Disaster Falls

by Stephane Gerson

  Once the discussion moved to fault and neglect and carelessness, the pursuit of justice would morph into self-defense and a quest for retribution. There would be no way to resist anger—the kind of anger that leaves nothing standing in its wake, certainly not a story in which beauty somehow enclosed horror.

  Once thoughts of negligent and unnecessary death filled my days, how would I remain open to the world? How would I look toward the future with Alison and bequeath anything of substance to Julian?

  People around me had expressed anger over the years. Julian had voiced his wrath at the river outfitters and the entire state of Utah. One of Owen’s Little League coaches had told me she felt it whenever she drove by the Esopus Creek in the Catskills. She was now angry at all rivers, she said. I could understand such feelings, but also remembered the bereaved couple that had visited us during the early weeks. They had sued as well, and their rage seemed to leave room for little else in their lives. I continued to believe that anger had to be tamed, stifled, harnessed, pushed out, or rather pushed under. While writing my narrative of the accident, I began formulating questions for the outfitters. Why do they allow children in duckies on rapids? Why had we not been informed of the comparative risks in duckies and rafts? Why had the guides not taught us how to maneuver duckies in rapids? Why had the scouting begun before everyone was assembled? Why were there so many duckies on the river—and no guides in kayaks behind us? Why did no raft move in to look for Owen? Why did no one throw a rope? And why did the recovery focus on land, without considering the worst-case scenario, namely that Owen was still in the water?

  Compiling these questions, arranging them into some kind of logical progression, provided a temporary reprieve, a measure of control over the world. But as I composed this indictment (for this is what it was), I could feel myself becoming an enraged father, falling to the fury he cannot contain.

  I completed the narrative as fast as I could and sent it off to Moses.

  —

  There is no reason to manufacture suspense. The insurers dragged out the process until Moses deposed the rafting company’s director. He emailed us a one-paragraph summary that evening, explaining why he thought the deposition would work in our favor. Indeed, the insurers promptly submitted a new offer for a settlement, which we considered and then accepted. We did so to protect Julian, protect ourselves, and, in my case, shield myself from anger. “I needed the suit to happen,” Alison said, “but I want it to go away.”

  Neither one of us read the deposition, even though Moses emailed us a transcript. Occasionally I highlighted the file name with my cursor, imagining what I might feel and learn if I clicked. The questions and the answers would circle Utah and Colorado and then slice into Dinosaur, into Lodore and the Green and then Disaster Falls, in and out and back in again—further in until there was nowhere left to go.

  But I could not write about the suit without reading the deposition, which is why, a day after making that call to Moses and five years after the settlement, I returned to the Woodstock studio in which I had written Owen’s eulogy. I positioned my laptop by the large window overlooking the forest and the bluestone quarry that has been dormant for a century. At that moment, its mounds of mossy stone, slabs piled up in uncertain stacks, did not speak of labor or a changing local economy. All I saw as I opened the file was a place frozen in time, nature silencing human history.

  —

  Superior Court of the State of California for the County of Calaveras. Stéphane Gerson, Alison Gerson, and the estate of Owen Gerson, plaintiffs. Deposition commencing at 1:24 p.m. and ending at 5:40 p.m.

  One hundred and sixty-two pages, including sworn affirmation under penalty of perjury, verification by the certified shorthand reporter, and errata sheet.

  The first exchanges are polite, even amiable. Moses asks questions, sometimes the opposing lawyer interrupts a line of questioning, but mostly the company director concedes one point after another. He does not present them as concessions, though. They are just facts, devoid of moral content.

  I begin taking notes:

  • No formal protocol to assess level of guides or train them.

  • Cannot say when safety instructions were given to guides or what was said during said meetings.

  • Knew about the fatality a few years before the accident, the tourist who drowned after foot entrapment. Same river, but different outfitter and different Class III rapids. Never inquired about exact circumstances.

  • Trip leader’s swift-water rescue certification expired months before the accident. Certification applies to “hazardous conditions involving whitewater” (director).

  I condense what he has to say into bullet points—another list, another compilation of facts, but this one with moral content. The answers Moses elicits during the first hour of the deposition make it impossible to speak any longer of haphazard oversights or shortcomings. An underlying logic ties these facts together. Moving back and forth in the transcript, putting different passages in dialogue with one another, I piece together this logic as if it were one of the ideologies I have come across as a historian, something that can be understood even without comprehending its ethical foundation.

  What I uncover is so foreign that I can no longer digest it in bullet points. I have to copy entire passages.

  Q  What do you believe to be the primary purpose of the guide in terms of the passengers, the guide’s role and the passenger’s role, in going through these rapids?

  A  To provide a quality experience taking passengers downriver, supplying equipment, giving instruction, preparing meals, allowing people to come from all over the country, and actually from all over the world, to go down the various rivers.

  Q  And to do it safely?

  A  Hopefully to do it safely.

  Q  Wouldn’t you agree with me that the primary function of the guide is not to ensure that the person is having fun but to make sure that the person gets from point A to point B safely?

  A  It’s a tough question. In general, I would say a guide should help the passengers have a safe trip down the river. We do not try to hold out to passengers that this is a safe trip. We do not characterize it as one that they can choose without concern for safety. I think it is very obvious to everybody looking at this rapid that this rapid has a reasonably high percentage risk of capsizing.

  I discern something startling: the assumption that the ability to assess risk is innate, evenly distributed among all human beings. Regardless of our training or profession, regardless of our previous experiences or degree of familiarity with, say, the West and its rapids, we share the same ability to gauge risk and make decisions accordingly.

  Pressed by Moses, the director acknowledges the higher risks for duckies on Class III rapids. He provides numbers: a ducky has a 25 to 35 percent chance of capsizing on Disaster Falls, a raft less than 5 percent. He knows this, and his guides may have known it as well. But no one in the company shared these statistics with the men and women and children they led down the river.

  Q  Do you know if there are any safety discussions the night before that address or give information to the passengers about whether they could use an inflatable kayak in Disaster Falls; that is, how hard it is, how easy it is, whether it could capsize, what happens if it capsizes, what you do, whether—whether it’s suitable for a novice or not suitable? Any conversation about those issues the night before?

  A  To the best of my knowledge, that is not part of that discussion. And the reason is because the person has to see this rapid to think if they want to go through this rapid or not.

  No such discussion took place during the scouting either. The director concedes this as well. People would figure it out on their own. It is a matter of common sense—very obvious to everybody.

  Q  Does the company, your company, do any kind of determination to ensure that the individuals are knowledgeable with respect to how to properly navigate Disaster Falls?

  A  I would say the answe
r has to be no.

  I need to digest this, so I stand up, I step outside, I walk over to the quarry. Under the yellow leaves, the faded blues and greens of the stone blend into the hues of the river. There is, after all, sense to be made of what happened that day. Specific notions of risk, common sense, and personal responsibility explain why Delma and Kris acted as they did. Because this conception of risk was not ours, because we could not even imagine it before leaving for Utah, Alison and I had failed to understand the company’s promotional brochures. When we read that the trip was “open to children seven and up” and staffed by “skilled, knowledgeable, professional guides,” we concluded that they had vetted the rapids for every age, every skill level, every type of vessel. We trusted that outfitters had assessed risk on our behalf.

  But this was a complete misreading. The company was only promising to bring us to the rapids. Once there, we would look at the water and, on the basis of what we saw, make an instinctive determination of risk.

  I now understand what I have desperately sought to comprehend since that day. The sudden rise in danger after lunch, our misgivings on the lookout, the guides’ reluctance to validate our doubts when we asked them if the rapids were safe—all of this fits within the company’s logic. Alison and I felt as though we had been left to our own devices because we had been. The director did not say otherwise in his deposition; he never claimed that his staff provided information or made recommendations that we ignored. We had not been deluded.

  This realization provides no closure, but it does confirm what I sensed and yet refused to believe when guilt became the thread of my personal horror story. I detect a slight shift inside me; my body feels lighter and also stronger.

  —

  The deposition is not over. In the studio, I place my laptop on a high shelf and read while standing, hands in my pockets to make myself the narrowest of targets. After three hours, Moses changes tack. He draws the director into a discussion of corporate practices that, like so much in this testimony, could not fit in the summary he emailed us at the time.

  Q  You have marketing that’s targeted for families with young children?

  A  I don’t know what the question means. I don’t consider it marketing. We are putting information out there, and people determine that they want to do one of our trips.

  Q  Well, you have a marketing director?

  A  We have a marketing director.

  Q  What do you understand the word “marketing” to mean?

  A  Disseminating information so people can make a good determination about whether this is an activity that they want to engage in…

  Q  You’re a profit—you’re not a nonprofit organization, are you?

  A  We are formed as a profit-making entity.

  Q  And you increased your number of trips from twenty to forty [in 2007, a year before the accident] because you could make a greater profit on forty trips than you could on twenty trips?

  A  That is an assertion by you. And in general conversation, I would say that is one of the things that motivate us at the company. But there’s another strong component, because we believe we are imparting something to people. We are sharing something valuable with people.

  Q  You charge people to go on the trip?

  A  Yes.

  Q  You charge for an adult, correct?

  A  Yes.

  Q  You charge for a child?

  A  Yes.

  Q  And the more people who come on your trips, the more money you make?

  Defense attorney: Well, objection. That assumes facts not in evidence. It doesn’t consider overhead and insurance and all the other aspects of doing business.

  Q  You’re a profit-making venture; we’ve established that.

  A  We are a venture that seeks to make a profit.

  Q  And the more people who pay you and go on your trips, the more money potentially you are going to make, right?

  A  Potentially, yes. But there are lots of variables in terms of the operation of a trip.

  Q  You would agree with me, sir, putting aside the variables of the operation of a trip, that the more people who use your product, which is rafting trips, the more money that [your company] can make, is that true?

  Defense attorney: First of all, I have given you some latitude to go beyond the deposition notices and—

  Q  This is just simple stuff.

  Defense attorney: Well, it’s not simple stuff. It’s—well, one, it’s been asked and answered; two, you are getting really far afield of the notices; and, three, it’s irrelevant to any issue in this case.

  Q  It goes to the very heart of everything we’re talking about…

  Defense attorney: Counsel, I’m—

  Q  He can say “yes” or “no.”

  Defense attorney: I’m not going to let him answer the question.

  As I take this in, abstract notions like political economy of risk come to mind. I remember reading about the 1906 San Francisco earthquake, depicted by politicians and economic leaders as a chance occurrence against which little could have been done. These men deemed risk unavoidable, but remained silent about the dangers of new construction, which had rendered some San Franciscans more vulnerable than others. Without saying so, they set allowable levels of risk. While the world has always been a dangerous place, the late capitalist era seems to expose populations to risks—cities built on fault lines, flood-zone developments, crop-dusted vegetables—that remain unseen or unacknowledged. When something goes wrong, nature is the culprit. The human factor remains invisible.

  A personal injury lawyer tripped up a rafting executive in his own contradictions; he made him concede that his company kept silent about the risks to which it exposed its clients. The director and his company were either denying the consequences of their actions or—more likely—so caught up in their own logic, their own political economy of risk, that they could not see those consequences, not even when they came into glaring view, not even when a child slipped away and died.

  It is not about an earthquake zone that they are keeping silent. It is about Owen.

  I step away again.

  Outside the window, the quarry has taken on a darker shade. I see something different now in its debris: a remnant from another era in which workers were subjected to forms of risk they did not comprehend because these risks were not made comprehensible.

  When I behaved as the director’s logic stipulated that I should—look at the rapids, feel fear—I did not obtain the information I needed to make the right decision. Afterward, I shouldered the responsibility alone, as if this were the lot of the father whose son had been lost on the river, the father who had to expiate his guilt. I referred to Owen’s death as an accident; I still do. In truth, Owen was not seen at the end of his life. No one had been looking, except for Alison and Julian in their rafts, except for me, gazing into Owen’s eyes until it came time to let go. It was not the river that killed Owen after all.

  Anger runs through me. I cannot deny its presence.

  When Moses emailed us his summary of the deposition, I had felt a sudden desire to crush the company, an impulse whose violence left me reeling. There were good reasons to cast it aside and eschew this rage. Taking the company to court to fulfill what Alison called a fantasy of financial ruination would in the end make us feel worse. There were good reasons to stay away from the suit, good reasons not to write about it.

  But the anger I feel within me now is different from the anger I witnessed when that bereaved couple visited our house and different from the anger I experienced at home while growing up. It is targeted rather than all-encompassing, measured rather than impulsive. It matches the outrage of Owen’s death without reenacting its violence. Perhaps this is what justice looks like. I cannot be certain; there are compelling arguments for justice that exclude anger. Vengeance cannot after all restore what was lost; lashing out, whether in pain or fury or hate, comes at a cost for the party that seeks payback
.

  Still, after circling Disaster Falls for years, it suddenly hits me that shunning all forms of anger bears costs of its own. Without anger, can I recognize the full injustice of Owen’s death?

  —

  Moses is almost done, but not quite. During the last half hour, he revisits the scouting in painstaking detail. He has kept this for the end, as if to prepare us.

  Q  What is your understanding of how your company describes the Class III rapids on the—to prospective consumers on Disaster Falls?

  A  My understanding is that we don’t make much effort to go into educating the client about Disaster Falls other than to give them the name of the rapid.

  Q  Okay. And would it be correct that the only time any effort is made to educate the client, using your phrasing, is at the time when you’re—you’ve got the client and you’re scouting the rapid?

  A  I think that’s fair to say, yes.

  Q  And what actually is said to the client at that point is—you’re not aware of that?

  A  I’m not aware of that. But I’ve talked to many kids, having been a guide, and a kid will look at this rapid, and they will be scared of it.

  I read this last sentence several times, slower and slower until the words split apart and between them—between guide and kid and rapid and scared—there is just enough space to glimpse Owen on the lookout, Owen staring at rapids that might have been scary from his vantage point, but not scarier than a roller coaster, not scary enough to make him suspect he would capsize and end up alone in these rapids, not scary enough to overrule the guides and the parents who told him that all would be okay, not scary enough to deter a boy who never knew whether on any given day he would submit to his fears or overcome them.

  Q  Have you given that information, that a child would be scared of this, to your area managers so that they could work with the guides and educate the children about what they’re going to be going through and how to do it safely?

  A  No. I believe it is self-evident to any child—almost any child, any adult, when they look at this rapid that they would know this rapid has something to be fearful about.