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Downes v. Oglethorpe University, Inc.

Court of Appeals of Georgia, Third Division

June 30, 2017

DOWNES et al.
v.
OGLETHORPE UNIVERSITY, INC.

          ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.

          Ellington, Presiding Judge.

         Erik 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.

         Under 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 nonmovant.

(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).

         So 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.

         Dr. 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.

         During 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.

         The 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.

         The 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 later.

         The 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"[1] 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.[2] 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 dangerous."[3]

         Following 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.

         1. The 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.[4] "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 ...


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