The issue of liability on climbs has been around a rather long time. The first time I ran across it was in 1967 when Summit published an article discussing the duty of care a climber owed his or her partner. That article brought forth a strong reaction by several, decrying the author's "bottomless appetite for torts" because the partner didn't do enough, e.g.
Most of us are instinctively appalled when we consider such a suit by one climber against another for a climbing injury, but those sorts of things happen in everyday life all the time. If a passenger gets injured in an accident caused by the driver's negligence, the passenger commonly sues (or at least makes a claim against) the driver. Perhaps we see that differently because of the presence of insurance covering such a risk, but the situation legally strikes me as no different from receiving a negligent belay from your partner, causing an accident.
In any case, I think a guiding situation has an implied contract (if not a written one), with duties expected of the guide that may exceed those expected from a partner. While disclaimers can limit that liability, public policy (i.e., what judges think) often limits the exculpatory ability of such disclaimers, particularly if they purport to shield the guide from liability for negligence.
I suspect, though, that we see relatively few lawsuits over climbing accidents because climbers, as a rule, don't have that many assets. Torts need deep pockets for lawyers to take the case.
I recognized him immediately, and had to look at your text again to double check names!
Will is an old friend, and I still (not enough) stay in touch with him!
Can't believe I just saw a picture of Will Rindom on Supertopo, awesome, mutter mutter smile.....
Awesome. Climbing is such a small world isn't it. At most 1 degree of separation from just about everyone.
Will was always a good guy. Didn't climb with him so much as work for the same guiding company and in SAR. Always struck me as a solid pleasant friendly person. Class act to be sure. I think he moved from Alaska a year or so after 1991.
Once the two guys walked away from the accident scene, they chose to confront the dangers of the mountain on their own. If the guide never had a chance to talk with them to organize a plan after the fall, how can the park service conclude that an ensolite pad and a shovel could have prevented the death? That's ridiculous. Does the NPS really have people that believe their 10 recommendations will make climbing the COLDEST MOUNTAIN ON EARTH safer? If they really want to prevent deaths, they should just shut the mountain down to guiding.
Once the legal perspective is brought into situations like this, the guide is gonna get screwed, just like Bridwell did in the Tetons. The lawyer for the plaintiff will attack every decision the guide has ever made in the field, as if he/she knows the level of commitment required for the guide to give up his parka in those conditions. F' em, scrawny little ambulance chasing maggots . .
When I was a beginning climber, I looked up to those Teton guides thinking they've got the best gig imaginable. Years later, after I became a Teton guide I found out what a miserable job it was for me. Guys in the office are gonna put everyone that can lace their boots (and some that can't) on the mountain because the guide service needs the money, during a very short season. I had some great clients, and I had some terrible ones. Be sure the guy that died was one of the latter, simply based on the fact that his family is suing over this. The bad ones will criticize the guide if they don't get the summit, even if the weather prevents it, because they by-God paid for a summit. I found this conflict of interest always present, and decided I'd rather make my living schlepping out cajun food at Lucille's in Boulder.
If this accident had happened in Europe, the lawsuit would never happen. People would shrug their shoulders and say, "well, that's a risk of going into the mountains." But not here. People are gonna point the finger regardless of circumstance. This lame attitude is totally encouraged by lawyers and our legal system. It's pathetic.
Someone should ask the question, what is it we really want to see happen (other than enrich a money-grubbing lawyer) as a result of this lawsuit. If the best that can happen is the NPS 10 recommendations, I would argue it is a complete waste. Pathetic.
Bruce what you write is confusing because waivers are part of contract law and negligence is tort law. In most states gross negligence requires at least willfull disregard of the person's rights. ie you know you are doing something to someone.
The guide could be sued for negligence with or without a contract, and if there is a contract, the contract terms wouldn't be the end of the tort liability. The 'waiver' could be used to support an affirmative defense, such as one proposed here, assumption of risk, but you would still look at the proximate cause of the accident and if the guide was negligent, he's liable.
I dont agree with the suit though, and hope the guiding company can at least a free expert witness to tell the court about the risks and safety measures used. It would be a battle of mountaineering experts if it actually went to court.
Don raised an important issue by pointing out that in a cases such as these the fact finder, whether it be a jury or the court, will likely rely heavily on the opinion testimony of an expert witness to establish what the appropriate level of care is/was and whether the guide breached that duty. In the Bridwell case, I believe that both sides had pretty heavy hitters tesify on behalf of their respective sides. So much for the theory that clueless juries just hand out money.
I do want to follow up on my earlier post however and state that, while guides more or less ask for it by taking clueless couch surfers into the mountains, that does not absolve the would 7 Summiteer from exercising a little self introspection and concluding that he or she really does not belong there. Will I ever go on along ocean voyage with only one person who knows how to sail the boat? No, because if something happened to that person I know I'd be totally screwed. Why are the mountains any different?