Vacationer ejected from raft on Lower Salmon River in Idaho: Is river guide liable?

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In this week’s travel law article we examine the case of Neault v. Epley’s, Inc., Case No. 3:16-CV-00244-EJL-RFB (D. Idaho (1/16/2018) the Court noted that “On June 27, 2014, Plaintiff Andres Neault was ejected from a raft on a section of the Lower Salmon River known as ‘Slide Rapid’. Claiming to have suffered physical and emotional injury as a result, she and her husband, David, bring this action against their river guide, Defendant Epley’s Inc., a licensed outfitter in the state of Idaho. Plaintiffs claim that Epley’s conduct-in particular, its decision to run the Slide Rapid at flows above 23,000 cubic feet per second (CFS)-breached the standard of care applicable to outfitters and guides under chapter 12, Title 6, Idaho Code and that said breach was a direct and proximate cause of Plaintiff’s injuries…Plaintiffs’ motion to amend complaint to assert punitive damage claim is granted”. For cases involving boating accidents in storms or on high river waters see In re Aramark’s Sports and Entertainment Services LLC, 2014 WL 427041 (D. Utah 2014), reversed & remanded 831 F. 3d 1264 (10th Cir. 2016); Glenview Park District v. Melhus, 540 F. 2d 1321 (1976); Ferrari v. Bob’s Canoe Rental, Inc., 2014 NY Slip Op 32209(U) (N.Y. Sup. 2014). For white water rafting accident cases see Dickerson Travel Law, Law Journal Press (2017) at 5.04[4][c][ii].

Terror Targets Update

Kashmir, India

In Unrest in Kashmir Fuels Violent Protests, Beheading, Travel Restrictions, Gunfights, travelwirenews (4/9/2018) it was noted that “Indian-administered Kashmir is facing widespread unrest involving violent clashes between student protesters and Indian police, the beheading of a man by Pakistan-linked terrorists, and deadly gunfights pitting security forces against militants, all of which ultimately prompted authorities to impose travel restrictions”.

Barawe, Somalia

In Blast at Somalia stadium kills five football fans, travelwirenews (4/13/2018) it was noted that “Five people have been killed and 10 more injured in Somalia after a bomb detonated in a football stadium in the Lower Shabelle region. The blast which occurred in the southwestern town of Barawe has been attributed to the al-Shabab rebel group”.

20 Best Honeymoon Destinations

In Finance: The 20 best honeymoon destinations in the world, according to newlyweds and travel experts, travelwirenews (4/8/2018) it was noted that “U.S. News & World Report recently rounded up the top 20 honeymoon destinations based on expert advice, along with thousands of traveler votes”. Ranked #20 to #1 the destinations are: Nice, France; U.S. Virgin Islands; Corfu, Greece; Loire Valley, France; Cinque Terre, Italy; Maui, Hawaii; Santorini, Greece; Rome, Italy; Kauai, Hawaii; Bali; Amalfi Coast, Italy; Florence, Italy; Paris, France; Maldives; Napa Valley, California; Fiji; St. Lucia; Bora, Bora; Tahiti; Tuscany, Italy. Enjoy.

Carolina Reeper: One Very Hot Pepper

In Gorman, He Ate the World’s Hottest Pepper, Then Landed in the Hospital With ‘Thunderclap’ Headaches, nytimes (4/9/2018) it was noted that “If you eat a really hot pepper, you expect pain. A lot of pain. In addition to the feeling that you have just put a live coal in your mouth, you may weep, vomit and wonder where in your life you took a wrong turn. You don’t expect a headache so intense and immediate that it sends you to the emergency room…His problems began when he ate a whole Carolina Reeper-the hottest pepper in the world according to Guinness World Records-while participating in a hot-pepper-eating competition”.

Don’t Fly In Algeria, Please

In Walsh, Military Plane Crashes in Algeria, Killing at Least 100, nytimes (4/11/2018) it was noted that “At least 100 passengers died when an Algerian military transport plane slammed into a field shortly after takeoff near the capital on Wednesday. In 2014, an Algerian military transport plane carrying 78 military personnel and their families crashed into a mountain…during bad weather. One person survived. Six people died when an Algerian Air Force C-130 crashed into a hillside in France in November 2013. The country’s deadliest accident occurred in July 2014, when an Air Algerie jetliner traveling from Burkina Faso to Algeria crashed in the desert in Mali, killing all 116 people on board, including 53 French citizens”.

Don’t Insult The King, Please

In Schuetze, How Is Dutch King Like a Cop? Insulting Them Is To Be Treated Equally, nytimes (4/10/2018) it was noted that “Insulting a king used to be dangerous business, but in the Netherlands, it could soon be the legal equivalent of trash-talking an ambulance driver. Under Dutch law, insulting the monarch is a crime-though it is rarely prosecuted-punishable by up to five years in prison. But the lower house of Parliament voted on Tuesday to reduce the maximum sentence to four months for speaking ill of the king…putting them on the same level as police officers, emergency room workers, social workers and ambulance drivers”.

Drunken Driver In Cliffside Plunge

In Salam, Driver in California Plunge That Killed Family Was Drunk, Officials Say, nytimes (4/13/2018) it was noted that “The woman who was driving a sport utility vehicle when it plunged off a 100-foot cliff into the Pacific Ocean with her family aboard last month was drunk, the California Highway Patrol said on Friday. The woman, Jennifer Hart, was killed in the Northern California crash, as were her wife, Sarah Hart, and at least three of their six adopted children. The other three children have not yet been accounted for. According to toxicology tests, Jennifer Hart, 38, had a blood alcohol concentration of 0.102 percent…In California, it is illegal for drivers to a have a level of 0.08 percent or higher. The toxicology tests also found that Sarah Hart, 38, and two of their children had a ‘significant amount’ of diphenhydramine-an ingredient commonly found in medicines like the allergy drug Benadryl that can cause drowsiness-in their systems”.

Bogota: Is It Safe?

In Yuan, Beautiful, Complicated Bogota: A Traveler’s Starter Kit, nytimes (4/10/2018) it was noted that “Bustling and built for governing, Colombia’s capital isn’t a colonial jewel of the Caribbean like Cartagena, or a hot spot like Medellin-Pablo Escobar’s former home base…Richness though is everywhere in Bogota, from its street art depicting a history of conflict to the looming hills of protected parkland that line its eastern border.., Safety is still a concern. Armed guards with bomb- and drug-sniffing dogs are standard at most public parking garages”.

Chad Travel Ban Dropped

In US drops travel ban for citizens of Chad, travelwirenews (4/11/2018) it was noted that “US President Donald Trump on Tuesday lifted a travel ban imposed on Chadian citizens following a six-month government review (which) found that the landlocked central African country had improved security standards and bolstered communications about is citizens with US authorities”.

Sister Of “Nut Rage” Heiress Has Tantrum Too

In Sang-Hun, Sister of Korean ‘Nut Rage’ Heiress Accused of Throwing Her Own Tantrum, nytimes (4/13/2018) it was noted that “The police on Friday began looking into accusations that a sister of Korean Airlines infamous ‘nut rage’ heiress physically abused an advertising executive, insulting him and hurling water in his face during a business meeting. Cho Hyun-min, 35, is a younger sister of Cho Hyun-ah, a Korean Air vice president whose 2014 tantrum over how macadamia nuts had been served to her in first class made the company a target of ridicule and outrage, in South Korean and elsewhere…In the ‘nut rage’ incident, Cho Hyun-ah used abusive language, threw documents and even made flight attendants kneel and beg for forgiveness for serving the nuts without first asking her-and in an unopened package, rather than on a plate”.

A Pepperoni Pardon

In Joseph, 40 Sea Gulls Wrecked His Hotel Room. 17 Years Later, a Pepperoni Pardon, nytimes (4/14/2018) it was noted that “Nick Burchill has been called ‘the worst hotel guest ever’. It isn’t because he left a suitcase filled with pepperoni in a hotel room in Canada in 2001. It’s because, as Mr. Burchill tells it, he left it next to an open window and about 40 sea gulls invaded the room, drawn by the smell of the cured meat. The ensuing chaos-and most likely the cleanup bill-got Mr. Burchill barred for life from the Fairmont Empress in Victoria, British Columbia, according to him and the hotel…He recently made a bold peace offering to the hotel staff: a pound of Brothers’ TNT Pepperoni. He also asked Ms. Brar for an official written version of the ‘pardon’…Ms. Brar had one stipulation (well, two) she said by email: “As long as he leaves the pepperoni in Nova Scotia and keeps his hotel room window closed, he is welcome back any time”.

Bus Crash In India Kills 27

In Schultz & Goldman, ‘Panic, Cries, Chaos’ in India as School Bus Crash Kills 27, nytimes (4/10/2018) it was noted that “A speeding school bus plunged off a mountainside in northern India on Monday, killing 23 children and four adults…‘The scene was full of panic, cries, chaos and disaster’ said Rakesh Pathania, a local politician who was at the site of the crash”.

2400 Sheep Die On Ship

In Australia Shocked by Death of 2,400 Sheep on Ship to Qatar, nytimes (4/9/2018) it was noted that “The Australian government said Monday that it would investigate the mistreatment of animals after video recently emerged showing thousands of sheep dying from heat stress onboard a ship traveling to the Middle East…The footage…shows the sheep dying on the decks while rotting corpses are being tossed overboard”.

Tourist Bus Hits Tree In Zurrieq

In Borg & Grech, Two dead, six critical, 44 others treated, as tourist bus hits tree in Zurrieq, timesofmalta (4/9/2018) it was noted that “Two tourists were killed, six others critically injured…when a double-decker tourist bus hit low-lying tree branches in Zurrieq…Two of those struck-a Belgian man, 62 and a Spanish woman, 37 died on the spot”.

Save Baby Cheetahs, Please

In Taken away from their mothers to be exported for zoological reasons, travelwirenews (4/12/2018) it was noted that “An extremely worrying trend is emerging in South Africa, where cheetahs are bred on demand, taken away from their mothers to be hand-reared for cub petting, to become well-behaved ambassador species, or to be exploited for either ‘zoological’ reasons or into the pet trade. With the number of cheetahs in captivity soaring to more than 600 in about 80 different facilities, concerns have been raised that this industry is showing alarming similarities of the lion breeding industry, with its links to canned hunting and legal lion bone trade”.

Countries Where LGBT Tourists Are Criminals

In Countries where LGBT tourists are criminals, travelwirenews (4/12/2018) it was noted that “Here is the current situation travelers should be aware of if they travel with a same sex partner”. Countries discussed include Tanzania, Egypt. Tunisia, Cameroon, Kenya, Lebanon, Turkmenistan, Uganda, Zambia, Sudan, Somalia, Nigeria, Mauritania, Iran, Saudi Arabia, Yemen, Iraq, Afghanistan, Pakistan, Qatar, the UAE, Bangladesh, Bhutan, Sri Lanka, India, Syria, Yemen, Belize, Antigua, Jamaica, Trinidad and Tobago and Barbados.

2018’s Best Airlines

In Comoreanu, 2018’s Best Airlines, wallethub (4/5/2018) it was noted that “Traveling by plane costs an average of $370 per trip. And choosing the wrong airline has the potential to take even more from us. For instance, 24 animals died during air transportation in 2017, and four major U.S. airlines had at least one pet fatality…WalletHub compared the 9 largest U.S. airlines plus two regional carriers, in 13 important categories. They range from cancellation and delay to baggage mishaps and in-flight comfort. We also considered costs in relation to in-flight amenities for the sake of fairness. For example, it wouldn’t be right to penalize an airline that charges for drinks if its tickets are far cheaper than those from an airline with free in-flight refreshments”. Ranked #1 to #11 the airlines are: Alaska Airline; Delta Air Lines; Hawaiian Airlines; Skywest Airlines; ExpressJet Airlines; American Airlines; United Airlines; JetBlue Airways; Southwest Airlines; Frontier Airlines; Spirit Airlines.

Pet Python, Anyone?

In Nuwer, That Python in the Pet Store? It May Have Been Snatched From the Wild, nytimes (4/9/2018) it was noted that “In the market for a new pet? Maybe something a bit exotic? For many consumers, reptiles and amphibians are just the thing: geckos, monitors, pythons, tree frogs, boas, turtles and many more species are available in seemingly endless varieties, many brilliantly colored, some exceedingly rare….From 2004 to 2014, the European Union imported nearly 21 million of these animals; an estimated 4.7 million households in the United States owned one reptile in 2016. But popularity has spawned an enormous illegal trade, conservationists say…In fact, many-perhaps most, depending on the species-were illegally captured in the wild”.

Banning Bangkok’s Best Street Food?

In Gross, Where to Find Bangkok’s Best Street Food While You can, nytimes (4/9/2018) it was noted that “Last April, the Bangkok Metropolitan Authority made international headlines when it announced the city of more than 8 million would ban street food vendors-often considered the world’s best-in order to make sidewalks more accessible. The B.M.A. soon walked back its statement, saying street food would be preserved in Chinatown and the Khao San Road backpacker district, but elsewhere it would be eliminated, the vendors relocated from ‘vital walkways’…This would happen by year’s end. Eventually. Maybe. Sometime”. Hope Not.

Bedbugs Beware Of Sniffer Dogs

In Taking stowaway bedbugs home from your trip? FRAPORT sniffer dogs bark no!, travelwirenews (4/13/2018) it was noted that “Since 2016, the Bed Bugs team at Frankfurt Airport (FRA) has…been offering a special service. To avoid unwelcome pests in tourist travel, the sniffer dogs regularly sniff out airplanes and hotels for bed bugs…From now on, passengers at FRA also have the option to get their own baggage checked thoroughly before potentially carrying bed bugs into their home”.

Cheap Flight Finder

In Johnson, This easy tool is what the pros use to find cheap flights, clark/travel/ (3/8/2018) it was noted that “Technology has done much to disrupt the airline search business. We told you how Google Flights’ streamlined interface has created parity when comparing air travel. But the software behind that site is the real secret sauce. It originates from a company called ITA Matrix, formed by MIT researchers in 1996. The Cambridge, Massachusetts firm specialized in airline metadata, which offers extended functionalities, including cost-per-mile analysis and much more. The magic behind ITA Matrix’s search capabilities is its QPX, or executable query technology…But take heart, consumers, you can continue to enjoy the ITA Matrix at matrix.itasoftware”.

The Rivers In Thailand

In Scott, Taking to the River in Thailand, nytimes (4/10/2018) it was noted that “Thailand may be famous for its tropical isles and aquamarine seas, but select rivers and canals in the country’s core offer opportunities for some astonishing adventures as well…Plowing through the wide, brownish-gray river from morning to night in central Bangkok are duck-billed ferries, jam-packed water buses, private tour boats and dinner cruise yachts. Slicing through it all are Thailand’s most ubiquitous and distinctive crafts-long-tail boats, like big canoes powered by diesel truck engines with protruding drive shafts tipped with propellers. The boats dock at the city’s most famous temples like Wat Pho, where we entered shoeless into a massive pavilion containing a 150-foot long reclining Buddha and a steady flow of shoulder-to-shoulder gawkers”.

Travel Law Case of the Week

In the Neault case the Court noted that “Plaintiffs specifically allege:

Monitoring Water Levels

“In the days leading up to the trip, Defendant’s employees monitored the water levels of the Salmon River to determine whether the water levels were safe for the party to proceed. If water levels of the Salmon River exceeded 20,000 cubic feet per second (cfs)…as recorded by the Bureau of Land Management, the river is not suitable for inexperienced whitewater rafters. When water levels of the Salmon River exceed 20,000 cfs, cataract known as the ‘Slide Rapids’ (the Slide) is particularly hazardous to whitewater rafters”.

Navigating Or “Run” The Slide

“Plaintiffs’ scheduled trip included a plan to navigate or ‘run’ the Slide. Defendants never advised Plaintiffs of the dangerousness of the Slide at flows over 20,000 cfs. Defendant did not inform Plaintiffs that the Slide was a class V/VI rapid at the flows over 20,000 cfs”.

Eagle Creek Campsite

“The water level on the (Salmon) River did not decrease between June 24, 2014 and June 26, 2014. On June 26, 2014, Plaintiffs’ group landed…at Eagle Creek to spend the night. This was the final campsite before the group reached the Slide. The Eagle Creek campsite is accessible by road. Defendant could have ended the trip at Eagle Creek”.

Running The Slide

“On June 27, 2014, Defendant’s guides took Plaintiffs and their group down the river towards the Slide. Defendant’s guides knew water levels over 20,000 cfs would produce extreme conditions at the Slide, notably Class V or VI rapids. Navigating Class V and VI rapids requires expert experience, specialized equipment and rescue plans. Defendant’s guides knew that inexperienced whitewater rafters should not attempt to raft Class V and VI rapids such as the Slide”.

Ejected From Raft #3

“Plaintiffs…were passengers in Raft #3. Andrea Neault was ejected from Raft #3 after it collided with a wall of water. David Neault watched his wife struggle in the cold and violent water…Andrea Neault was adrift in the river for over 12 hours. Defendant’s guides failed to rescue Andrea Neault (who) eventually drifted to shore (and was0 hypothermic and disoriented when she came out of the water”.

Authority To Delay

“During the course of the trip, Defendant had authority to delay, modify or cancel the trip if it determined that the conditions on the river were unsafe for the participants. Defendant was aware that, at the time of the June 24-27, 2014 trip, water flow on the (Salmon) River exceeded 20,000 cfs. Defendant gad exclusive control of the rafts and all related equipment, as well as all decisions and planning concerning navigation of the river”.

Injuries Sustained

“As a result of these events, Andrea Neautl suffered contusions, abrasions, soft tissue injury and emotional distress and continues to suffer psychological distress, manifested in physical symptoms including flashbacks, sleeplessness, loss of appetite and elevate stress…”.

Misrepresentations

“According to Plaintiffs, Epley’s ignored and misrepresented to the group the extreme risks presented by the water levels forecasted to be encountered at Slide Rapid on June 27, 2014 (thus permitting the trip’s June 24, 2014 launch in the first instance) and Epleys’s later decision to actually continue through Slide Rapid on June 27, 2014 at flows in excess of 23,000 cfs represented an extreme deviation from industry standards of care….Plaintiffs argue: Defendant’s manager [Robert] Blackner, purposely mislead…the group, by failing to inform them of actual (as of the June 24, 2014 launch date) and projected (for the anticipated encounter with Slide Rapid on June 24, 2014) river flows; it was fraudulent and outrageous for Mr. Blackner to say that the forecasted flow for Slide Rapid o June 27, 2014 was 17,000 cfs, when, in actuality, it was much higher…’The fact that Blackner advised the group that water levels at the Slide on June 27 would be at 17,000 cfs was a false representation that evidences a harmful state of mind’”.

Punitive Damages Standard

“Under Idaho law, to prove a claim for punitive damages, the claimant ‘must prove, by clear and convincing evidence, oppressive, fraudulent, malicious or outrageous conduct by the part against whom the claim for punitive damages is asserted…Ultimately, an award of punitive damages requires a bad act and a bad state of mind…However, for purposes of a motion to amend…the party need only show ‘a reasonable likelihood of proving facts at trial sufficient to support an award of punitive damages”.

Plaintiffs May Seek Punitive Damages

“The Court is persuaded…that the evidentiary record concerning such actions and decisions (viewed kin a light most favorable to Plaintiffs) gives rise to a reasonable likelihood of Plaintiffs being able to prove…that Epley’s engaged in a bad act, with a ‘bad state of mind’ so as to support a claim for punitive damages…In the days leading up to and including the June 24, 2014 launch, Defendant’s manager and guides were aware that water levels on the Salmon River consistently measured higher than 23,000 cfs and that, on June 24, 2014, the water level forecasted for June 27. 2014 (the day the group was scheduled to reach Slide Rapid) was approximately 21,000 cfs…Still Epley’s decided to proceed with the trip and, according to Plaintiffs, did so with ‘no plan whatsoever’ to address the anticipated flow levels at Slide Rapid in the event water flow volumes remained dangerously high…Flow levels did not appreciably change over the course of the trip and, on the morning of June 27, 2014, Epley’s guides could see that the river flow had actually increased overnight as the party camped at Eagle Creek…Still, Epley’s decided to proceed through Slide Rapid with allegedly unqualified guides, foregoing options to use an available satellite phone to discuss potentially safer options for the inexperienced group, or to portage around Slide Rapid, or to use a motorized raft or jet boat to transit Slide Rapid, or to altogether exit the river on land at Eagle Creek”.

tomdickerson | eTurboNews | eTN

The author, Thomas A. Dickerson, is a retired Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and has been writing about Travel Law for 42 years including his annually updated law books, Travel Law, Law Journal Press (2018), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2018), Class Actions: The Law of 50 States, Law Journal Press (2018) and over 500 legal articles. For additional travel law news and developments, especially, in the member states of the EU see IFTTA.org.

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