SCRANTON – New York plaintiffs who brought suit against a whitewater rafting company for negligent infliction of emotional distress after the death of their brother and son during a rafting trip on the Lehigh River two years ago are now fighting the rafting company’s motion to dismiss the suit.
Matthew Bonnen and Caroline Bonnen of Roslyn Heights, N.Y. separately 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 suits 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 suits 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 Christopher Bonnen was occupying was on a stretch of the Lehigh River between Rockport and Glen Onoko, without a guide in the raft for assistance. His raft hit a rock, throwing plaintiffs’ brother and son, 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 Christopher 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.
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.
However, the plaintiffs responded on Nov. 13, countering the claim as “invalid in its entirety.”
U.S. District Court for the Middle District of Pennsylvania Judge Malachy E. Mannion ordered that the plaintiffs’ separate cases be consolidated, after a request from plaintiffs’ counsel on Dec. 7.
UPDATE
On Dec. 2, Pocono Whitewater Ltd. filed a motion to dismiss the case without prejudice, on the grounds that the forum selection clause should grant for the transfer of the case to the Carbon County Court of Common Pleas
The plaintiff filed a reply brief on Dec. 15, denying the power of such a forum selection clause, since the liability release waiver was signed by the decedent and not the plaintiff.
“The basis for defendant’s motion to dismiss relies solely on a forum selection clause included within the Pocono Whitewater Release of Liability, which states that the venue of any dispute shall be in the county or state Supreme Court in Carbon County,” the brief stated.
“However, plaintiff contends that future discovery will show that deceased plaintiff did not sign the release of liability, it was signed by plaintiff’s mother, Caroline Bonne, in deceased plaintiff’s name, but she was without authority to do so. Therefore, plaintiff believes that the release of liability is invalid and, it follows, that the forum selection clause within the release of liability is also invalid.”
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 plaintiffs are 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