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Neault v. Epley's, Inc.

United States District Court, D. Idaho

January 16, 2018

DAVID NEAULT and ANDREA NEAULT, husband and wife and the marital community comprised thereof, Plaintiffs,
EPLEY'S, INC., an Idaho corporation, Defendant.


          Ronald E. Bush Chief U.S. Magistrate Judge

         Now pending before the Court is Plaintiffs' Motion to Amend Complaint to Assert Punitive Damages Claim (Docket No. 23). Having carefully considered the record, heard oral argument, and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:

         I. BACKGROUND

         On June 27, 2014, Plaintiff Andrea Neault was ejected from a raft on a section of the Lower Salmon River known as “Slide Rapid.” Claiming to have suffered physical and emotional injury as a result, she and her husband, David, bring this action against their river guide, Defendant Epley's Inc., a licensed outfitter in the state of Idaho.[1]

         Plaintiffs claim that Epley's conduct - in particular, its decision to run the Slide Rapid at flows above 23, 000 cubic feet per second (“cfs”) - breached the standard of care applicable to outfitters and guides under chapter 12, Title 6, Idaho Code and that said breach was a direct and proximate cause of Plaintiffs' injuries. See generally Pls.' Compl., ¶¶ 28-89 (Docket No. 1). Plaintiffs specifically allege:

In the days leading up to the trip, Defendant's employees monitored the water levels of the Salmon River to determine whether the water levels were safe for the party to proceed. If water levels of the Salmon River exceeded 20, 000 cubic feet per second . . . as recorded by the Bureau of Land Management, the river is not suitable for inexperienced whitewater rafters. When water levels of the Salmon River exceed 20, 000 cfs, a cataract known as the “Slide Rapids” (the “Slide”) is particularly hazardous to whitewater rafters .....
Plaintiffs' scheduled trip included a plan to navigate or “run” the Slide. Defendants never advised Plaintiffs of the dangerousness of the Slide at flows over 20, 000 cfs. Defendant did not inform Plaintiffs that the Slide was a class V/VI rapid at the flows over 20, 000 cfs .....
The water level on the Snake River did not decrease between June 24, 2014 and June 26, 2014. On June 26, 2014, Plaintiffs' group landed and took out at Eagle Creek to spend the night. This was the final campsite before the group reached the Slide. The Eagle Creek campsite is accessible by road. Defendant could have ended the trip at Eagle Creek .....
On June 27, 2014, Defendant's guides took Plaintiffs and their group down the river towards the Slide. Defendant's guides knew water levels over 20, 000 cfs would produce extreme conditions at the Slide, notably Class V or VI rapids. Navigating Class V and VI rapids requires expert experience, specialized equipment, and rescue plans. Defendant's guides knew that inexperienced whitewater rafters should not attempt to raft Class V and VI rapids such as the Slide .....
Plaintiffs Andrea and David Neault were passengers in Raft #3. Andrea Neault was ejected from Raft #3 after it collided with a wall of water. David Neault watched his wife struggle in the cold and violent water. . . .
Andrea Neault was adrift in the river for over 12 minutes. Defendant's guides failed to rescue Andrea Neault. Andrea Neault eventually drifted to shore. Andrea Neault was hypothermic and disoriented when she came out of the water .....
During the course of the trip, Defendant had authority to delay, modify or cancel the trip if it determined that the conditions on the river were unsafe for the participants. Defendant was aware that, at the time of the June 24-27, 2014 trip, water flow on the Snake exceeded 20, 000 cfs. Defendant had exclusive control of the rafts and all related equipment, as well as all decisions and planning concerning navigation of the river .....
As a result of these events, Andrea Neault suffered contusions, abrasions, soft tissue injury, and emotional distress and continues to suffer psychological distress, manifested in physical symptoms including flashbacks, sleeplessness, loss of appetite, and elevated stress. As a result of these events, David Neault suffered emotional distress and continues to suffer psychological distress, manifested in physical symptoms including flashbacks, sleeplessness, loss of appetite, and elevated stress .....
Defendant owed a duty to Plaintiffs to conform to the standard of care expected of a member of the profession while performing personal services as an outfitter in Idaho. I.C. § 6-1206. Defendant breached its duty to Plaintiffs by taking Plaintiffs on a trip down the Salmon River on June 24, 2014 .....
In guiding a group of inexperienced participants down the Salmon River, with river conditions such as they were on June 27, 2014, Defendant's conduct involved carelessness substantially greater than that which would constitute ordinary negligence.

Id. at ¶¶ 22-24, 28-30, 35-39, 44-47, 53-55, 58-61, 65-67, 71-72, 78-79, 88. These breach-of-the-standard-of-care allegations form the underlying bases for Plaintiffs' at-issue Motion.[2]

         According to Plaintiffs, Epley's ignored and misrepresented to the group the extreme risks presented by the water levels forecasted to be encountered at Slide Rapid on June 27, 2014 (thus permitting the trip's June 24, 2014 launch in the first instance), and Epley's later decision to actually continue through Slide Rapid on June 27, 2014 at flows in excess of 23, 000 cfs represented an extreme deviation from industry standards of care. See generally Mem. in Supp. of Mot. to Am., pp. 14-19 (Docket No. 23, Att. 3). Plaintiffs argue:

Defendant's manager, [Roger] Blackner, purposely misled . . . the group, by failing to inform them of actual (as of the June 24, 2014 launch date) and projected (for the anticipated encounter with Slide Rapid on June 24, 2014) river flows; it was fraudulent and outrageous for Mr. Blackner to say that the forecasted flow for Slide Rapid on June 27, 2014 was 17, 000 cfs, when, in actuality, it was much higher.
Defendant's manager, Blackner, told BSA's organizer, Marlene Schaefer, that Epley's followed “BLM criteria” in determining whether to launch on the Salmon River; he told Schaefer they would not launch if the water was above 20, 000 cfs, the “go or no-go” limit. Schaefer was concerned about water levels because of poor weather; Blackner echoed those concerns and noted they might not be able to launch. He assured Schaefer he was watching the river. Blackner even told Schaefer they would take an alternative trip if the water was over 20, 000 cfs and admitted it was Epley's responsibility to decide whether to launch or not. As the trip neared, Blackner expressed confidence that the water levels would be dropping every day and would be below the 20, 000 cfs limit by launch.
Despite these statements and assurances, on launch day Blackner failed to inform Schaefer (who was present with a BSA inspection team) that the water level was over 23, 000 cfs, well in excess of Defendant's own stated cut-off policy. Instead he just said the water level would be dropping, and if it did not, Epley's would alter the plan and take out (at Eagle Creek) or run a different route. Blackner made it clear that the group would enter the canyon only at appropriate levels.
Blackner also admits he told the rafters on launch day that the river would be at approximately 17, 000 cfs when they were to hit the Slide. The forecast available that day, however, clearly refutes that claim. On launch day (June 24) the river level forecast for June 27 (the day the group would transit the Slide) was nearly 21, 000 cfs - over 20% higher than Blackner's claim. In the week before launch, the forecasts had proved to be substantially lower than the actual river flow, which remained above 23, 000 cfs the four days before launch. Defendant ignored the evidence that the forecasts were consistently and substantially wrong. Even if the forecasts had proved to be reliable, however, the day before the trip launched the forecast for June 27 was still nearly 19, 500 cfs, not 17, 000 as Blackner admits he told ...

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