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W.Va. high court to hear fatal rafting case from Jefferson County

July 02, 2008

CHARLESTON, W.Va. - The West Virginia Supreme Court has agreed to take up several issues in a case involving the state's whitewater rafting industry.

The case stems from a September 2004 rafting trip. Five rafts full of Washington, D.C., office workers were taken out on the Shenandoah River, despite dangerous conditions. One rafter was killed and several others say they were injured when all but one of the rafts capsized.

The state's high court decided last week to hear arguments in the case before it goes to trial. Attorneys for the rafting outfitter and the office workers disagree on several issues, including whether liability waivers the rafters signed should be admissible in court and whether the wrongful death case filed by the victim's widow and the personal injury lawsuit filed by other rafters should be combined. Another issue involves whether federal maritime law can be used.

Lawyers for outfitter River Riders Inc. asked the state Supreme Court to weigh in May, two months before the trial was slated to begin. Not only does their petition seek to overturn a Jefferson County circuit judge's ruling that the federal law could be used, the lawyers also argue that the cases shouldn't be combined and that the waivers should be allowed as part of their defense.

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An attorney for the widow of Roger Freeman, who was killed during the trip, accused the outfitter of delaying the trial.

"The real issue," attorney Stephen Skinner said, "is should they have taken these D.C. office workers out in flood conditions."

The river was 10 feet higher than normal when the rafters went out and there was a flood warning in effect from the National Weather Service.

"Despite the fact that the river was too high, too fast, and too violent for commercial rafting, the Petitioners decided that it was safe to take the five-raft trip that day in violation of the West Virginia Whitewater Responsibility Act," according to Skinner's written argument.

A lawyer for the outfitter claims the rafters were warned about the "inherent risks and hazards associated with whitewater rafting."

"Nothing could be more relevant than evidence of assumption of the risk by the plaintiffs in a case involving a voluntary outdoor adventure activity on a river with rapids," the outfitter argued in court documents filed by attorney Robert Martin.

By stripping the outfitter of using the waivers in its defense, the circuit court "has essentially crippled this industry that provides the State and local businesses millions of dollars per year in revenue, as well as employing hundreds of West Virginia residents," Martin wrote. "These recent rulings would make commercial whitewater outfitters virtually uninsurable and therefore, unable to operate."

An attorney in the personal injury case claims a previous case found that the waivers can't be used during trial.

"The Murphy case was decided in 1991, 17 years ago, and the whitewater industry hasn't fallen apart," said Michael Smith. "The only crisis in whitewater is when somebody takes a raft out when they shouldn't and people drown or nearly drown."

The outfitter's motion also said that the personal injury and wrongful death lawsuits were prepared for trial separately, which could cause juror confusion.

The plaintiffs contend that the witnesses overlap and that the only critical difference between the lawsuits is the extent of damages.

"The time that it would take to put on the evidence in these two, almost identical cases, would be enormous, unnecessarily burdensome, and a waste of judicial resources," Skinner argued.

Supreme Court spokeswoman Jennifer Bundy says justices will hear arguments Sept. 24.

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