Brian Pellham v. Let's Go Tubing, Inc., et al.

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

No. 34433-9-III

Pellham v. Let's Go Tubing, Inc.

negative. We affirm the trial court's summary judgment dismissal of renter Brian

Pellham's suit for person.al injury against the tube rental company, Let's Go Tubing, Inc.

FACTS

Brian Pellham sues for injuries suffered while inner tubing on the Yakima River.

Because the trial court dismissed Pellham' s suit on summary judgment, we write the facts

in a light favorable to Pellham.

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 form provided:

I, the renter of this rental equipment, assume and understand that

river tubing can be HAZARDOUS, and that rocks, logs, bridges, plants,

animals, 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. 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. . . "IN

CONSIDERATION FOR THIS RENT AL AND ANY USE OF THE

2

No. 34433-9-III

Pellham v. Let's Go Tubing, Inc.

FACILITIES, VEHICLES, OR ENVIRONMENT RELATED TO THE

USE OF THIS EQUIPMENT, I HEREBY RELEASE HOLD HARMLESS

AND INDEMNIFY LET'S GO TUBING, INC. ITS SUBSIDIARIES AND

ITS AGENTS FROM ANY AND ALL CLAIMS AND LIABILITIES

ARISING OUT OF OR IN CONNECTION WITH THE USE OF THIS

RENTAL EQUIPMENT"

Clerk's Papers (CP) at 46 (capitalization and quotation marks in original). On other

occasions, such as a rafting trip, Brian Pellham signed a waiver. In his business, he

employs release forms.

Let's Go Tubing launches its customers from the Umtanum site unless the Yakima

River level runs low. With low water, the company buses customers to one of two other

Yakima River sites, Big Hom or Ringer Loop.

On July 30, 2011, Let's Go Tubing's shuttle bus, because of a low river level,

transported Brian Pellham, his group members, and other customers eight miles upstream

to Ringer Loop. Ringer Loop maintains a public concrete boat ramp and public restroom.

The total number of customers on the excursion approached twenty. 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. We do not know the number of customers the driver warned. Thomas did

not warn Pellham of the obstructing tree. Nor did anyone else. Someone, possibly

Thomas, warned everyone not to leave the river except at designated spots because

3

No. 34433-9-III

Pellham v. Let's Go Tubing, Inc.

private owners own most of the river bank.

At the launch site, Let's Go Tubing handed each person a Frisbee to use as a

paddle. Brian Pellham requested a lifejacket, 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 grabbed 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 caused

damage to a low back disk, and the damage creates pain radiating to his left foot.

PROCEDURE

Brian Pellham sued Let's Go Tubing for negligent failure to warn and Consumer

Protection Act, chapter 19.86 RCW, violations. Let's Go Tubing answered the complaint

No. 34433-9-111

Pellham v. Let's Go Tubing, Inc.

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 risk. In response to the motion, Pellham argued that he did not waive

liability because Let's Go Tubing committed gross negligence. He also argued he did not

expressly or impliedly assume the risk of floating into a hazard. Pellham agreed to

dismissal of his consumer protection claim. The trial court granted summary dismissal of

all of Pellham's claims.

LAW AND ANALYSIS

On appeal, Brian Pellham contends the trial court erred in dismissing his claim

because he presented sufficient evidence of gross negligence because Let's Go Tubing

chose the excursion location, knew the existence of a hazard, and failed to warn Pellham

of the hazard. He argues that the rental company's gross negligence supersedes any

release of liability and assumption of the risk contained in the form he signed. On appeal,

he does not argue liability against Let's Go Tubing for failing to provide a life vest.

Let's Go Tubing responds that summary judgment was appropriate because

Pellham failed to establish a duty, the liability release disposes of the claim, and

Pellham's evidence does not create a genuine issue as to any fact material to establishing

gross negligence. We affirm based on the inherent risks in river tubing. Because of

Pellham's voluntary participation in the outdoor recreation activity, he assumed the risk

of a fallen log and swift current. Conversely, Pellham' s assumption of the risk created no

5

No. 34433-9-111

Pellham v. Let's Go Tubing, Inc.

duty in Let's Go Tubing to warn or prevent injury to Pellham from trees in the river.

Because we rely on the inherent risks in river tubing, we do not address whether the

written agreement signed by Pellham bars his suit.

Because we hold that Brian Pellham assumed the risk and thereby rendered Let's

Go Tubing duty less, we do not address whether Pellham created an issue of fact with

regard to gross negligence. We conclude that, to avoid application of inherent peril

assumption of risk, Pellham needed to show intentional or reckless misconduct of the

rental company, and Pellham does not show or argue either.

Summary Judgment Principles

We commence with our obligatory recitation of summary judgment principles.

This court reviews a summary judgment order de nova, engaging in the same inquiry as

the trial court. Highline School District No. 401 v. Port of Seattle, 87 Wn.2d 6, 15, 548

P.2d 1085 (1976); Mahoney v. Shinpoch, 107 Wn.2d 679,683, 732 P.2d 510 (1987).

Summary judgment is proper if the records on file with the trial court show "there is no

genuine issue as to any material fact" and "the moving party is entitled.to a judgment as a

matter oflaw." CR 56(c). This court, like the trial court, construes all evidence and

reasonable inferences in the light most favorable to Brian Pellham, as the nonmoving

party. Barber v. Bankers Life & Casualty Co., 81 Wn.2d 140, 142, 500 P.2d 88 (1972);

Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). A court may grant

summary judgment if the pleadings, affidavits, and depositions establish that there is no

6

No. 34433-9-111

Pellham v. Let's Go Tubing, Inc.

genuine issue as to any material fact and the moving party is entitled to judgment as a

matter oflaw. Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000).

Defenses on Review

Let's Go Tubing seeks affirmation of the summary judgment dismissal of Brian

Pellham's claim based both on an absence of duty and Pellham's assumption of risk. In

tum, Pellham argues that, under RAP 2.5(a), the rental company may not assert a lack of

duty because Pellham did not raise this defense before the trial court.

We need not address Brian Pellham's objection to Let's Go Tubing's argument of

lack of duty. We base our decision on inherent peril assumption of risk and the rental

company raised the defense of assumption of risk below. Anyway, assumption of risk in

this context is equivalent to a lack of duty. Assumption of the risk in the sports

participant context is in reality the principle of no duty and hence no breach and no

underlying cause of action. Brown v. Stevens Pass, Inc., 97 Wn. App, 519,523,984 P.2d

448 (1999); Codd v. Stevens Pass, Inc., 45 Wn. App. 393, 401-02, 725 P.2d 1008 (1986).

Assumption of Risk



A negligence claim requires the plaintiff to establish ( 1) the existence of a duty

owed, (2) breach of that duty, (3) a resulting injury, and (4) a proximate cause between

the breach and the injury. Tincani v. Inland Empire Zoological Society, 124 Wn.2d 121,

127-28, 875 P.2d 621 (1994). Thus, to prevail on his negligence claim, Brian Pellham

must establish that Let's Go Tubing owed him a duty of care. Folsom v. Burger King,

7

No. 34433-9-III

Pellham v. Let's Go Tubing, Inc.

135 Wn.2d 658,671,958 P.2d 301 (1998). The tort concept of duty overlaps with the

contract and tort principles of assumption of risk. As previously mentioned, sometimes

assumption of risk relieves the defendant of a duty. Brown v. Stevens Pass, Inc., 97 Wn.

App. at 523 (1999); Codd v. Stevens Pass, Inc., 45 Wn. App. at 402 (1986).

The threshold determination of whether a duty exists is a question of law. Tincani

v. Inland Empire Zoological Society, 124 Wn.2d at 128; Coleman v. Hoffman, 115 Wn.

App. 853, 858, 64 P.3d 65 (2003). 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 oflaw, had no duty to

warn Pellham of the danger, or, at the least, the rental company possessed only a

restricted duty to not intentionally injure Pellham or engage in reckless misconduct.

We first briefly explore the variegated versions of assumption of risk in order to

later analyze the application of inherent peril assumption or risk. The term "assumption

of the risk" expresses several distinct common law theories, derived from different

sources, which apply when a plaintiff knowingly exposes himself to particular risks.

Allen v. Dover Co-Recreational Softball League, 148 N.H. 407, 807 A.2d 1274, 1281

(2002); Francis H. Bohlen, Voluntary Assumption of Risk (pt. 1), 20 HARV. L. REV. 14,

15-30 (1906); W. PAGE KEETON ET AL., PROSSER AND KEETON ONTHELAWOFTORTS §

68 (5th ed. 1984). Stated differently, the general rubric of assumption of risk does not

signify a singular doctrine but rather encompasses a cluster of discrete concepts. Kirk v.

Washington State University, 109 Wn.2d 448, 453, 746 P.2d 285 (1987). Washington

8

No. 34433-9-III

Pellham v. Let's Go Tubing, Inc.

law and most other states' jurisprudence recognize four taxonomies of the assumption of

risk doctrine: (1) express, (2) implied primary, (3) implied unreasonable, and (4) implied

reasonable. Gregoire v. City of Oak Harbor, 170 Wn.2d 628, 636, 244 P.3d 924 (2010);

Gleason v. Cohen, 192 Wn. App. 788, 794, 368 P .3d 531 (2016); 16 DAVID K. DEWOLF

& KELLER W. ALLEN, WASHINGTON PRACTICE: TORT LAW AND PRACTICE§ 9: 11, at

398-99 (4th ed. 2013).

Before the enactment of comparative negligence and comparative fault statutes,

practitioners and courts encountered little reason to distinguish the four versions of

assumption of risk, because at common law all assumption of the risk completely barred

recovery. Scott v. Pacific West Mountain Resort, 119 Wn.2d 484, 496, 834 P.2d 6

(1992). Today, the first two categories of assumption of risk, express assumption and

implied primary assumption, on the one hand, continue to operate as a complete bar to a

plaintiffs recovery. Kirk v. Washington State University, 109 Wn.2d at 453-54; Gleason

v. Cohen, 192 Wn. App. at 794. On the other hand, implied unreasonable and implied

reasonable assumption meld into contributory negligence and merely reduce the

plaintiffs recoverable damages based on comparative fault pursuant to RCW 4.22.005

and .015. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 497. The last two types

are merely alternative names for contributory negligence. Gregoire v. City of Oak

Harbor, 170 Wn.2d at 636 (2010). Our decision relies on implied primary assumption,

but we will discuss other renderings of assumption of risk in order to sculpt our decision.

9

No. 34433-9-III

Pellham v. Let's Go Tubing, Inc.

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.

Gregoire v. City of Oak Harbor, 170 Wn.2d at 636; Kirk v. Washington State University,

109 Wn.2d at 453. Implied primary assumption of risk follows from the plaintiff

engaging in risky conduct, from which the law implies consent. Kirk v. Washington State

University, 109 Wn.2d at 453; Erie v. White, 92 Wn. App. 297, 303, 966 P.2d 342 (1998).

Implied unreasonable assumption of 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. Kirk v. Washington State University, 109

Wn.2d at 454. Implied reasonable assumption of risk is roughly the counterpart to

implied unreasonable assumption of risk in that the plaintiff assumed a risk, but acted

reasonably in doing so. Kirk v. Washington State University, 109 Wn.2d at 454.

We confront difficulty in distinguishing among at least three of the four categories

because of the nondescript identifiers and near homophonic labels of some

classifications. Therefore, we recommend that the Supreme Court rechristen the

categories as express assumption, inherent peril assumption of risk, and increased danger

assumption of risk. The gist of implied reasonable and implied unreasonable assumption

of risk is that the defendant performed conduct that increased the risk of an activity or

situation beyond the risks inherent in the activity or situation and the plaintiff reasonably

or unreasonably encountered this increased risk. The traditional categories of implied

10

No. 34433-9-III

Pellham v. Let's Go Tubing, Inc.

unreasonable and implied reasonable assumption of risk hold no meaningful distinction

since both reduce rather than bar the plaintiffs recovery, and so we urge combining the

two concepts into increased danger assumption of risk. We hereafter use these new

terms.

Inherent Peril Assumption of Risk

We now focus on inherent peril assumption of risk. Inherent peril assumption bars

a claim resulting from specific known and appreciated risks impliedly assumed often in

advance of any negligence of the defendant. Scott v. Pacific West Mountain Resort, 119

Wn.2d at 497 (1992); Boyce v. West, 71 Wn. App. 657, 666-67, 862 P.2d 592 (1993).

Plaintiffs consent to relieve the defendant of any duty is implied based on the plaintiffs

decision to engage in an activity that involves those known risks. Egan v. Cauble, 92

Wn. App. 372,376,966 P.2d 362 (1998); Gleason v. Cohen, 192 Wn. App. at 797

(2016). One who participates in sports impliedly assumes the risks inherent in the sport.

Scott v. Pacific West Mountain Resort, 119 Wn.2d at 498; Boyce v. West, 71 Wn. App. at

667.

Whether inherent peril assumption of risk applies depends on whether the plaintiff

was injured by an inherent risk of an activity. Gleason v. Cohen, 192 Wn. App. at 797.

The plaintiff assumes the dangers that are inherent in and necessary to a particular

activity. Tincani v. Inland Empire Zoological Society, 124 Wn.2d at 144 (1994); Scott v.

Pacific West Mountain Resort, 119 Wn.2d at 500-01; Gleason v. Cohen, 192 Wn. App. at

11

1 I j

I I

I

No. 34433-9-111

Pellham v. Let's Go Tubing, Inc.

797; Lascheidv. City of Kennewick, 137 Wn. App. 633, 641-42, 154 P.3d 307 (2007);

Taylor v. Baseball Club of Seattle, LP, 132 Wn. App. 32, 37-39, 130 P.3d 835 (2006);

Dorr v. Big Creek Wood Products, Inc., 84 Wn. App. 420,427,927 P.2d 1148 (1996).

The classic example of inherent peril assumption involves participation in sports

when a participant knows that the risk of injury is a natural part of such participation.

Gleason v. Cohen, 192 Wn. App. at 798. One who engages in sports assumes the risks

which are inherent in the sport. Scott v. Pacific West Mountain Resort, 119 Wn.2d at

498; Gleason v. Cohen, 192 Wn. App. at 798. To the extent a risk inherent in the sport

injures a plaintiff, the defendant has no duty and there is no negligence. Scott v. Pacific

West Mountain Resort, 119 Wn.2d at 498; Gleason v. Cohen, 192 Wn. App. at 798. A

defendant simply does not have a duty to protect a sports participant from dangers that

are an inherent and normal part of a sport. Scott v. Pacific West Mountain Resort, 119

Wn.2d at 498; Gleason v. Cohen, 192 Wn. App. at 798.

Inherent peril assumption extends to water sports. One who engages in water

sports assumes the reasonably foreseeable risks inherent in the activity. De Wick v.

Village of Penn Yan, 275 A.D.2d 1011, 713 N.Y.S.2d 592,594 (2000). This assumption

of risk includes inner tubing on water and canoe rentals. Record v. Reason, 73 Cal. App.

4th 4 72, 86 Cal. Rptr. 2d 54 7 ( 1999); Ferrari v. Bob's Canoe Rental, Inc., 143 A.D.3d

937, 39 N.Y.S.3d 522 (2016). Bodies of water often undergo change, and changing

conditions in the water do not alter the assumption of risk. De Wick v. Village of Penn

12

No. 34433-9-III

Pellham v. Let's Go Tubing, Inc.

Yan, 713 N.Y.S.2d at 594. There is no duty to warn of the presence of natural transitory

conditions. DeWickv. Village of Penn Yan, 713 N.Y.S.2d at 594.

De Wick v. Village of Penn Yan, 713 N.Y.S.2d 592 is illustrative of the application

of inherent peril assumption in the context of water. Trina Kerrick and Daniel De Wick

drowned in Keuka Lake on June 19, 1995. Kerrick allegedly gained access to the lake

from the beach at Indian Pines Park, which was owned by defendant Village of Penn

Yan. While wading in the water, she stepped from a sandbar where the lake bottom

drops off and became caught in an undertow or current. De Wick drowned trying to save

her. Neither could swim. The accident occurred on a hot day, four days before the beach

officially opened for the season. The plaintiffs alleged that the village failed to warn

specifically about the dangers of the drop-off and swift current. The court summarily

dismissed the suit. The risk of reaching a drop-off was a reasonably foreseeable risk

inherent in wading into a lake.

Inherent peril assumption, as does express assumption of risk, demands the

presence of three elements. The evidence must show (1) the plaintiff possessed full

subjective understanding, (2) of the presence and nature of the specific risk, and

(3) voluntarily chose to encounter the risk. Kirk v. Washington State University, 109

Wn.2d at 453 (1987). The participant must know that the risk is present, and he or she

must further understand its nature; his or her choice to incur it must be free and

voluntary. Brown v. Stevens Pass, Inc., 97 Wn. App. at 523. In the usual case, his or her

13

No. 34433-9-111

Pellham v. Let's Go Tubing, Inc.

knowledge and appreciation of the danger will be a question for the jury; but where it is

clear that any person in his or her position must have understood the danger, the issue

may be decided by the court. Brown v. Stevens Pass, Inc., 97 Wn. App. at 523; KEETON

ET AL., supra, § 68, at 489.

The rule of both express and inherent peril assumption of risk requires a finding

that the plaintiff had full subjective understanding of the presence and nature of the

specific risk. Kirk v. Washington State University, 109 Wn.2d at 453. Depending on

how specific the risk must be, this statement of the rule taken literally would abrogate the

rule of inherent peril assumption because one rarely, if ever, anticipates the full

particulars of an accident producing injury. One can never predict all of the variables that

combine to cause an accident and injury. Also, the doctrine might not apply in wrongful

death cases, because the judge or jury will lack evidence of the subjective understanding

of the decedent. Washington courts' applications of the rule suggest, however, that the

plaintiff need only know the general nature of the risk. One case example is Boyce v.

West, 71 Wn. App. 657 (1993).

In Boyce v. West, a mother brought a suit against a college and its scuba diving

instructor after the death of her son who died during a scuba diving accident while

engaging in the college course. The mother claimed the instructor negligently taught and

supervised her son. The son, Peter Boyce, signed a document acknowledging the

possibility of death from scuba diving and assuming all risks in connection with the

14

No. 34433-9-111

Pellham v. Let's Go Tubing, Inc.

course, whether foreseen or unforeseen. This court affirmed summary judgment

dismissal of the claims against the school and the instructor. The court reasoned that

negligent instruction and supervision are risks associated with being a student in a scuba

diving course and were encompassed by the broad language of the contract. Although

Peter may not have specifically considered the possibility of instructor negligence when

he signed the release, this lack of consideration did not invalidate his express assumption

of all risks associated with his participation in the course. Knowledge of a particular risk

is unnecessary when the plaintiff, by express agreement, assumes all risks.

Boyce v. West entails express assumption of risk, but the same rule of subjective

knowledge of risk applies to both express assumption and inherent peril assumption.

Based on Boyce v. West and cases involving water sports, we hold that Brian Pellham

assumed the risks involved in river tubing, including the fallen tree. Pellham may not

have precisely and subjectively known how the combination of a swift current, bend in

the river, and a fallen tree would produce his injury. Nevertheless, he knew of the

potential of all factors. He may not have known of the location of any fallen tree in the

river, but he knew of the potential of a fallen tree somewhere in the river. He had more

reason to know of the dangers that caused his injury when he started his excursion than

Peter Boyce had reason to know of the risks that led to his death when Boyce signed his

college course form. In the setting of inherent peril assumption, New York courts have

ruled that, if the participant fully comprehends the risks of the activity or if those risks are

15

No. 34433-9-III

Pellham v. Let's Go Tubing, Inc.

obvious or reasonably foreseeable, he or she has consented to those risks and the

defendant has performed its duty. Ferrari v. Bob's Canoe Rental, Inc., 143 A.D.3d at

938 (2016); Turcotte v. Fell, 68 N.Y.2d 432,439, 502 N.E.2d 964, 510 N.Y.S.2d 49

(1986).

While participants in sports are generally held to have impliedly assumed the risks

inherent in the sport, such assumption of risk does not preclude a recovery for negligent

acts that unduly enhance such risks. Scott v. Pacific West Mountain Resort, 119 Wn.2d at

501; Gleason v. Cohen, 192 Wn. App. at 798. This principle leads us to a discussion of

increased danger assumption.

Courts have struggled to properly distinguish between inherent peril assumption of

risk (implied primary assumption of risk), which bars the plaintiffs claim, and increased

danger assumption of risk (implied unreasonable assumption of risk), which simply

reduces the plaintiffs damages. Barrett v. Lowe's Home Centers, Inc., 179 Wn. App. 1,

6, 324 P.3d 688 (2013). This court warned long ago that courts must carefully draw the

line between these two types of assumption of risk. Gleason v. Cohen, 192 Wn. App. at

795; Dorr v. Big Creek Wood Products, Inc., 84 Wn. App. at 425-26 (1996). A rigorous

application of inherent peril assumption of risk could undermine the purpose of

comparative negligence. Kirk v. Washington State University, 109 Wn.2d at 455-56.

Significantly, inherent peril assumption is the exception rather than the rule in

assumption of risk situations.

16

No. 34433-9-III

Pellham v. Let's Go Tubing, Inc.

Increased danger assumption of risk does not involve a plaintiffs consent to

relieve the defendant of a duty. Gleason v. Cohen, 192 Wn. App. at 796. In this type of

assumption of risk, the defendant breached a duty that created a risk of harm, and the

plaintiff chose to take that risk. Gleason v. Cohen, 192 Wn. App. at 796. Specifically,

increased danger assumption involves the plaintiffs voluntary choice to encounter a risk

created by the defendant's negligence. Scott v. Pacific West Mountain Resort, 119

Wn.2d at 499; Gleason v. Cohen, 192 Wn. App. at 796. Increased danger assumption of

risk arises when the plaintiff knows of a risk already created by the negligence of the

defendant, yet chooses voluntarily to encounter it. Scott v. Pacific West Mountain Resort,

119 Wn.2d at 499 (1992); Gleason v. Cohen, 192 Wn. App. at 798. In such a case, a

plaintiffs conduct is not truly consensual, but is a form of contributory negligence, in

which the negligence consists of making the wrong choice and voluntarily encountering a

known unreasonable risk. Gleason v. Cohen, 192 Wn. App. at 796.

Dorr v. Big Creek Wood Products, Inc., 84 Wn. App. 420 (1996) presents a good

illustration of increased danger assumption of risk. Michael Dorr entered a forest where

his friend John Knecht cut trees. Dorr knew of the phenomenon of "widow makers,"

large limbs caught in surrounding trees after a tree is felled. Nevertheless, after Knecht

cut a tree, Knecht waved Dorr forward to meet him. As Dorr proceeded, a large limb fell

on him. This court affirmed a verdict favoring Dorr. Although Dorr in general assumed

the risk of "widow makers," Knecht's misleading directions led to implied unreasonable

17

f

No. 34433-9-III

Pellham v. Let's Go Tubing, Inc.

or secondary assumption of risk. The jury could still find and did find Dorr

comparatively at fault for proceeding with the knowledge of "widow makers," but Dorr's

fault would be compared with Knecht's fault. The negligence of Knecht arose after Dorr

entered the forest.

Brian Pellham alleges that Let's Go Tubing 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. Although Pellham knew of the risks of logs and current, Pellham did not

know of the precise risk when he first encountered it. When he noticed the risk, he

lacked time to avoid the hazard. Pellham did not voluntarily proceed after knowing of

the alleged negligence of Let's Go Tubing. Any alleged negligence of Let's Go Tubing

occurred before Pellham entered the river. Therefore, increased danger assumption of

risk does not apply.

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. Scott v. Pacific West Mountain Resort, 119 Wn.2d 484 (1992); Brown v. Stevens

Pass, Inc., 97 Wn. App. at 521 ( 1999).

One might argue that Let's Go Tubing's failure to warn increased the risk attended

to the fallen log in the Yakima River. A defendant may be held liable when a reasonable

18

No. 34433-9-III

Pellham v. Let's Go Tubing, Inc.

person would customarily instruct a plaintiff in respect to the dangers inherent in an

activity. Allen v. Dover Co-Recreational Softball League, 807 A.2d at 1288. Thus, a

defendant may be held liable if the plaintiff alleges that a reasonable person would

customarily warn, advise, inform, and instruct regarding the risk of injury to participants

and the manner in which such risks could be minimized and their failure to do so caused

the plaintiff's injuries. Allen v. Dover Co-Recreational Softball League, 807 A.2d at

1288. Brian Pellham presents no evidence that renters of watercrafts customarily warn of

fallen natural objects in the water.

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

risks involved in river tubing including serious injuries and death resulting from the

hazards. 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 that led to Pellham's injuries.

Gross Negligence

Brian Pellham argues that the waiver form he signed does not bar a claim for gross

negligence. The parties, in turn, devote much argument to the issue of whether Pellham

creates a question of fact as to gross negligence. Since we do not rely on express

19

No. 34433-9-111

Pellham v. Let's Go Tubing, Inc.

assumption of risk, we need not directly address this argument. Instead, we must ask and

answer whether a tuber may overcome the defense of inherent peril assumption of risk by

showing gross negligence by the tube rental company.

When inherent peril assumption of risk applies, the plaintiffs consent negates any

duty the defendant would have otherwise owed to the plaintiff. Scott v. Pacific West

Mountain Resort, 119 Wn.2d at 498 (1992); Gleason v. Cohen, 192 Wn. App. at 798

(2016). Based on this premise of inherent peril assumption, the defendant should avoid

liability for gross negligence. Gross negligence constitutes the failure to exercise slight

care. Nist v. Tudor, 67 Wn.2d 322, 331, 407 P.2d 798 (1965). The lack of duty resulting

from inherent peril assumption should extend to an absence of any obligation to exercise

slight care.

At the same time, gross negligence claims survive a release against liability. A

sporting participant's assumption of inherent risks effectively acts as a release from

liability. Since gross negligence claims survive a release, gross negligence maybe should

survive inherent peril assumption of risk.

No Washington case directly holds that a claim for gross negligence survives the

plaintiffs express assumption of risk. Nevertheless, in at least two decisions,

Washington courts assumed that a gross negligence cause of action endured. Boyce v.

West, 71 Wn. App. 657 (1993); Blide v. Rainier Mountaineering, Inc., 30 Wn. App. 571,

636 P.2d 492 (1981). In Boyce v. West, the surviving mother failed to present evidence

20

No. 34433-9-111

Pellham v. Let's Go Tubing, Inc.

of gross negligence. In Blide v. Rainier Mountaineering, Inc., an injured climber did not

argue gross negligence. Other jurisdictions have held that express assumption of risk

does not bar a claim for gross negligence since public policy does not allow one to

exonerate oneself from gross negligence. Coomer v. Kansas City Royals Baseball Corp.,

437 S.W.3d 184, 193 n.3 (Mo. 2014); Kerns v. Hoppe, 128 Nev. 910, 381 P.3d 630

(2012); Perez v. McConkey, 872 S.W.2d 897, 904 (Tenn. 1994).

Since express assumption of risk and inherent peril assumption of risk both result

in the bar of the plaintiffs claim and arise from the plaintiffs voluntary assumption of

risk, one might argue that a gross negligence claim should survive assumption of risk by

inherent peril if it survives express assumption of risk. Nevertheless, the two varieties of

assumption of risk promote different interests and raise disparate concerns. A signed

assumption of all risks could be the result of unequal bargaining power and apply to

activities that involve little, or no, risks. The bargaining power with regard to inherent

peril assumption is immaterial. Assumption follows from hazards the plaintiff

voluntarily assumes because of the thrill and enjoyment of an activity.

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. Instead, other courts addressing the question

consistently limit the liability of the defendant, when inherent peril assumption -applies, to

intentional or reckless conduct of the defendant. Ellis v. Greater Cleveland R. T.A., 2014-

21

No. 34433-9-III

Pellham v. Let's Go Tubing, Inc.

Ohio-5549, 25 N.E.3d 503, 507 (Ct. App.); Custodi v. Town of Amherst, 20 N.Y.3d 83,

980 N.E.2d 933, 957 N.Y.S.2d 268 (2012); Cole v. Boy Scouts of America, 397 S.C. 247,

725 S.E.2d 476,478 (2011); Pfenning v. Lineman, 947 N.E.2d 392,404 (Ind. 2011);

Yoneda v. Tom, 110 Haw. 367, 133 P.3d 796, 808 (2006); Peart v. Ferro, 119 Cal. App.

4th 60, 13 Cal. Rptr. 3d 885, 898 (2004); Allen v. Dover Co-Recreational Softball

League, 807 A.2d at 1281 (2002); Behar v. Fox, 249 Mich. App. 314,642 N.W.2d 426,

428 (2001); Estes v. Tripson, 188 Ariz. 93,932 P.2d 1364, 1365 (Ct. App. 1997); Savino

v. Robertson, 273 Ill. App. 3d 811,652 N.E.2d 1240, 1245, 210 Ill. Dec. 264 (1995);

King v. Kayak Manufacturing Corp., 182 W. Va. 276,387 S.E.2d 511,518 (1989). A

recklessness standard encourages vigorous participation in recreational activities, while

still providing protection from egregious conduct. Behar v. Fox, 642 N.W.2d at 428

(2001). We join the other jurisdictions in imposing an intentional and reckless standard,

rather than a gross negligence standard, when the plaintiff assumes the risks of inherent

perils in a sporting or outdoor activity.

Gross negligence consists of the failure to exercise slight care. Nist v. Tudor, 67

Wn.2d at 331 (1965). Reckless misconduct denotes a more serious level of misconduct

than gross negligence. An actor's conduct is in "reckless disregard" of the safety of

another if he or she intentionally does an act or fails to do an act that it is his or her duty

to the other to do, knowing or having reason to know of facts that would lead a

reasonable person to realize that the actor's conduct not only creates an unreasonable risk

22

No. 34433-9-III

Pellham v. Let's Go Tubing, Inc.

of bodily harm to the other but also involves a high degree of probability that substantial

harm will result to him or her. Adkisson v. City of Seattle, 42 Wn.2d 676, 685, 258 P.2d

461 (1953); Brown v. Department of Social & Health Services, 190 Wn. App. 572, 590,

360 P.3d 875 (2015). Brian Pellham does not allege that Let's Go Tubing engaged in

reckless conduct. No evidence supports a conclusion that the tube rental company bus

driver purposely omitted a warning to Pellham with knowledge that Pellham would suffer

substantial harm.

We affirm the trial court's summary judgment dismissal of Brian Pellham's suit

against Let's Go Tubing.