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April 9, 2008

State cleared in Split Rock drownings

No duty to warn swimmers in remote pool, court rules

By KIM SMITH DEDAM

ELIZABETHTOWN -- The state will not be held responsible for a tragic multiple drowning at Split Rock Falls five years ago.

The New York State Appellate Court has found the state is not liable, overturning Court of Claims Judge Frank P. Milano's previous decision to deny the state's request for dismissal.

The case was first brought to claims court on Jan. 30, 2007, by the families of three young men who died trying to save a friend from a swimming hole roiling in whitewater after a heavy summer rain.

TRAGEDY RECALLED

Ten affidavits from police investigators, Department of Environmental Conservation forest rangers and friends of the victims recalled how a summer outing turned horrific on Aug. 12, 2003, as more than 20 camp counselors spent their day off at a wilderness swimming hole in the Boquet River west of Elizabethtown.

The group had been swimming in the upper reaches of Split Rock Falls since noon that day, when eight in the party left about 3 p.m. to explore a whirlpool 300 yards downstream, the Court of Claims report said.

David Altschuler, 18, entered the whirlpool and began to struggle to stay afloat, the report said.

Jordan Satin, 19, jumped in first to try to help him, and as the two young men continued to struggle against the frothy current, Adam Cohen, 19, and Jonah Richman, 18, jumped in to try to save them.

All four disappeared under the water.

Richman surfaced downstream later that afternoon and could not be revived. The bodies of the other three victims were found the next day using underwater cameras.

Rescue operations deemed the water too high and too dangerous for divers.

Court testimony described the four teens as strong swimmers. All four had swum at Split Rock Falls several times over the years, according to an affidavit from friend Samuel Krause, who went with the party of eight to the lower whirlpool.

Krause said Altschuler jumped into the whirlpool voluntarily.

"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," Krause told the court.

"And I would not have thought that any of them would have drowned."

Other friends who had climbed down to the lower pool said they decided the water was too high and dangerous for swimming.

Altschuler's brother, Benjamin, said 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."

Forest rangers, including Fred Larow, DEC supervisor in the rescue/recovery operation that day, said the water level was "uncharacteristically high," creating hydraulic conditions he defined as the "Maytag effect."

Larow described how the strong current crashed into the rocks, "forcing air into the water. The water is churning, then is strong enough to pull swimmers under the water."

Families of the deceased teens claimed the state failed to afford "reasonable care" by not marking the Adirondack swimming hole with clear warning signs.

In the Court of Claims decision, Judge Milano found "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."

But Appellate Court judges said the case turned on the location and appearance of the whirlpool area.

"While the main swimming hole commonly used by visitors at Split Rock Falls is located near a main highway, the whirlpool area where the deaths occurred is not a high-use area, nor is it easily accessible from this point."

The lower pool is nearly a quarter mile downstream and is not connected to the upper swimming hole by a footpath.

"There are only two means of reaching it, either by maneuvering along the rocky shoreline, as the small group of counselors did in this case, or by cutting down a steep embankment through the woods."

Appellate judges said evidence shows the teens were aware of the danger presented by turbulent water, based on both testimony and "compelling photographic" evidence.

"The unknown mechanics of the whirlpool do not transform it into a latent danger imposing a heightened duty on defendant (the state)," the appeals court justices said.

"We find the defendant cannot be held liable for negligence or wrongful death under the particular circumstances presented."

Attorney Matthew Gaier from Kramer, Dillof, Livingston and Moore in New York City, who is representing the victims' families, could not be reached Tuesday for comment.

kdedam@pressrepublican.com

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