DOWNES et al.
OGLETHORPE UNIVERSITY, INC.
ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.
Ellington, Presiding Judge.
Downes, then a 20-year-old college student, drowned in the
Pacific ocean on January 4, 2011, while he was in Costa Rica
attending a study-abroad program organized by Oglethorpe
University, Inc. Elvis Downes and Myrna Lintner (the
"Appellants"), as Downes's parents and next of
kin, and in their capacity as administrators of Downes's
estate, brought this wrongful death action alleging that
Oglethorpe's negligence and gross negligence was the
proximate cause of Downes's drowning. The trial court
granted Oglethorpe's motion for summary judgment, and the
Appellants appeal. We affirm because, as a matter of law,
Downes assumed the risk of drowning when he chose to swim in
the Pacific ocean.
OCGA § 9-11-56 (c),
[s]ummary judgment is warranted if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law. We
review the grant or denial of a motion for summary judgment
de novo, and we view the evidence, and the reasonable
inferences drawn therefrom, in a light most favorable to the
(Punctuation and footnotes omitted.) Assaf v. Cincinnati
Ins. Co., 327 Ga.App. 475, 475-476 (759 S.E.2d 557)
(2014). See also Johnson v. Omondi, 294 Ga. 74,
75-76 (751 S.E.2d 288) (2013) (accord).
viewed, the evidence shows the following. During the
2010-2011 academic year, Oglethorpe offered to their students
a 12-day study-abroad trip to Costa Rica. The students were
charged a fee for the trip to pay for expenses such as
airfare, lodging, and food. The students were also required
to pay the "per credit tuition rate" and were to
receive four credits towards their degree for academic work
associated with the trip. Oglethorpe retained Horizontes, a
Costa Rican tour operator, to coordinate the trip and to
provide transportation and an English-speaking guide.
Jeffrey Collins was then the director of Oglethorpe's
student abroad program. According to Collins, Oglethorpe
tried to follow "best practices, " which is
"defined as those protocols, procedures that as best and
as far as possible ensure the safety of students." He
acknowledged that students would swim on the trips. Collins
was not aware of any potential dangers in Costa Rica and did
no investigation to ascertain if there were potential dangers
in Costa Rica.
pre-trip meetings with Downes and the five other students who
had registered for the program, Dr. Roark Donnelly and Dr.
Cassandra Copeland, the two professors who accompanied the
students on the trip, asked the students if everyone was a
good swimmer, and the students agreed that they were. The
group also discussed swimming in the ocean, including
"that there are going to be currents." One of the
professors told the students that, during a previous
study-abroad trip to another location, a student had
recognized that he was a weak swimmer and was required to
wear a life jacket during all water activities. After hearing
this, the students continued to express that they were good
swimmers. Before leaving on the trip, the students were
required to sign a release agreement which included an
exculpatory clause pertaining to Oglethorpe.
students and professors flew to Costa Rica on December 28,
2010. During the course of the trip, on the afternoon of
January 4, 2011, the group arrived at a hotel on the Pacific
coast. The six students, two professors, the guide, and the
driver got into their bus and drove to a nearby beach, Playa
Ventanas, which had been recommended by the hotel. Upon their
arrival, there were other people on the beach and in the
water. There were no warning signs posted on the beach, nor
any lifeguards or safety equipment present.
students swam in the ocean, staying mostly together, and
eventually ventured out into deeper water. After about 20
minutes, Dr. Donnelly yelled for the students to move closer
to shore. Shortly thereafter, student Robert Cairns, a former
lifeguard, heard a female student screaming. Cairns swam
towards the screams, and the student informed him that Downes
needed help. Cairns realized that "some kind of current
. . . had pulled us out." Cairns swam to within 10 feet
of Downes and told him to get on his back and try to float.
Downes could not get on his back, and Cairns kept telling him
he had to try. After some time, Downes was struck by a wave,
went under the water, and disappeared from Cairns's view.
Downes's body was recovered from the ocean three days
Appellants filed this wrongful death action claiming that
Downes's death was the proximate result of
Oglethorpe's negligence and gross negligence. Evidence
adduced during discovery included the testimony of Dr. John
Fletemeyer, the Appellants' expert in coastal sciences,
that Downes had been caught in a "rip
current" when he became distressed and ultimately
drowned. Dr. Fletemeyer opined that some beaches on the
western coast of Costa Rica are particularly dangerous
"mainly [because of] the lack of lifeguards, " but
also because of physical conditions such as "high wave
energy force" and "pocket beaches, " and that
Playa Ventantas was a pocket beach. He also testified that, in
the context of the ocean, "every beach you go to is
extremely dangerous." Other testimony showed that a
continuing problem with drownings on beaches along the
Pacific coast of Costa Rica was well publicized in Costa
Rica, and that the United States Consular Authority in Costa
Rica had "published statistics about the danger of
swimming on Costa Rica's beaches and identified
specifically the west coast beaches as being the most
discovery, Oglethorpe moved for summary judgment and argued
that (i) Oglethorpe owed no legal duty to Downes; (ii) the
Appellants' negligence claims are barred by Downes's
written waiver of liability and there is a lack of evidence
that Oglethorpe was grossly negligent, and (iii) Downes
assumed the risk of swimming in the ocean. The trial court
granted Oglethorpe's motion for summary judgment.
Appellants contend that Oglethorpe was not entitled to
summary judgment on the ground that Downes, as a matter of
law, assumed the risk of drowning when he swam in the
ocean. "The affirmative defense of
assumption of the risk bars a plaintiff from recovering on a
negligence claim if it is established that he[, ] without
coercion of circumstances, chooses a course of action with
full knowledge of its danger and while exercising a free
choice as to whether to engage in the ...