Boating accidents: Rent a canoe and get stuck in the mud

Whether fishing, sailing, jet boating or canoeing knowledge of local water conditions is essential for a safe and enjoyable experience. This week’s travel law case involving a canoeing adventure that got stuck in the mud, will address the following questions. When renting a canoe what kind of information should be conveyed to the canoeist who is experienced and knowledgeable of local water conditions such as when low tide begins? Is a release signed by the canoeist and his wife which states “I… hereby release, indemnify and hold harmless…Bob’s Canoe Rental, Inc…with respect to any and all injury, disability…whether arising from the negligence (of Bob’s Canoe Rental, Inc.) or otherwise, to the fullest extent of the law”, enforceable?

The Ferrari Case

In Ferrari v. Bob’s Canoe Rental, Inc., “Kathleen Ferrari and her husband, the deceased Dennis Ferrari (commenced a lawsuit against Bob’s Canoe Rental, Inc. (“Bob’s Canoe”) seeking) to recover damages for personal injuries sustained…when they were exposed to the elements after becoming stranded at low tide while canoeing on the Nissequogue River in Suffolk County, New York…the Ferraris allege…that the defendant was negligent in permitting them to rent the canoe and launch so close in time to low tide and in advising them that it was safe to begin their canoe trip…The Farraris rented a canoe…intending to make a one-way trip on the Nissequogue River from a launching site located in a park in Smithtown to a park in Kings Park, New York”.

Experience & Knowledge

Dennis Farrari was an experienced canoeist having “canoed approximately 12 times when he was younger and a Boy Scout and… He had canoed as an adult on the Nissequogue River two times (the first of which took) four to four and one-half hours to travel the length of the river and that his second trip took five hours to complete…he was aware that low tide was generally six hours after high tide…he himself checked the time of high tide in the local newspaper and that he did so ‘every day, because I do a lot of fishing’”.

Getting Stuck In The Mud

The Farraris launched “probably close to 12:30PM…they both were paddling the canoe, and that they did not eat or drink anything before they ‘got stuck’ at approximately 4:30PM (when the tide went out leaving them high and not so dry on mud flats) near the Smithtown Landing Country Club…the sun went down at approximately 5:00PM or 5:30PM and that (they) were not rescued for hours after they were stranded”. An EMT-Critical Care specialist (X) employed by the Smithtown Fire Department was part of the rescue team and testified that Kathleen Farrari’s “blood pressure (was) 80/60, that she was hypothermic…and that he did not smell alcohol on her breath”.

The Launch & Rescue

Bob Canoe’s full-time seasonal employee in 2008 (Y) testified “that he canoed the Nissequogue River daily that year, and that the length of the river from Smithtown to Kings Point is five and one-half miles…(Bob’s Canoe) always launches its canoes from Smithtown and that the average time to complete the trip…at a moderate rate of paddling is two and one-half hours…high tide was at approximately 10:30AM on October 27, 2008 (and) that low tide was at 4:30PM…the latest time that he would rent a canoe to someone, depending on the tide and time of sunset, would be 2:00PM…he did not know of any other incidents where someone was stranded on the river and that he waited in Kings Park for the Ferraris after they launched…he became anxious when the Ferraris did not arrive at 4:30PM, that he went looking from them in his truck, and…found them stranded near Smithtown Landing Country Club”.

The Expert Witness

Bob’s Canoe’s expert witness (Z) was a retired Commander with the United States Coast Guard…a member of the National Safe Boating Council (and) inspected the river (during a period of similar tidal times by canoeing with a companion) but ‘he (73 years old at the time whereas Dennis Ferrari was 49 at the time of the incident) was the sole paddler of the canoe at all times’ (and covered the distance from Smithtown to where the Ferraris were stranded on the mud flats) a distance of 3.2 miles in 1 hour and 25 minutes (the Farraris took nearly four hours to cover the same distance)…Z “opines that, with a reasonable degree of boating and aquatic safety certainty, the Ferraris had ‘ample time to complete the course of the Nissequogue River well before the onset of low tide’ on the date of this incident”.

Assumption Of The Risk

The Court found that the Farraris assumed the risk of getting stranded on the mud flats because “Dennis…was an experienced canoeist, with experience regarding the tides on the Nissequogue River, and with knowledge about the risk involved in canoeing at low tide…he had specific knowledge that low tide would occur at approximately 4:40PM…and that he indicated that it was his experience that a trip on the river could take five hours. Nonetheless he decided to launch the rented canoe as late as 12:30PM…It is determined that getting stranded at low tide, whether in a river or on a sand bar near a beach, is an inherent risk in canoeing and arises out of the nature of the sport”.

The Release & No Negligence

The Court also enforced the release signed by the Farraris which absolved Bob’s Canoe of liability for negligence noting that “the language of the exculpatory agreement must express the intention of the parties in unequivocal terms in order to relieve a defendant from liability for negligence”. “In addition, the (Ferraris have) not submitted any evidence why it took approximately four hours to traverse a little more than halfway on their trip, or to rebut the testimony of… (defendant’s employee and expert) that the entire trip takes three hours or less to complete, paddling at a moderate rate…the (Ferraris have) not submitted any evidence to dispute the efficacy of the signed release of liability”. The Court awarded summary judgment to Bob’s Canoe and dismissed the Ferrari complaint.

Other Boating Accidents

There have been many boating accidents including those involving canoes [see Glenview Park District v. Melhus (canoeist who drowned during trip down river was promised that canoeing would “be perfectly safe”; sponsor has duty to make inquiry on water levels and reveal potential for flood conditions); Goodman v. Juniper Springs Canoe Rentals(slip and fall on bulkhead while removing a canoe from the water)], sailing vessels [see McAleer v. Smith (sail trainees drown after vessel capsizes during race; sponsor had duty of reasonable care to select and approve vessels which are seaworthy, properly manned and safe for racing)], jet boating [see Brozyna v. Niagara Gorge Jetboating, Ltd. (jet boat participants must sign release of all liability and must attend a safety briefing; plaintiff sustained back injury when boat “came down hard” in the rapids in the Devil’s Hole; release enforced)], ship to shore transport raft [see Chan v. Society Expeditions, Inc. (cruise passenger drowns while being transported to shore on Zodiac raft which capsized)], Nile cruise boat [see Elses v. TWA (Nile tour boat burns to waterline while passengers jump into the river)], white water rafting [see Johnson v. New River Scenic Whitewater Tours (“during the trip the raft in which Lindsay was riding…flipped over; Lindsay was pinned against a rock beneath the water and drowned before she could be rescued”(, Goldstein v. DDB (5 passengers killed during rafting accident in British Columbia; disclaimer not enforced)], fishing boat [see Stein v. Rio Parismina Lodge (tourist joins fishing trip in Costa Rica and injured when boat is swamped by waves as river empties into ocean)], lake tour boat [see In re Lake George Tort Claims (Lake George tour boat capsizes causing drowning death of many elderly passengers)] and lagoon boat [tourists crossing Gabonese lagoon in wooden boat which collides with another boat; “The bow of the oncoming boat struck Ms. Irwin in the face, dislodging her orbital ridge and shattering her face. In addition the bow…hit metal supports in the boat occupied by Ms. Irwin and the metal supports impaled Ms. Irwin’s skull and tattooed her skin. Ms. Irwin’s injuries…include: loss of sensation and motor function, complete loss of small and diminished sense of taste, diminished cognitive skills, short-term and working memory loss, shattered sinuses…diminished ability to perceive visual depth”)].

Conclusion

Tourists should be very careful when participating in boating adventures with special attention paid to safety. Happy boating to all.

The author, Justice Dickerson, been writing about Travel Law for 38 years including his annually-updated law books, Travel Law, Law Journal Press (2014), and Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2014), and over 300 legal articles many of which are available at www.nycourts.gov/courts/9jd/taxcertatd.shtml .

This article may not be reproduced without the permission of Thomas A. Dickerson.