A kayaker on the Nissequogue River (Enviroyak)
A couple who was marooned on a Long Island river mudflat in a rented canoe cannot hold the rental company liable for the mishap, a judge has ruled.
“It is determined that getting stranded at low tide, whether on 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,” Suffolk County Acting Supreme Court Justice Denise Molia (See Profile) wrote in Ferrari v. Bob’s Canoe Rental, 6690-2009, granting the company’s summary judgment motion.
The underlying case arose from the day trip husband and wife Kathleen and Dennis Ferrari took in October 2008. They planned to paddle 5 1/2 miles along the Nissequogue River, from Smithtown to Kings Park.
Dennis Ferrari, who was 49 at the time of the trip, had canoed more than 10 times when he was a Boy Scout. Leading up to the excursion, he twice canoed the Nissequogue River. Those two trips took between four and a half hours and five hours, he said. Kathleen Ferrari had never canoed before.
The pair signed a release form and started the trip around 12:30 p.m., which was later than Dennis Ferrari had planned. Low tide that day was around 4:30 p.m.
Dennis Ferrari testified he asked a Bob’s Canoe Rental employee if the couple had sufficient time to make the trip and was assured that was the case.
The employee, Geoffrey Lawrence, testified the Smithtown-Kings Park stretch typically takes two and a half hours to complete at a moderate paddling rate. He said they should not have returned later than 4:30 and could not recall other incidents when someone was stranded on the river.
Lawrence said he became nervous when the couple did not return to the landing site by 4:30. He searched for them in his truck and found them stranded near the Smithtown Landing Country Club, more than two miles from their destination.
Numerous first responders appeared on the scene and the couple was treated for hypothermia, according to a release from the Suffolk County Police Department’s Public Information Bureau.
The pair sued the rental company in 2009, arguing it was negligent in letting them launch so close to low tide and assuring them it was safe to go when they did.
Dennis Ferrari died in October 2011.
The rental company presented expert testimony from a retired U.S. Coast Guard commander who was a member of the National Safe Boating Council.
The expert, David Smith, undertook the same trip as the Ferraris and estimated he would have completed it in about two hours and 30 minutes. The couple had “ample time to complete the course” before low tide, Smith said.
The Ferraris complained the rental company had a duty to warn them it was crucial to complete the trip long before low tide, and that they relied on the company’s material misrepresentations.
Yet Molia said the plaintiffs did not submit any information that paddlers had to finish their trips long before low tide. Furthermore, they did not present “any evidence why it took approximately four hours to traverse a little more than halfway on their trip” or counter testimony that the whole trip should take about three hours.
She added that the Ferraris also did not put forward evidence disputing the efficacy of the signed release.
Elovich & Adell of Long Beach represented the Ferraris. Gordon & Silber represented Bob’s Canoe Rental.