By CRISTINE MEIXNER, editor

Updated Jan. 18 to add further information

LAKE PLEASANT - It took the jury just one hour to decide Patrick Cunningham, based on the evidence presented in his trial, is not guilty of two counts of reckless endangerment in the second degree.

Evidence was limited to the Indian River, District Attorney Marsha King Purdue later explained, because the indictment prepared by the previous DA specified the Indian River; it did not include the Hudson River, which constitutes the bulk of the white water trip between Indian Lake and North Creek.

Cunningham, who owns Hudson River Rafting Company Inc. in North Creek, was charged with the two Class A misdemeanors after sending two white water rafting customers downriver Aug. 10, 2010 in a two-person inflatable kayak - called a ducky - without a licensed guide. Neither was injured, although both had to be rescued within minutes of the start of the trip, while they were still on the Indian River.

Purdue's expert witness, Mark Schmale, and Forest Ranger Bruce Lomnitzer were not allowed to testify about injuries and deaths on the rivers resulting from white water trips. Schmale, of North River, has managed Whitewater Challengers there since 1984 and has made the trip over 1,000 times. Lomnitzer is the ranger for the area; he is responsible for checking to make sure the white water guides are licensed and conducts search and rescue operations.

The jury was selected Monday, Jan. 14. Two days of testimony from witnesses followed. The case was resolved Thursday, Jan. 17.

In his summation Defense Attorney Joseph Brennan of Glens Falls told the jury, “There is no evidence in this case; the burden of proof is on Ms. Purdue to establish evidence of a crime, whether or not Mr. Cunningham was aware there was a substantial risk of death,” beyond reasonable doubt. No one on the Indian River before Aug. 12, 2010 ever sustained a serious physical injury, yet somehow the defendant was supposed to be aware of a substantial risk of that occurring when it had never happened before.”

In her summation Purdue told the jury, “Mr. Cunningham, as a licensed white water guide since 1988, holds himself as an expert, makes a living guiding on the river. He put two inexperienced people into a ducky knowing they did not have the experience to operate it. Thank God they hit the Whitewater Challengers raft before hitting the strainer further down, the tree where they could have died.

“The defendant had to know he was subjecting them to risk … of serious physical injury. The evidence does show [that].

“Can you convict where there is no physical injury? Reckless endangerment is a charge where there is no physical injury.”

The jury was sent to the deliberation room at 11:35 a.m. and returned at 12:37 p.m. with the 'not guilty' verdict.

"I knew it would be a hard case to prove but I had to try," Purdue said Friday morning. "I did believe those two people were recklessly endangered. If I had to do it again I would."

THE TRIAL, DAY 1

LAKE PLEASANT - District Attorney Marsha King Purdue started putting witnesses on the stand in Hamilton County Court Tuesday, Jan. 15, in the case of The People of the State of New York vs. Patrick Cunningham.

Hudson River Rafting Company Inc. owner Patrick J. Cunningham of North Creek is accused of endangering two whitewater rafting customers Aug. 12, 2010, Robert Carson of Augusta, Ga. and his daughter Savannah Carson, 20, by sending them downriver in a two-person inflatable kayak - called a ducky - without a licensed guide. Both had to be rescued.

Cunningham was charged with two counts of reckless endangerment in the second degree, a Class A misdemeanor. Cunningham faces up to a year in jail if found guilty.

CAUGHT ON CAMERA

Purdue called Stephanie Leonard to the stand first. Leonard testified she has been the photographer for another rafting company, Whitewater Challengers, for 10 years.

On Aug. 12, 2010 she was taking photos of rafters on the Indian River in the Town of Indian Lake for Whitewater Challengers when she captured images of the Carsons’ “ducky” hitting a raft and flipping over, ejecting father and daughter.

The seven photos show the Carsons’ ducky running nose down into the side of a raft, the ducky rolling over next to the raft, the upside down ducky with Robert Carson’s hand gripping it and his daughter nowhere to be seen; and the Carsons’ heads in the water.

EXPECTED A GUIDE

Robert Carson explained how he found HRRC on the Internet and his telephone contacts and Aug. 11 meeting with Cunningham, when he repeatedly asked about safety and told Cunningham neither he nor his daughter had any white-water rafting experience.

“I left the office understanding we would go rafting and would have a professional guide the next day,” Carson testified.

During his visit with Cunningham at his North Creek headquarters, Carson said he “mentioned it would be great if we could go down the rapids on a raft in the morning and in a ducky in the afternoon. Mr. Cunningham told me the rafting trip would take most of the day and they only released water once a day so that wouldn’t be possible.

“He said let’s see how you feel, how you weather the trip, then we’ll make plans based on that.”

THE SWITCH

The day of the trip, Carson said, “I paid for a rafting trip for my daughter and I with a professional guide.” They also signed a liability waiver.

Carson said before leaving the headquarters Cunningham “told me one of the guides did not show up and would I be interested in going down the river in a ducky.

“There was no conversation about what it would be like. I asked him if it would be safe and he said, ‘I think you’ll be fine; you’ll have a great time.’”

Carson said he was excited and accepted Cunningham’s offer. He had never seen a ducky.

NO INSTRUCTIONS

While aboard a bus on the way to the launch site Carson said Cunningham’s daughter instructed the group “on how to sit properly in a raft, on how to secure your feet, how to manipulate the paddle and to use your body as leverage not just arm power, very specific instructions on if you were out of the raft and into the river; very specifically she said keep your feet downstream, hold onto your paddle and keep your head up.”

Carson said there was no separate instruction for using kayaks.

At the staging area the rafts launched first and the Carsons followed two men who were also assigned a ducky.

A CALM SPOT

“We were towards the very last so we could see the very steep decline to the water’s edge to an eddy, which we were told was a calm area,” Carson said. The eddy is separated from the river by trees and land.

“We witnessed the instructions the rafters were given when they entered the eddy,” Carson continued. “They practiced moving forward, backward, turning to the right, turning to the left.

“We listened many, many times as each raft entered the water.

“Once in the river I told Savannah to paddle and I would steer; in the eddy we made a right turn simulating the move the rafters had done, we reversed, turned to the right, turned to the left and even turned around in circles. I thought we were fantastic.”

The feeling didn’t last long.

POWERFUL CURRENT

The Carsons had been told to cross the river to where the rafts were congregated before going downstream.

“We entered the river [from the eddy] and were trying to go across to where the rafts were,” Carson said. “The current pushed the bow of the boat downstream and we were moving at a very rapid speed. I was scared.

“I became extremely anxious about our safety. I was focused on trying to keep us going downstream straight; I was able to for a short time.

THE ACCIDENT

“A raft was coming out of [a hydraulic] downstream from us and about this time we went into a real big drop off and I ran right into their side with the bow of my ducky.

“Our inflatable went up over the side, tilted to the left and ejected my daughter and then me very fast. The ducky capsized and Savannah went out of sight.

Carson choked up as he said he could not see his daughter.

“I went under and grasped the back portion of the bottom of the ducky with my right hand; I tried to hold on and keep my feet downstream and my head up. I did see Savannah’s head come up.”

RESCUED

Whitewater Challengers General Manager Mark Schmale, who was in a “hard-shell” kayak, Carson said, helped his daughter get to a Whitewater Challengers raft. “She was able to grasp the perimeter rope and the guide quickly pulled Savannah out of the water.”

“The ducky and I continued downstream; either Marko helped me or I was able to go over to the same raft and the guide pulled me in.

“I had no knowledge of where Hudson River Rafting Company’s rafts were during that sequence,” Carson continued. “I didn’t see Pat Cunningham and didn’t know where he was and I didn’t see a HRRC raft for about 15 minutes.”

THE DEFENSE

Cunningham’s attorney, Joseph Brennan of Glens Falls, grilled Carson on his earlier testimony on the same charges as well as his Jan. 15 testimony.

Cunningham pleaded not guilty to the two misdemeanors in Hamilton County Court in November 2010. In March 2011 Judge S. Peter Feldstein agreed to adjourn in contemplation of dismissal for six months.

The ACOD came with conditions however, which Cunningham in a sworn affidavit admitted violating before the six months was up.

Cunningham had agreed to put a licensed guide in every raft occupied by customers, except where there is a written agreement when a customer wants to “captain” his or her own raft; he admitted he violated that condition May 27, 2012 when he left a raft about three miles before the trip ended, leaving his customers to finish the trip alone.

That admission led to the trial and two more charges of second-degree reckless endangerment made Dec. 11, 2012. That case is pending in Indian Lake Justice Court.

SEEKING ADVENTURE

Carson agreed he and his daughter were “looking for a father-daughter adventure vacation, something that would be challenging [with] a certain level of excitement.”

Carson said he “knew there were many [white water] classifications” but he didn’t really know what each meant.

He also did not know what a “ducky” is. “I had heard the term ‘ducky’ but didn’t know what it represented,” Carson said, and Cunningham did not explain it.

“He referred to it as a ducky and I accepted his recommendation,” Carson said.

Carson also said he does not recall Cunningham telling him there would be only two people in the ducky, himself and his daughter.

FIRST LOOK

“After exiting the building I understood there would only be two people and no room for a guide,” Carson said. “There were two duckys inflated outside.”

Carson agreed he testified earlier “The more exciting the better” and that he knew there were certain risks. Both he and his daughter were wearing life vests and helmets provided by HRRC.

Where the eddy meets the river, Carson said, the river is “wider than this courtroom is long,” at least 40-50 feet, he agreed with Brennan.

The two rafts left the eddy and crossed to the other side, followed by the other ducky. “We tried to follow them on the same path,” Carson said, but instead they were swept downstream.

INTO A HYDRAULIC

“The raft we collided with was maybe 10-15 feet ahead of us when I first saw it,” Carson said, “toward our left side and then it went left into the hydraulic. I remember seeing it and the next thing I knew we hit it.”

In white water rafting hydraulics are currents produced when water dropping over an obstruction plunges to the bottom of the river with such force that it sets up a cylindrical wave that returns to the surface and turns back toward the drop that caused it.

“The hydraulic dragged the bow of the raft to the left and more downstream,” Carson said. “It was not quite parallel to our ducky at the collision.”

The raft they collided with was not the one that rescued them, Carson said. “The raft that came to our assistance came from upstream and the one we hit continued downstream.”

Carson said neither he nor his daughter was injured.

Carson said if he had known what the rapids looked like he would not have agreed to go down the Indian and Hudson rivers with his daughter in a ducky.

THE TRIAL, DAY 2

LAKE PLEASANT - District Attorney Marsha King Purdue called Mark Schmale to the stand to start the second day of testimony in the Patrick J. Cunningham trial Jan. 16. Schmale, of North River, has managed Whitewater Challengers there since 1984.

Cunningham, who owns Hudson River Rafting Company Inc. in North Creek, has been charged with two counts of reckless endangerment in the second degree, a Class A misdemeanor. He is accused of endangering two white water rafting customers Aug. 12, 2010, Robert Carson of Augusta, Ga. and his daughter Savannah Carson, 20, by sending them downriver in a two-person inflatable kayak - called a ducky - without a licensed guide. Both had to be rescued.

Purdue established Schmale’s expert credentials and focused on the safety of inflatable kayaks while Defense Attorney Joseph Brennan seemed to be trying to establish the raft the Carsons hit was needlessly in their way.

But late in the afternoon, after Purdue rested her case, Brennan announced his client would not be taking the stand and moved to dismiss the charges against him. He said the prosecution had not proven its case.

INSUFFICIENT EVIDENCE

“The evidence submitted by the prosecution is insufficient to prove beyond a reasonable doubt to satisfy [the NYS Penal Law] definition of recklessness or [that there was] any substantial risk of serious physical injury,” Brennan said.

Penal Law says a person acts recklessly “when he is aware of and consciously disregards a substantial and unjustifiable risk [of injury]… The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct a reasonable person would observe in the situation.”

Referring to Robert Carson’s testimony that Cunningham had offered to let him and his daughter go down the river in an inflatable kayak because a guide had not shown up for work, Brennan said, “There is nothing here whatsoever supporting the allegation that Mr. Cunningham persuaded Mr. Carson to undertake the trip in an inflatable kayak.

“He offered them the opportunity. They were admittedly aware of the risk and that in fact was why they were taking the trip.”

The case is being tried as if the clock was rolled back to August 2010 and is based on paperwork filed by Purdue’s predecessor in office, James Curry. That is because the case was adjourned in contemplation of dismissal and then reinstated.

BILL OF PARTICULARS

Brennan said the Bill of Particulars prepared by Curry cites four risks of serious physical injury in this case: death by drowning, head injury, fractures and exposure, limiting permissible testimony on risk of serious physical injury to those areas.

Brennan cited an Appellate Division, Third Department ruling in 1995 that “a fracture in and of itself without some additional testimony” is insufficient to prove serious physical injury and said exposure does not apply.

“So The People’s proof is limited to death by drowning and death by head injury,” he said. “There is no evidence in this case that would establish with data to show that anyone on the Indian River has ever sustained a death from a head injury; there is no proof to show there is a substantial risk of head injury.

“We are left with a substantial risk of death by drowning. Other than the hypothetical circumstances no evidence was presented that anyone had drowned at any time in the Indian River as of Aug. 12, 2010.

“Any speculation presented to the jury is insufficient. The case is defective.”

PURDUE FIGHTS BACK

Purdue cited Carson’s testimony about a guide not showing up for work and said, “Regarding the difference between a raft and a ducky it has been proven by testimony it is more risky to put a person into a ducky, especially when they have no whitewater experience.

“Patrick Cunningham has been licensed since 1988; he does have knowledge of the river. A reasonable person would not do this as a guide.”

Carson testified that on Aug. 11 Cunningham told him his first trip down the river could not be in a ducky, since he and his daughter did not have enough experience. The next day, when a guide failed to show up for work, he told Carson it would be okay.

“Patrick Cunningham did persuade [the Carsons] to go down in that ducky, because he told them it would be safe and all right. They hired him to get his guidance and they relied on him.

“Whether or not his conduct rises to the level of reckless endangerment is the purview of the jury.”

Judge S. Peter Feldstein gave Purdue to 9 a.m. tomorrow morning, Jan. 17, to file her own brief in response.

SCHMALE TESTIFIES

Whitewater Challengers manager Mark Schmale said he trains white water guides and is also a white water guide licensed to guide on all the waters in New York state.

He is also a swift water rescue instructor certified by the American Canoe Association and a member of the Hudson River Professional Outfitters Association, where he was president for 10 years.

HRPOA is a group of outfitters formed in the 1980s to negotiate contracts with the Town of Indian Lake for the water releases that make commercial white water rafting possible on the Indian and Hudson rivers and to formulate safety guidelines.

The first contract HRPOA negotiated was for 1984. Schmale said 11 outfitters currently belong to HRPOA, but HRRC does not.

Schmale said he has run the Indian and Hudson rivers over 1,000 times as a professional guide, as a trainer and for pleasure.

Whitewater Challengers uses 16-foot rafts that seat eight customers each. Schmale books no more than 48 customers for each trip “because that is what the bus holds.”

CLASS 3 RAPIDS

Whitewater Challengers owns the raft the Carsons ran into.

Schmale said the Indian River is Class 3 rapids on a scale of one through six; “it has some waves and needs some maneuvering.

“The Indian River is just below the Lake Abanake dam. We use a dam release; the Indian River without a dam release is basically just a rock-strewn trickle of water; when they open the dam it releases about 800 cubic feet per second of water that pretty much fills the river up.

“It is fairly fast moving water, especially for someone not accustomed to it,” he said.

On Aug. 12, 2010 Schmale was kayaking while supervising a group of six Whitewater Challengers rafts. The dam release was from 10-11:20 or 11:30 a.m. he said.

WHAT HE SAW

“The Carsons were paddling an inflatable kayak; I came out of the put-in area,” he said. “Mr. Carson and his daughter were coming down in an inflatable kayak; they ran into a raft and capsized. I started to paddle toward them. We don’t want swimmers.

“It can be a very bumpy swim; oftentimes the rocks are just under the surface of the water. The danger is hitting rocks; the other danger on the Indian River, which is quite significant, is foot entrapment; if a swimmer tries to stand they can get their foot caught under a rock or log and then the current can push their head underwater and they can drown.

“There are also strainers, a tree generally that falls into the river and then the water goes through it; if someone was swimming they wouldn’t go through it; generally you get caught in it; if they go under a branch can get caught on the lifejacket or clothing and the person can drown.

“If someone is not there to assist a swimmer you can go a very long way; the current is extremely powerful; even with the lifejacket you can take on water, hit your head, a number of things.”

A life jacket and helmet do not negate the risk, Schmale said.

SAW THEM GO IN

The Carsons went into the river about 35 yards ahead of him.

“After the Carsons were in the river they were swept about 100 yards downstream. I paddled as fast as I could to reach them.

“They were floundering in the water trying to swim. When I reached them I had them grab the loops on my kayak and I tried to calm them. I called to one of my guides in a raft to come over and pull the swimmers into his raft.”

Schmale said he did not see Cunningham anywhere in sight, nor did he see any of HRRC’s bluish-green Sotar rafts, only Whitewater Challenger’s red rafts and one other inflatable kayak.

FOR TRAINING ONLY

Whitewater Challengers uses inflatable kayaks as a training tool, Schmale said, when he and a trainee travel in one together, and he never puts customers into one.

Schmale said he has used inflatable kayaks “a couple of hundred times” on the Indian River. He said they are about three feet wide while rafts are at least eight feet wide. Rafts are more stable, he said, because they are wider and hold more people.

Inflatable kayaks are more maneuverable, Schmale said, but they are prone to flip because they are narrow and carry just two people.

After rescuing the Carsons Schmale met them two days later. “They approached me to thank me,” he said. He later guided them down the Indian River.

“They were inexperienced,” Schmale said. “At that point in time they should have been going down the river in a raft.

GUIDANCE NEEDED

“I didn’t believe they would be safe in a ducky. They wouldn’t have known how to navigate the river. There are spots that are more dangerous and spots that are less dangerous. They would need guidance.

“The raft [with a guide] would [have been] a much safer choice… We have over the last 30 years figured out where the trouble spots are.”

Purdue showed exhibits 1-9, photos of the accident.

Schmale identified the Carsons and guide Julia West in the raft the Carsons hit at the very beginning of the Indian River. “There’s a little bit of a pour over there, water going over a rock,” he said.

CROSS-EXAMINATION

During cross-examination Schmale said there were 11 or 12 rafting companies on the river Aug. 20, 2010, including HRRC. “Most of the companies use the same area to launch. It is owned by the State of New York, represented by the NYS Department of Environmental Conservation,” he explained.

“The put-in eddy is probably the size of a football field,” Schmale said. He said generally on a summer day there are “a couple hundred people there.”

Cunningham has his own launch site about 500 feet further upstream.

It takes the water “bubble” about 15 minutes to reach the common launch site once the dam is opened, Schmale said, but he did not know how fast the water moves.

The latest reasonable launch time would be 11:30 a.m., Schmale said. In August the average number of rafts is 40 or so, he said, all launching within an hour and a half of each other.

Schmale has never seen anyone in a tube go down the river.

Without the bubble the river is somewhere between one to a few feet deep, he said. The bubble increases the depth by up to four feet, depending on the width of the river.

Schmale said he is not aware of any outfitters other than Cunningham that use inflatable kayaks for customers.

SURFING

Surfing is where water pours over a rock or other obstruction; one can hold a raft there for a brief time, Schmale agreed.

The spot of the accident was a surfing site near where photographs are taken, he said. “The difference in elevation from the top of the hole to the bottom is about two feet; from the drop to where the hole ends is about four to six feet.

“A hydraulic tends to be a little more uniform than a hole, perhaps manmade. A hole is more of a rock formation.”

When surfing in a hole one usually takes the paddles out of the water, passes through the hole and continues downstream.

SUPERVISING

Schmale was escorting six Whitewater Challenger rafts the day of the accident. “West’s was probably the third in line. I believe Andrew’s raft passed her,” he said. When Schmale saw the accident two of his rafts were behind him.

He saw the Carsons before the collision about 35 yards ahead of him. “The shore makes a 90-degree bend; Julia’s raft would probably have been out of my view [at that point].”

When Schmale again saw both of them the Carsons were about 30 yards from the raft they hit. At that point West was surfing the hole and her raft was pointed generally toward the photographer on the shore.

Taking and selling photographs is part of Whitewater Challengers’ business. They are sold on CDs for $30 each.

At the area where the photographs are taken the river is 30-40 yards wide, Schmale said. “The hole is on the right side of the river. Someone in a kayak could pass it by.”

Schmale testified the distance on the river between photos Exhibit 1 and Exhibit 5 is 20 yards. “From photo exhibits 6-8, from the Carsons’ heads not visible to when they are visible is about 10 feet,” he said. “About five to six seconds; they are not in the faster current.”

RANGER TESTIFIES

Forest Ranger Bruce Lomnitzer of Indian Lake continued his testimony Jan. 16. Purdue called Lomnitzer to the stand Jan. 15, but as he was explaining the different classes of white water Cunningham’s attorney objected on the basis of relevancy.

After consulting with the two attorneys in his chambers, Feldstein adjourned the case to Wednesday, saying, “We have legal issues to resolve.”

Lomnitzer was called back to the stand Wednesday afternoon.

Lomnitzer works for the DEC as a forest ranger. He graduated SUNY College of Environmental Science and Forestry Ranger School in Wanakena in 1993. Exhibit 14 is his June 1, 2008 certification in water rescue operational level.

He has been a full-time forest ranger since Feb. 15, 1999; his jurisdictional area is the Town of Indian Lake.

On the day of the incident he was conducting training on the Indian River.

A GUIDE SINCE 1988

Lomnitzer said Cunningham received his license from the DEC March 25, 1988 and has held it continuously since then. “He is licensed for the Indian / Hudson; I do not know about other rivers,” he said.

“In my job is it my position to check the guides of commercial rafting companies for licenses,” Lomnitzer said. “I also do searches and rescues and paddle the river on my own time.”

Lomnitzer has been kayaking them “since 2000, since I moved in,” and has been down the rivers over 100 times.

He has taken rafts, inflatable kayaks - both single and double - and white water kayaks down the river.

He said the state put-in is off Chain Lakes Road and Cunningham puts in about an eighth of a mile upstream from there.

“The Indian River joins the Hudson River at 2.5 miles,” Lomnitzer said. “The first take-out is 12.5 miles from where the Indian ends; the furthest [take-out site] at Pointer Rocks is I think another two miles. Most of the companies end trips at the first take-out, still in Hamilton County.

“The trip usually finishes in North River, just before the county line near the railroad tracks on State Rt. 28; rafters can continue to 13th Lake Brook and another take-out site called the Pointer Rocks down about another mile, mile and a half.

Lomnitzer described white-water classifications 1-5 and explained, “The channel doesn’t run down the middle of the river; you have to follow the main channel back and forth as it moves around the river, around big rocks for example.”

He said the Indian at normal [summer rafting] level has Class 3 white water almost continuously and the Hudson is class 3 and 4 white water, “depending on where you are and the water level.”

MANEUVERING

Lomnitzer said it is very easy to maneuver a raft because of the paddlers sitting on both side tubes and the guide shouting instructions. “In an inflatable kayak it’s not so easy to do yourself, and if it fills with water it would be more difficult to maneuver.

“A double ducky is even harder to maneuver because of the two butts sitting on the floor creating two ‘keels.’ It makes it more difficult to stay away from hazards,” he said.

Lomnitzer was on the river Aug. 12, 2010 training other rangers. “The river was at average Class 3; a consistent flow,” he said. “The dangers are pretty much the same -- strainers, hydraulics, holes, waves, and other people rafting on the river.

HAZARDS

“If you hit a strainer and go underneath there is a very good chance of becoming snagged. You can get stuck underneath and drown.

“Rocks have to be maneuvered around; if not the boat can broach on the rock. Depending on how you land you can flip upstream and get pinned against the rock or flipped downstream and land on the rock.

“Boulders below the surface pose the same hazard and if you end up in the river you can get your foot trapped and drown.”

He explained a hydraulic is where an obstruction creates a void as water pours over it. “The water flows back into the void. Someone caught there can become exhausted, recirculated and drown.

“A tree above the water, called a sieve, can sweep you off your vessel.”

OFFSETTING INEXPERIENCE

Lomnitzer said in Class 3 rapids someone not knowledgeable about a river should scout ahead, and, “In a commercial rafting business you have to have a licensed guide in the raft.”

Those who fall into the river can end up with cuts, abrasions, torn rotator cuffs, broken bones etc. he said.

Shown photo Exhibit 3, Lomnitzer said, “Savannah [Carson] has her blade in the upside of the river and is leaning toward it; the blade is catching the force of the water and pulling her over. An experienced person would lean toward the raft.

“If they were experienced kayakers the likelihood they would end up in this situation is virtually nil.”

Even in the second photo “it would be very difficult for even an experienced kayaker to recover,” he said.

Lomnitzer said he met the Carsons about half a mile down from the hole where they overturned; again later that day in a Whitewater Challengers raft; and then again at Finch, Pruyn Island about halfway down the Indian River where they were switching to a HRRC raft.

He was later on land with the Carsons on the road that goes to the Outer Gooley Club and gave them a ride. “That is not the end of the normal rafting trip,” he said.

NOT A GUIDE

Lomnitzer said he is not a licensed white water rafting guide. “I am not allowed to be; NYS considers it would be a conflict of interest because I’m in charge of the guides.”

The river has been part of Lomnitzer’s responsibilities since 2000. He estimated in 2010 he was on the river once or twice a week. About a quarter of the time, he said, he saw people in the water who had been in a raft.

“In earlier testimony you said almost half the time you saw someone fall out of a raft and did a boat-to-boat rescue; got them back into the raft,” Brennan said.

In August there are a number of rafts on the river at the same time. On Aug. 12, 2010 Lomnitzer saw about 10 rafts, but said he wasn’t on the river very long that day.

“I have seen anywhere from one to 30 rafts on the river on an average day. Forty to 50 rafts on the river on a summer day would not be unusual.”

“That would be about one raft per minute going into the river over the 75-minute launch window?” Brennan asked.

“I guess so,” Lomnitzer replied.

He agreed many things could affect the actual maneuverability of a raft: the number and weight of the customers; the size of the raft; the age, health and physical condition of the customers and more.

Returning to surfing, Lomnitzer said depending on the hydraulic a raft could surf virtually forever.

Brennan asked, “Does that present any danger?”

“If done on a smaller hydraulic not really,” Lomnitzer replied.

Lomnitzer agreed it would present a danger to anything coming downstream, but it would not necessarily increase the potential of capsizing a raft. “Again it depends on the hydraulics,” he said. “Some would flip a raft almost immediately.”

Lomnitzer agreed certain risks are associated with white water rafting and it is common for the rafting companies to assist each other getting swimmers out of the river. “Generally a well-equipped raft will have at least one throw bag in it with about 70 feet of rope,” he said.

Brennan asked, “If there are enough rafts on a river they themselves can serve as an obstruction to other rafts or anything else going down a river?”

“Yes,” Lomnitzer said.

Brennan asked, “Are there any strainers where the collision occurred?”

“That [surfing] raft could be considered to be a strainer in the sense that you could get flipped up and go underneath it,” Lomnitzer answered.

“In Exhibit 7 [guide] Julie West has her paddle in and it looks as if she is trying to pivot the boat. In Exhibit 6 she is preparing to put her paddle in. No one else is pictured trying to change the direction of the raft,” Lomnitzer said.

Brennan asked, “Is it true an inflatable kayak with two strong paddlers would be more maneuverable than a raft with eight weak or not paddling people?”

“If they were actually strong enough and experienced enough,” Lomnitzer said.