Legalities of Risk and Rafting Trip Participation
What is a rafter’s legal duty to their guests?
Experienced recreational rafters often invite their less-experienced friends and family on trips. During these trips, guests will often rely on the experienced rafter for safety equipment (wetsuits, PFDs, etc.) and to safely guide them down the river. Although no money is exchanged, the relationship has a power dynamic similar to commercial trips.
This raises the question, what is your legal duty to your recreational guests?
Disclaimer: This information and discussion is offered for educational purposes only and does not represent legal advice for any particular purpose. The discussion offers a broad summarization of the law across multiple jurisdictions and cannot accurate articulate the ever-changing state of the law. This information should not be used to substitute competent legal advice.
To answer this question, we examined caselaw from three states: California, Washington State and West Virginia.
Before discussing specifics, it is helpful to articulate an exemplary fact pattern:
Susan is a highly experienced recreational rafter with her own equipment. For her next trip, Susan has invited three friends (“Guests”) to go rafting with her. Susan’s Guests have never rafted before and will ride in her boat and will use her wetsuits and PFDs. Susan is very familiar with the river and will guide the raft.
With this fact pattern in mind, we’ll briefly discuss Susan’s legal duty, if any, to her Guests and her potential defenses to liability.
If someone is injured while whitewater rafting, they (“Plaintiff”) may bring a legal claim alleging their guide (“Defendant”) acted negligently. To prevail, the Plaintiff must establish four elements:
That the Defendant owed a duty to the Plaintiff;
That Defendant breached that duty;
That Plaintiff suffered an injury; and
Defendant’s breach of their duty caused the injury.
For this article, we will focus on the first and second elements of a negligence claim.
Duty and Assumption of Risk
There is very little legal authority arising from recreational whitewater rafting, but valuable lessons can be drawn from caselaw involving other recreational activities.
For risky recreational activities, such as alpine skiing or contact sports, courts generally avoid imposing legal duties that might chill participation. Courts recognize that the negligent conduct of co-participants, such as an errantly thrown baseball, are inherent risks of the activity. In such activities, courts apply a doctrine called “implied assumption of risk.” Under this doctrine, a defendant does not have a duty to protect participants from dangers which are an inherent and normal part of the sport.[1]
Courts in all three jurisdictions we examined recognize that whitewater rafting is an inherently risky activity. [2] As the California Court of Appeals articulated, inherent risks in rafting include “violent movement of the raft while traversing rapids [that] can cause the raft to overturn or the occupants to be thrown into the water where they risk striking rocks or even drowning.” [3] This comes as no surprise to any of our readers who have swum rapids or been struck by an errant oar. Because rafting is inherently risky, the doctrine of implied assumption of risk applies.
Applying this doctrine to our fact pattern, Susan has no duty to protect her Guests from injuries arising from risks inherent to whitewater rafting, such as flush drowning or impact-trauma. By voluntarily participating in whitewater rafting, her Guests assumed the risk that she might act negligently or experience common place hazards.
The assumption of risk doctrine does not relieve Susan of all duties. Susan and her Guests each have the duty to not increase or create new risks above those inherent to whitewater rafting. To understand this limitation, West Virginia provides a helpful illustration. In that state, raft guides have a duty to not act “willfully” or “wantonly negligent.”[4] Willful negligence arises when a person intentionally acts, or fails to act, knowing that their conduct will result in injury.
To understand the difference between negligence and willful negligence, consider this example: if Susan ignored warning signs and her Guests’ protests, and intentionally guided her raft over an unnavigable dam, she would likely be “willfully negligent.”
For the assumption of risk doctrine to apply, Susan’s Guests must voluntarily choose to whitewater raft despite the inherent risks. Therefore, Susan should give a safety talk before putting-in, and specifically discuss the risks of drowning or injury with her Guests. That way, each Guest is given the opportunity to knowingly and voluntarily participate.
Unintentional Qualification as a “Commercial Operator”
Many states have passed laws which create specific duties and requirements for commercial operators. Therefore, it is especially important to understand the regulations of your state to avoid unintentionally qualifying as a “commercial operator.” The primary qualification for commercial operators is providing equipment or river guiding services in exchange for payment. State laws often provide their own unique definitions and qualifications. In Washington State, a license is required to accept money for whitewater trips or to advertise as a “whitewater river outfitter.”[5] In Colorado, a license is required for any person providing “river running services.”[6]
Once an individual or company qualifies as a commercial operator, it must comply with statutory safety regulations. For example, in West Virginia, rafting guides must have completed at least fifteen training trips, two familiarization trips on the specific stretch where they’ll be guiding, and one evaluation trip.[7] In Washington State, commercial operators must ensure that each participant has a USCG-approved Type III or V PDF, and that each boat must have the following: (1) three independent air chambers, (2) a throw bag, (3) a first aid kit, (4) a spare paddle or oar, and (5) that a repair kit and hypothermia kit are available.[8] Because these state laws provide detailed and specific requirements, it is especially important for recreational boaters to avoid accidentally qualifying as a commercial guide service by accepting money for trips. Even so, it may be prudent to adopt some of these safety measures with your guests to increase the group’s overall safety.
How do courts look at your legal duty?
As discussed above, courts generally recognize that whitewater activities are, by their nature, inherently risky activity and that individuals assume substantial risk by participating. Because of that, courts generally do not impose liability on recreational rafters. As long as they do not act wantonly or willfully negligent, then they would likely avoid liability for their Guests’ injuries. Regardless of their legal duties, experienced rafters should always be prepared and exercise good judgment by applying community-accepted safety practices such as the Safety Code of American Whitewater.[9]
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References
[1] W. Keeton, D. Dobbs, R. Keeton & D. Owens, Prosser and Keeton on Torts 496 (5th ed. 1984).
[2] Ferrari v. Grand Canyon River Dories, 32 Cal. App. 4th 248 at 253 (1995); River Riders, Inc. v. Steptoe, 223 W. Va. 240, 244, 672 S.E.2d 376, 380 (2008); Pellham v. Let's Go Tubing, Inc., 199 Wn. App. 399, 412, 398 P.3d 1205, 1214 (2017).
[3] Ferrari at 253.
[4] Murphy v. North American River Runners, 412 S.E.2d 504 (W. Va. 1991)
[5] RCW 79A.60.410-490
[6] Fortunately, the Colorado legislature had the foresight to create an exemption for anyone only providing the service to family and friends. (33-32-102(6) C.R.S.)
[7] W. Va. Code, §58-12-12.
[8] RCW 79A.60.430.
[9] https://www.americanwhitewater.org/content/Wiki/safety:start
