Kayaking Guest Drowns Near Hadley Dam: Was VBRO Host Liable to Estate?

This was originally posted on the SGR Blog.

Timothy Tang, as Administrator of the estate of Jonathan Tang, sued Jevon Damadian for damages after his brother’s death while, as a paying guest, using Damadian’s kayak on nearby water. Tang asserted causes of action for negligence, violation of the Navigation Law, and wrongful death. Did Timothy assert legally cognizable and viable claims against Damadian?

Damadian owned a home in Hadley, New York, on 112 acres and across the road from a lake called Stewart’s Reservoir. The property itself had no direct lake access. Damadian rented the home to Tyler Vestel and several of Vestel’s friends for the weekend of September 20, 2014. He advertised the property for rent on VRBO. The listing described the property as a 7 Bedroom, 3 ½ Bathroom home. And also stated that Stewart Reservoir was across the street from the property and that a canoe and two kayaks were available for use. Stewart Reservoir is owned by Niagara Mohawk, and there was a dam on both ends of the lake. Damadian claimed to have been out on the reservoir hundreds of times and had boated around the entire body of water.

On Saturday morning, September 20, 2014, at his guests’ request, Damadian provided them with access to his canoe and two kayaks, as well as life jackets. He purchased the kayaks new from Walmart at the beginning of the summer of 2014 and kept the kayaks on a trailer outside. Damadian never experienced any problems with the pink kayak used by Tang at any time prior to the date of the incident. He last used the kayak a week or two before the incident. Damadian also submitted photographs of the life vests and floatation cushions that he claimed he made available to his guests.

On the morning of the occurrence, Damadian loaded the kayaks and canoe onto his jeep and drove them down to the beach. He assumed that the cushions and life jackets were in the kayaks. When the group arrived at the reservoir, Damadian asked them if they had taken the life jackets, but they had not. Nevertheless, Damadian allowed the renters to use the boats without the life jackets. That afternoon, Damadian learned that someone had drowned in the lake. He went to the reservoir and observed that one of his kayaks was 200 feet from the shoreline. He observed no current in the water and the weather was sunny and 60-70 degrees.

Samuel LaRussa, one of the guests, and two others paddled in a canoe until he heard yelling. He could not see who was yelling because an island was in the way. They paddled toward the yelling and LaRussa saw a kayak and splashing near the kayak and assumed it was a person in distress. When they arrived at the kayak the splashing had stopped. Others joined them and they searched the area. La Russa did not realize it was Tang who was missing until after the search had begun. The group that was looking for Tang did not find him. The police arrived and took over the search.

Bonnie Yen, another of the guests, was not present when her fellow guests acquired the “boat stuff” so she was not able to state what was discussed about it. She was in the canoe with LaRussa when they heard the yelling. Yen gave an account of the incident similar to LaRussa’s.

Jay Voit and Christopher Gaffney, both rental guests at Damadian’s home on September 20, 2014, saw Tang in distress in the water and attempted to get to his location and help him. When they arrived at Tang’s location in the water, they were unable to find him. Gaffney also stated that there were no life jackets.

Michelle Q. Phan, one of the guests, stated that life vests were available, but that Tang did not use one when he took out the kayak. And prior to Tang’s incident, other guests had used the kayaks “for several hours without incident”.

Timothy Tang, Tang’s brother, was a student at Columbia University Medical School at the time of the event, and what he knew he learned from conversations with those who were present at the time. These conversations were hearsay, and not admissible. In Timothy Tang’s opinion, Jonathan Tang knew how to swim, and that Jonathan had taken one year of swimming classes at Stuyvesant High School and had passed a swimming proficiency test at that time.

Deputy Joseph Mancini testified that, upon receiving the call regarding the incident, he was the first to arrive. He did not recall any statements from any of the surviving students that they had any difficulty canoeing or kayaking around the pond between noon and the time of the incident. And did not recall any discussion about the water being rough.

Sergeant Guy Gurney of the Saratoga County Sheriff’s Office testified that he and his deputies responded to the scene when the incident was reported. He also identified the incident report prepared by Deputy Mancini and the report written by himself. It was his understanding that Tang was not wearing a personal floatation device at the time of the incident. As part of his investigation, he inspected the kayak Tang used and found no holes in the kayak. He instructed that the dam grates be raked, but the body was not found. The body was recovered the next day by Sergeant Zocco.

The report by Deputy Mancini stated that “patrol” responded to a call that someone had gone under the water in Stewart Pond and not resurfaced. Patrol requested a supervisor and dive team. Patrol interviewed those present and learned that they were staying in a rented house nearby. Some of them had brought a canoe and two kayaks to the water, but no life jackets. They took turns using the vessels. At some point, Tang took out a kayak and subsequently was seen by others in the water and in distress. Some of those people attempted to get to Tang, but they were not successful. The fire department arrived later and used boats and divers to search for Tang, but could not find him by the time the report was written.

Sergeant Gurney’s report provided much of the same information. Sergeant Gurney added that Kevin Granger’s divers reported that the depth of the water where Tang had disappeared was 55 to 65 feet. He also reported that the pumps from the dam were active at the time Tang had disappeared and that the current at that time was “quite strong”.

Kevin Granger of Corinth Volunteer Fire Department testified that he responded to the incident on the afternoon of September 20. He recalled that, when he arrived on the scene, he did not notice any currents in the area where it was believed Tang had disappeared. He opined that the water condition that he observed from the shore when he arrived on the scene was not such that would cause a “boat” to tip over. Conversely, and perhaps more significantly, he recalled that his divers told him that they were “getting pushed around” by the currents because the dam was open and water was flowing through the dam. His team conducted two dives but did not recover Tang’s body.

Sergeant Michael A. Zocco testified that he was a member of the Sheriff’s Dive Team and that Tang’s body was recovered a day after the incident. Zocco was only at the scene the day after the incident when he dove on September 21, 2014. He noted that the area where Tang disappeared was the same location where the body was recovered, which he took to mean that there were not very heavy currents. Zocco found Tang’s body at the bottom of the lake, approximately 20-25 feet deep, and he was not wearing a life jacket.

The parties submitted additional evidence with regard to the current in the water where Tang drowned. Gurney testified that he was familiar with the body of water known as Stewart’s Reservoir or Stewart’s Pond and had canoed in it, boated on it, and fished in it, but not for the past six to seven years. He explained that whenever the valves are open to drain water, it causes an undertow, an “actual pulling of the water”. Likewise, Zocco testified that, if the dam is open, it created a current that draws toward the dam. The closer to the dam, the stronger the current. He believed that the current in the area where he found Tang was “not so bad”. Both LaRussa and Mancini testified that they did not observe any waves or whitecaps in the water around the time of the incident.

Damadian testified that he had boated on the lake hundreds of times and never observed any current as a result of pumps from the dam. He explained that the dam was a half-mile or more from the beach where the students kayaked. He claimed that there was a separate area by the dam where the area is roped off because of the current preventing people from going anywhere near it.

In addition, Damadian testified that there were signs at the beach that said, “no swimming, no camping, no fires”, but “[n]obody bothers with them, they just go, everybody, all the time”. And identified a sign located one-half mile from the beach, near the dam, which indicates “Danger” and “Stay Back”. He testified that cables and ropes block anyone from going near the area around the sign.

Lastly, Tang submitted an affidavit from Gerald M. Dworkin, an Aquatics Safety and Water Rescue Consultant, together with his report. Dworkin noted that Federal law requires, “that a properly fitting wearable life jacket be provided for each and every person aboard a recreational vessel, including canoes and kayaks”. And opined that, as the boats’ owner, Damadian should have confirmed that each kayak and canoe had wearable life jackets and that those using those vessels must wear one. Dworkin noted, “Asking the group if they brought the life jackets did not discharge Damadian of his legal obligation to provide life jackets and to require that everyone using a kayak or a canoe would have a wearable life jacket”. Concluding that Damadian’s “conduct, namely his actions and inactions, were egregious, palpably unreasonable, and grossly negligent, and caused Jonathan Tang’s death”.

Damadian sought dismissal of Tang’s claim for violation of the provision of the Navigation Law which provides that, “every pleasure vessel and every rowboat, canoe and kayak shall have at least one wearable personal flotation device for each person on board, which shall be of a type approved by the United States coast guard and shall be in good condition.” And that “every operator or person in charge or control of a pleasure vessel, rowboat or canoe… shall be responsible for compliance with the [flotation device] provisions [.]”

The Court found that the plain language of the statute stated that a vessel shall have a wearable personal flotation device for each person aboard that vessel. Based on that clear directive, it was not sufficient for the flotation device to merely be available somewhere, as Damadian argued. The flotation device for each person must be on board. Furthermore, as the owner of the kayak Tang used, Damadian was a “person in charge or in control of” the kayak. It was his responsibility to ensure that Tang and all those using the kayaks actually had the flotation device once aboard the vessel. Once his guests expressed their intention not to wear the flotation devices, Damadian could have withheld that permission to use the vessels until his guests agreed to wear the flotation devices. Additionally, Damadian submitted no evidence that the other flotation devices which may have been in the kayaks at some point were sufficient to be considered a “wearable personal flotation device for each person on board, which shall be of a type approved by the United States coast guard”, as required by the statute.

Damadian also sought summary judgment dismissing Tang’s claim of negligence based on a defective kayak. Damadian argued that he was not negligent based on his testimony that the kayak was in good condition and that he had used it two weeks prior. LaRussa testified that, after Tang had disappeared under the water, others used the same kayak to search for Tang. Phan stated that others used the kayak prior to Tang. Gurney testified that he inspected the kayak and found no holes in it. And lastly, Timothy Tang testified about what others told him about the kayak, but this information was hearsay.

While the court did not find that there was any damage to the kayak itself, such a finding did not necessarily resolve whether the kayak was “seaworthy” at the time of the accident. As regards equipment, the classic case of unseaworthiness arises when the vessel is either insufficiently or defectively equipped. And, as the court found, there were triable questions of fact about whether the kayak was sufficiently equipped.

The assumption of risk doctrine applies where a consenting participant in sporting and amusement activities is aware of the risks; has an appreciation of the nature of the risks, and voluntarily assumes the risks. Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation.

Here the Court found that the nature and scope of the risk were disputed because there was conflicting circumstantial evidence about whether there was a dangerous, and perhaps hidden, current in the water when Tang disappeared. For example, Gurney’s report stated that, when Tang disappeared, the pumps from the dam were active and that the current at that time was “quite strong”. Granger of the local fire department recalled that his divers told him that they were “getting pushed around” by the currents because the dam was open and water was flowing through the dam.

Conversely, Zocco, who found Tang’s body the next day, testified the current in the area where he found Tang was “not so bad”. He testified that he found Tang in the same location as Tang disappeared, which he took to mean that there were not very heavy currents. Additionally, Damadian testified that the area near the dam that was roped off due to current was not at the beach, but rather one-half mile from where his guests were. Because the nature and extent of the risk were unresolved, Tang’s awareness or appreciation of the risk also remains a triable question of fact.

Furthermore, there was conflicting evidence about whether the risk was concealed beneath the water. A participant cannot assume a concealed risk. On one hand, Damadian acknowledged that there were signs at the beach that stated “no swimming, no camping, no fires”. On the other hand, LaRussa and Mancini testified that they did not observe any waves or whitecaps in the water around the time of the incident. Damadian also claimed that he had never observed any current in the water and that people routinely ignored the signs at the beach. Additionally, it was reasonable to assume, for purposes of this motion, that Tang believed the area was safe because Damadian, who was knowledgeable about the area, drove them there.

Accordingly, the Court found that there was no evidence that Tang was aware of the danger. Rather, there were triable questions of fact concerning the presence and strength of any current at the time and place of the incident, and whether Tang was made aware, or should have been aware, of any such danger.

Damadian also argued that he was not liable because Tang assumed the risk of kayaking without a life jacket, despite being a weak swimmer. However, the record contained no evidence to support Damadian’s assertion. To the contrary, Timothy Tang testified that Tang took swimming lessons and was able to pass a swim test in high school. There was no other credible information about Tang’s swimming prowess, and the available evidence did not suggest that Tang’s swimming ability was weak. Furthermore, the possibility that Tang lacked experience in water-related activity might impose a greater duty on Damadian to inform Tang of the risks and weigh against a finding that Tang assumed the risk.

Damadian also moved to dismiss Tang’s claim for his failure to warn Tang about the alleged currents in the water when the dam was active. But whether the current existed and was apparent to Tang was a triable question of fact.

Assuming that the currents existed, Damadian argued that he had no duty to warn about dangers not on his property. However, Damadian advertised his property for rent based on the access to, and use of, the reservoir. Damadian profited from such use by his guests, and by the guests’ use of the kayaks he owned as well. Damadian professed to have substantial knowledge of the lake as a result of his extensive use of the lake for boating. In this specific case, Damadian also put the kayaks in his vehicle and drove Tang and the other guests to the water. In taking those actions, Damadian assumed a duty of care to alert his guests to any potential dangers in the lake.

Damadian also argued that he was not required to warn anyone about natural, transitory conditions. However, the currents were caused not by natural conditions, but by a dam when the dam pumps were active.

Damadian also argued that the provision of the General Obligations Law granting statutory immunity for certain uses of recreational land protected him from claims for any “ordinary negligence” attributed to inviting Tang to kayak on the reservoir. However, that section did not apply because Damadian did not own the reservoir. In fact, Damadian might be liable for more than mere negligence if Damadian knew of the risks in the reservoir and drove Tang and the guests to the reservoir anyway. Furthermore, the protection only applied to property that was suitable for the activity. There was a question of fact as to whether the property was suitable because the record contained conflicting evidence about the water current in the reservoir when the dam was active.  

The Court denied Damadian’s motion to dismiss the complaint.

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