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Toker Villain
Big Wall climber
Toquerville, Utah
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Jun 12, 2018 - 04:36pm PT
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I was on a route in Eldo when a party rapped from the top to do the Diving Board.
One of them dropped a rock that put me in a wheelchair. When I started there was nobody above me. So I hadn't really assumed that risk.
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the Fet
climber
Tu-Tok-A-Nu-La
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Jun 12, 2018 - 07:15pm PT
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Paul, thanks for coming back and posting an update.
Knowingly climbing under another group= you take responsibility if an accident happens that doesn't involve a high level of willful neglect or carelessness.
If he wasn't trying to make the other group pay, then he would get a lot more empathy. Most people here seem to believe that he should accept most of the responsibility because it was his choice to climb under another group. If the group that dropped the bag did it because of negligence, then they would be to blame, but since it was an accident, then in climbing circles, the person climbing below takes the responsibility.
I'm sure the group above is very sorry this happened, but the community feels that they should not be held financially responsible. Hence, this guy doesn't get sympathy.
Again that is a great summary. For "Most people here seem to believe that he should accept most of the responsibility". I agree, but as stated "most" not "all". Johnathan did accidentally drop a haul bag on him. Seem like he would bear some responsibility. I have no idea how much.
My wife, infant son, and I were driving down a freeway and a truck in front of us dropped a big piece of agricultural equipment on the road (about the size of a refrigerator) we had to swerve to avoid it and the car rolled (POS Ford Explorer). Luckily the truck had insurance and they had to pay the medical bills. I would imagine there's specific rules of the road in that case but the situation is they caused they accident (didn't properly secure a load, I don't know if they attempted to secure it (accident) or didn't even try (probably negligence)). I guess being on a public road is different than under a 3,000 foot cliff, so we had less responsibility.
It sucks that in sue happy USA Jonathan had to put "I have been advised not to respond". He should be able to say "I'm really sorry this happened. It was an accident. I wish I would have done something different." without opening himself up legally. Just emotionally I would want to hear that.
I kind of feel Paul should have approached Jonathan with something like "I have $15,000 in uncovered medical bills, and $12,000 in lost wages. Since we are both partly responsible for the accident would you consider paying half of this?" Or maybe 25% or something? Or perhaps just contribute how much you feel you should.
I don't blame Jonathan at all for being frightened away by the open ended "I am requesting that you make financial reparations in accordance with the magnitude of the injury and financial loss I am facing as a result of your negligence" That could be hundreds of thousands of dollars. And as mentioned earlier it wasn't negligence, it was an accident.
I also agree it would have been better to not claim negligence and make this an open discussion, and instead just posted a go fund me.
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August West
Trad climber
Where the wind blows strange
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Jun 12, 2018 - 11:10pm PT
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Fet do you mean he should bear some moral responsibility? Because unlike your truck example, I don't think he has any legal responsibility. Sure a court could at some point set a new precedent but I don't see a reason to expect that.
Toker. Unless it is illegal for someone to rap in from above, I would say you did assume the risk that something like that could happen.
I know there are some climbers that believe whoever starts up first should have absolute rights to not have anyone above them. But I'm not aware that would give you any more legal standing.
The etiquette of passing is it's own thread. But in an environment where there are multiple routes, faster parties are going to pass a slower first start party. And in some environments parties are going to rap in from above.
Accidents and injuries are a drag. I was bed ridden and then in a wheelchair for a while. Although that didn't involve any mistakes but my own.
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clinker
Trad climber
Santa Cruz, California
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Jun 13, 2018 - 04:41am PT
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Although that didn't involve any mistakes but my own.
There you have it.
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justthemaid
climber
Jim Henson's Basement
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Jun 13, 2018 - 05:27am PT
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It sucks that in sue happy USA Jonathan had to put "I have been advised not to respond". He should be able to say "I'm really sorry this happened. It was an accident. I wish I would have done something different." without opening himself up legally...
I kind of feel Paul should have approached Jonathan with something like "I have $15,000 in uncovered medical bills, and $12,000 in lost wages. Since we are both partly responsible for the accident would you consider paying half of this?" ...
After some reflection... I've come around to that sentiment^^^ Legally responsible (in this situation)- No (IMO) Morally...perhaps yes.
It's unfortunate that this wasn't handled off-screen with some kind of mediator. The minute a loud public demand for reparations is made - one is forced up their guard and can accept no responsibility. It's simply too dangerous to be sympathetic at that point. Trust that it can be handled in a civilized manner is broken.
Side story: A conversation with a non-climber about this accident...
His question..."So if a regular-Joe hiker is walking at the base of a cliff and a climber dropped a haul bag on them- does liability shift?" My answer (IMPO with no clue about actual law) was "yes". Sure- it's still an "accident" but a hiker does not assume that particular risk .
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Gnome Ofthe Diabase
climber
Out Of Bed
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Jun 13, 2018 - 05:51am PT
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IF SIZE MATTERS?, so does location.
Just The Maid? are you trollin'? or just trippin'!
No one should have to be told that taking a walk under a wall where climbing is taking place, puts one at great risk. Gravity sucks, constantly & the risks of having the effects of gravity be proven in dramatic fashion, increase in exponential magnitude depending on what might be or is going on above any location
When, there is an opportunity, choosing between destinations, any one who enters into an area where there are people working above, takes on the responsibility for that decision.
just a house keeping thing
J.T.M!
Sorry that you're up so early. . . .Wow,
it never would have occurred to me that it might be beyond someones grasp that an unintentional act of gravity, might occur while walking under a cliff..
I had no idea that the populations general inability to be aware of the obvious,had fallen to such a deplorable level,
(I should have realized, Trump, may have actually been elected?)
driving in traffic is now making more sense, thnx, `=)
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justthemaid
climber
Jim Henson's Basement
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Jun 13, 2018 - 06:11am PT
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It's all hypothetical sidetrack- but My point about a totally average Yosemite visitor that is a non-climber bringing this up was... he basically had ZERO clue that any risk of falling gear even exits when walking at a cliff base. I had to explain what a haul bag was and that gear can and does get dropped and that climbers can knock rocks off. It's so far out of the realm of reality it would never cross his mind that it was a bad idea to linger under climbers until our discussion. Maybe you think he's stupid- but I think he's probably the norm for a NP visitor. We as climbers have privileged information about risk assessment in these scenarios and should take responsibility accordingly.
Natural rockfall is a different matter that should fall in the realm of common sense with the average human.
Edit to add @ Gnome- it was a weird discussion for sure- a bit of an eye opener.
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fear
Ice climber
hartford, ct
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Jun 13, 2018 - 08:58am PT
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Just as a side note, if the bag dropper were somehow to formally accept negligence on his part he could be then held liable and sued by the health insurance company to the tune of lots more $$$ and lawyer fees.
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the Fet
climber
Tu-Tok-A-Nu-La
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Jun 13, 2018 - 09:19am PT
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Fet do you mean he should bear some moral responsibility? Because unlike your truck example, I don't think he has any legal responsibility.
I guess so. I guess I would feel some moral responsibility if I had accidentally done the same thing. But as mentioned a choice was made to climb under the other party, and that implies some acceptance of responsibility, and accidents do happen.
From what others are saying here if you climb under someone you accept the responsibility for the danger from accidents, but I wonder if that is actually legally the case? If so I'm fine with that but it would be nice to have a definite answer. e.g. if someone topping out isn't being careful enough and knocks rocks down on you and their bear no responsibility I'd be even more inclined to not climb under someone on many climbs.
On the Nose if you refused to climb without anyone above you, you'd pretty much have to climb in the winter to avoid any other parties.
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Jon Beck
Trad climber
Oceanside
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Jun 13, 2018 - 09:25am PT
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If the dropper was to reach out and help the dropee then the dropee would not be able to use that against the dropper later. The intent is to encourage people to act civily. The health provider has no standing to pursue the dropper directly, there would likely be a subrogation claim against the dropee, assuming the dropee did not waive subrogation by entering into a settlement agreement that left out the healthcare provider. In order to protect healthcare providers in CA there is an automatic health provider lien on any recovery. Many lawyers have gotten in trouble ignoring those liens
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fear
Ice climber
hartford, ct
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Jun 13, 2018 - 10:39am PT
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Curious about that John. The subrogation claim from the insurance company would be against the at-fault dropper unless there was a formal legal settlement reached by both parties in court that specifically excluded the health insurance company right?
In this state I know more than a few lawyers who just specialize in these kinds of clawbacks... Maybe it's a state by state thing?
Of course if the dropper has no income or assets to attach liens on... then they'll likely give up.
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Jon Beck
Trad climber
Oceanside
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Jun 13, 2018 - 10:55am PT
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Subrogation is contractual, between the insurer and insured. It is in all insurance policies. The insured agrees to assign the claim to the insurer. If the insured settles the case without providing for reimbursement to the insurer then the insured is in breach of contract with the insurer and the dropper is off the hook.
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Toker Villain
Big Wall climber
Toquerville, Utah
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Jun 13, 2018 - 02:29pm PT
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August West
while it IS legal to rap from above I do not think it is reasonable to expect it.
In any case all I asked for from the offending party was for one of them to give me a ride home from the hospital, as I had health insurance.
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donini
Trad climber
Ouray, Colorado
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Jun 13, 2018 - 02:37pm PT
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Negligence vs. an accident. One could argue that dropping a haul bag is nearly always negligent. If you’re careful (eg. not negligent) you should never drop a bag absent some material failure which is unlikely.
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Toker Villain
Big Wall climber
Toquerville, Utah
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Jun 13, 2018 - 02:44pm PT
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Negligance
A neglige worth another glance?
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donini
Trad climber
Ouray, Colorado
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Jun 13, 2018 - 03:09pm PT
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Ah...a typo needed correcting...done!
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the Fet
climber
Tu-Tok-A-Nu-La
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Jun 13, 2018 - 05:38pm PT
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From findlaw.com re: negligence
In most situations, a defendant is required to exercise the same level of care as a reasonable person would in similar circumstances.
Two leashes on a haul bag seems like what a reasonable person would do. Accidents happen all the time in climbing and don't always mean negligence. If someone left a haulbag un-tethered on the edge of a ledge and it fell I'd say that's negligence. But somehow messing up clipping something in happens quite often even when people are exercising care.
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August West
Trad climber
Where the wind blows strange
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Jun 13, 2018 - 10:42pm PT
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One could argue that dropping a haul bag is nearly always negligent.
Sure. If you hang out in a courtroom you could argue all sorts of things.
Now legally winning arguments, that's a different story.
The legal response isn't whether the party was negligent. The argument is that if lawsuits were allowed the sport would cease to exist.
Since the participants are assumed to want the sport to exist, the law assumes they have acquiesced to not being able to sue for damages.
If a nascar driver is negligent and injures another driver, I'm not aware that they can succeed in a civil case.
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August West
Trad climber
Where the wind blows strange
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Jun 13, 2018 - 10:51pm PT
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August West
while it IS legal to rap from above I do not think it is reasonable to expect it.
I totally agree about the reasonableness of expecting it.
But climbers assume all the risk, even the unexpected.
If you read enough accident reports, you find out injuries can come from many weird angles.
Although some are pretty common. Lead fall inadequate gear. Exposure to weather. Off route, dark. Failure of belay chain from lack of focus.
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August West
Trad climber
Where the wind blows strange
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Jun 13, 2018 - 10:52pm PT
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You can sue anybody. You just won't win.
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