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tom woods
Gym climber
Bishop, CA
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On one hand I agree with that sentiment, On the Edge...., but on the other more specific to the case hand, does this allow incompetent guides to kill people?
When you assume risk by hiring a guide, how much do you assume? If they killed clients all the time, they wouldn't be in business. It takes some trust that the guides know what they are doing.
Are we saying the victim didn't do his due diligence? Buyer beware? Maybe this guide program was a ticking time bomb that had not yet had the odds catch up to them?
I'm not a top secret schill for the AMGA or anything, but this sounds like a group of folks with a little experience teaching a group of folks with less.
It seems the appeals court went for consistency with previous cases, while the jury went with the simple negligence?
It looks like the appeals court saw the facts as the guides did nothing out of the usual in a dangerous sport.
Unfortunately, the facts seem to be misunderstood by the appeals court. Setting top rope anchors, or any anchor under a block on a ledge is poor form, to be avoided when possible. A top rope anchor could easily be built in a place where the block could have been avoided.
You get to choose where to place top rope anchors. Way up on an FA in the mountains, sometimes you got to do what you got to do, but guiding and top roping you have choice.
Bummer for the plaintiff.
This reeks of negligence.
I was once a guide for a UC. What if I hurt or killed someone on a trip I was leading? Would I be responsible? Yes, but on the other hand, when I was guiding, I was 19 years old. The school said I was good to go. It seemed reasonable when I was 19.
I guided bears reach and east wall. We were careful, but we weren't real guides. We were climbers, who got paid to take people who knew less than us up climbs.
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ontheedgeandscaredtodeath
Trad climber
San Francisco, Ca
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It's hard to know what evidence the court had before it. Knowing what I know (as a climber) it seems like gross negligence, which can trump assumption of risk, was a factor that for whatever reason was not considered.
I am going to see one of the lawyers who represented uc tomorrow, I'll ask how it went down.
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tom woods
Gym climber
Bishop, CA
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It's an interesting one, and a case that we would probably heard more about if it went the other way.
It looks like negligence to me, but I can see the difficulty in proving that.
Guides took rock course one, then intermediate climbing course, then guide course= qualified.
Was there four pieces? Check. Two cracks, check. Had the anchor been weighted. Check.
But wait, what about the quality of the crack/rock? How do you quantify/qualify that?
Send EC or a jury of climbers up there, different out come possibly.
Maybe it looked like a good anchor?
Interesting side note, EC said Bela V. the long time truckee guide, was a witness for the defense. I wonder what he thought of the case?
Either way, it's bed time.
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Tony Bird
climber
Northridge, CA
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em kn0t's hearsay report makes some sense. the placements may have been apparently "industry standard", but involving one of those flakes which you hope is not separated, but which, on rare occasions, turns out to be, and which worked loose due to the preceding lowerings. a sharper, more experienced eye might have been suspicious of it. it would be interesting to hear bela's assessment.
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426
climber
Buzzard Point, TN
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The flake on Haystack's top first pitch is actually rather gigantic and doesn't move unless you really shove it or stand on it and kick. It didn't really have any telltale sounds of hollowness when I put gear there.
...there is a perfect solid crack along the base of the ledge just inches to right, but the natural predilection of climbers seems to hit the vertical crack in between the block and the wall. I probably did this 10 or 15 times before realizing the block was actually loose and changing my whole belay scheme there..
I was considering soloing the line one time but had some general bad feelings about it so I went with the gut check. A partner met me the next day and much to my chagrin, the blood from the accident was still on the rock...I was sketched leading the whole rest of the climb even though I knew it by heart at that time...
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tom woods
Gym climber
Bishop, CA
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JR- When I "guided" for the UC's, they only offered a few courses, beginning, and intermediate, along with some specific trips.
Guides had a weekend long guide school, but when I think back to how inexperienced I was when I took the two day guide course, it's fairly scary. A kid who climbs 5.8 comfortably on gear, leads know nothing clients on 5.7? Is this really a good idea?
When you are a kid, it all seems normal.
For the beginner course, it was top roping. For the intermediate, there might be a clinic on placing gear, and then a multi-pitch climb.
The issue was that people took the beginner course and then thought they could take the intermediate course as a sort of progression that people are used to in structured environments.
Some times people could, sometimes people couldn't. It depended on their natural ability to climb. So you went top-roping once, does that mean you can follow bear's reach? You'd be surprised how hard bear's reach is for people who don't climb. I know I was.
As for the guides, we meant well and took our jobs seriously, but were we truly prepared/qualified?
That's the debate in which I believes may entail the negligence on the part of the guides and the schools that hire and "train" the guides.
A lack of industry standards, however, probably gives the defense a lot of wiggle room.
Also- JR- I don't know about the UCSF Instructor course, we didn't offer that to paying clients, but again I can see someone doing this as part of a progression laid out in a structured environment that many are used to, but doesn't necessarily apply in the real world of climbing.
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Fat Dad
Trad climber
Los Angeles, CA
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Another lawyer weighing in here. I'm kind of in Tom's and ontheedge's camp. While I agree the CA courts have established something akin to assumption of risk for outdoor/recreational activites. Started with the water skiiing case whose name escapes me.
In any event, the problem I have with applying that doctrine too strictly in cases like this one is that--like Tom I think it was had said--is that is effectively insulates anyone who might have been negligent, even grossly negligent simply based on the assumption that "climbing is risky." However, that assumption ignores another basic fact, and that is climbing can also be safe if done properly.
Just because you assume some of the unavoidable risks of climbing, such as falling while climbing, rock fall, objective hazards, doesn't mean you assume that the person you're climbing with--who holds themselves out as experienced and safe--are actually going to be. When you're an experienced climber it's kind of caveat emptor. But when you're inexperienced, you don't have the knowledge to know when someone's putting you in a dangerous place. In that instance, I think it's wrong for the court's to stay "you should have known better." Does that open a pandora's box in terms of liability? Maybe. But it also strikes me as fundamentally unfair to deny a person redress when they've clearly been hurt in a wrongful way.
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apogee
climber
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Thanks for posting the full text of the decision- there are several very interesting comments in it, such as this one:
"Defendant, as the moving party on the motion for summary judgment, had the burden of establishing that Norman Roettgen was not taken beyond his level of experience and capability in the activity culminating in his fall, and that the risk to him was not beyond that inherent in any top rope climbing [*1047] activity. Defendant met its burden. (§ 437c, subds. (n)(2), (o)(2).) HN6Go to the description of this Headnote.Falling, whether because of one's own slip, a coclimber's stumble, or an anchor system giving way, is the very risk inherent in the sport [**926] of mountain climbing and cannot be completely eliminated without destroying the sport itself."
It appears that it was the legal concept of Assumption of Risk that was upheld in this case (not a written form, per se). The defendant requested that the case be brought to summary judgment based on the premise that falling is an inherent risk of climbing- while the plaintiff tried to show that climbing should be held to a different standard of duty, the judge felt otherwise, and it ended right there.
To my eye as well, there appeared to be negligence on the part of the leaders in how/where they built that anchor and how it was used. However, the key point of emphasis in this whole legal process was whether falling is an inherent risk in climbing, and the judge felt that it was.
Negligence on the part of leaders is a topic of conversation amongst program managers and legal counsel in recent years- there has been a trend amongst some programs (as allowed by a given state's laws) to include simple negligence on the part of the leaders as a part of a participant's Assumption of Risk. Of course, differentiating simple vs. gross negligence is the crux, but personally I believe there is some merit in this idea. While this case did not expressly show this, it could easily be seen as a precedent for the trend of increased assumption of risk on the part of participants.
Edit:
"In that instance, I think it's wrong for the court's to stay "you should have known better."
Fat Dad, do you really think the court was asserting this in their decision? Perhaps that is the practical upshot to it, but I don't see that that was the intent.
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High Fructose Corn Spirit
Gym climber
Full Silos of Iowa
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This case serves to show in the end it boils down to the judgment of the judge. Pretty subjective affair. In this adventure called life.
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Fat Dad
Trad climber
Los Angeles, CA
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and that the risk to him was not beyond that inherent in any top rope climbing [*1047] activity.
I haven't read the whole opinion but just upon the paragraph apogee quoted, this is kind of where I think the judge decided the case. I'm assuming evidence was presented that anchors can and do fail while people are toproping (or at least can be presumed to) and so the judge concluded that this was within [edit: the risk] "inherent" to that activity.
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tuolumne_tradster
Trad climber
Leading Edge of North American Plate
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Is this the pitch the accident occurred on? p1 of Haystack?
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delendaest
Trad climber
San Francisco, CA
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Topic Author's Reply - Aug 4, 2010 - 03:02pm PT
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the first belay station of bear's reach definitely has hollow rock, i've seen it move myself when setting up an anchor. apparently haystack has hollow rock too? the belay stations at the leap leave something to be desired evidently...
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looking sketchy there...
Social climber
Latitute 33
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Here is my 2 cents worth from reading the opinion (and my own experience with this area of law):
The doctrine of Assumption of the Risk [1] has evolved significantly in California over the last 20+ years; it once being thought to have been eliminated by California's adoption of Comparative Negligence in 1975 [2].
In wake of Comparative Negligence, many in the climbing world were concerned that this legal theory (which apportions fault between parties), coupled with the rapid increase in the popularity of climbing, could lead to a rapid increase in negligence lawsuits involving climbing. The fear was that even if a defendant were only partially at "fault" in an accident, monetary ($$) damages could still be awarded.
The two seminal cases which found Assumption of the Risk still applied, particularly in activities that are voluntarily and inherently risky are cited in the decision [3]. The Ford v. Gouin case is the water skiing case someone referred to above.
Climbers generally applauded these decisions as the legal theory was clearly applicable to climbing and would avoid situations where one partner sued another, or a climber sues a climbing school or even a landowner (or the NPS, USFS or other Gov't agency) because something bad happened.
With that said, each lawsuit depends entirely on the particular facts of that case. In this case, the defendants brought a Summary Judgment Motion (SJM) before the case went to trial. Apparently, the trial Judge denied the SJM and the case was tried before a jury who found liability.
[A bit of Digression: I will note that a Jury finding liability (or not) is not indicative of whether you or I would agree on the result. Juries are notoriously fickle and (like the entire Legal System) only provide an approximation of Justice. Anyone seeking "Justice" in our legal system (which I believe to be one of the best and most fair in the World), is setting themselves up for possible disappointment.]
Since the Trial Judge's denial of the defendants SJM is subject to review by the Court of Appeal, defendants sought review. The Appellate decision pasted in above is their written decision based upon a review of the Summary Judgment Motion and all the evidence presented in connection with the SJM by both parties. [I will also point out the error of some unfortunate comment above -- the Court of Appeal is a Three Judge panel (not a single Judge)].
A Summary Judgment Motion is brought when there is not a material dispute as to the FACTS of a case and the Judge may simply apply the law (as she or he interprets it) in deciding the case. A full trial or Jury is avoided. Once the defendant establishes the lack of FACTUAL dispute, and that as a matter of LAW, it is entitled to judgment in its favor, the burden then shifts to the Plaintiff to either raise a Material FACTUAL dispute or that under the agreed FACTS, the LAW entitles Plaintiff to judgment.
It would appear that the Plaintiff's lawyers were unable to present sufficient FACTUAL evidence showing a dispute and/or as a matter of law, under these FACTS, defendant's interpretation of the LAW was incorrect (or inapplicable).
Frankly, it may appear that under the circumstances, we can have differing opinions as to the result, but we neither have reviewed all the Factual Evidence presented nor perhaps taken into account the degree to which the unfortunate climber was: experienced enough to assume some responsibility for (a) checking anchors upon which he relied and/or (b) insisting that he be belayed on the lead line as well, or ???, as well as whether he was more than just a passive student as opposed to one of the group's leaders?
Just some food for thought.
[Edited to add:
--- Yes a Liability Waiver would have eliminated liability even if it was found the defendants were negligent in setting up the anchor; and
--- Climbing is dangerous.]
Notes:
[1] The simple explanation of the doctrine of Assumption of the Risk is that if you undertake a hazardous activity and you are injured or killed as a result, you (or heirs) can not recover damages -- since you knew injury or death were possible outcomes of your voluntary participation.
[2] See: Li v. Yellow Cab Co., 13 Cal.3d 804 (1975) -- Established the doctrine of comparative fault/negligence and rejected contributory negligence as an absolute defense.
[3] Knight v. Jewett, 3 Cal. 4th 296, and Ford v. Gouin (1992) 3 Cal. 4th 339.
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tom woods
Gym climber
Bishop, CA
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Thanks sketchy.
The one thing I would argue, though I'd like more information, is whether the facts were actually correct.
It seems that this was not a normal top rope anchor- normal top rope anchors don't fail. They have an independent back up. I had slings cut on a poorly set top rope anchor because I didn't anticipate a sideways swing on Donkey Dong? at Castle Rock. I had a back up. That was eye opening for certain.
The facts of the crap anchor do bleed into the assumption of risk.
What if the client asked the guide if climbing was safe, and the guide says yes. Then does it change?
I say this guy, in doing a practice lead, assumed he was doing something safe with the top rope.
Also- anyone have a picture of this block? I might shut up if it's huge.
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ec
climber
ca
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What I heard when the accident was described to me years later was that the anchor was set in two separate cracks; the section of rock between the two cracks appeared solid but was actually detached, and the pro failed when it shifted.
The 'boulder' that sits atop the first pitch ledge of Haystack does not or cannot have two separate cracks as it is a separate piece of stone from the main wall. It is quite large (a ton), but not VW sized. There truly is only one 'crack' around the damn thing. The faulty analysis by the persons placing the anchor that the anchor was in two separate cracks was total bullshit and maybe due to their lack of experience. This boulder would be fine for someone belaying a second while sitting or braced on the ledge (body buffer), however questionable for top rope IMO.
Even though the anchor was on Haystack, since the route leans some, they actually were using an area to the side, off-route for their class.
I was deposed for over four hours about this and the initial decision was that negligence played a huge part...unfamiliar with the terrain, poor anchor/no check by the boss/failure, not using the lead line belay, no release form.
Hey, the final decision was in the positive ground for all guides. Twisted justice...
Keith good to know your around!
 ec
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looking sketchy there...
Social climber
Latitute 33
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To slightly elaborate on my observations above, the actual facts (if there can be said to be any "actual fact") are not what are determinative in a Summary Judgment Motion (or even a Trial).
What is determinative are the facts/evidence actually presented (and just as importantly -- the manner/skill they are presented) to the Court in the SJ Motion.
Overlay that with the preconceptions of a Judge(s) and the underlying legal policy of Assumption of the Risk -- and the outcome is always an uncertainty.
This is why the vast majority of cases (of any kind) settle before trial and even during the pendency of an Appeal. Uncertainty is the foundation upon which settlements are built.
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Fat Dad
Trad climber
Los Angeles, CA
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What troubles me about the case is that, from a quick glance of it at least, is that it appears that this was decided by an MSJ, or motion for summary judgment. For all you non-lawyers out there, a court will only grant an MSJ if there's absolutely no triable issue of fact. In many civil cases, that's a really high standard to comply with. Here, particularly given that you had two experts testifying with competing points of view, I just can't see the grounds for arguing that there wasn't at least some factual dispute re the underlying facts.
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tom woods
Gym climber
Bishop, CA
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Fat Dad- I'm with you. It seems that the facts should have remained in dispute.
Or perhaps shittie anchors are legit when guiding because the client has knowledge that they can die while top roping.
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Mr_T
Trad climber
Northern California
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I believe there have been at least 2 fatalities on Bear's Reach.
The first was the UC outdoor program. It was somehow related to UCSF - total bullsh*t anchor behind loose flakes/boulders. This was before 1995. Lawsuit won or not, it doesn't bring your loved one back.
A more recent accident that I assume resulted in a fatality was caused by a lead fall on the last pitch of Bear's (and all those routes that converge there). The leader ran out most of the pitch, had one piece in, fell probably 80'. Severe head injury - possibly whipped backward at the end of the fall. I climbed the route the next day, not knowing about the accident. We learned the details later. Blood was everywhere from about the top of the second pitch up to the belay. We finished the route and took the rest of the day off. I don't know if this guy survived, but I'd be amazed if he did. He apparently was airlifted to a local hospital. This was around 2004. It sounded like he may not have had a helmet on. I'd like to think he recovered.
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Ruthel
Gym climber
wisconsin
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Dec 20, 2010 - 01:47pm PT
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so strange to read about my brother's death in such a way
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