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Reilly
Mountain climber
The Other Monrovia- CA
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Locker, I was getting worried about you. Instarted a thread for you Sunday but you musta been
out climbing.
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Gary
Social climber
Desolation Basin, Calif.
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Yer gonna Die!
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RussianBot
climber
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I’m not a lawyer in real life, but I’d be surprised if a judge or jury would conclude that other people were not responsible for harming you because you were engaged in an inherently dangerous activity. But ask legal questions of a lawyer, and you’ll be sure to get their self interested, I mean accurate, take on it. Ask a bunch of climbers on an Internet forum and they’ll probably give you their climber mental speculations about climbers giving you their climber mental speculations about it. Who knows, maybe you already knew that.
Good luck!
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ontheedgeandscaredtodeath
Social climber
Wilds of New Mexico
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I pulled up this case for all the supertopo legal eagles. My reading is that the judges didn't really care that much about why the top rope anchor failed and that the primary reason the plaintiff lost was the assumption of risk doctrine.
41 Cal.App.4th 1040 (1996)
48 Cal. Rptr.2d 922
THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, Petitioner,
v.
THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; JOANNA ROETTGEN, Real Party in Interest.
Docket No. A069831.
Court of Appeals of California, First District, Division One.
January 10, 1996.
1042*1042 COUNSEL
Ropers, Majeski, Kohn & Bentley, James A. Lassart, Gail Y. Norton and Adrian G. Driscoll for Petitioner.
Gagen, McCoy, McMahon & Armstong, William E. Gagen, Jr., Richard C. Raines and Barbara Duval Jewell for Real Party in Interest.
OPINION
STEIN, J.
The Regents of the University of California (the Regents) seek a writ of mandate (Code Civ. Proc., § 437c, subd.(l)),[1] challenging the denial of its motion for summary judgment. It is the defendant in a wrongful death action brought by the widow of Norman Roettgen who was killed during a rock climbing class sponsored by the Regents.[2] The complaint alleged that Mr. Roettgen's fall was the result of defendant's instructors' negligence in placing four rope anchors into a single crack system resulting in the release of the line holding Mr. Roettgen. The Regents moved for summary judgment on the ground that the action was barred by the affirmative defenses of express assumption of risk and primary assumption of risk. Respondent superior court denied the motion, finding triable issues of material fact concerning whether Mr. Roettgen had expressly assumed the risk. As to the 1043*1043 defense of primary assumption of risk, the superior court held that the Regents, as an instructor, owed Mr. Roettgen a duty of care as a matter of law.
We hold that the action was barred by the doctrine of primary assumption of risk. (Knight v. Jewett (1992) 3 Cal.4th 296, 308 [11 Cal. Rptr.2d 2, 834 P.2d 696]; Ferrari v. Grand Canyon Dories (1995) 32 Cal. App.4th 248, 256 [38 Cal. Rptr.2d 65]). Accordingly, we issue our peremptory writ.[3]
FACTS
Prior to his fatal accident, Mr. Roettgen had participated in several rock climbing classes organized and sponsored by the Regents: An Introduction to Climbing (May 22-23, 1993); Advanced Beginners (June 5-6, 1993) and Instructor's Training (June 1993). He had previously participated in "top roping," "belaying," and the setting of "top rope anchors." He died during an intermediate rock climbing course, the purpose of which was to give climbers the experience of placing pieces of climbing equipment ("protection") in the rock face of a mountain as they climbed. While carrying out this exercise the students, including Mr. Roettgen, were attached to a "belay line" which itself passed through a "top rope anchor system," with the other end of the line held by a person on the ground.
Two top rope anchor systems were set up for the exercise the morning of the accident. One was set up by instructor Robert Gould, assisted by Mr. Roettgen, who was qualified as an "assistant instructor" and had trained in setting top rope anchors. The second was set up by Ian McGowan and Connie Veilleux, who were designated instructor and assistant instructor, respectively, on the trip. Top rope anchor systems are considered safe if the anchors within each system are themselves set in two or more separate crack systems in a mountain face. Each of the anchor systems set that day appeared to have been properly installed with anchors in independent crack features, until that set by McGowan and Veilleux failed as Mr. Roettgen was belaying down the mountainside after completing the "placing protection" portion of the morning exercise. The four anchors installed by McGowan and Veilleux apparently had actually been installed in one rock crack system. The anchor devices let loose releasing the rope when a large piece of the mountain face shifted; Norman Roettgen fell over 90 feet to his death.
1044*1044 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 faulty conclusion, or that Veilleux and McGowan's selection of the site fell below the sport's norms for anchor installation. In fact, they had considered a separate location for the anchor system, but rejected it because they determined that the one in which they installed the anchors was appropriate for the task.[4] They each belayed down the mountain on the rope anchor system that eventually failed and were followed by another student who, having completed his exercise, also successfully used the system.
ANALYSIS
(1) Summary judgment must be granted if the moving party establishes the right to the entry of judgment as a matter of law. (Union Bank v. Superior Court (1995) 31 Cal. App.4th 573, 579 [37 Cal. Rptr.2d 653].) On review, we consider the parties' arguments and the evidence de novo. (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal. App.3d 1505, 1511-1513 [285 Cal. Rptr. 385].) "A defendant ... has met his or her burden of showing that a cause of action has no merit if that party has shown that ... there is a complete defense to that cause of action. Once the defendant ... has met that burden, the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff ... may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto." (§ 437c, subd. (o)(2); Union Bank v. Superior Court, supra, 31 Cal. App.4th 573; Hunter v. Pacific Mechanical Corp. (1995) 37 Cal. App.4th 1282 [44 Cal. Rptr.2d 335].) (2) Supporting and opposing affidavits or declarations must be made on personal knowledge and must set forth admissible evidence; they must affirmatively demonstrate that the affiant is competent to testify to the matters asserted in them. (§ 437c, subd. (d); Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 1995) §§ 10:106-10:142, pp. 10-34 to 10-42.)
As a general rule, persons have a duty to use reasonable care to avoid injury to others, and may be held liable if their careless conduct injures 1045*1045 another person. (See Civ. Code, § 1714.) "In order to determine the boundaries of the duty to prevent injury to others in any given case, we consider several factors, including the foreseeability of the harm, the degree of certainty of injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and the consequences to the community of imposing a duty to exercise care with the resulting liability for breach, and the availability, cost, and prevalence of insurance." (See Scott v. Chevron U.S.A. (1992) 5 Cal. App.4th 510, 515; and Rowland v. Christian (1968) 69 Cal.2d 108, 113 [70 Cal. Rptr. 97, 443 P.2d 561].)
The doctrine of assumption of risk is an exception to the general rule of liability. The watershed Supreme Court cases on assumption of risk are Knight v. Jewett, supra, 3 Cal.4th 296, and its companion case, Ford v. Gouin (1992) 3 Cal.4th 339 [11 Cal. Rptr.2d 30, 834 P.2d 724, 34 A.L.R.5th 769]. In Knight, using primary assumption of risk, the court analyzed the nature of the activity and the plaintiff and defendant's relationship to that activity. For nature of the activity, the court noted that the sports setting is unlike other settings where a duty is owed to all. (Knight v. Jewett, supra, 3 Cal.4th at p. 315.) Participants generally have no duty to eliminate risks inherent in the sport, but will be held liable for increasing the risk of injury. (Id. at p. 316.) The court then offered illustrations of risks inherent in certain sports. (Injury from a carelessly thrown ball during a baseball game; an extended elbow in a basketball game; injury to a player from a sliding base runner; a hockey player hit by an opposing player's hockey stick; a player injured during an informal tackle football game.) (Id. at pp. 316-320.) The court stated that "... defendant's liability in such cases turns on whether the defendant had a legal duty to avoid such conduct or to protect the plaintiff against a particular risk of harm." (Id. at pp. 316-317.)
Additionally, the court stated that "... the scope of the legal duty owed ... will also depend on the defendant's role in... the sport." (Knight v. Jewett, supra, 3 Cal.4th at p. 317.) In discussing the defendant's role in the sport the court offered the rationale behind excusing participants from liability in sports cases as being grounded in the notion that legal liability would inhibit the natural play of the game and alter the game's essential nature. The rules of liability must not interfere with the natural fervor with which athletes, amateur as well as professional, engage in sports activities. While "defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself," (3 Cal.4th at p. 315.) they 1046*1046 generally "do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport." (Id. at pp. 315-316.) While commercial sponsors and operators of a sporting activity have a duty not to increase the risks inherent in the activity (Ferrari v. Grand Canyon Dories, supra, 32 Cal. App.4th at p. 254), "[t]he overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature. [Citation.]" (32 Cal. App.4th at p. 253.)[5]
(3) Plaintiff relies on cases involving student/instructor relationships and those involving commercial recreational operators in urging that defendant owed Mr. Roettgen a duty of care simply because he was enrolled as a student in defendant's commercial venture. The determination of duty in the student/instructor or commercial recreational operator cases turns not on the labels given to the sporting participants, but instead on the facts surrounding their levels of experience and/or their relationships to one another in the activity resulting in the plaintiff's injury. (Galardi v. Seahorse Riding Club, supra, 16 Cal. App.4th 817 [duty owed by coach to refrain from raising jumps beyond rider's experience absent warning]; Tan v. Goddard, supra, 13 Cal. App.4th 1528 [duty owed by instructor who directed jockey trainee to exercise a lame horse in reverse direction on rocky track]; Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal. App.4th 746 [33 Cal. Rptr.2d 732] [duty owed to accomplished young pitcher instructed to keep pitching at tryout despite his report of arm pain]; Yancey v. Superior Court (1994) 28 Cal. App.4th 558 [33 Cal. Rptr.2d 777] [discus thrower's failure to see if field clear is not a risk inherent in sport]; Ferrari v. Grand Canyon Dories, supra, 32 Cal. App.4th 248 [no duty to enhance safety by changing water raft from industry standard].)
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*1047 activity. Defendant met its burden. (§ 437c, subds. (n)(2), (o)(2).) 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 of mountain climbing and cannot be completely eliminated without destroying the sport itself. (Yancey v. Superior Court, supra, 28 Cal. App.4th 558, 565.)
Plaintiff offered evidence, and argues here, that certain of defendant's course protocols were violated by the instructors. Plaintiff points to the fact that Richard Johnson, the lead instructor, did not double-check the climb site and anchor installations in advance of the day's activities. The protocol documents were the subject of a timely objection (§ 437c, subds. (c) & (d); Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, §§ 10:106-10:142, pp. 10-34 to 10-42) by defendant on the ground that no foundation properly authenticated them (Evid. Code, §§ 250, 403, 702, 1400). In any case, the protocols did not establish a duty on the part of defendant. (Cf. Evid. Code, §§ 669, 669.1.) Nor was there any evidence that failure of a nominal[6] lead instructor to double-check the work of two other instructors increased the risk to Mr. Roettgen or that such a procedure was routine for the sport.
Plaintiff argues that a duty of ordinary care should apply because of the special dangers posed by the sport of climbing. In Knight v. Jewett, supra, 3 Cal.4th 296, 320, footnote 7, our Supreme Court noted "that because of the special danger to others posed by the sport of hunting, past cases generally have found the ordinary duty of care to be applicable to hunting accidents. (See, e.g., Summers v. Tice (1948) 33 Cal.2d 80, 83 [199 P.2d 1, 5 A.L.R.2d 91].)" Plaintiff urges that the sport of climbing poses similar "special dangers" and that a duty of ordinary care should apply. We disagree. The risk in hunting (being accidentally mistaken for prey by one's companions or other hunters) at issue in Summers v. Tice, supra, is a risk that does not occur in the absence of someone else's negligence. Inherent in the sport of rock climbing is the fact a fall can occur at anytime, regardless of the negligence of one's coparticipants.
Let an peremptory writ of mandate issue commanding respondent Superior Court for the County of Alameda in Roettgen v. Regents of University of California (No. 732063-9) to set aside its order denying defendant's 1048*1048 motion for summary judgment and to instead enter its order granting summary judgment. The stay previously imposed shall remain in effect until the remittitur issues.
Strankman, P.J., and Dossee, J., concurred.
A petition for a rehearing was denied February 7, 1996, and the opinion was modified to read as printed above. The petition of real party in interest for review by the Supreme Court was denied March 28, 1996. Mosk, J., was of the opinion that the petition should be granted.
[1] Unless noted, further statutory references are to the Code of Civil Procedure.
[2] The suit originally named 12 defendants including individual class instructors and the 4 sponsoring agencies (the Regents, the University of California San Francisco, Outdoors Unlimited, and Millberry Programs and Services). Pursuant to a stipulation, the individual instructors were dismissed with prejudice and the sponsoring entities deemed one, the Regents.
[3] The Regents fail in their challenge to the ruling that there were triable issues of material fact concerning the defense of express assumption of risk. (§ 437c, subd. (c).)
[4] Plaintiff has pointed out that Veilleux stated at her deposition that she and McGowan did not have enough webbing to set anchors at the rejected site. However, she also suggested that such webbing was available to them. In any case, she testified that webbing was not a factor in their ultimate rejection of the site.
[5] While the question of "duty" is decided by the court and not the jury (Ballard v. Uribe (1986) 41 Cal.3d 564, 572 [224 Cal. Rptr. 664, 715 P.2d 624]), there are factual predicates to the analysis. (See, e.g., Galardi v. Seahorse Riding Club (1993) 16 Cal. App.4th 817 [20 Cal. Rptr.2d 270] [capability of rider and facts concerning array of jumps]; Tan v. Goddard (1993) 13 Cal. App.4th 1528 [17 Cal. Rptr.2d 89] [experience level of student jockey and fact of horse's lameness]; Ferrari v. Grand Canyon Dories, supra, 32 Cal. App.4th 248 [rubber rafts and aluminum frames used were industry standard, and unmodified; seating arrangement was normal].)
[6] According to McGowan and Johnson, the designated lead instructor varied on different trips. McGowan had in fact been a lead on prior trips sponsored by defendant.
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Scole
Trad climber
Zapopan
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Don't climb beneath other parties! This accident was easily avoided. If you choose to climb below another party you accept the risk.
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blahblah
Gym climber
Boulder
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I pulled up this case for all the supertopo legal eagles. My reading is that the judges didn't really care that much about why the top rope anchor failed and that the primary reason the plaintiff lost was the assumption of risk doctrine.
Interesting, thanks.
While I have to question the reasoning of the court (e.g., I found the the attempt to distinguish climbing and hunting unpersuasive), I wouldn't read it as necessarily foreclosing a suit based on injury suffered from a dropped haul bag.
The court seemed fixated on the concept that a fall can happen at any time for any reason, whether or not there is negligence. Regardless of how true that is or why that should prevent a suit that does in fact arise from someone's negligence, I don't think haul bags commonly drop without negligence. On the contrary, I believe a dropped haul bag almost always is the result of negligence, and is not an "inherent risk" in climbing, unless we define "inherent risks" to include things that almost always result from negligence, which seems circular and not what the term would normally mean. If we define things that way, why not eliminate liability from driving accidents--isn't there an inherent risk that another driver will sometimes make a mistake, for whatever reason, negligent or not?
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ontheedgeandscaredtodeath
Social climber
Wilds of New Mexico
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The court seemed fixated on the concept that a fall can happen at any time for any reason, whether or not there is negligence. Regardless of how true that is or why that should prevent a suit that does in fact arise from someone's negligence, I don't think haul bags commonly drop without negligence. On the contrary, I believe a dropped haul bag almost always is the result of negligence, and is not an "inherent risk" in climbing, unless we define "inherent risks" to include things that almost always result from negligence, which seems circular and not what the term would normally mean.
Agreed.
I think the question could be whether being hit by a dropped or dislodged object when climbing below another party is an inherent and assumed risk. A dropped haulbag is unusual but dropped gear or a dislodged rock are relatively common. From this thread we see a wide range of opinions on that question! Based on my own experiences at the base of El Cap I never have and never will do any of the cragging routes there, so i've made a conscience decision not to assume the risk!
Quick edit-- as a climber I'm far more appalled at the complete failure of a top rope anchor in guided course setting than I am about a dropped haulbag.
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Jon Beck
Trad climber
Oceanside
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The seminal case on assumption of risk in CA is Knight v. Jewett In Knight v. Jewett, supra, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696, the California Supreme Court recognized an exception to the general rule in the context of “active” sports or recreational activities. In Knight, the plaintiff was accidentally injured in a touch football game, when another player knocked her down and stepped on her hand. The court held there was no liability, because the other player owed the plaintiff no duty of care not to injure her in the regular course of play. This the court characterized as “primary assumption of the risk.” The term embodied a legal conclusion that no duty of care was owed; “primary assumption of the risk” was a complete defense because, in the absence of a duty of care to be breached, there could be no liability.
The court explained the reason for the “primary assumption of the risk” exception: In active sports, rules internal to the game are commonly broken and “ordinary careless conduct” (Knight v. Jewett, supra, 3 Cal.4th 296, 318, 11 Cal.Rptr.2d 2, 834 P.2d 696) is a normal experience. To hold another player liable in tort for active play would chill participation and alter the fundamental nature of the game. Thus, the plaintiff must be deemed to assume the risk of injury from activity—including aggressive play and rules violations—inherent to the sport at hand.
Under “primary assumption of the risk,” the defendant owes no duty to protect the plaintiff from risks of injury which are “inherent” in the sport. Defendants still owe a duty, however, not to increase the risks of injury beyond those that are inherent in the sport. This distinction is closely tied to the policy underlying the finding of no duty, i.e., there should be no liability imposed which would chill normal participation or fundamentally alter the nature of the sport, but liability may be appropriate where the risk is not “inherent” in the sport.
For example, it is “inherent” in the sport of skiing that a skier may encounter conditions such as moguls, ice, bare spots, tree stumps, and so on. The challenge and fun of the sport consists largely in the skier's skill in encountering such conditions. If a ski resort operator were made liable for injury from such skiing conditions, the prospect of liability would effectively terminate the business of ski resort operation. On the other hand, the duty not to increase the risks of skiing beyond those “inherent” in the sport means that the ski operator must, e.g., keep its lifts and tow ropes in good working order. (Knight v. Jewett, supra, 3 Cal.4th 296, 315–316, 11 Cal.Rptr.2d 2, 834 P.2d 696.) Requiring the resort owner to be responsible for these ancillary facilities will not chill participation in the sport nor change the fundamental nature of the sport.
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the Fet
climber
Tu-Tok-A-Nu-La
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Paul, I'm sorry this happened to you. I wish the best for your recovery.
The following are my thoughts on this complex and emotional situation. I'm not a lawyer, but I think the legalities can help frame the discussion. There's a question of legal responsibility and also how the people involved think and feel about it, which are both important things in my opinion.
I take it Jonathan is the same person as Jeff in the report?
Firstly for climbing other under other parties: whenever I have cragged at the base of el cap I tell any new partners it's a danger zone/death zone. Almost every time i'm there I see something dropped, or something on the ground that was dropped. It's so tall that even a carabiner dropped could badly injure or maybe even kill someone? I don't think climbing under people absolves the parties above of any responsibility, but I bring this up because you did put yourself in a somewhat dangerous situation and I think it helps to assume partial responsibility, because you can control that in the future rather than just feeling you were entirely a victim.
Negligence: "Gross negligence is a conscious and voluntary disregard of the need to use reasonable care, which is likely to cause foreseeable grave injury or harm to persons, property, or both. It is conduct that is extreme when compared with ordinary Negligence, which is a mere failure to exercise reasonable care."
IMO definitely not gross negligence. IMO probably not ordinary negligence either. Did Jonathan exercise reasonable care? He used two slings to attach the haul bag, I think he tried to use reasonable care, he just didn't do it as well as he could have.
The following includes my opinions on safe climbing practices, take it for what you will. I don't mean it to criticize Jonathan, it's more for readers to think about lessons learned. As I first read the report I would have assumed the two non locking biners on separate slings was the failure point (another topic, but I think that is a bad idea. For two reversed opposed biners to be as foolproof as possible I think they need to be on the same sling, and I won't top rope on two quick draws on bolts even though other people say "they're reversed and opposed" one could unclip and the other could then unclip if you climbed above them and fell) From the report it sounds like a sling and a non locking Biner came off a locker. I think most people would think reasonable care was used in that connection. He tried to have a backup. Similar to my comment above about two non lockers on separate slings I think there is a more foolproof way to make that connection. E.g. 1. A biner to biner connection is worse than a sling to a biner (hard biners could more easily open another biners gate than a sling) I clip biner to biner on trad anchors all the time where I can keep an eye on them but wouldn't on a top rope or other connection that's not right in front of me) 2. I trust an auto locker more in that case than a screw lock since A. You can't forget to lock it and B. Vibrations or rubbing on he rock won't open it. 3. I'd trust two reversed opposed biners there more than 1 screw locker (again both biners need to be on the same sling(S) because there is a backup and two biners are likely stronger than one if they were cross loaded. 4. Clove hitching the sling(s) on the biner would be a good idea since it would be much less likely to slip off.
IMO he could have made a better connection, however People have different opinions about what is acceptable and many people would think what he used was reasonable. Ultimately I think this was an accident and most people wouldn't foresee that type of failure happening.
As mentioned above he may not be in contact because he was advised not to for liability reasons. It sounds like he assisted you down, so he's not without empathy. He may also be having a tough time with the guilt of it and unsure of how to respond/ feel.
It sucks this happened and I can't know how you feel, but it sounds like you are making good progress and enjoying other things like biking.
As far as asking for money I'm okay with it. You're not asking for a hand out you are asking for expenses and lost wages due to the accident. However I think it's really voluntary on the part of the other party. As I mentioned I do think reasonable care was taken and it was an unlikely accident. If the other party does have insurance than great, that's what it's for IMO, but if he's just a typical low income climber than he should give what he feels is right, but again that could open him up to some legal admission of guilt so maybe that's not possible.
Good luck and good recovery.
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Reilly
Mountain climber
The Other Monrovia- CA
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at the base of El Cap I never have and never will do any of the cragging routes there
Amen. I wouldn’t 40 years ago. I’ve survived TWO climber caused rockfalls in Yosemite
by inches. And I don’t mean baseballs - I mean basketballs and Sub-Zero fridges.
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ionlyski
Trad climber
Polebridge, Montana
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Anybody get the idea Paul is not reading any of these posts?
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the Fet
climber
Tu-Tok-A-Nu-La
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^^ He's responded since his OP. I don't blame him for not responding much after there have been attacks on him.
Paul, another thing that came to mind: When I was 16 I had an on/off road motorcycle. I was riding off road when another rider was going the wrong way on the track and we collided. I broke about 4 bones in my foot/ankle and was knocked out, so it's no where near the injury / trauma you experienced, but what's interesting is that months later when I started to ride again I had no fear on the roads, but as soon as I went off road I had a huge fear response (adrenaline, heart pounding, etc.) I don't remember how long it took but eventually it went away. Again my injury was much less severe so I don't know if you would follow a similar path, but just wanted to let you know that maybe climbing outside could get better.
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August West
Trad climber
Where the wind blows strange
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On the contrary, I believe a dropped haul bag almost always is the result of negligence, and is not an "inherent risk" in climbing, unless we define "inherent risks" to include things that almost always result from negligence, which seems circular and not what the term would normally mean. If we define things that way, why not eliminate liability from driving accidents--isn't there an inherent risk that another driver will sometimes make a mistake, for whatever reason, negligent or not?
If the regular rules of negligence were always applied, there are many sports and activities that would not exist. If you could sue for pain and suffering for car accidents suffered while engaging in car racing, that sport would not exist.
Climbing would be a lot less viable also. If normal rules of negligence applied, rock climbing would be prohibited in Yosemite and every other publicly owned land. You wouldn't be able to buy climbing equipment.
There are activities that are allowed that are considered inherently dangerous or "ultra hazardous" or whatever legal term. But the point is the normal rules don't apply. This is generally for the benefit of the people who engage in the activity under the idea that without the liability limitations, the activity wouldn't be allowed.
Climbing is much closer to NASCAR than it is to driving on I-5, at least from a legal perspective.
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John M
climber
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Good posts The Fet..
Paul, I'm sorry that this happened to you. I hope that you heal completely. I would suggest trying EMDR therapy for the PTSD. It is more effective the sooner you get it, but can still be effective after time has passed. There are lots of people on this forum who have experienced PTSD, or are still dealing with it. It is a quirky experience that though is unique to each individual, does have similarities of experience. I hope that you have a full and complete recovery and can get back to the things that you love.
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ontheedgeandscaredtodeath
Social climber
Wilds of New Mexico
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Since I can't shut up on this thread I'll add that "ultra-hazardous activity" is activity so dangerous that one engaged in it is strictly liable for causing injury to someone else, regardless of the precautions taken. Examples are things like using explosives, keeping a pet tiger, etc. Climbing is definitely not such an activity. Trust me, I got a B in torts!
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Jon Beck
Trad climber
Oceanside
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Actually rock climbing is considered a "hazardous recreational activity" as is skateboarding and many other activities. However upon looking at the statutes it only shields government entities (Gov Code 831.7) and land owners (Civil Code 846). I thought it could be extended to third parties (bag dropper), but that is not the case.
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nah000
climber
now/here
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what’s this? about a dozen insightful posts in a row?
seriously thanks, especially to o.t.e.a.s.t.d., Jon Beck, the Fet and blahblah.
definitely some meat to chew on in those cases above...
and Ian Jewell: there was one mistake made by the o.p... time [and money?] was wasted on at least four lawyers instead of first bringing it directly to the judgerati of the supersupremotopo court! hahaha...
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Toker Villain
Big Wall climber
Toquerville, Utah
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A B in torts? I love those little pastries.
So when I started up Anthill Direct there was nobody above me, but then a three person party rappelled from above to the base of the Diving Board.
When I was on pitch three one of the Diving Boarders pulled off a huge rock. It hit the top of the Redguard ramp, and one of the pieces of shrapnel (according to my partner the size of a football) hit me in the left knee and right foot.
A week later I could do wheelies in my wheelchair. I now have fused bones in my foot.
Remember that I started up a route that was clear above. The party did the equivalent of cutting in line.
Forget it man, it's Chinatown,...
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blahblah
Gym climber
Boulder
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As far as asking for money I'm okay with it. You're not asking for a hand out you are asking for expenses and lost wages due to the accident. However I think it's really voluntary on the part of the other party. As I mentioned I do think reasonable care was taken and it was an unlikely accident. If the other party does have insurance than great, that's what it's for IMO, but if he's just a typical low income climber than he should give what he feels is right, but again that could open him up to some legal admission of guilt so maybe that's not possible.
Not a personal injury lawyer or familiar with CA law, but I'm skeptical that the bag dropper's payment to the injured party is an admission of guilt. (Nevertheless, if the bad dropper's goal is to avoid paying anything, radio silence is probably his best strategy.)
Consider the effect of California Evidence Code Section 1152 (I looked it up as I'm familiar with the analogous Federal Rule of Evidence), pasted below. And as a general comment, it seems to me that it's common for people who don't want to do something to recite some unfounded legal concern as a pretextual justification. Sometimes legal concerns are a good justification not to do something, sometimes they're honest but mistaken beliefs, sometimes they're just BS.
1152. (a) Evidence that a person has, in compromise or from humanitarian motives, furnished or offered or promised to furnish money or any other thing, act, or service to another who has sustained or will sustain or claims that he or she has sustained or will sustain loss or damage, as well as any conduct or statements made in negotiation thereof, is inadmissible to prove his or her liability for the loss or damage or any part of it.
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