Rulings could sink whitewater industry, court documents say

By Chris Dickerson | Oct 24, 2008


CHARLESTON – Lower court rulings could force whitewater rafting companies to close up, according to documents filed with the state Supreme Court by a state group of whitewater outfitters.

On Oct. 28, the justices are scheduled to hear arguments in the appeal of orders made earlier this year by Jefferson Circuit Judge Thomas W. Steptoe.

The plaintiffs in the Jefferson County cases were on a rafting trip Sept. 30, 2004, with River Riders Inc. in Harpers Ferry. They claimed personal injuries from an accident. Most of the plaintiffs worked for Kaiser Permanente in Maryland. They were taking part in a team-building exercise.

Two suits were filed. The plaintiffs say the river was too dangerous that day because it had swelled because of hurricane-related rains. One rider drowned, and 13 others were injured, according to the complaints.

Each of the rafters signed a "Release, Assumption of risk and Indemnity Agreement" before taking part. 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.

"West Virginia law does not permit recovery from whitewater rafting outfitters or guides under any other theory," a River Riders memorandum, written by Charleston attorney Bob Martin and filed with the Supreme Court, states. "Additionally, the injuries alleged must be 'directly' caused by the whitewater outfitter or guides' failure to meet the standard of care outlined" by state Code.

Two months before the trial, River Riders challenged three orders in court.

First, River Riders says Steptoe erred when he signed an order prohibiting River Riders from introducing the plaintiffs' signed releases as evidence at trial.

It also says Steptoe wrongly held the case is governed by "general maritime law," keeping River Riders from arguing assumption of risk, which is permitted under the Whitewater Responsibility Act and state law.

"It is imperative that this Court examine the issue of applicable law and the admissibility of the release," the River Riders memo states. "This case cannot proceed using dual, contradictory bodies of law without resultant manifest injustice to the defendants."

River Riders also says the plaintiffs have to show the Shenandoah River is a "navigable" waterway for maritime or admiralty law to apply.

"There has been no evidence proffered and no finding by the court or otherwise regarding the navigability of the Shenandoah River or why maritime law should apply," the memo states.

"Furthermore, the whitewater industry in West Virginia is dependent upon the just and uniform application and enforcement of the West Virginia Whitewater Responsibility Act. That Act is what business plans are based upon, how insurance rates are determined and ultimately the legal framework that permits the whitewater industry in West Virginia to legally exist. The Circuit Court has committed substantial and clear error …"

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

The case has not reached trial yet.

The West Virginia Professional River Outfitters Association (WVPRO) filed an amicus brief in the case. The group consists of several state whitewater companies, such as Class VI River Runners and Songer Whitewater.

In its friend of the court brief, WVPRO echoes the River Riders memo.

"WVPRO has studied the issues presented … and is gravely concerned about the effects the ruling of the lower Court will have on the whitewater rafting industry in the state of West Virginia," the brief, filed by attorney Daniel R. Schuda, states. "Creating total confusion as to the applicable law, the ruling has the potential, by that fact alone, to make the outfitters uninsurable in any reasonable sense and unable to continue in business."

WVPRO says the Whitewater Responsibility Act shouldn't be altered and that Steptoe's ruling could cripple the industry.

"There can be no dispute that the rafting industry itself has a substantial and positive effect on West Virginia's economy, producing thousands of jobs for West Virginians as well as generating millions of dollars in revenue for this state," the brief states. "WVPRO members currently employ over twelve hundred West Virginia residents and taxpayers with a payroll of $8 million to $10 million."

WVPRO also says maritime law should not apply to these cases.

"Maritime law, essentially federal common law of the sea with federal statutes and regulations added, has never been applied to a West Virginia whitewater rafting case," the brief states. "Such a holding never [has been] made by any federal court in this state although able to do so in the various whitewater cases they have decided and has never even been hinted at by this Court or by another other circuit court of this State in the various whitewater cases which they have considered. All courts have uniformly applied the West Virginia Whitewater Responsibility Act. Applying maritime law is legally unjustified and incorrect."

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