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LAWYERS, LIABILITY AND CLIMBING

Original Post
Scott M. McNamara · · Presidio San Augustine Del… · Joined Aug 2006 · Points: 55

I am a criminal defense lawyer in Tucson. I have climbed for many years.

Some time ago I successfully defended a climber charged with leaving fixed anchors in our national forest. In that case, our forest took the position any bolt, pin, nut or sling left behind was illegal. Frankly, this prosecution frightened me. I resolved to pay more attention.

At that time, I pessimistically predicted that lawsuits, especially civil ones would negatively affect access, local climbing organizations (LCOs) and gear manufacturers—so far---I seemed to have been wrong—but a recent (2014) Oregon ski resort case suggests further pessimism may be warranted (at least in the commercial realm):

oregonlive.com/pacific-nort…

for the actual case:

publications.ojd.state.or.u…

Recently a friend in a LCO asked me about liability. I do not know much about civil law and asked a very experienced personal injury lawyer/climber/friend his opinion. The only thing he could say is “to tell them to buy liability insurance. Their exposure is astronomical.”

I think this advice is probably correct—but I doubt many non-profit LCOs can afford insurance.

It seems especially troubling to me that a non-profit LCO, trying to do good, should be at its peril when it teaches climbing, sets up trips, replaces bolts and etc.

Here is what I would like to ask you:

1. Are LCOs at their peril if they do more than advocate for access?

2. What is your LCO doing?

3. What are manufacturers, guides, gyms and guide book authors doing?
This Oregon case may create some new calculations.

4. MP users are probably well situated to hear about on going lawsuits. Could we start keeping track of climbing related litigation here on MP to learn what is happening out there?
(I am not aware these statistics are being otherwise collected.)

5. Other ideas, thoughts, opinions, resources?

Thanks!

Scott McNamara

jacob m s · · Provo, Utah · Joined Apr 2011 · Points: 135

I think its a good idea to track whats going on legal realm but i have not heard much, but i will keep my eye out for anything.

Petsfed 00 · · Snohomish, WA · Joined Mar 2002 · Points: 989

It was my understanding that most releases are written only to provide reasonable defense against 1) user error and 2) "mild" negligence (e.g. a hold spins after a cold night, leading to a fall and a broken ankle), but never gross negligence (a harness breaks since its consistently stored in battery acid). Even then, (and I am not a lawyer), I thought it was impossible to give informed consent to waive right of litigation in case of permanent disability or death.
I agree, most ski areas, climbing gyms, etc, do have a lot of exposure, but so long as we can keep the cultural pressures on that people understand their safety is their own responsibility, we can keep costs down. That is, if nobody is suing because of user error and mild negligence, insurance premiums won't go up.

Ray Pinpillage · · West Egg · Joined Jul 2010 · Points: 180

Admittedly I think there is something wrong with an organization being allowed to force consumers to waive their rights without the consumer knowing or understanding they are doing so. I didn't read too far into the Mt. Bachelor case but it appears the appellate decision holds that a ski resort can't force skiers to waive their right to redress if the resort is negligent.

Climbing gear liability has got to be sky high. I assume their only saving grace is it is very hard to prove negligence by the manufacturer because there are so many variables leading up to a failure. Climbing gyms, on the other hand, seem to have an inordinate amount of exposure.

Local climbing LCO's have waivers, Here it the Mountaineer's waiver:

I hereby state that I wish to participate in courses and/or activities offered by The Mountaineers, a non-profit corporation. I recognize any outdoor activity may involve certain dangers, including but not limited to the hazards of traveling in mountainous terrain, accidents or illness in remote places, force of nature, and the actions of participants and other persons. I further understand and agree that without some program providing protection of its assets and its leaders, The Mountaineers would not be able to offer its courses and activities.

I understand that in this course or activity, I MAY BE PHOTOGRAPHED. I agree to allow my photo, to be used for any legitimate purpose by The Mountaineers.

In consideration of and as part payment for the right to participate in the activities offered by The Mountaineers, I agree to RELEASE, HOLD HARMLESS AND INDEMNIFY The Mountaineers and its members from any and all liability, claims and causes of action arising out of or in any way connected with my participation, or the participation of any minor that I am signing on behalf of, in any activities offered by The Mountaineers. This includes but is not limited to all liability claims and causes of action in any way connected to property owned or leased by the Mountaineers, or the actions or inactions of any Mountaineers employees, members, agents, and or volunteers.

I personally assume all risks in connection with these activities. If I am signing on behalf of a minor, I further agree to HOLD HARMLESS AND INDEMNIFY The Mountaineers and its members from all liability, claims and causes of action which the minor may have arising from the minor’s participation in activities. The terms of this agreement shall serve as a release and indemnity agreement for my heirs, personal representative, and for all members of my family, including any minors. (Parents or legal guardians must sign for all persons under eighteen (18) years of age.)

I have read this release and indemnity agreement and have fully informed myself of its contents before I have signed it.


Here is the Mazama's membership waiver (they have outing waivers too):

I, xxx [pipe:64] xxx, understand that the Mazamas have existed as an outdoor organization for over a century. Accidents resulting in injury or death do occur in outdoor activities.Climbing, hiking, mountain biking and other outdoor activities are dangerous. I AM AWARE THAT CLIMBING, HIKING, MOUNTAIN BIKING AND OTHER OUTDOOR ACTIVITIES ARE DANGEROUS. I ACCEPT THE RISK OF SUCH ACTIVITIES AND I UNDERTAKE THEM ON MY OWN RESPONSIBILITY.
Before going on a Mazama activity, I will know and understand the activity and the hazards and will judge for myself if I have the skills and knowledge to safely participate. If I do go I will remain constantly alert for dangers to myself and others and will fully participate as a safe team member.
IN CONSIDERATION OF PERMISSION TO PARTICIPATE EXTENDED TO ME, I RELEASE, HOLD HARMLESS AND DISCHARGE THE MAZAMAS FROM ANY AND ALL LIABILITY, CLAIMS AND CAUSES OF ACTION WHICH MAY ARISE ON ACCOUNT OF ANY NEGLIGENT ACT OR FAILURE TO ACT DURING MY PARTICIPATION OR IN TRAVELING TO OR FROM ANY MAZAMA ACTIVITY.
IN CASE OF ACCIDENT, ILLNESS OR OTHER INCAPACITY, I UNDERSTAND THAT I MUST PAY MY OWN MEDICAL AND/OR EVACUATION EXPENSES, WHETHER OR NOT AUTHORIZED BY ME. My signature below certifies that I have read adn understand the above release and waiver agreement.

Rolf Rybak · · BC · Joined Oct 2011 · Points: 426

Scott, an important post.

I am VP of a Canadian Access society that supplies bolts and hardware for replacement of old anchours and for new routes. We have gone from an access advocacy group to indirectly supporting route development. I am also pessimistic about our exposure to liability if there was an accident due to fixed equipment failure, or improper installation of bolts.

Canadian liability laws are probably different than US, but the same basic principles apply.

Gregger Man · · Broomfield, CO · Joined Aug 2004 · Points: 1,759

Regarding liability and bolt replacement:

Aren't bolts on public land simply considered abandoned property?

How could there be a chain of liability that leads back from that point if *nobody* has a responsibility for maintaining the hardware?

tom donnelly · · san diego · Joined Aug 2002 · Points: 364

If an LCO doesn't have any significant assets,
why shouldn't they just declare bankruptcy rather than pay yearly liability insurance and lawyer fees?

Then later, form a new LCO.

On that Oregon lawsuit, it hasn't even gone to trial yet and I would expect the ski area to win. Hopefully the plaintiffs will be required to show gross negligence, which they are unlikely to prove.
I would not think the waiver covers gross negligence so perhaps that is why the state supreme court said it should go to trial.
However their quotes seem to indicate irrational thinking.

They think a terrain park can be as safe as a chairlift, which is an absurdly high safety standard. Parks are inherently dangerous and that's why you have to enter through a signed gate. You can choose to skip any feature. Many features could be improved but will still be dangerous. If you fall down and hit your neck on a metal rail, you could be paralyzed.

From oregonlive.com
“ The Supreme Court used the example of a chairlift, explaining that a ski resort is in a much better position to ensure that it's safe to operate than the members of the public who are riding it. The court said that the same holds true for the "artificial constructs" -- including the jump Bagley used before injuring himself -- that Mt. Bachelor created.”

“Chief Justice Thomas Balmer asked why Bagley's situation was different from American snowboarder Shaun White's decision to withdraw from the Olympic slopestyle contest in Krasnaya Polyana, Russia, over safety concerns.
"He chose not to participate because the course was unsafe," Balmer said. "Why should the owner of a course not be liable for an unsafely designed course?"

Peteoria Holben · · Unknown Hometown · Joined Jun 2010 · Points: 60

The point of a guide is to help you enjoy the outdoors in a safe manner.

Holding guiding companies liable for negligence encourages the owners to hire qualified guides.

If a client gets hurt AND the guide COULD have prevented the accident, but DID NOT, the guiding company will be held liable for negligence regardless of what waiver was signed.

Anyone can get hit by a falling rock, but if the guide throws one onto you and it cuts the rope, thank goodness no waiver will prevent me from suing!

Gross negligence reaches a step further and in the above scenario I would follow the classic American adage "sue everybody!" (Guide himself + Guide company + rope manufacturer)

Anonymous · · Unknown Hometown · Joined unknown · Points: 0
Peteoria wrote:The point of a guide is to help you enjoy the outdoors in a safe manner. Holding guiding companies liable for negligence encourages the owners to hire qualified guides. If a client gets hurt AND the guide COULD have prevented the accident, but DID NOT, the guiding company will be held liable for negligence regardless of what waiver was signed. Anyone can get hit by a falling rock, but if the guide throws one onto you and it cuts the rope, thank goodness no waiver will prevent me from suing! Gross negligence reaches a step further and in the above scenario I would follow the classic American adage "sue everybody!" (Guide himself + Guide company + rope manufacturer)
And the government for not maintaining the rocks in the park!
Jstan · · Unknown Hometown · Joined May 2014 · Points: 0

Perhaps the people here have advice on the legal liability an owner faces when allowing people to walk on their property. My particular interest is that of a volunteer removing wind blown trash and other debris. My experience with technical rock climbing leads me to believe the risk of accidents in climbing is some what higher, but when the courts are involved what appears to be true is not always relevant.

Mark E Dixon · · Possunt, nec posse videntur · Joined Nov 2007 · Points: 974
Peteoria wrote: Anyone can get hit by a falling rock, but if the guide throws one onto you and it cuts the rope, thank goodness no waiver will prevent me from suing!
Thanks for the head's up. I never realized rock throwing guides were such a big problem.
Mark E Dixon · · Possunt, nec posse videntur · Joined Nov 2007 · Points: 974

I'm not a lawyer, but like to read the newspaper. I have read of two ski related cases here in Colorado that might be relevant to the discussion.

In one case, a skier was killed in an avalanche while skiing the trees on an open run at Winter Park. In the other case, a skier hiked up from the base of a closed run (which wasn't roped off at the bottom, however) and was killed in an avalanche.

Colorado has a seemingly robust "Ski Area Anti-liability Law" and most such cases get dismissed pretty quickly, I believe. This time the judge (I think it's the same one for both cases) has allowed the cases to continue because avalanche risk is not specifically enumerated in the statute. Remains to be seen how things will develop.

Petsfed 00 · · Snohomish, WA · Joined Mar 2002 · Points: 989
Mark E Dixon wrote:I'm not a lawyer, but like to read the newspaper. I have read of two ski related cases here in Colorado that might be relevant to the discussion. In one case, a skier was killed in an avalanche while skiing the trees on an open run at Winter Park. In the other case, a skier hiked up from the base of a closed run (which wasn't roped off at the bottom, however) and was killed in an avalanche. Colorado has a seemingly robust "Ski Area Anti-liability Law" and most such cases get dismissed pretty quickly, I believe. This time the judge (I think it's the same one for both cases) has allowed the cases to continue because avalanche risk is not specifically enumerated in the statute. Remains to be seen how things will develop.
Given the nature of avalanche control, its certainly debatable in the first case. In the second case, however, it was a closed run, so, short of having armed guards or something, the ski area had done everything it could to *reasonably* protect users.
Mark E Dixon · · Possunt, nec posse videntur · Joined Nov 2007 · Points: 974
Brian Scoggins wrote: Given the nature of avalanche control, its certainly debatable in the first case. In the second case, however, it was a closed run, so, short of having armed guards or something, the ski area had done everything it could to *reasonably* protect users.
In the second case, I believe the family is arguing that Vail should have roped off the bottom of the run too. Seems like a stretch to me, but you never know what a jury will decide.
mark felber · · Wheat Ridge, CO · Joined Jul 2005 · Points: 41
Mark E Dixon wrote: In the second case, I believe the family is arguing that Vail should have roped off the bottom of the run too. Seems like a stretch to me, but you never know what a jury will decide.
In the second case, the family is arguing that people were hiking up into the closed area from the lower access point for several winters before the fatality, and Vail Resorts did nothing to stop this from happening. It's also been alleged that Vail Resorts/Vail Ski Patrol was falsifying avalanche control reports, claiming that avalanche control work had been carried out when, in fact, it hadn't been done. In short, Vail Resorts is being accused of a fairly high level of negligence and/or misconduct.

Colorado's "Ski Area Anti-Liability Law" was written a long time ago, when ski areas tended to be fairly marginal, small operations. Now that so many Colorado ski resorts are owned by multi-national real estate companies, the courts might be holding them to a little bit higher standard of conduct.

The lesson for climbers in this seems to be that, as climbing becomes more mainstream/big business and safety issues become more widely understood, everyone from local climbing clubs to big gear manufacturers will be held to a higher standard of conduct. The upside to this is that guides and instructors will, on average, be better trained and the odds of a new climber getting a quality lesson for his/her money will go up. Equipment has already gotten better as manufacturers cover their asses with better quality control and product testing. The downside, of course, is that the whole game will get more expensive.
Scott M. McNamara · · Presidio San Augustine Del… · Joined Aug 2006 · Points: 55

Here is a troubling climbing wall case:

recreation-law.com/2013/06/…

Petsfed 00 · · Snohomish, WA · Joined Mar 2002 · Points: 989
Scott M. McNamara wrote:Here is a troubling climbing wall case: recreation-law.com/2013/06/…
So now there's a legal precedent for gri-gri infallibility? Christ...
Kent Richards · · Unknown Hometown · Joined Jan 2009 · Points: 81
Scott M. McNamara wrote:suggests further pessimism may be warranted... Other ideas, thoughts, opinions, resources?
I would say that in general pessimism is warranted.

Disclaimer: I am not a lawyer, just a pessimist who has little faith in society.

There is a pronounced dearth of personal responsibility & accountability in our country.

On a tangent, the quoting feature on this site is a bit lacking.
Bruce Hildenbrand · · Silicon Valley/Boulder · Joined Apr 2003 · Points: 3,615

The key point in the case that the Original Poster(OP) offered about the paralyzed skier in Oregon is that the Supreme court has allowed the snowboarder to sue the ski area because of the *artificial* structure(the jump) that the ski area constructed.

I think that is a very crucial point.

Bill Lawry · · Albuquerque, NM · Joined Apr 2006 · Points: 1,812

The farther LCO's can get from dues, certifications, and de facto guiding ... the better. At least, that's my opinion as someone with no legal training.

Is there really anything else we can do to reduce our liability foot print besides insurance?

Kent Richards · · Unknown Hometown · Joined Jan 2009 · Points: 81
Scott M. McNamara wrote:Here is a troubling climbing wall case: recreation-law.com/2013/06/…
From the link, I'd say that someone other than the climber was definitely at fault.

The climber got dropped, and the description reads that it was due poor instruction, inattention, or more general failure to adequately manage risk by the tower operator / staff.

As a former outdoor educator / raft guide, I think that at some point the service provider or guide definitely has a responsibility to provide a reasonable standard of care and that Alpine Tower case looks like a failure to do so.
Guideline #1: Don't be a jerk.

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