Hodges

MEMORANDUM ***

In this maritime negligent failure to warn case, the outcome determinative issue is whether a rental agency in the business of renting personal watercraft (PWC) has a duty to warn the user, or lessee, that “wake jumping” 1 and operating a PWC within 200 feet of another vessel is dangerous. The district court held that there was no duty to warn because those dangers are open and obvious. We agree and therefore affirm the judgment of the district court.

The parties agree that a rental agency has no duty to warn of open and obvious dangers. However, the parties dispute whether that issue is one of law or of fact. We have held that “the question of whether a risk is obvious or generally known is one of fact and thus should be decided by a trier of fact when reasonable minds may differ.” Maneely v. General Motors Corp., 108 F.3d 1176, 1179 (9th Cir.1997). Accordingly, when a defendant claims it owes no duty to warn because of the open and obvious nature of the danger, the court is required to make a threshold determination as to whether reasonable minds can differ with respect to the open and obvious nature of the danger. If reasonable minds cannot differ as to the…

dissenting:

The crucial issue before us is whether, in the circumstances of this case, reasonable minds can differ that wake jumping is openly and obviously dangerous. Because the obviousness of the dangers of wake jumping depends on the factual circumstances and because this case is rife with disputed issues of material fact, summary judgment was not appropriate.

On July 31, 1999, two eighteen-year-old friends, Matthew McAlpine and Mason Hodges, rented Sea Doo personal water-crafts 2 (“PWC”) from Summer Fun Rentals (“Summer Fun”) on the Columbia River. It is undisputed that neither Hodges nor McAlpine had ever used a PWC. Summer Fun’s employee gave them brief instruction relating to the “kill switch” feature and the location of the throttle. Summer Fun also told them 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.’ ” Summer Fun did not tell Hodges and McAlpine that wake jumping can be dangerous. 3 Hodges and McAl-pine thought wake jumping was permitted because they “saw others doing it” and because McAlpine “had previously seen people jumping wakes while operating personal…