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US District Court Decision---Statement of Facts

In preparation of this decision, the District Court Judge needed to largely weed out the overall facts from the testimony and other documents filed by the attorneys for the two sides.   The briefs for both sides gave an incomplete, disparate, and selective summary of facts.  The District Court Judge aptly grasped the prime facts leading to the tragic crash, but did not consider the multiple forewarnings and other factors leading to the Saturday bonfire party.   In the Estate's brief for the appeal to the Second Circuit, the District Court's facts statement was used as a base, with the additional relevant facts inserted (see Statement of Facts in Estate's brief filed with the 2nd Circuit.)  Below are the facts as relayed in the District Court's decision:

II. Facts 1

A. Events Leading to the Deaths of Rau and Guest

Sometime in late January or early February of 2005, Joshua Rau, a sophomore at Paul Smith's College of Arts and Sciences ("Paul Smith's College" or "College") in Franklin County, New York, invited Kristine Guest and several other friends to come and visit him to celebrate his twentieth birthday. Thus, on the morning of Saturday, February 5, 2005, Guest and three other women drove from Northeastern University in Boston, where they had stayed on Friday night, to Paul Smith's College. At the time, Guest, like Rau, was twenty years old, and was a sophomore at Quinnipiac College in Connecticut.

Guest and her friends arrived at Paul Smith's College at approximately 4:00 p.m. on Saturday afternoon. Upon their arrival, they freshened up and then went to dinner in the town of Saranac Lake with Rau. None of the party consumed any alcoholic beverages at dinner, or while in Saranac Lake. The group returned to Rau's dorm room at Paul Smith's College at 8:00 or 9:00 p.m., at which point Rau prepared a mixed drink, or punch, consisting of Jagermeister, peach Schnapps, and pineapple juice. The concoction was a specialty of Rau's; he had prepared the same drink for the women during a previous visit to Quinnipiac. The group of friends hung out in Rau's dorm room, and passed the time by playing a drinking game called "checkers." The game was played much like ordinary checkers, except that shot glasses filled with the Jagermeister concoction were substituted in place of the usual red and black checker pieces. Under the rules of the game, a player whose shot glass was "jumped" by an opposing player was required to drink the contents of the shot glass. Both Guest and Rau participated in the game of checkers.

At around 10:00 p.m., after the game of checkers had wound down, Rau, Guest, and their friends walked down to the frozen shore of the Lower St. Regis Lake (the "Lake"). The Lake abuts the southwest side of the College campus, and is about fifteen steps from the entrance to Rau's dormitory, Clinton Hall. The group brought the remainder of the Jagermeister-based mixed drink with them to the Lake in Nalgene bottles. 2

There was a bonfire out on the frozen Lake, and Rau, Guest, and the others walked out to join the people who had gathered there. The bonfire had been built by other students from Clinton Hall at around 5:00 or 6:00 p.m. The bonfire around which the students congregated was approximately 200 feet from the shore. The pyre was visible from the campus, but the party--if such it could be called--was not audible from inside the campus dormitories. Paul Smith's College does not own the Lake; thus, the bonfire was not on College property.

According to the recollection of one witness, when the group reached the bonfire shortly after 10:00 p.m., no one there appeared to be overly intoxicated. Rau, Guest, and their friends were likewise not intoxicated at that time, although they were feeling happy and/or "buzzed." Rau and Guest were at the bonfire on and off between the hours of 10:00 p.m. and 3:30 a.m. Like the other revelers, they returned to the campus for warmth from time to time. The party was a raucous affair. 3 Between eighty and one hundred people were in attendance; alcohol was present in abundance; people threw cups of gasoline onto the fire; snowmobiles were riding about, sometimes at high rates of speed; and students were intoxicated, some of them to the point that their voices rang out in shouts. In short, to at least one observer, the party was out of hand.

At around 3:00 or 3:30 a.m. on the morning of February 6, 2005, the crowd at the bonfire began to disperse. Rau, Guest, and their friends left the bonfire at around 3:30 a.m., and returned to Rau's dorm room. Rau and Guest did not consume any more alcohol upon returning to Rau's room. Sometime later--as early as 4:00 a.m., or as late as 5:00 a.m.--the group returned to the bonfire and the frozen Lake with the intention of watching the sun rise. 4 At that time, there were approximately twelve people at the bonfire, and there were as many as four snowmobiles on the Lake. Witnesses recall that Rau did not appear intoxicated when he was out on the Lake at around 4:30 or 5:00 a.m.

Fog had blanketed the Lake throughout much of the night. In fact, at around 11:00 p.m., Rau had sought to borrow a friend's snowmobile, but the friend had refused due to the heavy fog. However, when Rau and Guest returned to the bonfire at 4:00 or 5:00 a.m., the fog had perhaps lessened to some extent. Rau asked his friend, Christopher Hansen, if he could use Hansen's snowmobile 5 while they waited for the sun to rise, and Hansen assented. Rau first drove two of Guest's friends for a ride around the Lake. Helmets were available for their use, but neither Rau nor the two women used the helmets. After escorting the first two women around the Lake, Guest and Rau set off together on the Hansen snowmobile, with Rau driving. Neither Rau nor Guest wore a helmet. When the snowmobile did not return after five minutes, Hansen went to look for his friends. He came upon the overturned snowmobile near Peter's Rock, a peninsula in Lower St. Regis Lake, the land on which is owned by Paul Smith's College. The sled had struck the rocky promontory. The bodies of Rau and Guest lay in the snow near Peter's Rock. Both Rau and Guest died as a result of their injuries.

B. The Actions of College Staff

In the early morning hours of February 6, 2005, Toni Marra, then Director of Residence Life, and Jamie Shova, a Campus Safety Officer, went down to the Lower St. Regis Lake after receiving a report that someone had gone missing, or been injured on the Lake. Marra and Shova arrived at the Lake at approximately 12:45 a.m., only to learn that the report had been in error. They lingered for a time, and spoke with a number of the students gathered on the frozen Lake. Although it was apparent to Shova that students were drinking, and that a potentially dangerous situation existed, Marra and Shova elected not to call the police. 6 Further, although they may have encouraged the students to disperse or to be safe, they did not threaten them with disciplinary action. As Safety Officer Shova explained, he had no jurisdiction on the Lake. At some point, Marra and Shova departed. No college officials were present on the Lake when Rau and Guest returned to the Lake from Rau's dorm room at 4:00 or 5:00 a.m.

C. College Policies and Procedures

Paul Smith's College's polices and procedures for the 2004-2005 school year were set forth in a document referred to as the Community Guide. Pursuant to College policy, as delineated in the Community Guide, students under the age of 21 were prohibited from consuming or possessing alcoholic beverages. More broadly, the Community Guide stated that the violation of federal, state, or local laws would constitute a violation of the College's Student Conduct Code. Additionally, although students were permitted to have snowmobiles, the use of snowmobiles on College-owned property was forbidden. Thus, in order to gain access to the Lake, Christopher Hansen would transport his snowmobile via a trailer to an inlet down the shoreline which was not on College property.

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1 The facts are culled from the respective Statements of Material Facts submitted by the parties pursuant to N.D.N.Y. R. 7.1(a)(3). See Dkt. Nos. 28, 33, 35. The facts are recited in the light most favorable to the plaintiff, as the nonmoving party.

2 Nalgene bottles are the ubiquitous screw-capped plastic bottles--often brightly colored-- which are prized by backpackers and campers for their durability, odor-resisting properties, and environmental friendliness, and used by college students to carry their water to class, or--as in this case--to transport alcoholic beverages without fear of detection.

3 The College disputes this characterization. As the College would have it, the gathering was more low key.

4 In that area, the sun rose on February 6, 2005, at 7:08 a.m. Thus, it was still dark when the group returned to the bonfire.

5 The snowmobile was owned by Christopher Hansen's father, Michael F. Hansen, a defendant herein.

6 Shova was inclined to call the police, but was overruled by Marra.

End of District Court's Fact statement

Based upon the above facts, the District Court Judge sought fit to include in his opinion the following statement:

The evidence establishes that Marra and Shova did not undertake to stop the party; in fact, they adopted a hands-off approach, implying their acquiescence in the continuation of a dangerous activity that was already underway.

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In loving Memory of Kristine Guest