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delendaest
Trad climber
San Francisco, CA
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Topic Author's Original Post - Aug 3, 2010 - 04:10pm PT
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Supertopo mentions that someone died on Bear's Reach, after his pro failed behind the hollow rock on the first belay station. Does anyone have any more information about that? I've been trying to figure out what scenario could have lead to such an unfortunate event...
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Hardman Knott
Gym climber
Muir Woods National Monument, Mill Valley, Ca
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A better question would be:
How could someone fall on Bear's Reach?
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Captain...or Skully
Big Wall climber
Transporter Room 2
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Folks manage to die ALL over the place, all the time.
They'll find a way.
Monkeys need guidance, I guess. Some of them, for sure.......;-)
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Levy
Big Wall climber
So Cal
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Is this a recent accident? I ask because I know a woman from the SF Bay area who took a lead climbing course a several years ago. Somebody was doing a simulated lead while being toproped from anchors that an "instructor" had established. The anchors were behind a block of rock on a ledge. When the person finished their simulated lead, they lowered off on the anchors the "instructors" had established. While being loweed, the anchors failed & the person was killed. The person hit right next to the gal I know & she was terrified of lead climbing as a result.
The gal I know didn't know the name of the route but this sounds like the same incident. If they had been belayed on their lead rope, they might have not been injured if their protection had held but since there was no second belayer on the lead line, the climber went the distance to the ground. Very sad.
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apogee
climber
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That was a UC school outing program, wasn't it? About 10-15 years ago? The way that it played out legally was quite interesting.
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delendaest
Trad climber
San Francisco, CA
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Topic Author's Reply - Aug 3, 2010 - 04:42pm PT
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how did it play out legally? do tell...
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apogee
climber
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If it's the same case I'm thinking of, the friends/family brought a wrongful death suit against the school, but it never reached the trial stage- in the preliminary phases of the trial, the judge threw it out on summary judgment, saying that the participant had signed an Assumption of Risk form that expressly stated that one of the risks of climbing was falling and death. It was noteworthy because, at that time, the value of Assumption of Risk forms was questionable, and it was a high-profile case that established some kind of precedent.
I'm remembering this from the far reaches of my dusty brain, so if someone has more direct experience with it, please correct as necessary.
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ec
climber
ca
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It was around and on Haystack Crack. I took a gig investigating it; mainly for the experience. I regret some of my tasks, however. Grey matter at the base has kept me from climbing at the Leap ever since. Lawyers are truly not the kind I choose to be around.
A student lowered off after performing a simulated (top-roped) lead, about the sixth person to use the anchor.
As stated above, the anchor was situated on each side of a huge block on a ledge. Essentially, the way it was set up, jacked each side of the block in order for the anchor to fail. Many other factors other than anchor failure played a role in this, like inexperienced staff, no checking of the anchor by the lead (most experienced) instructor, periodic monitoring of the anchor, a total mis-mash of gear used (not that this mattered on the outcome, like instead of having web long enough to set-up it was a clusterf*ck of girth hitched slings, etc.), poor positioning for such an activity (not really a route there...) and staff was unfamiliar with the venue. edit: not belaying on the actual lead line, it was abandoned...the lead pro would have save him.
The 'side' (the victim's spouse) I worked for won initially, however at the higher level, it was determined that 'anchors do fail.' Long live the rock guides...
edit: BTW, no one could ever find the Waiver or prove that it ever existed, as the program was loosely run.
 ec
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ontheedgeandscaredtodeath
Trad climber
San Francisco, Ca
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I know the defense attorneys. One of them told me they had an expert climber assisting them who said the crack moved, letting the gear pull, and that it was not UC's fault. I don't know he/she could have reached that opinion, but such is the nature of expert witnesses. I can probably lay my hands on some info and the court's opinion if anyone cares.
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ec
climber
ca
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The defense expert witness was Bela V.
Me for the victim's wife.
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delendaest
Trad climber
San Francisco, CA
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Topic Author's Reply - Aug 3, 2010 - 05:06pm PT
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so ec, you're saying it was on haystack crack, not on bear's reach? so supertopo is mistaken when it mentions someone dieing on bear's reach due to the hollow rock?
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ec
climber
ca
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well, I only know of the one mentioned in the thread, however there could have been others...The one I worked on was on Haystack (in the area).
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apogee
climber
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"BTW, no one could ever find the Waiver or prove that it ever existed, as the program was loosely run."
I must be recalling a different incident, then, though the circumstances of both of these incidents are remarkably similar. The case I remember involved an anchor in a loose block that displayed clear negligence in how/where it was built, but because it was dismissed via summary judgment (based on the Assumption of Risk form), the case never got to the point of considering that. The program was a UC Outdoor program...
Sorry for the thread-drift.
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tom woods
Gym climber
Bishop, CA
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I bet you are talking about the same incident.
It did go on for a while, and in the end, the UC's were allowed to continue their programs, which I think were called into question because of the lawsuit?
My memory and info are sketchy.
I shall now consult the great oracle of google.
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tom woods
Gym climber
Bishop, CA
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Got nothing- what a gyp. I want my money back.
Anyone remember which school it was?
Oh and EC- gray matter will do that to you. How I still climb period takes a healthy sense of denial.
I got weird things in my head, like not carrying ID or a wallet when I climb, because that's one of the first things you have to when you pick somebody up, look for ID so you know who you have.
Anyway, I don't want the reminder.
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phile
Trad climber
SF, CA
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UCSF. The outdoor rec program (Outdoors Unlimited) continued, but didn't do any more climbing-related activities. I was a backpacking guide for OU post-incident--it's interesting to hear some of the details. I had heard it was on Bear's Reach.
p.
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bluering
Trad climber
CA
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Bear's Reach has a notoriously sketchy belay. I think it's even mentioned in the McTopo...
EDIT: From the Beta section;
Despite the hollow flakes at the first belay ledge, you can set an extremely bomber anchor there. Simply slot some nuts in the crack recomended by the topo. Slide them in high, then slide them all the way down to the bottom of the crack (about 2 feet from slot to set).
There ya have it.
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ontheedgeandscaredtodeath
Trad climber
San Francisco, Ca
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Here is the opinion, basically the court said that if you rock climb, you might fall to your death. Thus, when you choose to climb, you assume the risk of falling.
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 [***2] 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] 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.
FOOTNOTES
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.
We hold that the action was barred by the doctrine of primary assumption of risk. ( [***3] 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
FOOTNOTES
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).)
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 [***4] 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 [***5] death.
[*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 [**924] 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.
FOOTNOTES
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.
[***6] ANALYSIS
CA(1)(1) HN1Go to the description of this Headnote.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; [***7] Hunter v. Pacific Mechanical Corp . (1995) 37 Cal. App. 4th 1282 [44 Cal. Rptr. 2d 335].) CA(2)(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.)
HN2Go to the description of this Headnote.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] 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, [***8] 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].)
HN3Go to the description of this Headnote.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 [925] [*9] 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.)
HN4Go to the description of this Headnote.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.) [***10] they [*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
FOOTNOTES
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].)
[*11] CA(3)(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. HN5Go to the description of this Headnote.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] [*12] [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] 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. ( 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 [***13] 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.
FOOTNOTES
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.
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 [***14] 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] 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., [***15] concurred.
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tom woods
Gym climber
Bishop, CA
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Sheesh- that decision seems really wrong to me.
I read it again later tonight, but it seems that the court was asked to judge something they knew nothing about, not uncommon I'm sure.
My initial reaction is that this was indeed beyond normal top roping risk.
The fact that the anchor held other clients should mean nothing.
Having been a guide for a UC, I can also say that the certification of the guides means very little if anything.
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ec
climber
ca
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Interesting, as I had asked specifically for a copy of the Waiver. I was told and read the transcript of the depositions of the UC instructors that no one could produce or remember that the guy ever signed a release. Perhaps, the court is assuming that since he had previously participated and subsequently participated with the UC group that this assumption of risk was implied?
The way I saw it, the implementation of the mock-lead was flawed, as I had found great value in having the lead line being belayed for true effect for the 'leader' (not getting the right amount of rope to clip, etc.) as well as the belayer belaying a leader (empathetic). Instead, the instructors just let the lead rope just hang. The bottom line, had they done so and just had that belay regardless, the guy would be alive.
ec
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