Extreme Sports and Assumption of Risk

Ted at Overlawyered points out a case arising out of Hawaii, where a newlywed disappeared while kayaking, and her husband filed a lawsuit against the rental company, Extreme Sports Hawaii. The husband claimed that the couples were caught in strong winds and were taken out to sea, where a shark attacked and killed his wife. Many questioned the claim, though, as her life jacket was found, unbuckled and with no rips or tears, there was no damage to the kayak, and both oars were found on shore (one propped up against the rocks). (Song & Kubota, "'Unusual': No blood on kayak", Honolulu Star-Bulletin, 03/26/99). In short, this seemed more like human error while engaging in a somewhat dangerous sport.

Even still, the husband filed suit against the rental company. (He also filed suit against the Coast Guard under the Federal Tort Claims Act for negligence in attempting to rescue her, but that case was dismissed.) Ted asks a good question: Does "anything remains of the doctrine of 'assumption of the risk' if a company called Extreme Sports Hawaii' can't invoke it without going through a trial and an appeal?"

Sadly, little does remain of the doctrine of assumption of risk. In some states, it has been abolished altogether, or it has merged with a system of comparative negligence. This prevents defendants from using assumption of risk as a complete defense and moving for summary judgment. Thus, more and more of these defendants are forced to bear the expense of litigating a trial and putting their financial fate in the hands of a jury.

In this case, the jury did find the company to be not negligent ("Company not guilty in Maui kayak death", Honolulu Star-Bulletin, 05/09/2003), most likely based on the company's statement that it warned the couple not to paddle beyond a certain area and the many factual inconsistencies in the husband's story. The only reason the case got before a jury was because there was an issue of material fact: whether or not the company warned the couple of the small craft wind advisory that was in effect that day. This distinguishes the case from an earlier Hawaii case, Wheelock v. Sport Kites, 839 F.Supp 730 (D.Haw. 1993), where a signed liability release agreement was held valid as to negligence claims. In this case, the plaintiffs most likely argued that the failure to warn would be gross negligence, rather than negligence, and thus summary judgment was not appropriate.

I think that is probably the correct result. I certainly do not want to see extreme sports companies (or any sport provider) faced with a rash of lawsuits for simply providing the survive that the customer wants. However, in cases where there is a factual dispute about the nature of the warning, and whether it was complete given a unique weather situation, perhaps the question should go to the jury. What the legal system must ensure, though, is that this limitation on summary judgment is not extended any further, as this would greatly increase the potential legal costs for sports providers and potentially jeopardize the recreational sports industry.

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