Brian Pellham v. Let's Go Tubing, Inc.
199 Wash. App. 399
| Wash. Ct. App. | 2017Background
- Plaintiff Brian Pellham signed a rental/assumption-of-risk form before an unguided inner-tubing trip organized through Let's Go Tubing; he later sustained neck, back, and ear injuries after his tube group struck a partially submerged fallen tree in the Yakima River.
- The company transported customers to a launch site (Ringer Loop) because of low water; the bus driver warned some riders about a downed tree immediately downstream but did not warn Pellham; the driver and company knew of the tree and said they could not legally remove it.
- Pellham requested a lifejacket at launch but was ignored; he and others entered the river in groups; current drew his tied-together tubes into the hidden log around a bend, causing him to be pulled under and hit by branches.
- Pellham sued Let's Go Tubing for negligent failure to warn and a Consumer Protection Act claim; the company asserted defenses including assumption of risk and the signed release; the trial court granted summary judgment for the company and Pellham appealed.
- The Court of Appeals affirmed, holding that inherent-peril (implied primary) assumption of risk for river tubing eliminated any duty to warn (except for intentional or reckless conduct) and therefore summary judgment was proper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Let's Go Tubing owed a duty to warn about the fallen log | Pellham: company chose launch site, knew of hazard, failed to warn → duty and gross negligence | Company: river tubing involves inherent risks (logs, current); participant assumed those risks; no duty to warn | Court: No duty—inherent-peril assumption of risk applies; company not liable absent intentional/reckless conduct |
| Whether assumption of risk (express or implied) bars recovery | Pellham: release doesn't bar claims for gross negligence | Company: signed release and inherent risks bar claim | Court: relied on implied primary (inherent peril) assumption; barred negligence claim (did not resolve express-waiver issue) |
| Whether increased-danger (secondary) assumption or defendant-created risk applies | Pellham: failure to warn increased risk | Company: did not create the hazard; could not remove it | Court: any alleged negligence occurred before entry and did not create a new risk after Pellham knew it; increased-danger rule not applicable |
| Whether gross negligence claim survives inherent-peril assumption | Pellham: gross negligence would override waiver/assumption | Company: assumption of risk negates duty; no recovery | Court: gross negligence insufficient to overcome inherent-peril assumption; only intentional or reckless misconduct could impose liability |
Key Cases Cited
- Scott v. Pacific West Mountain Resort, 119 Wn.2d 484 (1992) (explains inherent-peril/assumption-of-risk in sports context and that such assumption can bar recovery)
- Kirk v. Washington State University, 109 Wn.2d 448 (1987) (articulates elements for assumption of the risk and differentiates its types)
- Tincani v. Inland Empire Zoological Society, 124 Wn.2d 121 (1994) (negligence elements and duty as threshold legal question)
- Boyce v. West, 71 Wn. App. 657 (1993) (upholds summary dismissal under an express assumption/release in a scuba context)
- De Wick v. Village of Penn Yan, 275 A.D.2d 1011 (2000) (applies inherent-peril assumption to water recreation; no duty to warn of natural, transitory water hazards)