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survival
Big Wall climber
A Token of My Extreme
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Dec 20, 2010 - 02:28pm PT
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Ruthel, sorry to read about your brother too.
I certainly hope you didn't read anything too offensive on here. It can be a pretty grim crowd at times, but mostly good, well meaning people.
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Maysho
climber
Soda Springs, CA
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Dec 20, 2010 - 02:43pm PT
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I missed this thread first time around. I was asked to be an expert for the plaintiff, I offered to do an independent investigation with info that could be used by all parties, but that offer was declined and I refused to do a one sided investigation.
I thought that the investigator for the plaintiff was sleazy, and being in the business of rock climbing instruction at the time, and still, I was somewhat biased. I also called the director of OU to offer my support during what was a hellish time for all concerned.
I am not a lawyer, but I am of the opinion that Rock Climbing is dangerous, and when you participate you are assuming the risk, even of an instructor making a bad mistake. Gross negligence is another thing, but mistakes can and do happen, and I think it would be hard for courts to sort out all sorts of grey area judgment calls.
The idea of risk sports participants assuming risks is why cities can build skate parks, and why I can offer the programs for youth that I do.
I feel very bad for the relatives of the accident victim, and I do think University Programs should work hard to make sure they have highly competent guides, or don't offer high risk activities.
There is a great risk to our society if we become so lawsuit saddled that we cannot offer youth or anyone the opportunity to participate in healthy risk sports.
I am glad that the court back then ruled to uphold the assumption of risk.
Peter
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JEleazarian
Trad climber
Fresno CA
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Dec 20, 2010 - 03:03pm PT
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I missed this thread the first time around, too, Peter. While I agree that climbing is dangerous, and we all as a matter of law assume the risk of falling, the court's ruling nonetheless surprises me.
Without reading the plaintiff's briefs in opposition to the Writ and the Motion for Summary Judgment, I'm not sure how they argued this issue. I assume, ec, that your testimony was sufficient to establish that the fall resulted from anchor failure, and that the failure was caused by incompetent placement and inadequate supervision, falling below the standard of care for climbing instructors.
Assuming that was the case, I fail to see how the inherent danger of falling effects an assumption of the risk of incompetent instruction and/or supervision. Without finding that the decedent assumed that risk, there would pretty clearly be disputed material facts (i.e., whether your conclusion was correct) because if there were not, the plaintiff would be the one entitled to summary judgment as to liability.
Very strange.
John
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le_bruce
climber
Oakland: what's not to love?
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Dec 20, 2010 - 03:16pm PT
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Sad event on all sides.
Maysho - respect to you for making that expert witness decision on principle rather than pay.
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ec
climber
ca
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Dec 20, 2010 - 04:19pm PT
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Peter, Yes, the investigator for the plaintiff was way sleazy, but allowed me to do my own thing as you would have. There was never any prompting for biased views. He was an ex-cop, injured in the line of duty, turned P.I. I really worked more closely with the attorneys, he just drove the car...
 ec
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Gal
Trad climber
a semi lucid consciousness
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Dec 20, 2010 - 04:53pm PT
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am of the opinion that Rock Climbing is dangerous, and when you participate you are assuming the risk, even of an instructor making a bad mistake
I disagree. I do not believe that you are assuming the risk of an instructor making a bad mistake.
I really do hope it was NOT negligence, and it was a "freak accident" that no one, no matter their expertise, could have foreseen... otherwise justice did not seem to take place.
I realize it was difficult for all involved, and that everyone wishes they could turn back the clock.
Ruthel-I'm so sorry for the heartbreak and loss you suffer for your brother.
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ec
climber
ca
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Dec 20, 2010 - 05:30pm PT
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IMEWO it was NOT a "Freak Accident."
ec
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Gal
Trad climber
a semi lucid consciousness
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Dec 20, 2010 - 05:44pm PT
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yes, EC, I would agree with you based on what has been described so far...
A pic of this belay anchor area might help for better understanding. If anything good can come from this now, it is to learn and understand what went wrong so it never happens again, there or in any other similar circumstance/setting. Clearly something went disastrously wrong, and that is undeniable.
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Ken M
Mountain climber
Los Angeles, Ca
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Dec 20, 2010 - 08:55pm PT
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I'm fairly astonished at many of the posts contained herein.
Many of them contain words to the effect "without reading the actual information in the case"....and then goes on to pronounce an opinion based upon.....what?
I am not a lawyer, although I respect the skills of that profession, and the rules that govern. I have also been involved in many legal actions involving medical issues as an expert witness, and understand that the details REALLY MATTER.
Here is the key section to me:
McGowan and Veilleux each had significant experience setting anchors and they believed their system was "bombproof." Other than the anchor failure, no evidence was presented to suggest that this was a [**924] faulty conclusion, or that Veilleux and McGowan's selection of the site fell below the sport's norms for anchor installation.
Bold was added by me. NO EVIDENCE WAS PRESENTED. Now, after the fact, people can say whatever they want. All that matters is what was said on the stand. As far as the Appellate Court is concerned, NO EVIDENCE WAS PRESENTED.
Of course, I wasn't there. I've never climbed this route. I didn't inspect any of the gear used, nor the anchor area where the pro was placed.
So, I have no specific opinion as to what happened.
As a person who teaches newbies toproped climbing, I'd hope for bomber anchors 100% of the time by all instructors. I know that it makes me nervous to have people anywhere around anchors I've set up, and for that reason prefer to have about 5 bolts! (as if).
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ec
climber
ca
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Dec 20, 2010 - 09:58pm PT
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Sad conclusion nevertheless.
I read through sh*tloads of depositions and I thought the remark of 'significant experience' to be a stretch, as those individuals on the record cited a lack of experience. Obviously, the powers that be had not much experience in ruling on this type of incident. It was like they read a different depo to get that remark. The two were subordinates as well and the head honcho never checked their work...
ec
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JEleazarian
Trad climber
Fresno CA
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Dec 21, 2010 - 01:30am PT
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Ken,
The opinion surprises me because it seems to state, as a matter of law, that an instructor in rock climbing owes no duty of care to pupils.
A motion for summary judgment asks the court to resolve the case without trial because there is no dispute of material fact. Normally, as here, the party opposing summary judgment introduces evidence that, if accepted, would justify the relief they request.
The parties argued in this case about whether opinions such as ec's constitute material facts. The Regents argued that this was not a material fact because even if ec concluded that the instructors erred, the plaintiff would still lose because he assumed the risk of falling. In other words, it wasn't that there was no evidence that the instructors erred, it was rather that the evidence was immaterial.
Again, I agree that we assume the risk of falling when we climb, but I doubt that we think we assume the risk of incompetence of instructors in a formal class setting, defective equipment, etc.
I don't expect a brand new rope used properly to fail to hold me. If I fell to my death because that rope broke in a short, unobstructed fall, properly belayed, my estate should have a cause of action against the manufacturer under established California defective product law. Under this court's opinion, however, there would be no cause of action because I assumed the risk of falling and, apparently, all consequences that ensue. That misconstrues the risk we assume.
I'm normally no fan of the plaintiffs' bar in California, but this case seems to misunderstand the legal nature of the climbing risk.
John
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dougs510
Social climber
down south
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Dec 21, 2010 - 02:04am PT
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Diddo what locker said.
When I first started reading this thread, it seemed almost surreal. Sort of a disassociation. My first impulse was to respond in an arbitrary fashion. But thought better of it.
My sincere condolences to you and your family. Very sorry for your loss. I hope your brother was living the life that he loved at the end, and his loss, though tragic, was met in such a way that many of us would like to find the end of the path. Climbing is a magical, spiritual experience that I (Personally) would like to end the walk. Anything else would be less than worthy for me.
Again, I'm sorry for your loss, and may your brother find peace.
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Maysho
climber
Soda Springs, CA
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Dec 21, 2010 - 11:10am PT
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Okay, I want to modify my stance. I agree with JLeazarian that there is a duty to care in climbing instruction, and catastrophic anchor failure should be a classic breach of that duty. My point is that the strong upholding of assumption of risk in general is a great thing for our society.
There could be so many grey areas where someone gets injured or killed, and negligence could be a debatable matter of opinion. We need to understand that climbing, skiing, skateboarding, etc. are risk sports with terrible consequences when thing go wrong, and things do go wrong sometimes.
We are facing the huge risk of a generation of out of shape, unhealthy kids, some of this is due to the paranoia of the outdoors that many current parents have, and of course the inundation with electronic distraction.
I and my staff put a lot of attention, training and diligence into risk managing climbing instruction. I am glad that we are allowed to teach over 1000 kids a year in California, with good waivers, insurance and public acceptance that careful involvement in risk sports is a good thing.
Peter
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Ken M
Mountain climber
Los Angeles, Ca
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Dec 21, 2010 - 11:25am PT
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ec said
Obviously, the powers that be had not much experience in ruling on this type of incident. It was like they read a different depo to get that remark.
The lawyers in the crowd correct me if I am wrong, but depositions are not part of the record of evidence, and neither the trial judge, the jury, nor the appellate judges read ANY depositions......only the evidence that is given on the witness stand.
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stevep
Boulder climber
Salt Lake, UT
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Dec 21, 2010 - 11:42am PT
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There's definitely a gray line between mistake and negligence. Some very famous and experienced climbers have died because of mistakes. Some of those mistakes might rise to the level of gross negligence, like significantly mis-representing level of experience, and then making a mistake while guiding.
But everyone makes mistakes, and climbing is much more risky than say golf so sometimes those mistakes will have rather more unfortunate consequences than they would on the greens.
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Ken M
Mountain climber
Los Angeles, Ca
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Dec 21, 2010 - 11:47am PT
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John, this does seem to be a somewhat unusual case.
As is the usual, the defendant asked for Summary Judgement, and the Trial Judge ruled against. The trial ensued.
At Appeal, the Panel ruled that, in fact, in the trial, there was no evidence presented that argued that there was any issue of fact...the basis of Summary Judgement, and so found that the Trial Judge had erred, and granted relief.
Of course, we don't have the transcript in front of us, but it sounds like the Panel was not very impressed with the evidence presented by the plaintiff.
I can't say that I am impressed that if one thinks about the top rope climbing programs around the country, particularly at the college level, that this program was markedly different than most.
I doubt that most programs are run by AMGA-certified guides.
I doubt that most climbers would testify that they had been taught by such guides, even in such programs.
I doubt that most anchors placed for top ropes would be checked by more than two instructors, if that.
I WILL say that I've always thought that placement of pro, as opposed to clipping bolts, for anchor systems, is a much more advanced skill, and more prone to failure.
So, when one starts to try to establish a "standard", particularly in a sport in which independence is prized, it is difficult.
Everything starts to seem very black and white after the fact, but in reality, they are often quite grey.
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August West
Trad climber
Where the wind blows strange
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Dec 21, 2010 - 12:16pm PT
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I agree with JLeazarian that there is a duty to care in climbing instruction, and catastrophic anchor failure should be a classic breach of that duty.
I don't think I agree with this. Rock climbing is just too dangerous of an environment. For starters, I don't think you would say this if the anchor was two modern looking bolts (say in Sierra granite) that pulled out.
For a gear anchor, there are certainly anchors that an experienced climber should recognize as dangerous. But it is not always possible to know the rock quality of natural anchors to 100% certainty.
And for a sport where even very experienced climbers can make fatal mistakes (not tied in correctly, harness not doubled back, rapping off end of rope), I would like to see any standard for liability to be high.
Now maybe rock climbing guides/release forms should give a better idea how dangerous climbing is, but I'm not sure how you do that when people are so accustommed to signing meaningless forms (say a liability release so your kid can take a 15 minute nature walk...).
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High Fructose Corn Spirit
Gym climber
Full Silos of Iowa
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Dec 21, 2010 - 12:42pm PT
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Very good points, too.
Litigants from the dark side stand ready to take advantage of anything less than 100.0% or anything gray. Sometimes from the fatness of their lazyboy recliner, too.
Watch yourselves, it really is a jungle out there clothed in accoutrements.
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Toker Villain
Big Wall climber
Toquerville, Utah
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Dec 21, 2010 - 12:55pm PT
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This is another sad example of getting what we pay for.
When well trained skilled professionals have to compete with wannabe heroes who are willing to guide for a pittance the result is a degradation in professional standards.
Anchoring belays in separate cracks was de riguer when I started climbing because we used pitons and slings not bolts.
I'm not going to go on some hypocritical "bolts are bad" rant, but many climbers today are sorely lacking in ancillary anchoring skills.
On one hand it is good that the waiver held up, but somebody definitely screwed the pooch here, and it was a person professing to be a guide.
If you want better guides throw out the wannabes and pay guides like somebody who holds your life in his hands like, say, a doctor.
Yeah. Like thats gonna happen.
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JEleazarian
Trad climber
Fresno CA
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Dec 21, 2010 - 03:56pm PT
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Ken, there was no trial. A denial of a motion for summary judgment is not an appealable order. The only way to get immediate review is to seek a writ of mandamus -- i.e. an order of the appellate court to require the trial court to grant the summary judgment motion. That's what happened here.
On summary judgment, the evidence consists of declarations that usually include discovery responses (deposition transcripts, interrogatory answers, responses to requests for admissions, etc) and matters of which the court may take judicial notice. Almost always, the result of a request for a writ is a postcard from the appellate court, whose substantive content is "Denied."
Hope that helps to explain the procedural stance of this case.
Having taught climbing for free in the early 1970's with the UC Hiking Club, I sympathize with the desire to limit liability in what is an inherently dangerous activity. I still remember an article in Summit in the late 1960's that seemed to imply a feast of possible torts in the climbing world, and my appalled reaction to it. Still, in the modern world of California tort law, this case surprises me.
Then again, the law has its limits. In the words of Dickens's Mr. Bumble, "If the law presumes that, the law is a ass, a idiot."
John
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