FAIRCHILD v. AMUNDSON, 45563-0-I (Wash.App. 1-29-2001)

No. 45563-0-I.The Court of Appeals of Washington, Division One.
Filed: January 29, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of King County, No. 98-2-07691-7, Hon. Richard Eadie, October 19, 1999, Judgment or order under review.

Counsel for Appellant(s), Philip Mahoney, Attorney At Law, 720 3rd Ave. Ste. 1903, Seattle, WA 98104-1825.

Counsel for Respondent(s), Gabriel Baker, 1420 5th Ave. Ste. 4100, Seattle, WA 98101-2338.

Warren E. Babb Jr., Lane Powell Spears Lubersky, Ste. 4100, 1420 5th Ave., Seattle, WA 98101-2338.

Timothy J. Graham, 1420 5th Ave. Ste. 4100, Seattle, WA 98101-2338.

Warren E. Babb Jr., Lane Powell Spears Lubersky, Ste. 4100, 1420 5th Ave., Seattle, WA 98101-2338.

Timothy J. Graham, 1420 5th Ave. Ste. 4100, Seattle, WA 98101-2338.

Warren E. Babb Jr., Lane Powell Spears Lubersky, Ste. 4100, 1420 5th Ave., Seattle, WA 98101-2338.

Timothy J. Graham, 1420 5th Ave. Ste. 4100, Seattle, WA 98101-2338.

RONALD E. COX, J.

At issue is whether Wild Water River Tours owed a duty to its customer, Thomas Fairchild, for injuries that he suffered during a rafting trip on the Toutle River. Because the doctrine of implied primary assumption of risk bars Fairchild’s claim, we affirm the summary dismissal of this action.

In April 1995, Tom Fairchild participated in a whitewater rafting trip on the Toutle River. Rodney Amundson, d/b/a Wild Water River Tours (WWRT), guided the commercial rafting trip. Fairchild had been on whitewater rafting trips before, and knew that one of the dangers inherent in rafting was the possibility that rafters would fall out into the water. He also read brochures of WWRT that described certain dangers of river rafting. On the day of the rafting trip, Fairchild and his church group assembled near the river under the supervision of WWRT. Fairchild donned a wetsuit, helmet, and life vest issued by WWRT. The rafters all signed an `Acknowledgement of Risk’ form. WWRT guides then instructed them on paddling techniques and safety measures. The safety measures included instructions on maneuvering the raft near logs, rocks, and reversals. They also included instructions on swimming in the event rafters are in the water, pulling a swimmer back into the raft, and escaping from underneath a capsized raft. River rapids are classified on a scale from class I (easiest) to class VI (most difficult). The Toutle River has two class IV rapids, one of which is known as Hollywood Gorge (Gorge). The Gorge also contains a `reversal,’ a point in the river subject to strong downward pressure that may cause a raft to overturn. As they approached the Gorge, all the rafts stopped, and Amundson and other WWRT guides got out of the rafts and scouted the Gorge. After everyone returned to their rafts and re-entered the river, Amundson’s raft successfully navigated through the Gorge to an eddy just beyond the reversal. Amundson then waited for the other rafts.

As Fairchild’s raft entered the Gorge, it was sucked into a reversal, and all the occupants were thrown into the water. Amundson observed this from his raft and immediately paddled out of the eddy and into the river’s current to retrieve Fairchild. Amundson and others administered CPR to Fairchild, who had been floating face down in the river, and resuscitated him. Thereafter, Fairchild went to a hospital, where he was treated and released the next day.

Fairchild sued. The trial court granted WWRT’s motion for summary judgment.

Fairchild appeals. Implied Assumption of Risk Fairchild argues that material factual issues exist as to whether the doctrine of implied primary assumption of risk bars his recovery. We disagree.

We may affirm an order granting summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.[1] We consider all facts and reasonable inferences in the light most favorable to the nonmoving party.[2] We review questions of law de novo.[3]

The moving party bears the initial burden of showing the absence of a genuine issue of material fact.[4] Once that burden is met, the burden shifts to the party with the burden of proof at trial to make a showing sufficient to establish the existence of an element essential to that party’s case.[5] If the claimant fails to meet that burden, the trial court should grant the motion because there can be no genuine issue of material fact given that a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.[6]

WWRT asserts that the doctrine of assumption of risk bars recovery. That doctrine has four facets: (1) express assumption of risk, (2) implied primary assumption of risk, (3) implied reasonable assumption of risk, and (4) implied unreasonable assumption of risk.[7] Implied primary assumption of risk is at issue here. It occurs where the plaintiff impliedly has consented to relieve the defendant of an obligation or duty to act.[8] With implied primary assumption of risk, the plaintiff engages in conduct from which consent is then implied.[9] If implied primary assumption of risk is established, it bars any recovery.[10]

At summary judgment, WWRT was required to show that (a) Fairchild had full subjective understanding of the nature and presence of a specific risk, and (b) he voluntarily chose to encounter the risk.[11] Knowledge of and appreciation of the specific risk of danger, and voluntariness are questions of fact for the jury, except when reasonable minds could not differ.[12]

Here, WWRT established both elements of implied primary assumption of risk. First, the evidence shows that Fairchild subjectively knew and understood the specific risk of falling into the water and drowning. Prior to the rafting trip, Fairchild read WWRT’s brochures describing whitewater rafting on the Toutle River. The brochures listed the Toutle River as a class IV river and described rafting on that river as `fast
furious’ and `[y]ou’ll never know when you’re going to hit crushing waves and bottomless holes.’ Fairchild testified in his deposition that he had been rafting on a slower river before and wanted a more exciting whitewater rafting trip when he signed up with WWRT. Prior to boarding the rafts, WWRT outfitted Fairchild with a wetsuit, helmet, and vest. It also instructed him on swimming techniques. Moreover, Fairchild admitted in his deposition that getting thrown from the raft into a rushing river was a danger inherent to whitewater rafting on the Toutle River. Reasonable minds could not differ in deciding that Fairchild knew of and appreciated the specific risk of falling into the water and possibly drowning.

Likewise, reasonable minds could not differ that Fairchild was aware of the above specific risks when he signed the `acknowledgment of risk’ form which states that:

I am aware that participating in this raft trip arranged by Wildwater River Tours, its agents or associates, that I face certain risks, dangers, and personal property damage. This may include but not be limited to the hazards of traveling down rivers in inflatable rafts, accident or illness in remote places without medical facilities, forces of nature and travel by automobile or other conveyance. In consideration of, and as part payment for the right to participate in this trip and the services and food arranged for me by Wildwater River Tours, and its agents or associates, I do hereby acknowledge all of the above risks. The terms hereof shall serve as my acknowledgment of risk for my heirs, executors and administrators and for all members of my family I have carefully read this agreement and fully understand its contents.[13]

The above facts all establish that Fairchild knew of the nature and presence of the specific risk of falling into the river and possibly drowning. It also shows that he voluntarily assumed those risks. Fairchild attempts to establish that a genuine issue of material fact exists as to his subjective knowledge or understanding of the risk of being thrown into the water. We reject this argument.

`When a party has given clear answers to unambiguous [deposition] questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.’[14] In his declaration, Fairchild stated that he was not aware of the risk of being thrown into the water at the time he signed the `acknowledgment of risk’ form. But this contradicts, without explanation, Fairchild’s prior deposition testimony in which he admitted that he knew of that specific risk. Thus, Fairchild has failed to establish a genuine issue of material fact on the issue of whether he subjectively knew the presence and nature of the risk of being thrown into the water.

Fairchild also attempts to show that a genuine issue of material fact exists as to whether he voluntarily chose to encounter the risk of being thrown into the water. He contends that because there were no reasonable alternatives available to him to assuming the inherent risks of river rafting, he did not voluntarily choose to assume those risks.[15] We disagree.

Whether a plaintiff decides voluntarily to encounter a risk depends on whether he or she elects to encounter it despite knowing of a reasonable alternative course of action.[16] In other words, the plaintiff must have had a reasonable opportunity to act differently or proceed on an alternate course that would have avoided the danger in order for assumption of risk to bar recovery.[17]

Here, Fairchild chose to encounter the risk of being thrown into the water despite having numerous reasonable alternatives. He could have chosen to take a slower rafting trip. He could have elected to forego whitewater rafting altogether. He could have chosen not to continue with the trip once he reached the starting point or gotten out when his raft stopped and WRRT guides walked on the bank to scout the Gorge. In sum, Fairchild fails to establish a genuine issue of fact as to whether he voluntarily encountered the risk.

Fairchild also argues that he did not assume the risk of WWRT’s alleged negligence in operating the raft because he knew that he might fall out of the raft and into the river.[18] This was not an argument that Fairchild made below.[19] Thus, we need not consider it for the first time on appeal.[20] In any event, there is nothing in this record that establishes that any action or omission of WWRT was outside the scope of the risks that are inherent in the sport of river rafting.[21]

We need not address Fairchild’s contention that by signing the `acknowledgment of risk’ form, he did not expressly assume the risk of falling into the water. WWRT does not argue that express assumption of risk applies to bar Fairchild’s recovery. Rather, the issue is whether implied assumption of risk applies. We hold that it does.

Fairchild also asserts that the trial court improperly placed the burden of proof on him `to show that there was negligence rather than [placing] the burden on [WWRT] to show that no reasonable jury could find negligence from the material facts submitted in the record.’ There was no improper shifting of burden here. WWRT moved for summary judgment based on implied primary assumption of risk. It was then Fairchild’s burden to show whether a genuine issue of material fact exists as to the doctrine. He simply failed to do so.

We affirm the order granting defendants’ motion for summary judgment.

WE CONCUR: COLEMAN, ELLINGTON