, and the United Kingdom. The first step was collecting evidence and salvaging debris from the ocean floor. Next there will be a formal hearing to take witness testimony. In a public statement, the Coast Guard announced that among other things, it will be considering OceanGate’s possible “misconduct, incompetence, negligence, unskillfulness or willful violation of law.” The MBI has not provided a timeline for completion of the investigation.
Image by Melissamn/Shutterstock
Nigel Malden is a civil litigation attorney in Tacoma and can be reached at nm@ nigelmaldenlaw.com.
of care but care substantially less than ordinary care. 10.07.
13 'Recklessness' involves the disregard of an unrea- sonable risk of serious injury to another.
March/April 2024 | PIERCE COUNTY LAWYER 39