September 28, 1995

DUE CARE IS REQUIRED WHEN B.A.S.S. FISHIN'

By Andrew Bergh

Special to the Journal

Editor's note: Today's column highlights an out-of-state case, which the writer may occasionally do when things are slow at home on the law front.

Bass fishing isn't only sport, it's big business. Just look at B.A.S.S. Inc., which recently announced it will start construction in 1996 of a $40-50 million bass theme park. And if a theme park premised on a spiny-finned fish sounds like a crazy idea, you obviously don't know that B.A.S.S. has 600,000 members in 46 states and annual revenue of $34 million.

But organized bass fishing has its drawbacks. In Rudolph v. Arizona B.A.S.S. Federation, for example, an Arizona chapter of B.A.S.S. is learning firsthand how sponsoring a fishing tournament can open up a huge can of liability worms.

The Rudolph case involves an accident that tragically took the lives of two teenaged girls on May 3, 1992. That was the day a bass fishing tournament was sponsored on Bartlett Lake in Maricopa County, Ariz., by the Grand Canyon Bass Busters. Even though a lot of members thought Bartlett Lake was too congested with boat and ski traffic, the Bass Busters still decided to hold its tournament at that particular fishing hole.

To hold the tournament, the Bass Busters first had to obtain a permit from the U. S. Forest Service. As a condition of the permit, the club "assured" that every participant in the tournament would operate his or her boat in a "safe and reasonable manner," without endangering others. Because club members were expected to police themselves, however, the Bass Busters didn't actually patrol the lake the day of the tournament. Moreover, the club didn't give safety instructions to participants or make them take boating safety classes.

The Bass Busters told the participants they could fish the entire 2,700-acre lake. But despite this large fishing area, the club designated only one weigh-in site for the entire field. Furthermore, the Bass Busters told participants they risked penalties -- even disqualification -- if they didn't return with their catch to the weigh-in station by 1:00 p.m.

At this point, events almost become predictable. At 12:55 p.m., two participants, James Kirkland and his passenger, Phil Allen, were about four miles from the weigh-in facility. Also in their boat was a 2.5-pound bass caught by Allen, who had won first place in an earlier Bass Busters tournament with a bass weighing barely two pounds.

Trying to beat the 1 p.m. deadline, Kirkland was traveling over 40 miles per hour. His boat didn't reach the weigh-in location, however, instead striking a jet ski operated by Heather Rudolph and one of her friends. Both girls died at the accident scene.

Heather's parents, Gary and Carolyn Rudolph, later sued the Bass Busters for wrongful death. They alleged the club was negligent by, among other things, providing only one weigh-in station, requiring tournament participants to return to the dock at a time the lake was congested, and failing to control and supervise participants like Kirkland.

The Bass Busters responded by moving to dismiss the Rudolphs' claims. The club argued that since the jet skiers had no connection with either the Bass Busters or its tournament and weren't "personally known" to the club, they were "unforeseeable plaintiffs" to whom no "legal duty" was owed. And when the trial judge agreed, the Rudolphs suddenly found themselves out of court.

The outcome was different, however, in round two. A user of a lake must exercise "due care" to avoid injury to others, said the Arizona Court of Appeals. Like the duty owed by drivers on public highways, this duty of due care is owed to all users, even perfect strangers. And since the Rudolphs' daughter was unquestionably using the lake at the time of the accident, a jury -- not the trial judge -- should decide whether the Bass Busters had breached its legal duty, the court ultimately ruled.

Will the potential for liability stop clubs like the Bass Busters from sponsoring tournaments? I doubt it. But as shown by the Rudolph case, a club or group that sponsors a contest is probably well advised to emphasize the public's safety, not just that of its own members or contest participants. Otherwise, there might be more victims like Heather Rudolph.

Previous columns:

• THIEVES: WATCH FOR BARGAINS, 08-10-1995
• LADDERS DON'T LEAD TO CRIME, 07-27-1995