Judge John Ellington, Georgia Court of Appeals
Judge John Ellington, Georgia Court of Appeals (John Disney/Daily Report)

The parents of an American student who died on a study abroad program cannot sue the university, the Georgia Court of Appeals has ruled.

Erik Downes, 20, of Fort Myers, Florida, was a junior at Oglethorpe University when he traveled to Costa Rica with five other students and two professors for a 12-day academic trip. He disappeared under a wave on Jan. 4, 2011. A student who tried to help him said he was pulled out to sea by a current. His body was found three days later.

The parents filed a wrongful death lawsuit in DeKalb County State Court against the university, alleging negligence. Judge Nora Polk dismissed the lawsuit, granting Oglethorpe’s motion for summary judgment. The Court of Appeals upheld Polk in a June 30 opinion.

“We affirm because, as a matter of law, Downes assumed the risk of drowning when he chose to swim in the Pacific Ocean,” Presiding Judge John Ellington wrote for a panel that included Judges Gary Andrews and Brian Rickman.

During pretrip meetings, a professor asked the students if they were good swimmers, and they all said yes, Ellington said. The students also signed a release agreement which included an exculpatory clause for Oglethorpe.

The parents asserted that gross negligence negated the waiver. They produced an expert who said their son had been caught in a “rip current.” The expert testified that the waters around Costa Rica are particularly dangerous because of such currents and the lack of lifeguards.

“It is well established under Georgia law that “[t]he danger of drowning in water is a palpable and manifest peril,” Ellington wrote.

“The record does not show that Downes was aware of the presence of rip currents in the waters off the beach,” Ellington said. However, he added that it is “the body of water per se that presents an obvious risk of drowning, not its attendant conditions such as a strong unseen current or a deep unknown hole.”

Ellington said that, as Downes was a “competent adult, he was necessarily aware of the risk of drowning when he voluntarily entered the Pacific.”

Regarding the parents’ contention that the university was negligent in taking the students to a dangerous beach without adequate safety training and preparedness, Ellington said, “assumption of risk is nevertheless a defense to negligence.”

“Although Downes’s death was undeniably tragic, we are constrained to conclude that the trial court correctly granted Oglethorpe’s motion for summary judgment,” Ellington concluded.

Oglethorpe’s attorney, David Atkinson of Swift Currie McGhee & Hiers, said it is the firm’s policy not to comment on pending litigation.

The parents were represented by Katherine McArthur of the McArthur Firm in Macon.

McArthur said she plans to ask for reconsideration and, if necessary, Georgia Supreme Court review.

“The Court of Appeals has placed a higher responsibility on the student and no responsibility on the school,” she said. “The students were paying the school for academic credit. This was not just a trip. That’s what makes this different.”

McArthur added that the opinion as written could relieve colleges and universities from the duty of ensuring safety on study abroad programs.

“I would hate to establish bad law with this,” McArthur said. “We have to take it up.”

The case is Downes v. Oglethorpe, No. A17A0246.