New York State Court of Claims

New York State Court of Claims

MICHAELSON v. STATE OF NEW YORK, #2003-030-038, Claim No. 104397


Defendant not liable for injuries suffered when she fell out of a canoe. Claimant had participated in elective physical education course offering choice of outdoor education activities including a canoe trip, sponsored by SUNY Purchase. Claimant received adequate instruction and supervision. Claimant's accident was an unpreventable, inherent risk of traveling in a canoe.

Case Information

MELISSA MICHAELSON Caption has been amended to reflect the only proper defendant.
Claimant short name:
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Footnote (defendant name) :
Caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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Claimant's attorney:
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Signature date:
October 6, 2003
White Plains

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See also (multicaptioned case)


Melissa Michaelson, the Claimant herein, alleges in Claim Number 104397 that she was injured when defendant negligently failed to provide adequate instruction and supervision during a class outing on the Housatonic River near Cornwall, Connecticut. Trial on the issue of liability was held on March 10, 11 and 12, 2003. This decision relates solely to the issue of liability.

In her Claim, Ms. Michaelson alleges that on April 15, 2000 at approximately 1:00 pm she was on a canoeing trip with fellow students from the State University of New York at Purchase (hereafter Purchase or SUNY) under the supervision of Purchase personnel, when she was thrown from the canoe into the water. She alleges that defendant was negligent in failing to provide adequate instruction on the proper and safe use of the canoe before and during the trip, failing to provide adequate supervision, failing to provide an adequate number of qualified assistants during the trip, and allowing students of limited experience to navigate the river as conditions existed on the date of the accident.[1] These omissions, she alleges, are the proximate cause of her injuries.

A Notice of Intention was received by the Office of the Attorney General on June 15, 2000. [2]
In the Spring semester of the year 2000 the Claimant - then an 18-year-old full-time college student at Purchase - signed up for an elective college course there entitled "Outdoor Weekends." Janet Shaughnessy, Director of the Division of Physical Education, Recreation and Athletics at Purchase from 1984 to September, 2000, had approved the curriculum for the course, prepared by Charles Ritchie, the instructor. The course was noted in the college catalog available to all students. [See Exhibit A]. An organizational meeting for the course took place during the add/drop period at the beginning of the semester wherein students could drop the course without penalty should they choose not to participate.

The syllabus for the course described its learning goals as fostering an interest in the outdoors, and required attendance at two out of three planned weekends. [Exhibit 5]. The initial outings offered were skiing, rock climbing and canoeing. With respect to the canoeing/camping weekend, the syllabus advised that the trip would be in the Delaware or the Housatonic River, and students would ". . . [l]earn the basic skills involved in paddling a canoe . . . " [Id]. The clinical portion of the program - held in the school pool - was scheduled for April 13, 2000 at 6:00 pm, with an organizational meeting at the same time. [Id]. The trip was planned for the weekend of April 15, 2000. [Id].

Ms. Shaughnessy testified that she had hired Charles Ritchie in 1995 and Brian Piechowicz in November, 1999. When she approved the outdoor weekends course for the Spring 2000 semester, she was aware that Mr. Ritchie had guided other canoe trips and, indeed, had taught an outdoor weekends course in the fall of 1999 that included a canoe trip. One of his job responsibilities - as set forth in his "performance program" - was to create outdoor living and skills programs, including canoeing excursions. [See, Exhibit 9]. Mr. Ritchie's performance program from earlier in his career with SUNY includes requirements that he maintain CPR and first aid certification - which he possessed when he was hired - and to plan at least six outdoor events including canoe trips. [See Exhibit 7]. Ms. Shaughnessy could not recall when she learned where the canoeing trip would take place, but knew she had heard that it would be located along the Housatonic River in Cornwall, Connecticut some time prior to the trip, as well as when the trip would take place.

Although it was not specifically part of his job requirements as Intramurals Director, Brian Piechowicz accompanied Mr. Ritchie on the trip to provide extra supervision for the students. Ms. Shaughnessy noted that it was the general practice for staff members to help one another with the supervision of activities if needed. Although she could not specifically recall the conversation concerning inclusion of Mr. Piechowicz on the trip, she did recall that she had a discussion with Charles Ritchie relative to the number of students going on the trip, and the assistance Mr. Piechowicz could provide including accompanying the students down the river.

At the organizational meeting on April 13, 2000, which Claimant attended, students were advised of what activities would be conducted in the pool that evening. They were given the Red Cross canoeing manual [Exhibit E] and a list of what to bring on the trip [Exhibit C]. Mr. Ritchie also advised students to bring extra clothes inside a plastic bag in case they fell out of their canoes, and that the current of the water would vary depending on the weather and how much water was being released from a dam in the area. The clinic in the pool took approximately two hours.

Claimant testified that the clinical portion of the course involved loading a canoe into the pool, getting into the canoe without tipping it, paddling the canoe from one side to another, and then tipping the canoe over and getting back in it. She did not recall that Charles Ritchie did any demonstration prior to these activities, although he verbally described what the students were expected to do. She did not remember any other SUNY staff present in addition to Mr. Ritchie. She did not remember any additional verbal instructions after the activities with the canoe, or any discussion of the expected conditions on the river, but did recall receiving written materials with regard to operating a canoe, and reviewing the materials. She did not remember being asked if she could swim, and remembered only vaguely some discussion about athletic experience.

On cross-examination she indicated that she had swum competitively for seven years, considered herself a "pretty good" swimmer, and recalled telling Mr. Ritchie after his inquiry that she had confidence in her swimming ability. She indicated that reading the materials was different than reviewing the materials, with the former being a process whereby she would read word for word and try to memorize material. Although she could not recall specifically reviewing a chapter on rescue techniques in the materials provided [See Exhibit E], she was aware that if you get in a canoe on a river you can fall out of the canoe. She also conceded that she believed that Mr. Ritchie might have done some demonstration of technique in the pool but could not recall. Claimant, and Rhiannon Murphy, her partner, performed the various tasks in the pool. Claimant described Ms. Murphy as the kind of swimmer who doesn't like to put her face in the water.

Prior to taking the canoe trip, Claimant had worked at various upstate camps and had attended girl scout camp from the age of 13 to 15. While at camp as both a camper and a counselor, she had paddled a canoe. Other than an initial meeting discussing the course generally, and the trips that would be offered, at the beginning of the semester, and the meeting before the clinical portion in the pool, she did not remember any further instruction on canoeing, or discussion of the conditions to be expected.

On cross-examination, however, she indicated that the group had been told that either the Delaware River or the Housatonic River would be the location, and that the Housatonic River was faster than the Delaware. She indicated that she understood that by saying the river was faster, Mr. Ritchie was saying that the water in the Housatonic River would be moving water, and that relative to each other, the Housatonic was the faster river. She also confirmed that with that information, she selected the canoeing trip as one of her two trips. Additionally, she confirmed that she had never expressed any concern over her swimming ability, or her ability to paddle a canoe, to anyone at SUNY prior to the trip.

They drove for approximately two hours to their campsite the night before the canoe trip, waking up on Saturday, April 15, 2000 to cold, dreary weather. By her estimate, the temperature was between 50 and 60 degrees. She conceded on cross-examination that the temperature rose later on, and that the sun came out. Claimant recalled one or two other SUNY employees driving other vans to the meeting point at the canoe outfitters. She did not remember anyone from the canoe outfitter company discussing how to operate a canoe in moving water, nor did SUNY personnel discuss anything other than the procedure of unloading the canoes.

At the actual site, she remembered a canoe outfitter employee talking about the general direction of the river, how to launch, and giving general advice to stay toward the center of the river and avoid the sides because of extended branches. She signed a release agreement from the canoe company, after not reading it very thoroughly. [See Exhibit O]. The release describes some of the dangers associated with canoeing, as inherently dangerous, including the possibility of serious bodily injury or loss of life. [See Id]. Charles Ritchie, she recalled, discussed how the group should stay together, and the distance he anticipated traveling before and after lunch. She stated that she expressed concern over the duration of the trip because it was very cold. Although Claimant remembered there was discussion of the order in which paired students were to sit in the canoe, and the order of launching, she did not remember the details.

At the immediate launch area, the water was calm, and then, within moments, the water appeared to be moving somewhat fast, for approximately 100 yards. She estimated that the canoe was moving through the water at perhaps 10 to 15 miles per hour, in this first, fast portion of the river. Thereafter, it moved at a slower rate. Indeed, all the witnesses agreed that the first, swift section of the river immediately after the launch area was the fastest area they canoed through on that day.

Before the lunch break, Claimant switched partners since she found that she and Ms. Murphy were arguing about who was doing more work and did not seem to be working well together. She said that Ms. Murphy had panicked, and that she was nervous about traveling with a panicked partner. After the lunch break, she had traveled perhaps a mile down river when the canoe capsized. She described the river from the area of the lunch break, to the point where the canoe capsized as slower in some parts and faster in others. At the point where the canoe capsized, the water was getting a little faster. She observed Charles Ritchie at various locations along the route with reference to her canoe since the lunch break; sometimes behind, sometimes slightly in front. When the canoe hit a rock and capsized, Mr. Ritchie was behind Claimant's canoe. Claimant testified that she and her partner had been in the water for about ten minutes when Mr. Ritchie pulled them out.

Overall, Claimant indicated that her expectation prior to the trip had been that the river would not be as fast, based upon her experience in the pool, and the fact that there were only two classes prior to the trip. At the launch site, the speed of the water was comparable to her other experiences on the water. She estimated that the water was flowing between 15 and 25 miles per hour. For perhaps one-third of the trip, the water was flowing at the fastest speed. She thought that it was not the current of the river, however, which caused the canoe to capsize but rather the large rock that the canoe grazed.

Brian Piechowicz testified that on the day of the trip itself, he and Mr. Ritchie distributed three two-way radios. Mr. Ritchie, Mr. Piechowicz and a student named Jesse who was thought to be very reliable were each in charge of a radio. It was again specifically communicated to the students that falling out of a canoe was a possibility. Twenty two students went on the trip, and were distributed, along with Mr. Ritchie and Mr. Piechowicz, in twelve canoes, two people to a canoe. Eight aluminum canoes were owned by the school, and another four canoes, made of green fiberglass, were rented from Clarke Outdoors, Inc. (hereafter Clarke). Although not there in an official capacity, one of the students was also a part-time employee of the school, certified as a life guard. All students wore life jackets, and were issued a paddle.

The area from which the canoes were launched was a small beach, with pebble and rocks, with an area of "stagnant" water to enable entry into the canoes without concern for being rushed down the river. [T. 108-109]. Mr. Piechowicz described the stagnant area as ten yards wide; outside it the water started to move faster. As depicted in a photograph, the area is level, and the water is fairly calm in the area immediately adjacent to where the canoes sat on the beach prior to launching. [Exhibits T and P]. Mr. Ritchie announced that the students were to pair up, and to be sure that at least one of each pair felt comfortable in steering a canoe. The student who felt himself more knowledgeable was to sit in the rear of the canoe. Mr. Piechowicz recalled that of the two - Claimant and her initial partner, Rhiannon Murphy - it was Claimant who felt slightly more comfortable in approaching the task of canoeing. He did not remember if she sat in the rear of her canoe.

Mr. Ritchie advised that if the water became rough, they were to lower the center of gravity by kneeling or sitting in the bottom of the canoe rather than remaining on the seats. Additionally, an employee of Clarke described the river itself, and the route they would be taking. He told them that once you left the initial calm area, the river was moving fairly quickly. He described the various turns, and the approaches you should take, and also gave instructions on what to do if you fell out of the canoe. This was apparently a "scripted" talk that Clarke employees presented, and was memorialized in a writing. [See Exhibit J].

Not all of the 12 boats would be able to start off in the calm water. Mr. Piechowicz and the student he was paired with entered the water last, based on the understanding that he and Mr. Ritchie had that one of them would always be last in order to keep an eye on all the students. As the canoes entered, they were to go around the first bend and wait for the group.

After the ten yard wide calm portion, there was a swifter portion of water, followed by another, calmer portion where Mr. Ritchie had instructed the group to wait. Mr. Piechowicz estimated that he traveled at 10 to 15 miles per hour from the end of the calm portion through the swift portion to the meeting point calm area. He testified that the water never traveled as fast again, nor did it travel faster. From the point 100 yards down the river to the point of the accident, there were parts of the water that were very slow - "that you had to paddle through"- and there were others where the current would push the canoe along. [T. 122]. Mr. Piechowicz described the whole area of the trip as a "relatively calm portion of the river." [Id]. Indeed, Mr. Piechowicz stated that the majority of the time the river was relatively slow moving, other than the fast moving area 100 yards into the trip. From his vantage point at the rear of the group, he did not observe any students having difficulties during the fast moving stretch.

Mr. Ritchie traveled primarily toward the front of the group, guiding the students. He and Mr. Piechowicz communicated via radio, with Mr. Ritchie relaying any instructions or advice concerning the river as the trip continued. Just after the fast portion, in the slower moving portion where the group was to convene, Mr. Piechowicz observed Claimant and Ms. Murphy zigzagging down the river, apparently unable to steer the canoe straight. He came alongside to see if there was anything he could do to help out. Claimant indicated that her present partner was not doing her part, and that Claimant said she knew what she was doing and had taught canoeing during the summers to other kids. Claimant's partner switched places with Mr. Piechowicz' partner, Cindy Maucere. Mr. Piechowicz could not recall if Claimant or her original partner had been in the front or the back of the canoe, nor could he recall where Claimant was sitting after the switch. The operation of the canoe appeared to be better. Theirs was generally the last canoe before the one in which Mr. Piechowicz was traveling,

One and one-half hours after launching, they stopped for a lunch break. All the students went ashore for the break. Mr. Piechowicz had Claimant's canoe in view from the time of launch until the lunch break almost 100 percent of the time. After the lunch break, Mr. Piechowicz recalled Claimant changed partners again, joining up with Melissa Eichengreen. Mr. Piechowicz was in the last canoe to launch off after the half hour lunch break. Approximately 15 minutes elapsed after the group's return to the water and Claimant's accident. Mr. Piechowicz indicated he had Claimant's canoe in view almost the entire time between their after lunch launch, and the accident. Her canoe was the first or second in front of him.

Over the radio, Mr. Ritchie advised Mr. Piechowicz that a canoe had flipped. He went around a small bend in the river and saw the canoe on the left side. When he ascertained that the students were okay, he turned back toward the middle of the river and saw Claimant's canoe upside down in the river from about 30 yards away. Mr. Ritchie was approximately 40-50 yards away from Claimant's canoe. Claimant's canoe was toward the center right of the river; Mr. Ritchie's canoe was on the left side of the river, so the distance was more a width distance than a length distance. It appeared to Mr. Piechowicz that the Claimant's canoe flipped at the same location as the canoe that had flipped moments earlier. There was a slight, but not very strong current at that location. Claimant and her partner were unable to right the canoe, and Mr. Piechowicz and his partner helped move the overturned canoe down the river, while Claimant and her partner swam to shore. The last sight Mr. Piechowicz had of Claimant was as she neared the side of the river, and Mr. Ritchie approached her at the shore. Mr. Ritchie radioed Mr. Piechowicz to continue down the river and gather the students prior to a covered bridge area, downstream from the accident site.

Claimant, Ms. Shaughnessy, and Mr. Piechowicz were the only witnesses to testify on Claimant's direct case.

Robert Gates, a 22-year-employee of Northeast Generation Services, and a station manager for the utility, was the first witness for the Defendant. He indicated that one of his responsibilities was the maintenance of a hydroelectric plant with a dam on the Housatonic River in Falls Village, Connecticut. The company controls the release of water from the plant, and maintains records reflecting the amount of water released into the river on an hourly basis. The company publicizes the timing of their releases on a voice mail recording available at a toll free telephone number called the River Phone. The device measuring the flow is approximately one-half mile downstream from the dam. Mr. Gates identified the canoe launch area as immediately across from the power house area where the water is released and the measurements are taken. According to the daily operating report for the Falls Village Station, on April 15, 2000 the water flow on the Housatonic River in Falls River based upon measurements taken on the hour, was 1,498 cubic feet per second (hereafter CFS) from 1:00 a.m. to 7:00 a.m.; 1,423 CFS at 8:00 a.m.; 1,431 CFS from 9:00 a.m. to 10:00 a.m.; 1,427 CFS at 11:00 a.m.; 1,431 CFS from noon to 1:00 p.m.; and 1,444 CFS at 2:00 p.m. [See Exhibit G].

In records maintained by the United States Geological Survey for a flow gauge located at Falls Village, the water flow is recorded as 1,440 CFS from 1:00 a.m. to 1:45 a.m.; 1,450 CFS at 2:00 a.m.; 1,440 CFS from 2:15 a.m. to 3:30 a.m.; 1,450 CFS at 3:45 a.m.; 1,440 CFS from 4:00 a.m. to 6:00 a.m.; 1,380 CFS at 6:15 a.m. and 1,370 CFS from 6:30 a.m. to 1:00 p.m. [See Exhibit N].

Jenifer Clarke, a 20-year employee of Clarke Outdoors, testified. She indicated that the company had approximately 5,000 customers per year, and that the majority of its business involved renting canoes for use on the Housatonic River by beginners or advanced beginners. When the canoes are rented, the company transports its customers to the launch site at the Falls Village power plant, and gives them a safety talk describing the river, the best routes through different areas, and what to do when a canoe tips over among other things. She noted that the company's practice in April, 2000 would have been to relay all the information contained in the scripted safety talk to its customers. [See Exhibit J].

The water flow information provided by the utility company on the River Phone is recorded daily by the Clarke employee who opens the store. Indeed, the water flow indicated by the utility will dictate whether Clarke would rent canoes on that day. Any water flow below 600 CFS is considered too low because of the rock exposure, and the lack of water flow through the channels. Water flow between 2,200 CFS and 2,400 CFS is too high, because the water moves too quickly and it is not easy to canoe in the river. The optimum range is between 1,700 CFS and 1,800 CFS since most of the rocks are then covered, and there is an easy route through all of the rapids portions.

On April 15, 2000 the River Phone indicated that 1,500 CFS was running for 24 hours, and the information was recorded in Clarke's reservation book. [See Exhibit V]. Ms. Clarke had traveled the river when 1,500 CFS was flowing. She described it as a medium flow, with most of the rocks covered up - a "mixture of moving, still water, and with some easy rapids." [T. 347]. She identified the photographs of the launch area as showing water flow "consistent" with the 1,500 CFS measurement.

Ms. Clarke also discussed the river rating system, describing it as a known standard in the business whereby rivers are rated by degree of difficulty. The rating system is memorialized in what is known as the International Scale of Difficulty, ranging from Class I - described as "[m]oving water with a few rifles and small waves. Few or no obstructions" - to Class VI - described as "[n]early impossible" to navigate. [See Exhibit H]. In a report Mr. Ritchie had prepared concerning Claimant's accident - admitted during Claimant's direct case - he makes reference to the section of swift water as being a "class 1-2 rapid." [See Exhibit 1]. Ms. Clarke described the ten mile section of the Housatonic River for which the company rented canoes, with a water flow of 1,500 CFS, as containing a mixture of moving flat water and class one and two rapids.

Rhiannon Murphy testified briefly. She confirmed that she and Claimant had decided to be partners for the outdoor weekends canoe trip, and had trained together in the pool for the clinical portion of the course. Charles Ritchie, she remembered, both discussed how to steer, how to row and how to flip a canoe back over were it to capsize, and get back in. He also physically demonstrated the techniques. He told them that it was possible for canoes to capsize during the trip on the Housatonic River, and that a change of clothes would be practical. Ms. Murphy said they were all asked to demonstrate swimming ability, and she noted that she had been on a swim team herself and was a very good swimmer: a different characterization of her swimming ability than that ascribed to her by Claimant. When she and Claimant practiced with a canoe in the pool, Claimant sat in the rear and she sat in the front. They effectively steered and paddled, only having some trouble with flipping the canoe back over once it was capsized. Ultimately, however, they were able to perform all the skills that Mr. Ritchie had demonstrated.

At the canoe trip launch area, Ms. Murphy recalled being told by Mr. Ritchie that the more experienced student should sit in the back, and that both she and the Claimant characterized themselves as experienced. Mr. Ritchie also reminded the students at the launch site to "lay low" when they hit any rapids - as he had told them at the clinical session. Personnel from Clarke handed out maps of the river showing the various obstacles. When Claimant and Ms. Murphy launched, Claimant was sitting in the front and Ms. Murphy was sitting in the back. She recalled launching toward the end of the group, and that Mr. Ritchie was in front and Mr. Piechowicz was in back.

After they passed the first area of what Ms. Murphy described as rough water, where they were having some trouble keeping the canoe straight, they switched partners. Ms. Murphy said that she was having difficulty steering because Claimant was yelling at her, but that she herself was not experiencing any panic but was calm. She said Claimant was "sitting up the entire time when we were going through the rapids" while Ms. Murphy was trying to stay low in the canoe as they had been instructed. [T. 545]. It was at this point that Cindy Maucere got in the canoe with Claimant, while Ms. Murphy got in Mr. Piechowicz' canoe. Sometime thereafter, she heard that Claimant had fallen out of her canoe while she was partnered with "another Melissa." [T. 546]. Ms. Murphy and Mr. Piechowicz had been behind the Claimant's canoe. By the time they got to Claimant's canoe, it had already capsized and the girls were in the water. The water where the Claimant's canoe had capsized was not as fast as the initial rough stretch. Ms. Murphy and Mr. Piechowicz were unable to go backwards to the capsized boat, and instead pulled over to shore. Mr. Piechowicz took the first aid kit and went running back.

On cross-examination, Ms. Murphy confirmed that she did not know the exact point where the Claimant's boat capsized, but had assumed it was close to where the girls were when she saw them in the water. By the time she and Mr. Piechowicz returned after passing them, Mr. Ritchie was holding on to Claimant.

Cynthia Maucere testified briefly as well. Prior to the April 15, 2000 canoe trip, she had canoed on the Delaware River as part of a school trip with Charles Ritchie. She did not attend the clinical portion of the Spring course because she had gone on the previous trip. At the launch area she recalled Mr. Ritchie telling the students to pair off according to experience, with one experienced person and one inexperienced person per canoe. Ms. Maucere characterized herself as inexperienced and sat in the front of the canoe she shared with Brian Piechowicz. She overheard Claimant characterize herself as experienced.

Ms. Maucere and Mr. Piechowicz launched last, and very shortly entered the area of faster water - an area she described as a "[q]uarter length of a football field" - traveling at 5 mph "tops." [T. 581]. After that first, rougher area, she switched partners with Claimant and Ms. Murphy, taking Ms. Murphy's spot in the back of Claimant's canoe. About 15 minutes later, she switched again at Charles Ritchie's request. Ms. Maucere said she felt very unsteady in the canoe, it seemed as if Claimant was shifting her weight and the canoe was not moving. She left Claimant's canoe and partnered up with another student named Michael. Approximately one-half hour to forty five minutes after the switch, they had a lunch break. The water until the lunch break had been fairly calm, forcing them to paddle frequently. After the lunch break, there was a faster portion of the river, where the water again was moving at about 5 mph by her estimate; that is, the same rate as the first fast portion immediately after the initial launch.

Melissa Eichengreen testified that she recalled the clinical portion of the Outdoor Weekends canoeing course as taking place in the pool, and recalled being "taught how to paddle, and . . . how to get in the boat, flip it over, and get back into the boat." [T. 599]. Mr. Ritchie told them there was a good possibility that students could fall into the river, and he demonstrated paddling, getting into the canoe, flipping it, and getting back into the canoe.

At the launch site, she recalled characterizing herself as experienced, and sitting in the front of a canoe with a fellow student named Mike, who also characterized himself as experienced. After launching into the stagnant water, she remembered the faster water appearing, and described her canoe as moving at "[a]round 5 miles per hour." [T. 604]. About 45 minutes into the trip, Mr. Ritchie told her to switch partners. She was to go to the back of Claimant's canoe. Claimant said to Ms. Eichengreen that she was experienced. They canoed together for approximately one-half hour before the lunch break. After the lunch break, they returned to the canoe and the water, and capsized "[m]aybe an hour" later. Ms. Eichengreen said that where the canoe capsized, the water was moving slower than the water had been moving in the initial fast area. She also stated that the water never moved as fast as it had in the initial fast moving area where they first launched. Ms. Eichengreen said they "were going along fine, and then we . . . sideswiped a rock on the left side, and we tipped to the right, basically. . ." [T. 608], causing the canoe to tip over. As instructed by either Mr. Ritchie or "the guy from the canoe company" [T. 610], once she entered the water, she picked her feet up so that her feet wouldn't get scraped along the bottom. She looked back at Claimant, noticing she was bleeding, and swam to the right side of the river. She remembered that both she and Claimant got out of the river.

On cross-examination she remembered receiving the Red Cross material on canoeing either before or after the clinical portion of the course, and did review it before the trip. She stated that there was no quiz given, that she understood that in order to receive credit for the course she would need to complete the requirements; and that she did not recall being told about water temperature concerns, or the classification of the water, or any conditions specific to the Housatonic River.

Charles Ritchie testified at some length about the April 15, 2000 canoeing trip he led. With a bachelor's degree in health and fitness, and trained in wilderness first aid and CPR, in April, 2000 he had been a CPR instructor for ten years, and had been working at Purchase for five years. His experience prior to his employment by SUNY, included the coordination and supervision of outdoor trips for children as well as adults, including climbing, backpacking and caving, and the management of pools, weight rooms, and racket sport courts. As the Director of Recreation at Purchase from March, 1995 to February, 2001 he supervised the health club, the student staff and the pool, and acted as an adjunct instructor commencing in the fall 1999 semester. Prior to acting as an adjunct instructor, he had coordinated outdoor trips, but not as physical education courses per se. From March, 1995 to just prior to the Spring, 2000 semester, Mr. Ritchie had supervised trips in camping, backpacking, caving, day hikes and canoeing. He recalled supervising two canoeing trips prior to the Spring, 2000 semester at Purchase, including an Outdoor Weekends physical education course in Fall, 1999. The canoeing trip for the Fall, 1999 Outdoor Weekends course took place on the Delaware River. In the summer of 1998, he had supervised a trip on the Housatonic River. He had also, personally, taken longer, five or six day, trips on the Allagash River in Maine, and on the Boundary Waters in Minnesota, and had canoed on the Delaware River at least six or seven times.

Mr. Ritchie reiterated that the Outdoor Weekends course was not mandatory, and that in order to receive credit, the students would select two out of the three trips offered. The syllabus was given out at the meeting held at the beginning of the semester to describe the options available to students, with the primary requirement being participation. [See Exhibit 5]. Mr. Ritchie advised the students that the trips were designed for novices, and that while the water would be moving, it would not be like the rapids they might see on television - there would be some flat spots on the river. He told them that in the event they encountered rapids, they would be given instruction in the clinic on how to handle them in more detail. They were told that it would be a two day, weekend trip, including a full day of canoeing on the Saturday, and a half day on the Sunday. Mr. Ritchie told them he had not decided between the Delaware or Housatonic Rivers at that point. A revised scheduling announcement for the Outdoor Weekends course was issued on April 12, 2000, indicating that the canoeing trip would occur that weekend, and the necessity of attending the meeting and the clinic. [See Exhibit B]. The announcement also sets forth three alternative trips of camping, rock climbing and caving. [See, Id].

There was a classroom session prior to the clinic in the pool. At the clinical session, he and Brian Piechowicz physically got in the canoes to demonstrate different paddling techniques, "swamping" the boat, and getting back in. [T. 411]. Students signed off on their status as swimmers, or non-swimmers [See Exhibit U], and a lifeguard Mr. Ritchie had stationed observed their actual swimming as they engaged in the skills activities. One student was foreclosed from participating in the canoe trip because she had not demonstrated swimming proficiency. Announcing that the trip would be on the Housatonic River, he warned the students about falling in the river and advised that they bring an extra set of clothes in a plastic bag to face that eventuality, and told them again that the water would be moving water, but not like the water on television. Students were given the Red Cross canoeing guide and told to read it [See Exhibit E], and a Beginning Canoeing Skills Sheet to use as a guide in learning the various strokes and skills. [See Exhibit 3]. In the report Mr. Ritchie prepared after the accident, he notes that the Claimant performed these listed skills to a "novice level," [See Exhibit 1], meaning she could perform the skills at a level that she "could sufficiently and safely move her way down the river." [T. 419].

Mr. Ritchie reported that Claimant had expressed some reservations about going on the canoe trip because her parents were concerned that she was accident prone. She had a copy of the revised schedule [Exhibit B] in hand, created, Mr. Ritchie said, because he had been running into conflicts with other students' schedules. Mr. Ritchie stated that he tried to allay her fears, and said that if she wanted, some kind of alternative could be worked out. Claimant never came to him to ask about working out an alternative.

At the launch site, the Clarke employee gave the same advice Mr. Ritchie had given about falling in the water, and the necessity of floating on your back in that event, and not standing up because of the danger of getting caught in the rocks. Mr. Ritchie remembered telling the students that the first, fast portion was going to be the fastest water they would encounter that day, and that it would be a good gauge for seeing whether their skills could get them down the river. In terms of safety equipment, all students wore life vests, Mr. Piechowicz and Mr. Ritchie each had two-way radios, and a third radio was given to two students who were more experienced canoers. Mr. Ritchie had a first aid kit in his canoe, and there were towing ropes in his and Mr. Piechowicz' canoe. He and Mr. Piechowicz planned on being in separate positions on the river with the group, with the person in front relaying back any problems, and the person in the back acing as a "sweep to make sure that no one had tipped the boat over or gotten hurt on the way down."[T. 436].

Once in the canoes, Mr. Ritchie recalled, the first swift water lasted about 200 yards. His canoe traveled at between 10 to 15 miles per hour in those 200 yards. At the end of that stretch, the students were to slow down and pull over to make sure everyone got through all right. All the students indicated that they were okay. The water never moved any faster than that first portion.

At the lunch break, Mr. Ritchie heard from Mr. Piechowicz that he'd had to switch Claimant's partner, but Mr. Ritchie did not know with whom. After the lunch break, Claimant partnered with Melissa Eichengreen. Only about 15 minutes had elapsed from the end of the lunch break to the accident. The water was lower and more rocks were visible, but the flow of the water was not "quick." [T. 449]. When the accident occurred, Mr. Ritchie was approximately 80 to 100 yards down river, and had slowed down to the side because there was an area beyond the site of the accident that was faster moving, and he wanted to make sure the students got through it. Mr. Ritchie saw the Claimant's canoe capsize from his vantage point. His own canoe had traveled through the area where Claimant's boat capsized at approximately 7 or 8 miles per hour: at a rate slower than the initial fast portion at the beginning of the trip. He saw Mr. Piechowicz' canoe perhaps 20 yards up river from Claimant. His only recollection of the canoe capsizing was "seeing the boat flip, it was perpendicular to the river, and just seeing the two girls close to the boat. At some points they were blocked from me because they were behind the boat." [T. 450].

Mr. Ritchie then paddled upstream closer to Claimant, and observed her swimming in the water, and she indicated that she had hurt her finger. The water was fairly deep there, and Mr. Ritchie thought the best tactic would be to get to the nearby side of the river. The current was not moving very fast at that location, so there was no sensation of being dragged down river. He told her to "hold on to the point where we could get her into . . . my canoe, and . . . [he] pulled her to the side of the river in sort of a safe spot by a tree, and . . . administered first aid." [T. 453].

Claimant indicated to him she was not sure how she hurt her finger - thinking at first she caught her finger on a rock - having felt something sharp go across it when the current pulled her. After Claimant changed into whatever dry clothes were available, Mr. Ritchie wrapped her finger in gauze and tape and also examined the area in search of missing flesh from her finger. She was then evacuated.

On cross-examination, Mr. Ritchie confirmed that he had not given any written tests concerning the materials handed out, was not aware of what level of paddling skill Mr. Piechowicz had, and would characterize his own skills as advanced.

On redirect, he confirmed that he had observed Mr. Piechowicz paddling and maneuvering the canoe in the pool prior to the trip, and his opinion that the first 200 yards would be the most difficult part of the trip was also based upon his own prior trip on the Housatonic River.
As an initial matter, Defendant made a motion to dismiss the claim based upon its second, third and fourth affirmative defenses addressing the adequacy of the description of the site of the accident as set forth in the Notice of Intention. Court of Claims Act §11(b) provides in pertinent part that the Notice of Intention shall " . . . state the time when and place where such claim arose, [and] the nature of same . . ." While the statute ". . . does not require absolute exactness, . . . [it] does require a statement made with sufficient definiteness to enable the State to investigate the claim promptly and to ascertain its liability under the circumstances. ‘The statement must be specific enough so as not to mislead, deceive or prejudice the rights of the State. In short, substantial compliance with section 11 is what is required'. . . (citations omitted)." Cobin v State of New York, 234 AD2d 498, 499 (2d Dept 1996), app dismissed, 90 NY2d 925 (1997), rearg denied, 91 NY2d 849 (1997). Thus in Cobin v State of New York, supra, the statement in the Notice of Intention that the Claimant there " . . . was injured as a result of a trip and fall ‘on the boardwalk at Jones Beach, County of Nassau, State of New York, in the East Quarter Circle, or its vicinity' " did not provide sufficient specificity. But c.f., Arquette v State of New York, Claim No. 102374; Motion Nos. M-63135; CM-63219, UID # 2001-013-017, Patti, J. September 20, 2001.

The Notice of Intention served herein indicates that "[t]he accident occurred on April 15, 2000 at Housatonic River, Cornwall, CT at approximately 1 PM. Claimant was injured when she was thrown out of the canoe. The defendant(s) were [sic] negligent in allowing in-experienced [sic] students out on the river, in failing to properly train and supervise the students, in allowing students to canoe under adverse conditions, in not having an adequate number of qualified assistants on the river with the students. Claimant was a student at SUNY Purchase, and was on an outing with the class at the time of accident." In keeping with the notion advanced in Arquette v State of New York, supra, that although the exact location of the accident is not precisely indicated, the happening or the mechanics of the accident alleged are sufficient to enable the State to determine what employee might have been responsible for the alleged negligent acts, the Notice of Intention is jurisdictionally sufficient. The Notice of Intention served here marginally provides the information required, and Defendant's motion to dismiss on this ground is therefore denied.
It is well settled that a school does not stand in the position of in loco parentis to its adult students. Eiseman v State of New York, 70 NY2d 175 (1987); c.f. Rydzynski v North Shore Univ. Hosp., 262 AD2d 630 (2d Dept 1999). This is because adult students are viewed as " . . . capable of caring for themselves and making independent decisions . . . (citation omitted)." Rydzynski v North Shore Univ. Hosp., supra. Thus, when two SUNY New Paltz students drowned during a sudden storm on Lake George while on an extracurricular canoe outing offered through the school outing club, the claim was dismissed. Mintz v State of New York, 47 AD2d 570 (3d Dept 1975). The Court said ". . . the decedents were 20-year-old college students, . . . cognizant of perilous situations and able to care for themselves, and not young children in need of constant and close supervision." [See Ibid, 571].

In terms of general negligence principles, a school is under a duty to exercise reasonable care to prevent injury to students in school sponsored activities. "This responsibility includes the obligation not to direct a student to do that which is unreasonably dangerous . . . (citations omitted), to see that any equipment supplied is reasonably safe for its intended use . . . (citations omitted) and to provide such instruction and supervision as is reasonably required to safely perform the directed tasks or to use the supplied equipment . . . (citations omitted). What is reasonable will, of course, vary with, among other facts, the age and abilities of the student . . . (citation omitted) and his or her reasonable expectations of due care under the circumstances . . . (citation omitted)." Yarborough v City Univ. of N. Y., 137 Misc 2d 282, 285 (Ct Cl 1987).

Thus, even a 28 year old elementary education student taking a required course on teaching physical fitness to elementary age children was owed a duty of reasonable care when she was injured during participation in a sack race utilizing plastic bags on a wooden floor. [See Yarborough v City Univ. of N. Y., supra]. The Claimant there was required to take the course in order to receive a degree in her chosen field of study, and had never participated in a sack race before. The Court found that the Claimant was under a compulsion to participate in the activity, and had the reasonable expectation that the activities she would be asked to undertake would not be unreasonably dangerous, and would be preceded by proper instruction. In her case, she should have been told to keep her feet together when jumping, and should not have been provided with what essentially was unreasonably dangerous equipment: a plastic bag on a slippery wooden floor.

As it has evolved since Turcotte v Fell, 68 NY2d 432 (1986)[3] - the Court of Appeals case announcing that assumption of risk was no longer an absolute defense in light of comparative negligence principles [See Civil Practice Law and Rules Article 14-A ] -assumption of risk is used to define the duty owed. See generally, Morgan v State of New York, 90 NY2d 471 (1997). If a plaintiff or claimant knew or fully understood, or should have known or fully understood the risk of injury associated with the activity, and voluntarily participated, the school's duty to protect students from unassumed, concealed or unreasonably increased risks may be circumscribed.

In this case, Claimant signed up for an elective course - not a required one - that provided several opportunities for outdoor physical activities to satisfy the minimum requirements. The Court notes that more than two out of three activities were ultimately offered in the revised schedule, available to Claimant prior to her decision to participate in the canoe trip. Claimant was provided with verbal instruction, and also participated in the clinical skills portion of the course wherein she had an opportunity to practice paddling techniques and practice manipulating a capsized canoe. In addition to the verbal warnings of the likelihood of getting thrown out of the canoe, written materials advising of the great likelihood of such an event were distributed. At a minimum, she was told that the Housatonic River would contain water that would move fast; faster than the Delaware River. At the site itself, she executed a release form for Clarke that noted that canoeing is inherently dangerous and could result in serious bodily injury.

Mr. Ritchie was familiar with the Housatonic River from a previous excursion. Representatives from Clarke - whose instructions were part of the "package" when renting canoes - gave specific descriptions of the river, handed out maps, gave additional instruction on canoe operation, including manipulating a canoe through rough water and what actions to take in the event of a fall in the river. The canoes Purchase owned, and those rented from Clarke, appear to have been in safe working order. All students wore life vests, and Mr. Ritchie and Mr. Piechowicz carried tow ropes, a first aid kit, and two-way radios.

From the credible description of the preparations for the trip by Ms. Murphy, Ms. Eichengreen and Ms. Maucere, confirming the descriptions given by Mr. Ritchie and Mr. Piechowicz, information from which the Claimant, an adult individual, could make an informed choice on participating in the trip as an initial matter, and continuing on the trip once she was at the site, or at the lunch break point, was provided and necessary skills were imparted. By her own declaration, Claimant viewed herself as experienced in the operation of a canoe.

Claimant asserts she was inadequately supervised. Mr. Ritchie and Mr. Piechowicz took positions within the group of canoes reasonably designed to afford them the ability to guide and supervise the trip, and were in communication throughout the trip. After the initial rapid - which all witnesses declared was the fastest portion of the river - Mr. Ritchie asked all the students how they were doing, and Claimant did not indicate that the river was too fast for her. After the lunch break she chose to continue with the trip. When Claimant's canoe capsized, Mr. Ritchie was only 50 to 100 yards downstream, and Mr. Piechowicz was 30 yards upstream, and each was able to react quickly to the situation.

As noted by Ms. Clarke, most of those from the public at large participating in canoe trips on that section of the Housatonic were novices or advanced novices: exactly the same makeup of the class led by Mr. Ritchie. The water conditions on April 15, 2000 were in the ideal range as she viewed it, and the canoe was traveling at a rate of between five and eight miles per hour where Claimant's canoe capsized. Moreover, the water current does not appear to have been what caused the accident. Both Ms. Eichengreen and Claimant said that the canoe grazed a rock which caused the canoe to capsize.

Finally, given the actual mechanics of the accident, it is difficult to see how - assuming that any breach of duty occurred - the breach would be the proximate cause of Claimant's injuries. Whatever warnings were in place, whatever instruction was given or however many supervisory personnel might have accompanied the students, the Claimant's accident was an unpreventable, inherent risk of traveling in a canoe. There was no unassumed, concealed or unreasonably increased risk to claimant because of the Defendant's actions or inactions.

Given all the circumstances, Claimant has failed to establish by a preponderance of the credible evidence that the Defendant breached its duty of care and should be held liable in negligence for Claimant's alleged injuries. Accordingly, Claim Number 104397 is dismissed in its entirety. All motions not otherwise disposed of are hereby denied.

Let Judgment be entered accordingly.

October 6, 2003
White Plains, New York

Judge of the Court of Claims

[1] That portion of the Claim alleging that Defendant was negligent in unreasonably delaying in providing assistance to Claimant while she was in the water was withdrawn on the record. [T. 9]. Additionally, references to quoted material in the transcript are hereinafter noted as [T. __].
[2] Effective August 2, 1995, the requirement that a Notice of Intention be filed in the Office of the Chief Clerk of the Court of Claims was eliminated. L 1995, ch 466.
[3] Since the plaintiff, a professional jockey, fully perceived and voluntarily assumed the risk that his horse could fall, and he could be injured as a result during the sporting event, even with the alleged negligent behavior of a fellow jockey, and the alleged negligent failure to maintain the track, the defendants' conduct was not a breach of the duty owed. The duty was circumscribed by the plaintiff's perception of what risk he was undertaking. In effect, assumption of risk still operates as a complete defense if the elements are present.