Water-tuber Falls at the Battenkill River

This was originally published on the SGR Blog.

Was Operator of Site Negligent and Liable?

In July 2018, Jessica Rooney sustained injuries when she slipped on a rock located on an access path while attempting to reach the Battenkill River to go water tubing. Rooney filed a negligence action against Battenkill River Sports & Campground Holding Co, LLC, the company that rented her the tube and shuttled her by van to the river’s access point.

Battenkill moved for summary judgment dismissing the complaint on the basis that it did not owe or breach any duty to Rooney and that her claim was barred by the doctrine of primary assumption of risk. Rooney opposed the motion and argued that Battenkill was a common carrier and, as such, owed a duty of care to maintain the access path.

The Supreme Court found that Battenkill operated as a common carrier, and that questions of fact existed as to whether the embankment’s access path was primarily used for its business and whether Battenkill assumed a duty of care. But the Supreme Court nevertheless granted Battenkill’s motion and dismissed the complaint, finding that the doctrine of primary assumption of risk applied to Rooney’s claims. Both Rooney and Battenkill appealed.

Rooney contended that the doctrine of primary assumption of risk was inapplicable because, although she had traversed the access path on a prior occasion, such activity was not an inherent risk associated with water tubing. Under the assumption of risk doctrine, a person who elects to engage in a sport or recreational activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. But the duty owed under those circumstances is a duty to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, the plaintiff has consented to them and defendant has performed its duty.

In support of its motion, Battenkill submitted photographs of the access path used by Rooney and the particular rock that she identified as the one on which she slipped. Battenkill relied on the depositions of Rooney and Suzanne Piekarz, the daughter of Battenkill’s owner. Rooney confirmed that she had previously used the same access path on a prior water tubing excursion.

Piekarz, who had worked at the business since she was a child, testified that the access path consisted of dry dirt and was not particularly rocky, and that the business did not own or maintain the river’s embankment access path. Her testimony also revealed that customers were warned by posted and written materials to walk and not run to the river, and that they assumed the risk for all river water activities, including one sign, which read: “you assume risk of injury and/or death when participating in river activities.”

Given that evidence, the Court found that Battenkill established its prima facie entitlement to judgment as a matter of law, and that Rooney, who had prior experience water tubing and who had on a prior occasion used the same access path, assumed the inherent risk of her injuries. The risk of falling on uneven and rocky terrain while traversing the river’s embankment to access the river was a commonly appreciated and an obvious risk inherent in and arising out of the nature of the sport of river tubing.

Thus, the burden shifted to Rooney to raise a triable issue of fact as to whether Battenkill concealed or unreasonably enhanced the danger, engaged in reckless or intentional conduct, or created conditions that were unique and not inherent in river water sports activities.

Rooney testified at her deposition that she rented a tube from Battenkill on two prior occasions and that she was taken by shuttle van to an access point, including on one occasion to the same access point where the accident occurred. Rooney recalled receiving documentation to fill out, viewing some warning signs at or near the rental office, and receiving some general instructions during the shuttle van ride, but she did not recall any specific discussions, warnings, or instructions regarding the access point or how to traverse from the shuttle van down to the river’s embankment access path to the river.

Rooney described the river’s embankment access path as a narrow, rocky path that was difficult to navigate while holding a tube. She was wearing flip flops and did not know what caused her to fall. Lastly, Rooney asserted that when she went river tubing in 2017, the river embankment access path was a much smoother surface consisting of hard packed dirt and gravel.

One who engages in water sports assumes the reasonably foreseeable risks inherent in the activity. It is foreseeable that, in order to gain access to the river, Rooney needed to traverse down an uneven embankment consisting of rock and gravel. Although she encountered less than optimal conditions on the river embankment access path in July 2018, the risk of falling on the natural, rocky terrain was interwoven with and inherent in the sport of river water tubing and therefore was assumed by her. Rooney’s vague and equivocal testimony that Battenkill unreasonably increased the risk of traversing the path was insufficient to create a question of fact. Moreover, although she testified that there was no warning sign at the access point, a duty to warn did not extend to open and obvious dangers—particularly those encompassing natural geographic phenomena which could readily be observed by those employing the reasonable use of their senses.

Supreme Court’s award of summary judgment to Battenkill dismissing Rooney’s complaint was proper.

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