By Jeff Lipton
The families of Jonah Richman, 18, Adam Cohen, 19, and Jordan Satin, 19, all of Woodmere, filed a lawsuit against the state, alleging negligence and wrongful death because, they claimed, the state failed to adequately warn potential swimmers of the danger. All three boys, who were counselors at Camp Baco in Minerva, N.Y., drowned when they tried to save David Altschuler, 18, of Philadelphia, who plunged into the Boquet River in the Adirondack Mountains and also drowned.
The Appellate Division of the State Supreme Court ruled on April 3 that the state, as a landowner, "has a duty to take reasonable precautions to prevent accidents which might foreseeably occur as the result of dangerous terrain on its property ... by posting warning signs or otherwise neutralizing dangerous conditions.
"However, the duty to take reasonable precautions does not extend to open and obvious conditions that are natural geographic phenomena which can readily be observed by those employing the reasonable use of their senses."
The court's dismissal of the Woodmere families' claims prevents the case from going to trial, which Matt Gaier, who represented the families, called "obviously disappointing" and "disturbing." Gaier said the state should be held liable because the water was extremely dangerous, and warning signs should have been posted indicating a potential hazard.
Even though Cohen and Richman were powerful swimmers - both were former captains of their high school swim team - they were no match for the Boquet's roiling waters, Gaier said. "They were trained lifeguards," said Gaier. "But this was different than jumping into a pool. The water was aerated, and it didn't matter how well they swam. The best swimmers in the world couldn't jump into that water and survive."
Gaier said the court ignored evidence from a state trooper who testified that the camp counselors were at the raging river's mercy and were "sucked under" by the water.
"To assume that they knew the risks they were taking is ridiculous," Gaier said. "Not one warning sign was up."
He added that warning signs still have not been posted, even though another youth drowned two years after the Aug. 12, in 2003 tragedy - the sixth victim in the river eight years.
The teens, known as the "Baco Boys" for their years spent at the camp, first as campers and then as counselors, were part of a group of 20 to 30 young adults who went to the popular swimming hole in Adirondack State Park, near Split Rock Falls in Elizabethtown, for a day of swimming and relaxation. Cohen, Richman, Satin and Altschuler were among a few who decided to go to a whirlpool downstream from the main swimming hole, court documents stated. The water in the whirlpool area was turbulent and 15 feet higher than normal due to heavy rains in the preceding weeks.
According to court documents, Altschuler ignored a warning by his brother that the current was too strong and entered the water. The trio jumped in to try to rescue him, and all four drowned.
"These kids all died heroes," said Gaier, explaining that the court should not consider that a determining factor to rule in their families' favor, but "what they did under the circumstances should not be lost on the court, either."
After claims were filed against the state, it moved to dismiss them. The Court of Claims denied the state's motion last May, and the matter was taken up by the state's Appellate Division. Gaier said he would seek permission to appeal the case to the New York State Court of Appeals.
Altschuler's family did not file suit.
Gaier said the suit sought monetary compensation for the loss of life, and also to force the state to provide safety measures at the site so that no one else would become a victim.
Central to the case was whether the whirlpool area presented the type of danger that triggers a landowner's duty to take reasonable precautions. While the main swimming hole commonly used by visitors to Split Rock Falls is near a main highway, evidence was presented that the whirlpool where the deaths occurred is not a high-use area, nor is it easily accessible. It is 300 yards to a quarter-mile downstream from the swimming hole, and is not connected to it by a footpath. There are only two ways to reach it, either by maneuvering along the rocky shoreline, as the counselors did, or by walking along the roadway and cutting down a steep embankment through the woods.
Rescue personnel described the whirlpool area as a "cavern-like area creating a hydraulic, that was formed by water coming over a rock and then taking a hard right-hand turn and then going downstream." It was also described by witnesses as "a box" in which "a large volume of water ... was coming down rapidly by the falls, resulting in a great deal of aeration, white foamy water."
Divers were unable to enter the water during rescue efforts immediately after the incident because of the dangerous conditions in the raging river. The bodies were recovered a day later by rescuers using poles.
Statements made by camp counselors who were at the scene indicated that they were aware of the high water level, the turbulence and the resulting danger. One counselor described the whirlpool area as roughly seven feet across, with "water spinning in a circle pretty fast." Another counselor who witnessed the incident observed that, given the rough water, "It was obvious ... that jumping in the water to try to save them would be futile."
Gaier presented evidence that the whirlpool constituted a hazard by virtue of its tendency to pull swimmers underwater, creating, in effect, a "drowning machine," which was not apparent from above or readily known by those not experienced with whitewater.
After graduating from Hewlett High School, Cohen was attending the University of Wisconsin; Richman, Northwestern University; and Satin, the University of Colorado.
