New York State Court of Claims

New York State Court of Claims

COHEN v. THE STATE OF NEW YORK, #2007-041-015, Claim No. 109503, Motion No. M-72912


Synopsis


Defendant’s motion for summary judgment in matter involving the drowning deaths of three would-be rescuers of drowning friend in whirlpool area within the Adirondack Park is denied. Having found defendant owed the decedents a duty of reasonable care, triable issues of fact exist as to whether that duty was breached or, if breached, was the cause of decedents’ deaths.

Case Information

UID:
2007-041-015
Claimant(s):
DAVID AND JODIE COHEN, as Co-Administrators of the Estate of ADAM COHEN, Deceased
Claimant short name:
COHEN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109503
Motion number(s):
M-72912
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
KRAMER, DILLOF, LIVINGSTON & MOOREBy: Carmine A. Rubino, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney GeneralBy: Frederick H. McGown, III, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 2, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)
2007-041-016, 2007-041-017


Decision


Defendant moves pursuant to CPLR § 3212 for summary judgment dismissing the claims.

These claims concern the events of August 12, 2003, when Adam Cohen, Jordan Satin and Jonah Richman drowned while attempting to rescue their friend, David Altschuler, from a natural whirlpool located in a portion of the Bouquet River known as Split Rock Falls, in Essex County, New York. The area in question is part of the Adirondack State Park, owned by the defendant and subject to the care, custody and control of the New York State Department of Environmental Conservation (DEC).

On that day, Cohen (age 19), Satin (age 19), Richman (age 18) and Altschuler (age 18) were among a group of more than 20 camp counselors from nearby summer camps who were spending their day off at a swimming area at Split Rock Falls. The group arrived at Split Rock Falls at around 12:00 p.m. and spent several hours swimming, wading and floating in the water.

At about 3:00 p.m., eight of the group members, including Cohen, Satin, Richman and Altschuler, decided, at Altschuler’s suggestion, to go to a whirlpool area approximately 300 yards downstream from the swimming area. The group walked to the whirlpool through woods along the rocky shore of the river, with Altschuler in the lead. As the group approached the whirlpool, Altschuler entered the water and, after a brief period, began struggling to stay afloat. Satin jumped in the whirlpool to assist Altschuler and also began to struggle to keep afloat. Cohen and Richman then entered the whirlpool and all four quickly disappeared under the water.

Shortly after, Richman’s body surfaced downstream and other members of the group attempted to resuscitate him, without success. The bodies of Cohen, Satin and Altschuler were recovered the following day by using an underwater camera and a drag mechanism, since the turbulent water conditions in the whirlpool precluded the use of recovery divers.

The claims essentially allege that defendant knew of the dangerous condition of the Split Rock Falls swimming area and knew that people would be frequenting the swimming area, yet failed to prohibit such use or to warn of the latent dangerous condition of the whirlpool located near the main swimming area.

In moving for dismissal of the claims, defendant argues that the decedents assumed the risk inherent in the activities in which they voluntarily participated; defendant owed no duty to decedents; defendant is immune from liability pursuant to GOL 9-103 since decedents were hiking at the time of their deaths; and defendant is immune from liability since it owed no special duty to decedents.

“A motion for summary judgment should be entertained only after the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law. If the movant meets this initial burden, the opposing party is required to submit evidence which raises a material issue of fact to preclude an award of summary judgment” (Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]).

Once the moving party has satisfied this obligation, the burden shifts and the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue (Svoboda v Our Lady of Lourdes Memorial Hospital, Inc., 31 AD3d 877 [3d Dept 2006]).

Summary judgment is “a drastic remedy” (Lebanon Valley Landscaping, Inc. v Town of Moriah, 258 AD2d 732, 733 [3d Dept 1999]). It “is the procedural equivalent of a trial and should be granted only when it has been established that there is no triable issue of material fact” (Harris v State of New York, 187 Misc 2d 512, 517 [Ct Cl 2001]; see Paulin v Needham, 28 AD3d 531 [2d Dept 2006]).

The Court “must view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference and ascertaining whether there exists any triable issue of fact” (Boston v Dunham, 274 AD2d 708, 709 [3d Dept 2000]).

The court’s role on a motion for summary judgment is issue finding, not issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]; Matter of Hannah UU, 300 AD2d 942, 943 [3d Dept 2002]; Schaufler v Mengel, Metzger, Barr & Company, LLP, 296 AD2d 742, 743 [3d Dept 2002]) and where a genuine issue of fact exists, the motion must be denied (Fleet Bank v Tiger Racquet Fitness and Exercise Center, Inc., 255 AD2d 793, 794 [3d Dept 1998]).

As a general rule, in negligence actions, “the trier of fact is normally entrusted to resolve factual disputes, to ascertain the reasonableness of the offending conduct under the circumstances and to determine whether that conduct was a proximate cause of the alleged injury” (Jones v Egan, 252 AD2d 909, 911 [3d Dept 1998]).

Cohen, Satin, Richman and Altschuler were all described as good swimmers by friends and family. Cohen and Richman were classmates and co-captains of their high school swim team. Richman was certified as a pool and ocean lifeguard, and Cohen served as a lifeguard and swim instructor at the summer camp where he worked. Richman’s mother testified that he was an “all county swimmer and set high school pool records.”

Samuel Krause, a member of the group of eight, recalled that he, along with Cohen, Satin, Richman and Altschuler, “had all been to Split Rock Falls several times over the years. We had all swam in various different swimming holes and whirlpools there, and none of us had ever encountered any trouble in the water there before.” Krause states that:
“We viewed split rock Falls as a place to swim and play in the water, and that is why we went there on August 12, 2003. We did not go there to go hiking. We wore bathing suits and tee-shirts. We did not wear hiking attire or bring any hiking gear, such as hiking boots, canteens or ropes. We were there to swim, and we spent the day swimming, wading and playing in the water and having a good time.”

Krause says that “[i]t appeared to me that David [Altschuler] had entered the water

voluntarily to enjoy the whirlpool.” Krause further recalls that:
“On August 12, 2003, the water at Split Rock Falls was higher than I had seen it in the past, but looking at the water that day, including the water in the whirlpool where the drownings took place, it did not appear to me that it would pull you down and make it difficult to stay afloat. Looking at the whirlpool that day, I would not have thought that good swimmers like Jordan, Adam, Jonah and David would have been pulled underwater and had trouble stating (sic) afloat, and I would not have thought that any of them would have drowned.”

Andrew Glossner, a member of the group at the whirlpool, stated in an affirmation given to the State Police that as the group approached the whirlpool “[w]e had decided the water was too high and dangerous to go into. The next thing I know David was in the water.” Glossner further stated that “[w]ithin a second or two, Jonah, Adam and Jordan all went in the water. I think their intention was to save David. All of them were dragged under by the current. It was obvious to me that jumping into the water to try and save them would be futile.”

Benjamin Altschuler said in his affirmation to the State Police that as the group approached the whirlpool he “yelled for my brother and told him not to jump because of how strong the current looked. After I said this he jumped in anyway.”

Some of the other counselors gave affirmations to the State Police concerning the conditions at Split Rock Falls on August 12, 2003. Lexie Blake Ellman, Satin’s girlfriend, advised Satin not to go to the whirlpool because the water was too high. Shaun Springer said that the “first falls by the ridge, had a lot of white water.” Avi Beryl Ludmer stated that “I went downstream . . . . There was this one big waterfall, with whirlpools. It was crazy, we were not going to get in there.”

Thomas Martin, the Regional Forester for DEC Region V, testified that Split Rock Falls is located north of the intersection of Routes 9 and 73 in Elizabethtown, New York.

According to DEC Forest Ranger Captain John C. Streiff (Streiff), the Regional Ranger for DEC Region 5, which includes Split Rock Falls, there had been heavy rains prior to August 12, 2003 which left the water level of the river 15 feet above normal, while he described the previous two summers as very dry. Streiff described the drowning location on August 12, 2003 as “dangerous.” Streiff testified at his deposition that it was “common knowledge” that the “falls and shoots” at Split Rock Falls “were more turbulent and the volume of the water greater and faster” than normal on August 12, 2003. Streiff further acknowledged that Split Rock Falls area was a “known swimming area.” With respect to whether defendant had warned of transient dangerous situations in the past, Streiff testified that the defendant had “given warnings out when we have high snow pack for the risk of avalanches” and that the warning was given through “signage.”

DEC Forest Ranger Edwin O. Russell (Russell) was the DEC “incident commander” in the rescue/recovery of Cohen, Satin, Richman and Altschuler. Russell testified that a trailhead, which he defined as the start of an access to a marked trail in the Adirondack Park, may, depending on activity in the area, have signs indicating what is or is not permitted in that area. Russell was generally familiar with Split Rock Falls prior to August 12, 2003 but had not visited the specific location of the drownings. Russell was aware that “groups of people, families,” would wade and jump into the primary swimming area at Split Rock Falls, but was not aware of people swimming at the specific location of the drownings. Russell was unaware of any prior drownings at the location.

Russell recalled that “we gave specific instructions that the [rescue/recovery] divers were not to go into any of the swift waters.” Russell testified that the weather had been “wetter than normal, especially wetter than the year before.” Russell described the drowning location as a turbulent, white water condition. Russell was not aware of any portion of the Adirondack Park ever being closed or having warning signs placed due to a dangerous condition.

Retired DEC Forest Ranger Lieutenant Frederick J. Larow (Larow) was also deposed. Larow was the DEC supervisor in the rescue/recovery operation on August 12-13, 2003. He was familiar with the Split Rock Falls area through routine patrols but had never visited the specific location of the drownings until August 12, 2003. He testified that the “falls that are upstream from that location are a known swimming area.” LaRow estimated that the location of the whirlpool where the drownings took place was “in the neighborhood of an eighth to a sixteenth of a mile” from the main swimming area. He described the specific location of the drownings as “not a high-use area.”

LaRow described the Split Rock Falls water level as “uncharacteristically high.” LaRow described the whirlpool where the drownings took place as a “boil, hydraulic, that was formed by water coming over a rock and then taking a hard right-hand turn and the going on downstream.” He further characterized the whirlpool as turbulent and dangerous. LaRow explained the water conditions on the day of the drownings as follows:
“People that work around white water and rivers, which obviously we have a lot of around here, have different terms to identify certain features that you would find on a river, primarily in white water. And it usually has to do with high water levels, either naturally or artificially occurring, due to opening of a dams, say on some of the rivers. But the features are given names, and usually the most dangerous feature on a river is a hydraulic, and a hydraulic, again, is where the water comes over an object, either a rock. It could be a small island, some feature. It’s especially dangerous on smaller rivers that have what they call low-head dams, which is basically some feature that goes across the entire length of the stream or river and forms a waterfall. Normally, that waterfall in low flow is fairly benign. It comes over minimal of a hydraulic, but in higher levels the hydraulic becomes more and more – – it’s stronger to the point where if something gets in this hydraulic, the nature of it is it keeps recirculating it, and whatever is there is held in this hydraulic until the water level goes down.”
LaRow agreed that the heavy rains and high water level created a very high hydraulic situation on the day of the drownings. LaRow also agreed that someone who had experience with white water would be aware of the danger of a hydraulic “as opposed to a lay person who probably wouldn’t know the difference between high hydraulics or low hydraulics.”

At his deposition, LaRow acknowledged having described, to a newspaper, the whirlpool conditions on August 12, 2003 as follows:
“[T]here is so much air in the water it’s all foamy, and there is no buoyancy or purchase, . . . . The rain also created an unusually high volume of water for this time of year, and the hydraulic effect wraps underneath and pulls everything like a riptide.”

To another newspaper, LaRow referred to the conditions in the whirlpool as a “Maytag effect” resulting from “the current powerfully crashing into the rocks and forcing air into the water. The water is churning, then is strong enough to pull swimmers under the water.” He further described the “Maytag effect” at his deposition as follows:
“[T]here is a phenomena when you aerate water it loses the ability to, say, swim in it or even a propeller from a motorboat, say, so that it makes whatever type of effort to get through that water ineffective. . . . [T]he Maytag effect is again with a hydraulic, primarily in white water in the rivers around here. When somebody is dumped into one of these holes, as they’re called, which again is a hydraulic, depending on the way the hydraulic was formed, it tends to keep the person in the hydraulic. And what it does is it brings the person under water. It brings them to the upstream side of the hydraulic. It allows them to surface, and if they’re lucky they can get a breath of air, but then as they get to the downstream side of the hydraulic it sucks them back under, and it continually keeps a person in a circular fashion which, again, the river people call it a “Maytag effect.”

LaRow stated that when the hydraulic is big enough it’s called a “drowning machine.”

LaRow was familiar with signs in the Adirondack Park giving such instructions as “no camping” or “[n]o parking.” LaRow was aware of certain trails being closed to the public in 2001 due to the existence of avalanche conditions. The public was advised of the closing through “signage at the trailheads and general notification.” LaRow also recalled instances of warning the public, by signs at trailheads, of “high fire danger” when conditions warranted it. He could recall no instances of the public being warned of a danger posed in Adirondack Park due to the condition of a river or stream.

State Police Captain Robert LaFountain (LaFountain) responded to the scene of the drownings on August 12, 2003. LaFountain was familiar with Split Rock Falls generally but had never been at the whirlpool where the drownings took place prior to August 12, 2003. Based upon his experience as a police officer, LaFountain determined that the situation at the whirlpool at “Split Rock Falls [on August 12, 2003] was far, far too dangerous, and I am completely confident that any diver that went into that water would have become a victim himself at that location.” La Fountain described the whirlpool as follows:
“The location where we were told, and apparently verified because of the location of the other drowning victims, was a location that was surrounded by a box. There was a large volume of water that was coming down rapidly by the falls, resulting in a great deal of aeration, white foamy water, which, number one, when you see white foamy water, I’ve been instructed that you cannot remain buoyant in that water to begin with because of the aeration; although, breathing that is obviously going to create distress and eventual drowning. And also you could see the force of the water swirling around. I could not tell, just by looking at, but you would be sucked under the water, but it appeared that that would be what would happen and did happen to these young men.”

LaFountain attributed his knowledge of the dangerous water conditions to his experience as a police officer during recovery operations. LaFountain was familiar with signs posted to advise of permitted and prohibited activities and recalled hearing of trailhead signs advising of “muddy conditions.”

State Police Investigator Michael T. Doyle (Doyle) conducted the State Police investigation. According to Doyle’s investigation report, Jeffrey Bult was the first State Trooper on the scene. Upon arrival at the scene, Bult “observed multiple teenage subjects standing on State Route 9, distraught and confused.” Doyle testified that he was generally familiar with Split Rock Falls but not the specific area of the whirlpool. He stated that the water level was “abnormally high” and the water was “very swift and extremely turbulent.” Doyle recalled seeing signs in the park advising users of permitted and prohibited activities.

Claimants offered proof of a prior drowning in the area of Split Rock Falls. On June 26, 1998, Trevor Green, a 21 year old college student, visited Split Rock Falls area with several friends. According to the State Police report, the river was extremely high and very turbulent, due to a severe rainstorm during early-morning hours of June 26, 1998. The affirmation given to police by Green’s friend, Daniel Patrick Molloy, Jr., states that the group climbed up to a ledge from which Green jumped into the water. After surfacing, Green stated to the group that “you better be a good swimmer because there was a lot of water pressure churning.” Green then jumped from the ledge again. He surfaced shortly afterwards and appeared to be struggling to stay afloat. He then went under and surfaced again on the opposite side of the small pool area, still struggling and went under again. The next time he surfaced he was approximately 30 feet from where he was seen previously. He appeared to be unconscious and was floating face down before going over a waterfall. Green’s body was later recovered by a cold water rescue team.

According to the State Police Report concerning the drowning of Green, DEC Rangers were at the June 26, 1998 drowning scene as was Trooper Michael T. Doyle, who, five years later, would prepare the State Police Report regarding the drownings of Cohen, Satin, Richman and Altschuler.

Claimants provide the affidavit of Wayne A. Sundmacher, Sr., an expert in whitewater safety and rescue training. Sundmacher reviewed the available factual information concerning the drownings, including police and DEC reports, deposition transcripts and witness affirmations. Sundmacher describes the phenomena of hydraulics and aerated water in the same manner as Lieutenant LaRow and offers his opinion that:
“[T]he conditions in the area of the pools at Split Rock Falls on August 12, 2003 were extremely dangerous due to the effects of “hydraulics” and the aeration of the water found within them. It is further my opinion that those conditions are not usually known by people who have not had training or substantial experience in whitewater. Based upon my experience and training, it is further my opinion with a reasonable degree of certainty, that the dangers of river “hydraulics” and the aeration of the water within them in whitewater situations are not readily apparent or observable to persons who have not had training or substantial experience in whitewater. Instead, to the vast majority of people, the dangers of “hydraulics” and aeration of water in whitewater situations are hidden, unknown, and unseen. That is why the conditions in the area of Split Rock Falls on August 12, 2003 were so extremely dangerous. There were potential lethal dangers of which most people are unaware. It is therefore my opinion with reasonable certainty based upon my experience that in order to have made Split Rock Falls reasonably safe in those conditions, signs should have been conspicuously posted warning persons who went to swim at Split Rock Falls of the dangers of “hydraulics” and the aeration of the water, and that water was not safe for swimming.”

“Having waived its sovereign immunity, the State is subject to the same rules of liability as apply to private citizens” (Preston v State of New York, 59 NY2d 997, 998 [1983]). “It is beyond dispute that landowners and business proprietors have a duty to maintain their properties in reasonably safe condition” (Di Ponzio v Riordan, 89 NY2d 578, 582 [1997]; Jones-Barnes v Congregation Agudat Achim, 12 AD3d 875, 876 [3d Dept 2004]). However, “[w]hile the State clearly owes a duty to claimants and others entering upon its property to maintain it in a reasonably safe condition under the circumstances, it is not obligated to insure against every injury which may occur” (Smith v State of New York, 260 AD2d 819, 820 [3d Dept 1999]).

The State’s liability for injury resulting from an alleged dangerous condition is premised upon proof that it either created the alleged dangerous condition or knew, or in the exercise of reasonable care, should have known that a dangerous condition existed but, nevertheless, failed to remedy the situation within a reasonable time period (Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept 2003]; Diaz v State of New York, 256 AD2d 1010 [3d Dept 1998]; Keir v State of New York, 188 AD2d 918, 919 [3d Dept 1992]).

Where there is insufficient proof that the defendant created or had actual notice of the condition, liability turns on the issue of whether defendant had constructive notice. “To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it” (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; see Zuppardo v State of New York, 186 AD2d 561, 562 [2d Dept 1992]).

Defendant’s assertion that the decedents died while hiking and the claims are therefore precluded by GOL 9-103 lacks any support in the record. GOL 9-103 provides, at relevant part, that:
“[A]n owner, lessee or occupant of premises, whether or not posted as provided in section 11-2111 of the environmental conservation law, owes no duty to keep the premises safe for entry or use by others for hunting, fishing, organized gleaning as defined in section seventy-one-y of the agriculture and markets law, canoeing, boating, trapping, hiking, cross-country skiing, tobogganing, sledding, speleological activities, horseback riding, bicycle riding, hang gliding, motorized vehicle operation for recreational purposes, snowmobile operation, cutting or gathering of wood for non-commercial purposes or training of dogs, or to give warning of any hazardous condition or use of or structure or activity on such premises to persons entering for such purposes . . . .”

There is simply no proof showing that the decedents were hiking at the time of their deaths. To the contrary, the record shows that the decedents intended to, and were, swimming, wading or sunbathing until the time of their deaths. They were wearing bathing attire, were not wearing hiking boots and had no accessories or gear associated with hiking.

Claimants disavow any claim that defendant breached a special duty of police protection to decedents and the Court will not further consider that aspect of the motion.

Defendant bears the initial burden on its motion to “establish as a matter of law that [it] maintained [its] property in a reasonably safe manner, had no notice of a dangerous condition and did not create a dangerous condition which posed a foreseeable risk of injury to individuals expected to be present on the property” (Salerno v Cara, 28 AD3d 904, 905 [3d Dept 2006]).

Defendant has met its initial burden on the motion through affidavits, affirmations and deposition testimony tending to show that: The State’s employees had not visited the specific whirlpool in which the decedents drowned prior to August 12, 2003 and therefore lacked actual notice of the allegedly dangerous condition. Further, the naturally occurring whirlpool was obviously not created by defendant, but instead consisted of the natural terrain aggravated by the rainy weather leading to August 12, 2003. The defendant also offers proof tending to show that the surviving members of the group who visited the whirlpool, as well as members of the larger group of counselors, were aware of the open and obvious dangerous nature of the whirlpool and consequently, the decedents were also presumably aware of, and assumed, the risk posed by entering the whirlpool. This, despite warnings of other counselors not to do so.

The burden thus shifts to claimants to show the existence of triable issues of fact. The Court finds that claimants have done so.

Defendant argues that it owed no duty to decedents under the circumstances. “Any cause of action based on negligence contains an element that the alleged tortfeasor owed a duty of reasonable care to the injured party. The existence and scope of an alleged tortfeasor's duty are questions of law to be determined by the court . . . . In analyzing this issue, courts look at the particular facts and circumstances of the case, including the relationship between the parties, whether the plaintiff fell within a zone of foreseeable harm, and whether the reasonably foreseeable risks included the injury-producing incident” (Employee Network, Inc. v Faircall Corp., 13 AD3d 773, 774 [3d Dept 2004]). It should be noted that “[w]hether a duty was owed must not be confused with whether any such duty was breached” (Mesick v State of New York, 118 AD2d 214, 216 [3d Dept 1986], lv denied 68 NY2d 611 [1986]).

Viewing the evidence presented on this motion most favorably to the parties opposing the motion, as required in assessing a request for summary judgment, the Court finds that the defendant owed decedents a duty of reasonable care under the circumstances specific to this claim. These circumstances include: The close proximity of the drowning site to the Split Rock Falls swimming area frequented by swimmers during the summer, located along a main highway and near a trailhead, as opposed to a less frequented, more remote wilderness area; the knowledge of DEC employees, including both rank and file Forest Rangers and DEC management personnel, that swimmers frequented the area in the summer and that heavy rains had left the water at Split Rock Falls high and turbulent; the knowledge of DEC employees of the heightened dangerousness of an aerated hydraulic, along with the knowledge that visitors to Split Rock Falls may fail to perceive the extraordinary hazard posed by an aerated hydraulic; and the State’s knowledge of a prior similar occurrence at Split Rock Falls within the previous five years (see Mesick, 118 AD2d at 217; Walter v State of New York, 185 AD2d 536 [3d Dept 1992]).

Whether the defendant fulfilled its duty of reasonable care under the circumstances is a question of fact requiring a trial. Certainly, “[l]andowners have both a duty to maintain their property in a reasonably safe condition and a duty to warn of latent hazards of which they are aware” (Bilinski v Bank of Richmondville, 12 AD3d 911 [3d Dept 2004]).

The existence of a dangerous condition is generally a question of fact dependent upon the particular facts and circumstances of each case (Moons v Wade Lupe Const. Co., Inc., 24 AD3d 1005, 1006 [3d Dept 2005]).

It is also clear that “[w]hat accidents are reasonably foreseeable, and what preventive measures should reasonably be taken, are ordinarily questions of fact” (Diven v Village of Hastings-on-Hudson, 156 AD2d 538, 539 [2d Dept 1989]; see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; Perrelli v Orlow, 273 AD2d 533 [3d Dept 2000]). “Whether the safety measures employed with respect to a latent, dangerous condition are reasonable is generally a factual issue” (Noble v Pound, 5 AD3d 936, 938, [3d Dept 2004])

Whether an alleged dangerous condition is latent or open and obvious is also generally a question of fact (Walters v County of Rensselaer, 282 AD2d 944, 945 [3d Dept 2001]). “For a condition to be open and obvious as a matter of law, it must be one that could not be overlooked by any observer reasonably using his or her ordinary senses” (Garrido v City of New York, 9 AD3d 267, 268 [1st Dept 2004]).

A court may determine that a risk was open and obvious as a matter of law only “when the established facts compel that conclusion . . . and may do so on the basis of clear and undisputed evidence” (Tagle v Jakob, 97 NY2d 165, 169 [2001])

Even were the Court to find as a matter of law that the whirlpool was an open and obvious danger, the law provides that “the open and obvious nature of an allegedly dangerous condition does not, standing alone, necessarily obviate a landowner’s duty to maintain his or her property in a reasonably safe condition” (MacDonald v City of Schenectady, 308 AD2d 125, 127 [3d Dept 2003]), although such a finding would negate any duty of defendant to warn of the dangerous condition (Soich v Farone, 307 AD2d 658, 659 [3d Dept 2003]).

With these facts and principles in mind, the Court finds that questions of fact exist as to whether the whirlpool constituted a dangerous condition, whether the specific condition was open and obvious and whether the defendant had notice of the specific condition. Assuming the defendant had notice of a specific dangerous condition, triable issues of fact nevertheless remain as to whether defendant’s alleged acts and/or omissions were reasonable under the circumstances and whether such acts and/or omissions proximately caused the deaths of Adam Cohen, Jordan Satin and Jonah Richman.

The Court rejects defendant’s assertion that the claims are precluded, as a matter of law, by decedents’ voluntary assumption of the risk of drowning in attempting to rescue Altschuler.

A person who is injured while voluntarily participating in a sports activity may not recover if the injuries were caused by an occurrence or condition which was a known, apparent or reasonably foreseeable consequence of the participation (Turcotte v Fell, 68 NY2d 432, 439 [1986]).

The Court finds that a triable issue of fact exists as to whether drowning in the aerated hydraulic encountered by decedents, during their attempt to save Altschuler from the whirlpool, was a known, apparent or reasonably foreseeable consequence of their actions.

In O'Keeffe v State of New York (140 AD2d 998 [4th Dept 1988], appeal dismissed 73 NY2d 756 [1988]), the court was faced with facts somewhat similar to those presented on this motion:
“David O'Keeffe and his two sons, Mark, age 16, and Thomas, age 9, and Mark's girlfriend, Susan Blandford, went fishing at the marina in Beaver Island State Park. While walking on a boardwalk above one of the marina walls, Thomas fell into the marina water in the area of a flushing inlet. His father jumped in the water to attempt a rescue and after searching unsuccessfully for some form of equipment to pull them from the water, Mark and Susan also entered the water to attempt a rescue. All three O'Keeffes drowned when apparently swept under by a cold flushing current, and Susan was rescued by another fisherman.”

The proof at trial revealed the following:
“Several State employees testified that it was possible or foreseeable that boaters or persons invited to use the marina area for recreational fishing could fall off the boardwalks and into the water. During the boating season, the State provided lifesaving equipment at the boardwalks, but the equipment was stored during the off-season when people were invited to fish and thus, no equipment was available on the date of this tragic accident. Various openings, or flushing inlets, had been constructed in the marina walls so water from the Niagara River could be flushed through the marina area to prevent stagnation of the water. Despite knowledge by the State of the strong swift current in the area of flushing inlets, no signs were posted to warn marina users of that condition. Since the swift nature of the current could not be observed by those on the boardwalk above the inlet areas, the failure to post any warning or to provide lifesaving equipment constituted a failure to exercise reasonable care to prevent foreseeable injury.”

The State argued that recovery was precluded since the decedents had assumed the risk of drowning. The Appellate Division disagreed, finding, at p. 1000, that:
“There was no definitive demonstration of what caused young Thomas to fall into the water, and the conduct of his father and brother in attempting to rescue was not wanton, reckless or rash . . . . Since decedents could not have been aware of the swift nature of the current, it cannot be said that they assumed the risk of drowning.”

Similarly, this Court does not find, at least as a matter of law, the actions of Cohen, Satin and Richman, in attempting to save the life of Altschuler, to have been wanton, reckless or rash. As discussed earlier, a question of fact exists as to whether the decedents were aware of the magnitude of the danger posed by the aerated hydraulic in the whirlpool.

In addition, the decedents’ conduct in entering the whirlpool must be considered in the context of the emergency they faced. In Caristo v Sanzone (96 NY2d 172, 174 [2001]), the Court of Appeals reiterated the:
“[T]he common-law emergency doctrine which ‘recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context’ (Rivera v New York City Tr. Auth., 77 NY2d 322, 327 [1991]), provided the actor has not created the emergency.”

It has long been recognized that danger invites rescue and that negligence which places a person in danger is actionable not only by the initial victim but also by his or her rescuer (Gifford v Haller, 273 AD2d 751, 752 [3d Dept 2000]). The law encourages bravery in the face of peril:
“Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer” (Wagner v International Ry. Co., 232 NY 176, 180 [1921]).

Finally, the Court rejects the argument that the defendant was precluded by public policy, as a matter of law, from placing any warning sign at or near Split Rock Falls. The Dix Mountain Wilderness Area Unit Management Plan, which encompassed Split Rock Falls, specifically provided for the “minimum use of signs necessary to manage and protect the wilderness resource and provide for user safety.” Minimum use does not mean no use. Whether a warning sign should have been posted or would have prevented the drownings are issues of fact.

The defendant’s motion for summary judgment is denied.


May 2, 2007
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Notice of Motion, filed January 30, 2007;
  2. Affirmation of Frederick H. McGown, III, dated January 30, 2007, and annexed exhibits;
  3. Affidavit of Thomas Martin, sworn to January 25, 2007;
  4. Affidavit of Edwin Russell, sworn to January 25, 2007;
  5. Affidavit of Michael Doyle, sworn to January 25, 2007;
  6. Affirmation of Carmine A. Rubino, dated March 2, 2007, and annexed exhibits;
  7. Affidavit of Samuel J. Krause, sworn to February 6, 2007;
  8. Affidavit of Wayne A. Sundmacher, sworn to March 1, 2007;
  9. Deposition transcript of Robert LaFountain, sworn June 20, 2006;
  10. Reply affirmation of Frederick H. McGown, III, dated March 21, 2007;
  11. Reply affidavit of Thomas Martin, sworn to March 20, 2007
    .