SCRANTON – A whitewater rafting company is seeking to transfer venue for a lawsuit brought by a New York man for negligent infliction of emotional distress, after witnessing his brother drown during a rafting trip on the Lehigh River two years ago.
Matthew Bonnen of Roslyn Heights, N.Y. first filed suit in the U.S. District Court for the Middle District of Pennsylvania on Aug. 26 versus Pocono Whitewater, Ltd., of Jim Thorpe.
“The facts and circumstances occurred on Sept. 1, 2018 at 12:45 p.m., while on a whitewater rafting excursion on the Lehigh River in Jim Thorpe, Carbon County, Pennsylvania. It is believed on the morning of Sept. 1, 2018, a dam release of 1,700 cubic feet of water per second was released from the Francis E. Walter Dam. A dam release increases the power of the rapids downstream,” the suit stated.
“At the aforesaid time and place, plaintiff and eight of his relatives/friends were engaged in the recreational activity of whitewater rafting as a paying customer of the defendant. At the time of the incident, the plaintiff and other occupants of the raft in which plaintiff occupied, were inexperienced whitewater rafters. On the whitewater rafting tour in which plaintiff participated on Sept. 1, 2018, there were a total of 17 rafts containing approximately 109 rafters.”
The suit explained the plaintiff was an occupant of an eight-foot raft provided by the defendant, along with eight other occupants of said raft, none of whom were guides. According to the defendant’s promotional materials, each raft is to accommodate four to six people.
Meanwhile, three to five employees of the defendant served as guides for the entire group of 109 whitewater rafters, utilizing individual kayaks and were not in the rafts with the rafters, including plaintiff’s raft.
At the above time and place, the raft the plaintiff was occupying was on a stretch of the Lehigh River between Rockport and Glen Onoko, without a guide in the raft for assistance. Plaintiff’s raft hit a rock, throwing plaintiff’s brother, Christopher Santana, from the raft into highly-turbulent and rocky water.
Santana then became lodged between rocks on the bed of the Lehigh River and was unable to free himself, leading Bonnen to jump into the river and attempt to save his brother’s life, but he was unable to.
“Several minutes after Christopher Santana’s foot became stuck and he was submerged under the water, two guides maneuvered their kayaks to where Santa was submerged. Their only attempt to extricate Santana was to pull on his arms from the position of their kayaks. As a result, plaintiff’s brother Santana drowned,” the suit said.
UPDATE
Counsel for the company filed a motion to transfer venue on Oct. 30, citing the decedent’s signing of a liability release form which contained a forum selection clause – giving the company the ability to determine the forum in which any legal complaints would be heard.
The company chose either the Justice Court in Jim Thorpe, the Carbon County Court of Common Pleas or the Supreme Court of Pennsylvania.
“The forum selection provision clearly states in relevant part that ‘the venue of any dispute that may arise out of this agreement or otherwise between the parties…shall be the county…court in Carbon County. This court is the Carbon County Court of Common Pleas. In light of the foregoing, the forum selection provision of the Release of Liability is valid and enforceable and should be enforced against the plaintiff,” the motion stated, in part.
The plaintiff responded on Nov. 13, countering the claim as “invalid in its entirety.”
“It is denied that the clause is enforceable. A compelling, countervailing reasons not to enforce the clause exists in the present case based on the invalidity of the Release of Liability, including the forum selection clause, because the Release of Liability cannot bind plaintiff who did not agree to be a party thereto,” the response stated.
“The Release of Liability was executed in plaintiff’s name but by plaintiff’s mother, Caroline Bonnen, without authority by plaintiff to do so. Authority by one family member to enter into a contract on behalf of another cannot be inferred from family ties alone, but requires evidence the principal authorized another to sign for him or held out the other as possessing such authority. Plaintiff Matthew Bonnen did not agree to the forum selection clause included within the Release of Liability because he did not execute the Release of Liability, therefore, appropriate venue also lies in the U.S. District Court for the Middle District of Pennsylvania.”
For a count of negligent infliction of emotional distress, the plaintiff is seeking damages in excess of $75,000, exclusive of interest and costs, in addition to delay damages, costs and interest incurred in this action, plus a trial by jury.
The plaintiff is represented by Andrea M. Cohick and Zachary D. Campbell of Metzger Wickersham, in Harrisburg.
The defendant is represented by Warren E. Voter of Sweeney & Sheehan, in Philadelphia.
U.S. District Court for the Middle District of Pennsylvania case 3:20-cv-01533
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com