Pellham v. Let’s Go Tubing, Inc.

Brian Pellham (plaintiff) decided to go river tubing using the services and equipment of Let’s Go Tubing, Inc. (defendant). Prior to participation, Pellham signed a release form, releasing Let’s Go Tubing from liability and assuming all risks of his participation. The release form indicated that Pellham understood that river tubing was a hazardous activity and that hazards and obstacles, such as fallen trees, existed in the river. The release form also indicated that a participant accepted such dangers, whether the dangers were identified or not. Finally, the release form indicated that the participant understood that significant injuries or death could occur and that the participant held Let’s Go Tubing harmless from all claims related to the use of its equipment. On the day that Pellham went tubing, Let’s Go Tubing’s shuttle driver told some of the participants that a tree had fallen across the river downriver from the launch site, but the tree could not be seen from the launch site. The driver instructed those participants how to steer to avoid the tree, but he did not alert Pellham to the existence of the tree or tell him how to avoid hitting the tree. Pellham hit the tree and sustained injuries requiring neck-fusion surgery. Despite having signed the release form, Pellham sued Let’s Go Tubing, alleging a failure to warn and other claims. Let’s Go Tubing asserted the affirmative defense of assumption of the risk and release of liability, and it sought summary judgment. Pellham reasoned that he had not waived liability because of Let’s Go Tubing’s gross negligence and because he had not assumed the risk of running into an obstacle. A trial court granted summary judgment in Let’s Go Tubing’s favor. Pellham appealed. On appeal, the appellate court dismissed Pellham’s argument regarding gross negligence, imposing a standard requiring a defendant’s intentional or reckless misconduct, which Pellham had not shown, in order for a plaintiff to overcome the defense of inherent-peril assumption of the risk. The appellate court also considered the effect of the doctrine of inherent-peril assumption of the risk on Pellham’s case.