By Jon Heshka
A lawsuit was recently filed in the United States District Court, District of Utah – Central Division, by the estate of a man who died while zip-lining. The complaint alleges in Hoagland et al. v. Rockin’ R Ranch & Lodge Guest Operations Inc. et al. that on Aug. 11, 2008, at the Rockin’ R Ranch in Piute County Utah, Daniel A. Hoagland, M.D., dutifully followed the instructions given him, climbed the zip-line tower, held on to the strap which connected the stick to the zip-line, sat on the stick and left the tower. The strap immediately snapped causing Dr. Hoagland to fall resulting in his death. The complaint describes the strap as narrow, weathered and worn-out.
The lawsuit is seeking general damages, special damages including loss of financial support and lost wages, punitive and exemplary damages, plus other costs.
The lawsuit alleges negligence or, in the alternative, gross negligence, which the complaint describes as conduct that is willful, intentional or reckless, causing Hoagland’s death. The complaint lists 15 separate alleged breaches of duty. The two most salient allegations relate to failure to maintain a safe zip-line and failure to secure participants to the zip-line via a harness and lanyard.
The defense will likely rely upon the doctrine of inherent risk and that the plaintiff signed a waiver and release of liability. U.S. courts have dismissed similar claims under the doctrine of primary assumption of risk such that – for example – if falling is an inherent risk of climbing and if the plaintiff fell while climbing, then the eventuation of that risk is something to which the plaintiff accepted.
That Hoagland was not wearing a harness – while distressing – is not necessarily material to the case. It is probable that he was informed of this hazard and that he appreciated the risks inherent to zip-lining.
Where it becomes potentially troublesome for the defendant is in the state of the equipment. Contrary to the claim, the defendant is under no duty to operate a ‘safe’ zip-line. Under the circumstances, it is unreasonable to assign a duty to make a contraption such as this infallible. Risks can be minimized or mitigated but never eliminated. To remove the risk of falling from a height while zip-lining or climbing, the only plausible option would be to not get off the ground. At issue then is: what are reasonable risk management practices in the circumstances of operating a commercial zip-line operation?
Recall that the strap broke immediately after Hoagland weighted it. This might suggest that it was of insufficient integrity or quality to hold his weight. He would have consented to the ordinary risks inherent to zip-lining but not to zip-line on defective or deficient materials or engineering.
It is possible, however, if the waiver was properly prepared and presented that it could bar recovery for a mechanical failure which was not reasonably foreseeable or detectable. Hypothetically, if the strap followed manufacturer’s specifications relating to its use, had not exceeded the manufacturer’s recommended shelf-life, and the alleged materials defect was not detected by the defendants in routine inspection, then its structural failure could not have been reasonably foreseeable.
It is unlikely that a waiver would cover a strap in the condition alleged by the complainant. If it can be shown that the strap was defective or deficient and that it was plain to see to anyone who directed their attention to it then it becomes a different story altogether. This is the second prong to the claim. Gross negligence would not be covered by the waiver.
The crux of this case will therefore be what is a reasonable zip-line and what are reasonable equipment inspections and maintenance practices.
Coincidentally, in another zip-line case, a Canadian court in Loychuk v. Cougar Mountain Adventures Ltd. (2011 BCSC 193) ruled last month that the waiver signed was binding, thus barring the plaintiff’s recovery. The defendants conceded negligence in the communication breakdown which gave rise to the high-speed collision on the zip-line between the two plaintiffs, so the only substantive issue facing the Supreme Court of British Columbia was whether the waiver of liability and assumption of risks agreement was valid.
Among other claims, the plaintiffs argued that the defendant misrepresented the terms of the waiver, that it was obtained without past consideration, and that it was unconscionable. The plaintiffs had considerable experience and exposure to waivers; one plaintiff had just finished law school and the other was an owner of a fitness business which required its clients to sign a waiver and assumption of risks agreement.
The court disagreed with the plaintiff’s claims and found that the waiver was enforceable; that there was no evidence of duress, coercion or unfair advantage; and that the plaintiffs were given notice as evidenced in the defendant’s website which discloses that guests were required to sign a waiver of liability, and that the wavier was not unconscionable.
Jon Heshka is an associate professor specializing in sports and adventure law at Thompson Rivers University in Kamloops, BC Canada. He can be contacted at jheshka@tru.ca
