OutdoorsPro has rightfully called me out for saying that the outfitter in this story didn't use his best judgement when doing a trip that resulted in a customer dying. I don't want to claim it is the outfitter's fault... at least not based on the information presented in the newspaper article. As the Outdoors Pro correctly points out, there are many factors that we can't know from the article that need to be taken into account before any blame can be assessed.
Based on the information in the article, I don't think the outfitter used his (or her) "best judgement." But the evidence presented in the article is insufficient to make even that weak an assertion. My personal presumption is to think that once an outfitter or guide "puts on" a river with a group of customers, that outfitter or guide has agreed to take responsibility for the safety of those people.
Other than freak acts of nature, which do occur, I think if a passenger is hurt or dies, it is primarily the fault of the outfitter or guide. Sometimes there may be extenuating circumstances like the passenger(s) being non-obviously drunk, but those are the exception, not the rule. So I view all river accidents as being the fault of the outfitter/guide/trip leader until proven otherwise.
Maybe not innocent until proven guilty, but this is my admitted bias.
I've been trying to find more information on the incident, but so far have found very little. The American Whitewater Affiliation, which generally tries to keep track of such things doesn't have an incident report on it. I also haven't been able to find any mention of a drowning in any of the West Virginia papers that I've found that have searchable archives.
What I have found out about the river that day is from the USGS site. According to their records, the water was quite high, and actually reached it's highest point of the year that day (44,500 cfs). USGS historical data records that the river went from an average flow of 2370 cfs on the 28th of September up to an average flow of 36,400 cfs on the 30th, when the accident occurred.
This may seem like a lot of water (and it is) but the Shenandoah river has had runoff exceeding 100,000 cfs, so it is not in any way unprecedented. The Riggins stretch of the Salmon River in Idaho typically has a flow range exceeding that and is (relatively) safe to run.
The key as far as any negligence is concerned, as pointed out by the OutdoorsPro, is what constitutes "dangerously high" for the Shenandoah river. This is also information that I can't seem to find.
One of the other recorded drownings on the Shenandoah documented on the AW site called 22,000 cfs "High," but doesn't say if that is considered dangerously high.
As an aside, this is a civil not a criminal case, so "innocent until proven guilty" doesn't apply here. In civil suits, both parties are responsible for providing evidence to support their claim, so in this case, legally, the outfitter does not have the protection afforded by the presumption of innocence. This is how "OJ" was successfully sued by the parents of his ex-wife for wrongful death, even though he was found innocent in the criminal proceedings.
The judge (or jury) will make a determination of liability on a percentage basis: that the outfitter was a certain percentage at fault. Assuming the outfitter's insurance company doesn't cave in and settle beforehand of course. I think that is what the "loss of consortium" claimants are hoping for anyway.
When all is said and done, in my opinion, the only person who even in theory should be bringing suit here is the wife of the man who died. Even if the outfitter is proved negligent, unless there were some other unreported serious physical injuries, I'm having a real problem with the "survivors" bringing suit, especially the "loss of consortium" claims.
While dying is not, in my opinion, generally part of the risk assumed by commercial raft passengers, flipping and taking a swim is. So again, unless there were serious injuries that were unreported in the article, I for one hope the suit brought by the "survivors" is thrown out of court.