Maynard

CHARLESTON -- Whitewater rafting companies no longer would receive protection if the state Supreme Court adopts standards that would permit an open interpretation of safety statutes, Chief Justice Spike Maynard said during a Tuesday argument hearing.

"To violate a criminal safety statute, you have to do something specifically mandated in the act," Maynard said, speaking to Paul D. Beckman, who was arguing on behalf of Jefferson Circuit Judge Thomas W. Steptoe. "If we adopted the standard you want us to adopt, there is no protection to people who operate this business. It's a judgment call."

Maynard and the other Justices listened to arguments in the appeal of orders Steptoe made earlier this year.

Two suits were filed in Jefferson Circuit Court after one rider drowned and 13 others were injured, according to the complaints.

The plaintiffs in the suits were on a rafting trip Sept. 30, 2004, with River Riders Inc. in Harpers Ferry. Most worked for Kaiser Permanente in Maryland and were taking part in a team-building exercise when the incident occurred.

Before their whitewater rafting trip, each of the rafters signed a "Release, Assumption of Risk and Indemnity Agreement." River Riders Inc. notes that whitewater rafting guides and outfitters may be found liable only if they breach duties outlined in state Code. The Legislature enacted the Whitewater Responsibility Act in 1987 to govern actions against whitewater companies for injuries received during the course of a trip.

Two months before trial, River Riders challenged three of Steptoe's orders.

First, it alleges Steptoe had no business ordering the case be governed by "general maritime law," said Charleston attorney Bob Martin, who represents River Riders.

General maritime law prohibits River Riders from arguing an assumption of risk, which is permitted under the Whitewater Responsibility Act and state law.

"This time, I say our court has usurped the powers of the Legislature," he said. "Maritime law is a very exclusive area of law. There is not a case where a state court has accepted maritime principals."

In order for maritime or admiralty law to apply, the plaintiffs have to show the Shenandoah River is navigable, River Riders argues.

"Shenandoah is navigable down south, and it is navigable where you're talking about on rubber rafts," Justice Larry Starcher said. "I've done it."

Maynard said he was amazed by the argument of navigability.

"My understanding working in flood control is that the U.S. Army Corps of Engineers designated whether a river was navigable and where it is navigable," he said. "It's either navigable or it isn't."

Maynard also wondered whether the Longshoreman's and Harbor Works Act applied to whitewater rafters. The act works like workers' compensation for workers on navigable waters.

"If the federal workers' comp act for people who work on navigable streams doesn't apply, why would other navigable laws apply?" he asked.

Stephen G. Skinner, an attorney for a plaintiff in the case, said River Riders did not argue against maritime law in lower court before bringing the issue to the Supreme Court.

In addition, Beckman added maritime laws are nearly identical to state laws.

"When counsel argues maritime law will upset its apple card, it is just not the case because the law is the same as it relates to West Virginia law as maritime law," he said.

Beckman claims River Riders violated the Whitewater Responsibility Act by permitting five rafts to go out on hurricane-swollen waters when no other rafts ventured out that day.

"It's not a judgment call; it's a violation of accepted standards of care," Beckman said. "There was discovery that indicated River Riders did not go out if water was above 12 feet. Other experts said it was extraordinarily dangerous to go out this day. They never should have gone out this day."

Maynard said Beckman should prove River Riders violated a specific statute and that people should expect danger when they go whitewater rafting.

"These are dangerous activities," he said. "It attracts people to them. They come for the thrill of this experience."

In addition to its appeal of the general maritime law, River Riders says Steptoe erred when he signed an order prohibiting it from introducing the plaintiffs' signed releases as evidence at trial.

Finally, River Riders said the Court shouldn't have consolidated the original two cases.

"One was a wrongful death case and another was a personal injury case based on maritime law," Martin said.

Skinner argued the case revolves around whether River Riders should have permitted whitewater rafters on the river that day.

"That day when they put five rafts on river, it was at 12 feet and there was a flood warning," he said. "A majority of them had never been whitewater rafting before. We go to (U.S. District) Judge (Chuck) Chambers who ruled that a particular release and waiver should be excluded from a death case. We're talking about can a customer of a whitewater outfitter assume the risk that the outfitter is going to waive a safety statute. If you can waive it, that means that whitewater outfitters can do whatever they want."

In his response, Martin said the case is being tried under the wrong law.

"We've talked to hundreds of people in this industry and not one person will tell you it's safe," he said. "It's not. It's not Disney Land. There's no button they can push to stop the ride."

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