Elvis Downes v. Oglethorpe University, Inc.
342 Ga. App. 250
| Ga. Ct. App. | 2017Background
- Erik Downes, a 20‑year‑old Oglethorpe student, drowned at Playa Ventanas, Costa Rica during a 12‑day university study‑abroad trip in January 2011. Plaintiffs are his parents/estate administrators.
- Oglethorpe organized the trip, contracted a local tour operator, required students to sign release agreements with exculpatory language, and held pre‑trip meetings where professors asked if students were good swimmers and warned there would be currents.
- On the day of the drowning there were no lifeguards, warning signs, or safety equipment on the beach; students swam together, were pulled out by a current, and Downes disappeared and later drowned.
- Plaintiffs’ expert opined Downes was caught in a rip current and testified that some Pacific coast beaches in Costa Rica (including “pocket beaches”) are particularly hazardous and that drownings there are well publicized.
- Oglethorpe moved for summary judgment arguing (1) no duty, (2) waiver and lack of gross negligence, and (3) assumption of risk. The trial court granted summary judgment; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Downes assumed the risk of drowning by entering the Pacific Ocean | Downes did not assume the specific risk because Oglethorpe allegedly created the dangerous situation by taking students to an uninvestigated, unsafe beach without safety planning | Downes, a competent adult, knew the general danger of drowning and voluntarily entered the ocean, thereby assuming the risk | Court held assumption of the risk proved as a matter of law; Downes is chargeable with appreciation of drowning risk and assumed it by entering the ocean |
| Whether Oglethorpe’s alleged negligence in planning/supervising the program defeats assumption‑of‑risk | Oglethorpe breached duties (no investigation, training, emergency plan, or safety equipment) and thus created the peril | Even if negligent, a plaintiff who assumes an obvious risk bars recovery unless wilful/wanton conduct is shown | Court: Even assuming negligence, assumption of the risk can bar recovery; no basis to treat ocean like a pool or impose insurer‑style duties on Oglethorpe |
| Whether statutory or common law required Oglethorpe to provide safety equipment or pool‑style duties | Plaintiffs: university owed affirmative duties analogous to operators of nonresidential swimming facilities and could have prevented death by providing safety equipment | Oglethorpe: no statutory/common‑law duty to furnish pool‑style safety equipment for a public ocean beach on a study‑abroad trip | Court: No showing of statutory duty or that ocean is analogous to a nonresidential pool; plaintiffs’ arguments insufficient to defeat summary judgment |
| Validity/impact of signed release and gross negligence claims | Plaintiffs: exculpatory clause unenforceable and gross negligence cannot be waived; material facts remain | Oglethorpe: waiver and lack of gross negligence bar claims | Court: Other claims rendered moot by holding on assumption of risk; summary judgment affirmed |
Key Cases Cited
- Assaf v. Cincinnati Ins. Co., 327 Ga. App. 475 (discussing summary judgment standard)
- Johnson v. Omondi, 294 Ga. 74 (summary judgment review principles)
- Vaughn v. Pleasent, 266 Ga. (assumption‑of‑risk definition and elements)
- Gilreath v. Smith, 340 Ga. App. 265 (specific knowledge element for assumption of the risk)
- Findley v. Griffin, 292 Ga. App. 807 (assumption of the risk on summary judgment standard)
- Bourn v. Herring, 225 Ga. 67 (drowning risk is obvious and chargeable to competent persons)
- White v. Georgia Power Co., 265 Ga. App. 664 (perils of deep water are instinctively known)
- City of Winder v. Girone, 265 Ga. 723 (assumption of risk can bar recovery despite defendant negligence)
- Rice v. Oaks Investors II, 292 Ga. App. 692 (obvious risk of drowning bars recovery even where defendants negligent)
- Sayed v. Azizullah, 238 Ga. App. 642 (decedent assumed risk of swimming as a matter of law)
- Riley v. Brasunas, 210 Ga. App. 865 (failure to supervise not proximate cause where plaintiff exposed himself to obvious danger)
- Holbrook v. Executive Conf. Ctr., 219 Ga. App. 104 (absence of statutorily required safety equipment can be proximate cause in some cases)
- Alexander v. Harnick, 142 Ga. App. 816 (issue of fact when defendant took someone onto water without required safety equipment)
- Walker v. Daniels, 200 Ga. App. 150 (duty owed by owners/operators of nonresidential swimming facilities)