River Rafting Company Cleared on Mom’s Drowning

     (CN) – A river-rafting company’s liability waiver shields it from suit by the son of a woman who drowned during their family adventure in the Colorado Rockies, the 10th Circuit ruled Tuesday.
     “This case arises from a summer rafting trip gone tragically wrong,” the 16-page opinion begins.
     Writing for a divided three-judge panel in Denver, Judge Neil Gorsuch goes on to describe how a family’s raft capsized on the Arkansas River while maneuvering around a rapid known as “Seidel’s Suck Hole.”
     Although the rest of the family was pulled to safety, mother Sue Apolinar was swept downstream into a logjam where she drowned. Her son, Jesus Espinoza, sued Arkansas Valley Adventures, the company hired to guide the family’s overnight rafting and camping excursion.
     A federal judge threw out the case at summary judgment, however, citing the waiver Apolinar signed prior to embarking on the voyage.
     The 10th Circuit agreed Tuesday, saying this release absolved Arkansas Valley Adventures from all liability.
     Examining liability under Colorado contract law, the court noted that such waivers work differently for providers of recreational services as compared with companies that provide essential services such as sanitation or electricity.
     This is because a participant can walk away if she deems the risk to be too great,
     Gorsuch wrote.
     This policy choice causes some losses to go uncompensated but it “also promotes the output and diversity of recreational services consumers may enjoy,” according to the ruling.
     Whether alleging common-law negligence or negligence per se, Espinoza’s case is unsuccessful, the court found.
     “It seems hard to see a rational basis on which the law might treat such similar (identical?) claims so differently based merely on how they are pleaded, rewarding the crafty but penalizing the pedestrian pleader,” Gorsuch wrote (parentheses in original).
     Espinoza failed to sway the court that the company misrepresented the trip as being safer than it actually was, claiming his mother “was told by company representatives and read on its website that the trip was appropriate for beginners.”
     Regardless of how the trip was represented to Apolinar, the courts say she went into it with her eyes open to the risks.
     “When Ms. Apolinar arrived at the outfitter’s office she received a vivid description of the risks she could face,” Gorsuch wrote, going on to quote the language of the agreement in detail.
     Titled “RAFTING WARNING,” the document that Apolinar signed explained “that rafting can be ‘HAZARDOUS AND INVOLVES THE RISK OF PHYSICAL INJURY AND/OR DEATH,'” according to the ruling.
     Gorsuch said “the document proceeded to offer a detailed picture of the sorts of problems that could be (and sadly were) encountered: ‘cold water immersion, hidden underwater obstacles, trees or other above water obstacles, … changing and unpredictable currents, drowning, exposure, swimming, overturning, … entrapment of feet or other body parts under rocks or other objects.'”
     In all capital letters, the agreement required Apolinar to acknowledge “that the description of the risks listed above is not complete and that participating in the activity may be dangerous and may include other risks.”
     The document also emphasized that “its representations and warnings about the trip superseded any prior ‘communications or representations,’ on these subjects,” Gorsuch said.
     Judge Harris Hartz wrote in a partial dissent that the court should have let a jury decide whether Apolinar was misled about the danger of the rapids.
     “Although the warning provided to her at the outfitter’s office listed all the potential risks that she would face, the description of the rapids is what would convey the probability of those risks,” the single-paragraph dissent states. “It is not enough to list a risk if the customer has been misled about its probability.”
     Gorsuch’s lead opinion closed with an expression of sympathy for Apolinar’s family. “Enduring the death of a close family member in tragic circumstances is among life’s bitterest challenges,” he wrote. “The loss Ms. Apolinar’s family has suffered is beyond words. But our charge is to follow the law. And in this case the law is just as the district court described it.”
     Espinoza is represented by William Hansen with McDermott & McDermott and by George McLaughlin of Warshauer McLaughlin Law Group.
     The rafting outfitters are represented by Alan Epstein of Hall & Evans.
     The Colorado Trial Lawyers Association submitted an amicus brief in support of Espinoza, written by Chalat Hatten Koupal & Banker attorney Russell Hatten.
     Attorneys for the parties have not returned emails or voicemails seeking comment.

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