Ninth Circuit Finds Rental Company Had No Duty to Warn

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Ninth Circuit Finds Rental Company Had No Duty to Warn Hodges v. Summer Fun Rentals, Inc., 2006 U.S. App. LEXIS 25443 (9th Cir. Oct. 12, 2006). Terra Bowling, J.D. The Ninth Circuit Court of Appeals affirmed a district court ruling that wake jumping and operating a personal watercraft within 200 feet of another vessel is an open and obvious danger and that a personal watercraft rental agency had no duty to warn its customers of the danger. Background Two eighteen-year old friends, Matthew McAlpine and Mason Hodges, rented Sea Doo personal watercrafts from Summer Fun Rentals, located on the Columbia River. Before taking the crafts onto the river, employees of Summer Fun instructed the friends on operating the personal watercrafts, including instructions on the “kill switch,” to stay out of shallow water, and to “stay below 5 miles an hour until they hit the buoy … [and then to] ‘go ahead and do whatever they wanted to do.’”1 The employees did not give instructions pertaining to wake jumping. After about fifty minutes of incident-free riding on the personal watercrafts (PWCs), the friends decided to pass a boat coming toward them and jump in its wake. During the maneuver, Hodges fell off his PWC and McAlpine crashed into him. As a result of the accident, Hodges suffered severe injuries, including the amputation of his leg. Duty to warn After the accident, Hodges filed a negligence action against Summer Fun, alleging that its employees had a duty to warn him of the hazards of wake jumping. The District Court for the Eastern District of Washington granted summary judgment to the company, finding that the dangers of wake jumping and operating a personal watercraft within 200 feet of another vessel are open and obvious dangers and that the company did not have a duty to warn its customers. The Ninth Circuit first examined whether the dangers were in fact “open and obvious.” The court adopted the definition of wake jumping as “crossing a wake at such a speed that the PWC will become airborne.”2 The court found that no reasonable minds could differ as to whether the dangers were open and obvious, concluding that it should be apparent to a person of ordinary intelligence that “…one might fall off a PWC before, during or after jumping a wake or collide with another vessel or collide with another vessel while, during, or after jumping a wake.”3 Conclusion The Ninth Circuit affirmed the district court’s grant of summary judgment. In a dissenting opinion, Judge Pregerson noted that “some wake jumping is dangerous and some is not” and that the obviousness of the danger depends on the factual circumstances of each case.4 He noted that in this case, the details of the events leading up to the crash were unclear; therefore the grant of summary judgment was in error. Endnotes 1. Hodges v. Summer Fun Rentals, Inc. 2006 U.S. App. LEXIS 25443 at 6 (9th Cir. Oct. 12, 2006) 2. Id.* at 3. 3.Id. at 4-5. 4. Id. at *10.
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Ninth Circuit Finds Rental Company Had No Duty to Warn

Hodges v. Summer Fun Rentals, Inc., 2006 U.S. App. LEXIS 25443 (9th Cir. Oct. 12, 2006).

Terra Bowling, J.D.

The Ninth Circuit Court of Appeals affirmed a district court ruling that wake jumping and operating a personal watercraft within 200 feet of another vessel is an open and obvious danger and that a personal watercraft rental agency had no duty to warn its customers of the danger.

Background
Two eighteen-year old friends, Matthew McAlpine and Mason Hodges, rented Sea Doo personal watercrafts from Summer Fun Rentals, located on the Columbia River. Before taking the crafts onto the river, employees of Summer Fun instructed the friends on operating the personal watercrafts, including instructions on the “kill switch,” to stay out of shallow water, and to “stay below 5 miles an hour until they hit the buoy … [and then to] ‘go ahead and do whatever they wanted to do.’”1 The employees did not give instructions pertaining to wake jumping.

After about fifty minutes of incident-free riding on the personal watercrafts (PWCs), the friends decided to pass a boat coming toward them and jump in its wake. During the maneuver, Hodges fell off his PWC and McAlpine crashed into him. As a result of the accident, Hodges suffered severe injuries, including the amputation of his leg.

Duty to warn
After the accident, Hodges filed a negligence action against Summer Fun, alleging that its employees had a duty to warn him of the hazards of wake jumping. The District Court for the Eastern District of Washington granted summary judgment to the company, finding that the dangers of wake jumping and operating a personal watercraft within 200 feet of another vessel are open and obvious dangers and that the company did not have a duty to warn its customers.

The Ninth Circuit first examined whether the dangers were in fact “open and obvious.” The court adopted the definition of wake jumping as “crossing a wake at such a speed that the PWC will become airborne.”2 The court found that no reasonable minds could differ as to whether the dangers were open and obvious, concluding that it should be apparent to a person of ordinary intelligence that “…one might fall off a PWC before, during or after jumping a wake or collide with another vessel or collide with another vessel while, during, or after jumping a wake.”3

Conclusion
The Ninth Circuit affirmed the district court’s grant of summary judgment. In a dissenting opinion, Judge Pregerson noted that “some wake jumping is dangerous and some is not” and that the obviousness of the danger depends on the factual circumstances of each case.4 He noted that in this case, the details of the events leading up to the crash were unclear; therefore the grant of summary judgment was in error.

Endnotes
1. Hodges v. Summer Fun Rentals, Inc. 2006 U.S. App. LEXIS 25443 at *6 (9th Cir. Oct. 12, 2006)
2. Id. at *3.
3.Id. at *4-5.
4. Id. at *10.