*This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

MAY 26 1999

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LOIS STROUD, natural mother and

heir at law; BECKY SMITH,

Administratrix of the Estate of David

Stroud, Deceased,

Plaintiffs - Appellants,

v.

RIVER RUNNERS, LTD.; SARAH

SYLVIA,

Defendants - Appellees.

No. 98-1234

(D. Ct. No. 97-WY-1561-WD)

(D. Colo.)

ORDER AND JUDGMENT*

Before ANDERSON, TACHA, and KELLY, Circuit Judges.

After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th

Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Plaintiffs appeal the district court’s order granting summary judgment in
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favor of defendants on plaintiffs’ claims for breach of contract, negligence, and

failure to warn. On appeal, plaintiffs raise arguments similar to those addressed

by the district court. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and

affirm.

This dispute arises from a tragic white-water rafting accident that occurred

on the Arkansas River in Colorado on July 11, 1995. The church youth group

participants began planning for the trip in August or September of 1994. Carol

Murphy, an adult volunteer, contacted defendant River Runners, Ltd. to schedule

the white-water rafting excursion. She told the River Runners representative that

the church group participants were novice rafters but wanted more than a float

trip. After estimating the number of participants, Ms. Murphy sent a check to

River Runners, paying for the trip in full. River Runners responded with a

confirmation form explaining its cancellation policy and stating the payment

guaranteed a reservation of the equipment needed for the rafting excursion.

Shortly before the trip, a parent of one of the participants expressed

concern regarding high runoff in June 1995. This comment prompted Ms.

Murphy to call River Runners to ensure that the trip would be safe for the

participants. The employee with whom she spoke assured her that the selected

location, Brown’s Canyon, was safe despite the high water. The employee did not

inform Ms. Murphy that a number of individuals had died while rafting in
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Colorado during the preceding weeks.

When the youth group arrived in Salida, Colorado, the night before the raft

trip, River Runners informed the group for the first time that it required 

participants to sign a waiver and release form before they could take part in the

rafting excursion. Mr. David Stroud, who accompanied the youth group as an

adult volunteer, and the other participants signed the waiver forms. On the

morning of the accident, River Runners provided Mr. Stroud, who weighed

approximately 350 pounds, with a life jacket. Due to Mr. Stroud’s size, however,

the jacket did not fit properly. Nonetheless, Mr. Stroud went on the rafting

excursion. During the outing, Mr. Stroud’s boat overturned in Pinball Rapids, a

Class III rapid. After the boat capsized, Mr. Stroud lost his life jacket and

drowned.

Plaintiffs commenced the following action in the United States District

Court for the District of Kansas on April 10, 1997. Plaintiffs’ amended complaint

alleges causes of action for breach of contract, negligence, and failure to warn. 

In addition, plaintiff sought declaratory judgment and recision of the exculpatory

agreement that Mr. Stroud had signed. After transfer of the matter to the United

States District Court for the District of Colorado, defendants filed a motion for

summary judgment, arguing the exculpatory agreement protected them from

liability. Plaintiffs filed a cross-motion for summary judgment on its request for
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recision of the waiver and release. On May 18, 1998, the district court granted

defendants’ motion and denied plaintiffs’ cross-motion. The court entered

judgment against plaintiffs on May 22, 1998.

We review the district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court. See Byers v. City of

Albuquerque 150 F.3d 1271, 1274 (10th Cir. 1998). Summary judgment is

appropriate “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.” Fed. R. Civ. P. 56(c). When applying this

standard, we view the evidence and draw reasonable inferences therefrom in the

light most favorable to the nonmoving party. See Byers, 150 F.3d at 174. 

After careful review of the record, we AFFIRM for substantially the same

reasons as set forth in the district court’s order of May 18, 1998. We DENY

defendants’ request for sanctions and motion to strike plaintiffs’ Appendix and

Brief.

ENTERED FOR THE COURT,

Deanell Reece Tacha

Circuit Judge