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
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,
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
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
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
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
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
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
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
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
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
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.
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
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
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.
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
- 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
, 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
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
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.