## Facts

- Brian Pellham decided to go river tubing on the Yakima River using the services and equipment of Let’s Go Tubing, Inc.
- Before participating, Pellham signed a written release and assumption-of-risk agreement required by the company.
- The release stated that river tubing can be hazardous and that obstacles such as rocks and fallen trees/logs exist in the river.
- The release also stated that participants accept these dangers “whether the dangers are identified or not,” acknowledged that serious injury or death could occur, and agreed to hold Let’s Go Tubing harmless from claims related to use of its equipment.
- On the day of the trip, a tree had fallen across the river downstream from the launch site and could not be seen from the launch location.
- Let’s Go Tubing’s shuttle driver told some participants about the fallen tree and gave instructions on how to steer to avoid it, but he did not specifically warn Pellham or instruct him how to avoid the tree.
- While floating downstream, Pellham’s tube struck the fallen tree, and he suffered injuries that required neck-fusion surgery.
- Pellham sued Let’s Go Tubing, asserting a failure-to-warn theory and related claims, despite the signed release.
- Let’s Go Tubing raised assumption of risk and the release as affirmative defenses and moved for summary judgment; the trial court granted the motion, and Pellham appealed.

## Issues

1. Whether, under Washington’s primary assumption-of-risk doctrine for risks that are a normal part of a recreational activity, Let’s Go Tubing owed Pellham a duty to warn him about a fallen tree hidden from the launch site but known to the company.
2. Whether Pellham produced evidence of “gross negligence” (or a higher level of fault) sufficient to avoid summary judgment despite the primary assumption-of-risk doctrine and the signed release.

## Decision

- The Washington Court of Appeals, Division Three, affirmed the trial court’s summary judgment dismissal of Pellham’s claims.
- The court held that a collision with a fallen tree/log is a risk that is a normal part of unguided river tubing, and primary assumption of risk operates as a no-duty rule for such risks.
- The court rejected Pellham’s effort to avoid the no-duty rule by labeling the company’s conduct “gross negligence,” explaining that the record did not show intentional or reckless misconduct.
- The release reinforced the result because it expressly warned of hazards such as logs/fallen trees and stated that participants accept such dangers even if not specifically identified.

## Legal Principles

- Primary assumption of risk applies when a participant voluntarily engages in a recreational activity and is injured by a risk that is a normal part of that activity; in that setting, the defendant has no legal duty to protect the participant from that type of risk.
- For unguided river tubing, natural river conditions and obstacles (including logs or fallen trees) may qualify as risks that are a normal part of the activity.
- A plaintiff cannot avoid the no-duty effect of primary assumption of risk by showing only ordinary negligence; to proceed, the plaintiff must show conduct amounting to intentional or reckless misconduct (or similar heightened fault) that goes beyond the activity’s ordinary risks.
- A written release and express assumption-of-risk agreement, when clear and specific about the nature of the activity and examples of hazards, supports summary judgment where the injury results from a risk described in the agreement and no heightened misconduct is shown.
- A provider’s knowledge of a specific natural obstacle and a warning given to some participants does not, by itself, create a duty to warn every participant when the injury stems from a risk treated as a normal part of the activity under the primary assumption-of-risk doctrine.

## Conclusion

The court affirmed summary judgment for Let’s Go Tubing because Pellham’s injuries resulted from a risk treated as a normal part of unguided river tubing—contact with a fallen tree/log—so primary assumption of risk eliminated any duty to warn, and Pellham failed to show intentional or reckless misconduct that could avoid that no-duty rule; the signed release further supported dismissal.


Pellham v. Let's Go Tubing, Inc., 199 Wash. App. 399 (2017)