Wednesday, January 16, 2013

Cunningham Trial: Rafting Customer Tells Of Scary Trip

OLYMPUS DIGITAL CAMERAWhen Robert Carson asked his daughter Savannah how she wanted to celebrate her twenty-first birthday, she told him she wanted to take a whitewater rafting trip. Carson did some research on the Internet and booked a trip with the Hudson River Rafting Company in August 2010.

Initially, the father and daughter planned to ride in a guided raft with other customers down the Indian and Hudson rivers, but as things turned out, they would start their trip in an inflatable kayak, a two-person vessel with no room for a guide.

Carson testified in Hamilton County Court on Tuesday that he asked the owner of the rafting company, Patrick Cunningham, if the inflatable kayak, also known as a ducky, would be safe. “He said, ‘You’ll be fine, and I think you’ll have a great time,” Carson said.

The Carsons had no whitewater experience. When they launched on the Indian River, they were swept downstream, and their ducky almost immediately collided with a larger raft and overturned in rapids. Both paddlers were pushed underwater, and Carson lost sight of Savannah.

“My only concern was my daughter’s life,” Carson said, tearing up on the stand during Cunningham’s trial.

A guide from another company rescued the pair, pulling them into his raft.

Although the Carsons were not injured, Hamilton County District Attorney Marsha Purdue contends that Cunningham is guilty of second-degree reckless endangerment, a misdemeanor. “He sent them down that river without a guide,” she told the jury in her opening statement.

But Cunningham’s attorney, Joseph Brennan of Glens Falls, told the jury that Carson was aware of the risks when he undertook the trip. “Robert Carson considers himself a high-energy individual. He was looking for excitement; he was looking for thrills,” Brennan said.

Later in the day, Brennan won a victory when County Court Judge S. Peter Feldstein ruled that Purdue could not introduce evidence about the risks of rafting on the Hudson River—the most dangerous part of the trip. In his ruling, the judge noted that the indictment mentions only the Indian River. The indictment was drafted by Purdue’s predecessor, James Curry.

Brennan objected to evidence about the Hudson when Forest Ranger Bruce Lomnitzer was on the stand. Lomnitzer, who has paddled through the gorge about a hundred times, said the rapids in the gorge are ranked Class IV.

The American Whitewater Association says of Class IV rapids: “Risk of injury to swimmers [ejected paddlers] is moderate to high, and water conditions may make self-rescue difficult. Group assistance for rescue is often essential but requires practiced skills.”

Lomnitzer testified that the 2.5-mile stretch of the Indian River from the put-in to the Hudson is “almost continuous Class III rapids.”

Although Class III rapids are more moderate, they are not without danger. Indeed, an Ohio woman drowned last September after she was ejected from a raft on the Indian. Her guide, Rory Fay, admitted he had been drunk and pleaded guilty to criminally negligent homicide. He is awaiting sentencing. Fay worked for Cunningham.

A second charge of reckless endangerment against Cunningham was dropped before trial. In that count, Cunningham was accused of sending customers from a children’s summer camp on the fifteen-mile trip down the Indian and Hudson in unguided or overloaded rafts. Purdue said the witnesses did not want to testify.

Both counts against Cunningham would have been dismissed in a deal reached in August 2011. Among other things, the deal required that Cunningham not send customers on whitewater trips in unguided rafts. However, Cunningham was accused of violating the agreement twice, in May and August last year. As a result, Purdue asked the court to reinstate the indictment.

Cunningham also faces new reckless-endangerment charges stemming from the alleged violations last May and August. That case is in Indian Lake Town Court. In addition, he is fighting a lawsuit filed by New York State Attorney General Eric Schneiderman that seeks to shut his rafting business.

Photo by Phil Brown: Patrick Cunningham (right) and his lawyer, Joseph Brennan, entering the Hamilton County Courthouse.

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Phil Brown

Phil Brown is the former Editor of Adirondack Explorer, the regional bimonthly with a focus on outdoor recreation and environmental issues, the same topics he writes about here at Adirondack Almanack.

Phil is also an energetic outdoorsman whose job and personal interests often find him hiking, canoeing, rock climbing, trail running, and backcountry skiing.

He is the author of Adirondack Paddling: 60 Great Flatwater Adventures, which he co-published with the Adirondack Mountain Club, and the editor of Bob Marshall in the Adirondacks, an anthology of Marshall’s writings.

Visit Lost Pond Press for more information.

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