Fallen Haul Bag Hits Climber

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eagletusk

Trad climber
Boulder, CO
Topic Author's Original Post - Mar 5, 2018 - 12:19am PT
Donini mentioned I should start a new thread for the accident I was involved in June 2016.

SuperTopo link:
http://www.supertopo.com/climbers-forum/2844611/Send-your-thoughts-out-to-PTPP

I have updated that original thread and I will give a short synopsis of what happened here.

While climbing in Yosemite on El Cap a haul bag was dropped 100 feet or more and hit my arm.

The initial report was written here: http://www.climbingyosemite.com/portfolio/accident-report-dropped-haul-bag-el-cap/

I was helicopter evacuated, I spent a long time in intensive care for a broken arm/hand...32 days.

I spent a long time in physical therapy and still continue to go.

I have my arm and my hand, and it functions rather well.

@maldaly aka the "limb reaper" you don't need to worry about asking me to cut it off. :)

I have sent the person that dropped the bag an open letter.

The letter and the explanation has been copied here from the thread mentioned above:

I am the "Pete" from the accident, my name is actually Paul.

I have indeed survived the incident.

Some of my story can be read here: http://themountainfold.com/?page_id=1071

My story is one of amazing people coming to my aid in a time of need. I am extremely grateful and very fortunate for my life and my arm.

The person who dropped the haul bag has not reached out to me since the incident.

I have written an open letter to Jonathan who dropped the haul bag here:
http://themountainfold.com/?page_id=1059

If anyone is interested to hear more about my story or help in some way you can contact me here or via my website.

At one point I decided to to a gofundme page to attempt to recoup some of the financial losses, I took it down as Jonathan did not have an opportunity to let me know his intentions.

As you can maybe understand it has taken a lot of time and conversations to put down on paper my letter.

I will update my site with Jonathan's response on my website if he decides to have his response open.

I have contacted several lawyers about my case, they have informed me that the case hinges on whether or not Jonathan had insurance that covered him for negligence. It is unclear if he does or not and I have asked him to answer this question in my letter. If you are a lawyer or have some insight you would like to offer me please reach out to me.

An accident like this is incredibly complicated and hard to commit to paper. Since this accident played out here on SuperTopo, in Rock and Ice and in Accidents I thought it would be useful to the climbing community to make my letter to Jonathan an open letter. A respected figure in the climbing community advised me to read Michael Kennedy's open letter in Alpinist 38 hisson Hayden called The Sharp End

You can read the letter here: http://www.alpinist.com/doc/ALP38/11-the-sharp-end

While the topic of my letter is not the same as Michael's perhaps there is something to be gained from making my letter open as well.

I do not know what lessons one can learn from any accident. It is my intention with the open letter to give one example of what to do and to reach out in a significant way.

Thank you to everyone from Jonathan himself aiding in my rappel off El Cap to my climbing partners, my family, the doctors, my physical therapists, and to everyone over at Paradox Sports who very loudly showed me that injury is manageable, and to the climbing community at large who helped me recover.

For those interested in my physical recovery with respect to climbing I physically can climb. Between surgery 7 and 8 I was able to lead up some climbs in the gym, albeit with a much weaker left arm. When I tried climbing outdoors it became a different story every thing that was abovet that fell or had potential to fall or was someone yelling from above me would cause me to flash back to the accident. I have been diagnosed with PTSD from it, luckily my PTSD is related to a very specific activity and I have been able to manage it mostly by not going climbing.

Thanks for your time.

-Paul
nah000

climber
now/here
Mar 5, 2018 - 05:02am PT
Paul,

thanks for making this letter public. i'm incredibly sorry this happened to you as having something that we love fUck up our lives in the deep manner that it has done to yours is doubly horrifying: it takes both the activity we love away at the same time as it takes deep parts of our greater lives away.

now, with that said, i'm going to come at this very hard, because your letter sends chills upon chills up my spine.

and so i fully admit what is to follow is going to be to some degree an emotional response and i have not reviewed what follows with a lawyer [only a partial joke]. ie. you put this up on social media, in part with the claim that you want to have a conversation... so consider this my contribution to said conversation. most importantly because it is a conversation and this is admittedly a first pass, i reserve the right to take a complete one eighty, even though right now i don't expect i will...




the part above is what sends chills up my spine.

for me, in this moment without all of the details and without considering all of the angles that i'm sure will come up, this situation appears pretty simple: there was either intentional gross negligence in the fashion of someone intentionally trundling rocks or intentionally dropping a haul bag because they were lazy and on the other hand there are accidents. as no one has implied that this was in any way intentional i'm assuming this was an accident plain and simple [however "negligent"] and you see it that way as well.

given how you are coming at an accident in a game that is dependent on self reliance, it is taking everything inside of me to not directly say the only thing i want to in this instance [yes, it starts with f and ends with u]. and the only reason i'm holding back is because of how fUcked up you ended up after this accident.

i'm pissed off because of the serious implications that your possible path might bring to the american entirety of this pursuit that i hold so dear.

that is because i didn't see in your letter a place where you are making your intentions clear regarding whether you intend to sue if Jonathon doesn't agree to your "request" and so you appear to be threatening another climber with a legal fight regarding an accident that happened in the mountains/on the rocks.



what's next:

 a bolt replacer forgets to tighten a couple hangers, someone takes a ground fall and the "do gooder" gets sued because of their "negligence"?

 the national park service in doing a rescue of someone notices a dangerously loose rock, but decides to leave it in place. later that rock falls and kills a climber. should the nps be sued because of their "negligence"?

and of course there are a thousand other examples where human climbers do things that might be termed "negligent", as you have termed what in all likelihood appears to be someone forgetting to tighten a locking carabiner...



the point:

 you chose to climb

 you chose to climb in an area where there could be people above you

 you appear to have chosen not to check whether there were people above you

and so in sum: only you are responsible for putting yourself in a situation where an individual's unintentional "negligence" had a negative impact on your life.



and so to keep this short:

1. if this is truly a "request" and not the "threat" that i, having read a few too many letters vetted by lawyers, assume this to be, then i hope you will in writing clarify whether or not you intend to sue Jonathon, if he doesn't agree to your "requests".

2. if it is the "threat" that i assume it to be, and there is no the rest of the story [that this was somehow an intentional drop], then please consider what i have written above and reconsider your trajectory.



regarding the greater conversation as a whole i have two thoughts:

1. i've had at least three memorable very close calls where i was either inches or seconds from being very fUcked up and likely killed while in the mountains. all involved rock fall, but one involved "negligence" from a party ahead of us on a mountaineering route where they dragged a rope across a ridge and started what basically amounted to a rock avalanche that ran a hundred or so metres down a rock gully. i and my partner had soloed up the bottom of said gully and had crossed to safety about 15s before said rock avalanche. the take home for me: i've pretty much stopped climbing under people. there are too many things that can go wrong, including people forgetting to lock a locking biner at the end of the day.

2. this letter and its implications is only something that could even be considered in the u.s. of a. if you folks go down a road where i have to make sure my homeowner's policy covers me for negligence while i'm climbing, then it's time to strike the u.s. of a. off my climbing list. fortunately it's a big planet.



with all of that said, i do appreciate you [Paul] making this public. this is a vitally important debate for us as a community to have and so while i vehemently disagree with my understanding of your approach to this, do know that the one thing that makes me respect what you are doing, is that you are doing it publicly...

and so i do look forward to the conversation, even if i end up accepting that some of what i have written above was mistaken...
fear

Ice climber
hartford, ct
Mar 5, 2018 - 05:56am PT
....i'm assuming this was an accident plain and simple [however "negligent"] and you see it that way as well...

From the write up on one of the supertopo links he posted it was indeed an unfortunate accident (i.e. not some d#@&%e cutting the bag free on purpose)
thebravecowboy

climber
The Good Places
Mar 5, 2018 - 06:08am PT
I have always avoided climbing under other people for the reasons illustrated above, but were I in Paul's position, sans any overture from jonathan, I'd be pretty well disposed to ask for a little redress. Thus forces me to consider the fact that while I refuse to climb beneath other folks, I don't really GAF if others choose to follow up, pitches below me.

I hope the two involved can get through thus constructively.

Paul, I really appreciate your including us in this conversation. we all gain by addressing such questions now rather than later. I can't help but think that the Jonattan fellow might benefit from some type of dialogue, even though it sounds as if he has purposefully avoided one thus far.

Really happy to hear you got to keep your paws attached to your body Paul. Keep healing well, and know that I'd rather have at least some significant degree if mutual burden sharing in similar event.


v JtM...what else did you expect of her? :-)
justthemaid

climber
Jim Henson's Basement
Mar 5, 2018 - 06:09am PT
Well written post with a lot of good points nah000. ^^^

clinker

Trad climber
Santa Cruz, California
Mar 5, 2018 - 06:09am PT
This could be solved by requiring permits and monitoring for climbing multi=pitch routes, limiting them to 1 party at a time.

I personally would not want this solution.

Clipping in a haul bag to a single loose bolt, is negligence. The idea that this the responsibility of the bolt re-placer "people" is sad and irresponsible.



tradmanclimbs

Ice climber
Pomfert VT
Mar 5, 2018 - 06:33am PT
hows that sh#t going to work on the nose???? If someone hucks the pig deliberately they need to go to jail. accidents, well that is the risk you take.... Go fund me is the way to do it.
donini

Trad climber
Ouray, Colorado
Mar 5, 2018 - 06:44am PT
Good thread and posts. A few years ago I was leading one of the stoveleg pitches. I was ten feet or so above my gear when out of nowhere a haul bag pendulumed into to me. I never saw it coming but the force knocked the wind out of me although I somehow managed to hold on and not take the whipper.

El Cap is not Baffin Island and you have to remember that there will likely be climbers below you and THINK accordingly.
tradmanclimbs

Ice climber
Pomfert VT
Mar 5, 2018 - 06:59am PT
looking at from the perspective of someone who has done lots of anchor replacement and new routs with fixed gear. I follow best practices but you never know..... I had a bad batch of power wedges once that loosened up... Bad business.... but if we start sueing each other that is a rough road to go down....
Delhi Dog

climber
Good Question...
Mar 5, 2018 - 07:20am PT
great post nah000

" I was leading one of the stoveleg pitches... I was ten feet or so above my gear when out of nowhere a haul bag pendulumed into to me...I somehow managed to hold on and not take the whipper"

Bomber jams!
WBraun

climber
Mar 5, 2018 - 07:25am PT
The accident happened June 2016.

Paul, in your "Blog" called "My Story" you link your accident report to a report to a different accident that happened in 1989 on the Salathe Wall.
steve s

Trad climber
eldo
Mar 5, 2018 - 08:17am PT
Climbing is a dangerous activity. You can mitagate the risks by being aware of your surroundings i.e. not climbing below other people.
Sorry you got injured.
donini

Trad climber
Ouray, Colorado
Mar 5, 2018 - 08:32am PT
True Locker...but those chances can be mitigated to a large degree if the climbers above you are aware and take precautions like properly managing their haul bag.

Yo...it's Cali, if you want to get on a good multi pitch without anyone else you need to have the same patience required for waiting for a weather window in Pataginia.
donini

Trad climber
Ouray, Colorado
Mar 5, 2018 - 08:42am PT
Yes, and that’s another reason I like climbing in Patagonia.
eagletusk

Trad climber
Boulder, CO
Topic Author's Reply - Mar 5, 2018 - 08:54am PT
nah000

I understand this is an incredibly complicated subject and I appreciate your concern an insight thank you for your comments.



Batrock

Trad climber
Burbank
Mar 5, 2018 - 08:59am PT
It’s not that complicated. Climbing is a dangerous sport. Especially climbing underneath other climbers. Take responsibility for yourself.
Jon Beck

Trad climber
Oceanside
Mar 5, 2018 - 09:14am PT
Sure, climbing in Patagonia reduces the risk of having a bag dropped on you. But you will up your game much faster taking gut punches from haul bags while on lead. American Ninja on the sharp end?

The talk of suing bothers me too. Climbers just do not do that, the concept of assumption of the risk applies.
NutAgain!

Trad climber
South Pasadena, CA
Mar 5, 2018 - 09:14am PT
I’m sorry to hear about what you had to go through during recovery. As much as that sucked, it sounds like you are also pretty lucky to be alive. Whenever confronted with a tricky situation or question of morality, I consider what the world would be like, what would be the consequences if everyone followed my approach/solution in that situation. Would the world be better overall or would it suck?

At least in a marriage you get to build up some intimacy and trust before you start talking financial contracts. This would trigger blind-date prenups and background/credit checks before heading out with a new partner.

Maybe the better alternative going forward is to have some personal coverage for the equivalent of “uninsured motorist” in your car insurance policy.
Keith Reed

climber
Johnson county TX
Mar 5, 2018 - 09:25am PT
A lot of this litigation could go away with health care for everyone.
The victim could still go for negligence , pain and suffering, but the medical care has got to be enormous.

Good luck to all
donini

Trad climber
Ouray, Colorado
Mar 5, 2018 - 09:29am PT
Hmmmm....there are lines on the popular routes in Yosemite nearly every day. I’m not trying to bash California, the thread is about an incident in Yosemite. The same can be said about popular climbing areas throughout America....Rado included.

My point is that climbing today in America means that there will be many instances of people climbing above other parties and, consequently, climbers should be reminded to consider other parties they are sharing a route with.
Batrock

Trad climber
Burbank
Mar 5, 2018 - 09:43am PT
Would this have been any different if the guy stepped on a loose rock and knocked it on to the guys arm? Either way it's an accident. When we start suing each other over accidents while participating in a obviously dangerous sport we are on a slippery slope to losing the freedoms of the sport we enjoy. Its one thing to throw a pig off the wall but quite another when it comes loose by accident.
Jon Beck

Trad climber
Oceanside
Mar 5, 2018 - 09:51am PT
dropping your haulbag is gross negligence, period.

Did you even read the account of what happened. I read it long ago and recall that it came unclipped through some sort of unfortunate squence of events that did not seem to rise to gross negligence. Gross negligence is pretty extreme behavior under the law.

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.
donini

Trad climber
Ouray, Colorado
Mar 5, 2018 - 09:53am PT
Batrock...I am as aware as anyone that their are objective hazards in a dangerous activity like climbing. We need to focus on “best practices,” especially on crowded climbs.

The haulbag that hit me on the stovelegs was out of my sight and had to have swung from around a corner at least fifty feet away.

The party above me certainly didn’t mean to hurt me and probably weren’t even aware that I was below them. However, on a crowded route like the nose, climbers allowing their haul bag to swing wildly in an area invisible to them clearly was not best practices.
Batrock

Trad climber
Burbank
Mar 5, 2018 - 09:55am PT
Seems this wouldn't even be considered normal negligence since he used a locking biner which is normal practice. The issue is how did it come unlocked? Did he forget to lock it which is unprovable or did it become unlocked due to vibration, webbing rubbing on the gate etc...? This is far from gross negligence.
tradmanclimbs

Ice climber
Pomfert VT
Mar 5, 2018 - 09:58am PT
I completely agree about the rock climbing aspect of following and the the folks above should be carefull. I am still rather horrified about the thought of everyone sueing everyone. slippery slope. Certainly there are some climbs where it is entirely the fault of whomever gets on the climb below another party. Most climbs at Cannon would qualify but specificly INMOP it is almost impossible to get up the rubble chimney on SSS without sh#t coming down and there are dozens of other places on that climb where it is almost simply sheer luck that something big and bad does not happen.

Ice climbing. read what Will Gadd has to say. If you climb up under me on an ice climb I will drop ice on you and I will only yell ice if its something out of the ordinary. 50lbs or more warrents the extra breath. everything else is just normal. If I pass you soloing its a different ball game and it is now 100% my responsibility to not bomb you.
looking sketchy there...

Social climber
Lassitude 33
Mar 5, 2018 - 10:01am PT
Upon reading the Accident Report (which I am assuming is the best information available as to the cause of the accident), this does not appear to be the case of the retreating climbers above tossing the haul bag to the ground. Instead, it appears that the haul bag became accidentally detached from a locking carabiner.

At best, it appears this involved ordinary negligence in not double checking the carabiner after it and the haul bag were unweighted after being caught up on a ledge.

As such, I wonder whether this is exactly the type of risk that a person climbing routes along the base of El Cap assumes - that something (carabiner, haul bag, piton, rock, etc.) might accidentally fall from above and hit you. I think we all have, at one point or another, accidentally dropped a piece of gear (or had the rope run over and knock a rock down).

As mentioned, if you choose to climb below other parties you do so with the understanding (whether acknowledged or not), that anything other than deliberate or "grossly negligent" acts, are the risks you are undertaking.



Gary

Social climber
Desolation Basin, Calif.
Mar 5, 2018 - 10:14am PT
Yo...it's Cali, if you want to get on a good multi pitch without anyone else you need to have the same patience required for waiting for a weather window in Pataginia.

Are you kidding? You just need to walk more than a quarter mile from the car.
Batrock

Trad climber
Burbank
Mar 5, 2018 - 10:16am PT
Jim, I "belayed" you once on Double Cross. You are a solid climber, much more so than I was at the time having not climbed for the 10 years previous due to injuries. Anyway you climbed DC and didn't place a single piece of gear which is fine, you were solid and those jams are bomber. But had you peeled and your skinny ass landed on my not so skinny ass resulting in an injury would I have a case to sue you? Did you use common best practices? I think even my fat ass could have jumped out of the way since your featherweight body fluttering through the air would have taken some time to reach me.
My point is that we can start picking apart our sport until we can't afford it, can't access it and plain old can't do it because we have litigated ourselves into non existence.
ontheedgeandscaredtodeath

Social climber
Wilds of New Mexico
Mar 5, 2018 - 10:20am PT
First, I'm sorry you were involved in an accident and have had such a difficult recovery.

Second, getting all lawyered up about it is about the lamest thing I've ever heard in climbing. You assumed the risk.
AP

Trad climber
Calgary
Mar 5, 2018 - 10:25am PT
Different topic but ice climbers have to consider this frequently.
You take your chances getting hit by ice from people above you, including your own leader if belaying.
It is getting more difficult to avoid ice climbers above you because this sport is becoming popular.
tradmanclimbs

Ice climber
Pomfert VT
Mar 5, 2018 - 10:28am PT
what batrock says. we start suing each other and we are done.. Its hard enough keeping access as it is but when we fight amongst ourselfs it always makes it worse.
Batrock

Trad climber
Burbank
Mar 5, 2018 - 12:02pm PT
I was on the 3D when Lambone and partner cut bags loose above while on Sunkist on the traverse pitches, I saw bags flying through the air sure they were heading right toward me. They swung left as the rope caught them but still scared the crap out of me. I knew they were climbing above but didn't pay much attention, I did after that. My responsibility to be aware and not climb directly under others if possible.
Splater

climber
Grey Matter
Mar 5, 2018 - 12:23pm PT
I misclipped my partner's #2 camalot on my harness,
and then it dropped a minute later.

I gave them a replacement cam.
JohnnyG

climber
Mar 5, 2018 - 01:42pm PT
Paul,

Climbing = self reliance + assumption of risk.

really looks like you are intending to sue or at least milk some cash from the guy, which I think would be a poor choice for our beloved and sometime risky sport.

From your letter, you had $15,000 in medical bills. Plus an estimate of $12,00 in "lost wages." That's a lot, but that doesn't seem like it will ruin you. (I might be wrong but the that's not an extreme expense by most standards, especially in a place like the Boulder Area, especially for a young engineer, especially for a guy who is trying to take months off work for a bike trip)

How much money do you expect to get back? After attorney fees? Would an apology suffice?

Is you online shaming of Jonathon enough payback?

I think the precedent of suing (even this attempt to milk some cash out to the guy) could have an extremely negative effect on our sport, as others have written above me. It's a crappy accident, a really bad accident, but it really looks like it was just that--an accident. As climbers, we have all had them, and we pay for them in time and money whether it's our fault or not.

I encourage you to look long and hard at the culture of self-reliance and risk assumption in our sport before taking this further.

Nice post Nah000

p.s. looking at your web-site, I'm feeling even less sympathetic to your "cause"
micronut

Trad climber
Fresno/Clovis, ca
Mar 5, 2018 - 02:09pm PT
In my opinion, climbing below another party and being struck from above puts the responsibility fully on the lower party. I would take full responsibility of being there in the first place if I were injured by falling rock, gear, etc. Its a very real risk and one I avoid at nearly all costs. Even on trade routes.....especially on trade routes.

Really sorry about your injury and hope you recover fully but being on that route below those guys was a risk you fully accepted by being there at all. Stuff falls from above from climbers above all the time. Gumbies, mistakes, happenchance from even the best climbers above. The responsibility fully is yours to chose to be there or not.


Scott
donini

Trad climber
Ouray, Colorado
Mar 5, 2018 - 02:34pm PT
Micronut, I must disagree with you. If no one climbed below another party on the Nose far few people would get to experience one of the world's great climbs. Does your reasoning also apply to the many people who crag at the base of El Cap daily?

Sure, climbing below someone means you are accepting an element of risk but that doesn't mean you are responsible if the party above you does something stupid like throwing off their haul bag.
steve s

Trad climber
eldo
Mar 5, 2018 - 02:51pm PT
Was the bag thrown off? I think when you climb below other people you are assuming the risks involved.
Toker Villain

Big Wall climber
Toquerville, Utah
Mar 5, 2018 - 02:59pm PT
^^^^^^ +1



If you sue I can tell you who will win,....





the lawyers.
Lorenzo

Trad climber
Portland Oregon
Mar 5, 2018 - 03:18pm PT
I am as aware as anyone that their are objective hazards in a dangerous activity like climbing. We need to focus on “best practices,” especially on crowded climbs.

Maybe best practices is a fluid concept.

a generation of climbers ( ain’t naming no names) thought best practices included throwing bags of sh#t off a wall.

AKDOG

Mountain climber
Anchorage, AK
Mar 5, 2018 - 03:30pm PT
I think when you climb below other people you are assuming the risks involved.

I know one party that got a settlement from having a rock knocked off on them while climbing a very popular route in Yosemite (way back in the mid 80’s).
The climber suffered a severe head injury and loss of some fingers (permanent damage). The party that knocked the rock off from above were simo-climbing which may have had something to do with the settlement legally, as they were not climbing in a,” standard fashion”, another factor was the climbers that knocked the rock off had some $$$.
micronut

Trad climber
Fresno/Clovis, ca
Mar 5, 2018 - 03:34pm PT
Micronut, I must disagree with you. If no one climbed below another party on the Nose far few people would get to experience one of the world's great climbs. Does your reasoning also apply to the many people who crag at the base of El Cap daily?

Yeah Jim totally. What I'm saying is that I would take full responsibility for climbing underneath other people in the event I was injured by somebody dropping something. Its a known and measurable risk. Climbing any route with people above you is a choice and a calculation we all need to consider. Really hard to avoid on many of the best climbs around but one to think about nonetheless. Does that make sense?


Its a bummer, especially when noobs abound. I'd be angry if...

SCENARIO #1
A noob pulls off a notoriously loose block on a trade route above me....or they drop a pack on me from the top of Cathedral Peak on a crowded Saturday...but I'd have to admit I was a fool for not being the first on the route on a weekend on a busy Supertopo Trade Route.

I'd probably be less angry in SCENARIO #2
A backcountry route... some super competent climbers above knock down some rocks, yell "ROCK ROCK ROCK!!!!" then holler down apologies and check in on us. But then I'd still kick myself for not being first on the route and for knowingly climbing under other parties. I try to avoid it at all costs.

Toker Villain

Big Wall climber
Toquerville, Utah
Mar 5, 2018 - 03:35pm PT
Also, they passed the party despite being asked not to.


We need a long talk on passing protocol.
NutAgain!

Trad climber
South Pasadena, CA
Mar 5, 2018 - 03:40pm PT
So who's going to start the official black-list thread of climbers that are ok to lawyer up?

;)
RussianBot

climber
Mar 5, 2018 - 04:00pm PT
I don’t find it entirely unreasonable to say that all of our climbing heroes who have died doing what they and we love to do died because of their negligence. But I don’t expect that’s the response that you’re likely to get from the other climbers here, even the ones who do believe you’re the one who was negligent.

In law, it’s not the best facts win, it’s the best argument wins. Get a good arguer and you might have a shot.

Thanks for your honesty, and best of luck to you on your recovery!
clinker

Trad climber
Santa Cruz, California
Mar 5, 2018 - 04:49pm PT




HEAVENLY MARITAL HELP

Betty and Tim die in a car accident on the eve of their wedding. In Heaven, they ask St. Peter if they can still be married.

"Well, let me find out if this is possible. Stay here and I will be right back."

Six months pass and Peter returns. "Yes, we can do this for you."

The couple asks, "Well, as we have spent so much time together waiting for your answer, we need to know that if things don't work out, is there a possibility that we can be divorced?"

To which St. Peter answers, "It took me six months to find a priest up here -- how long do you think it will take me to find a lawyer?"
phylp

Trad climber
Upland, CA
Mar 5, 2018 - 04:55pm PT
Paul,
I am just so sorry that you went through this and are still going through this. I am so sorry for your pain and suffering. I am sorry for your trauma.

If this happened to me, I would appreciate it if the party above expressed their sympathy for the accident. But not for one second would I expect the party above to admit any kind of legal responsibility or negligence. Because then the injured party could go to court and say "this person has admitted such and such". So it doesn't surprise me that you have not heard from Jonathan.

If I felt it was a situation where legal redress was needed, I would consult a lawyer. If they think you have a good case, they'll take your case on a contingency basis. If they won't, this is sending you a message.

To Jonathan, who undoubtably has been advised to stay silent through all of this. I am also sorry that you went through this and are still going through this. I am sorry for your mental suffering and trauma you may be experiencing as a result of this incident.

Climbing accidents suck.
Bob Harrington

climber
Bishop, California
Mar 5, 2018 - 05:24pm PT
What I'm saying is that I would take full responsibility for climbing underneath other people in the event I was injured by somebody dropping something.

This is entirely situational. Would you feel the same way if the upper party was intentionally trundling rock off or throwing haul bags off and they knew you were below?

How about the scenario where the upper party rappels in above you and knocks rocks off onto you. I watched with amazement the jackassery of two guys who rapped off the top of Daff Dome on a busy July afternoon and, with multiple parties below, proceeded to clean loose rock off some new route they had their sights set on.

micronut

Trad climber
Fresno/Clovis, ca
Mar 5, 2018 - 05:44pm PT
Yeah you're right Bob. It would be somewhat situational but for the most part I'm saying we all take responsibility and I know that it is a choice most of the time to climb knowingly with people above us.

In most cases in life, there is a difference between fault and responsibility. Maybe it's not your fault your dad hit you as a kid but it is your responsibility to grow up and not be that kind of man. Maybe it's not your fault that your girlfriend or wife cheats on you but it is your responsibility to find out what portion of the relationship you could have done better and how you can be a better boyfriend or husband in the future. Maybe it's not your fault Trump is in office but it's your responsibility not to be a whiner and a complainer and to dig in and serve in your own community. I think it's a question and a delineation much of society ( especially today's uber-litigious society ) should think about a bit more often.
donini

Trad climber
Ouray, Colorado
Mar 5, 2018 - 06:08pm PT
Chouinard got sued but never successfully.
nah000

climber
now/here
Mar 5, 2018 - 07:53pm PT
still no answers to two genuinely asked questions that might make a difference to this supposed attempt at a public "conversation":

1. does Paul believe that the bag was dropped intentionally?
2. is Paul leaving open the possibility of suing, if Jonathon doesn't agree to Paul's "requests"?

cause without these answers, if i was Jonathon, i wouldn't even bother wasting money on contacting a lawyer at this point and sure as hell would not agree to "mediation" assuming i didn't have insurance...

moreso, without transparency regarding the two questions above the attempts at colouring this with a similar brush to michael kennedy's open letter to his now dead son, were the heighth of strategic emotional cynicism.

i think it's time for me to go have a shower to hopefully remove some of the emotional ick... and assuming all we get is silence on the part of the o.p., this will be the last time i contribute to what is now appearing to be a good ole fashioned attempt at mob justice enflamed emotionally driven blackmail...



irony is i've contributed to a number of gofundmes and the like on this site for situations that were a lot less shItty than yours Paul... assuming no further info, not a chance at this point.

[oh yeah, and someoneanyone? yeah your example is ludicrous to me because you are comparing apples to oranges... no one has to climb to get to their job, or to go to school, or to in general be a part of society/collective organization... climbing is a completely different game than driving a car and so at least to this point there has, historically at least, been a completely separate set of societal "contracts" in place even if they have been informal... like i said: the day a regional group of folks decide they all need to carry liability insurance to cover their accidental negligence while climbing is the day that region gets struck from the list of places i want to climb... and that's because all the above would mean is that there would be a chance that i'd have to waste my time with court systems and lawyers even if i had insurance... thanks to nutagain's suggestion that region so far only includes climbs with someoneanyone and donini - but if i read his comment correctly and didn't miss a tongue in cheeked intention then the latter is apparently only when he is climbing in the u.s. - ha!]
WBraun

climber
Mar 5, 2018 - 09:35pm PT
VASYL LOMACHENKO is bad ass.

I bet nobody on this forum knows about him ......
colin rowe

Trad climber
scotland uk
Mar 6, 2018 - 03:30am PT
I initially thought that the American Alpine Club by joining and included in the membership would include civic and public liability. This does not appear to be the case. Perhaps a case could be made for the American Alpine Club to provide civic and public liability as part of the membership fee. As a member of Mountaineering Scotland civic and public liability is included in membership.
In 1986 I was climbing the Walker Spur. It was a very dry year. There were parties above. Just before entering the Red Chimneys high on the route a climber had been injured because of stonefall; the climber was awaiting a helicopter rescue. Nevertheless, I climbed into the Red Chimney's knowing that any dislodged stonewall from above would be funnelled by the chimney's and the risk of being hit was high and immediate. I wasn't hit but I remember thinking I was reckless.
tradmanclimbs

Ice climber
Pomfert VT
Mar 6, 2018 - 05:32am PT
pretty much everyone would throw him to the wolfs if he trundled the bag on purpose. as for dropping something important by accident. we have all done it and there is no such thing as good faith in putting yourself in harms way. you simply put your head down and hope for the best. it is a choice you make. We are likely all in favor of a go fund me for the medical bills and those have been massively successful lately. the idea of punishment and litigations turns almost all of us off.. Of course now this go fund me is tainted by the threat of litigation....
clinker

Trad climber
Santa Cruz, California
Mar 6, 2018 - 06:18am PT


Moral of the story: The early bird's sh#t will land on the not-so early bird. Be the early bird.



Be careful out there. There are fortunately only a few f*#ktard climbers, and they will/do through negligence/carelessness cause harm/death. Lawsuits will happen.

We all were inexperienced, some get better instruction than others.

Is the mentality that a drunk driver who has caused a death might state, "People know that there are drunk drivers on the road, that was a chance she took when she left her driveway." and have it deemed credible logic?

Accidents will happen, needless harm to climbers below should be avoided.

Yes, even responsible climbers will have sh#t happen. Climb responsible, even more so if people are below you.
Alexey

climber
San Jose, CA
Mar 6, 2018 - 06:53am PT
phylp wrote:
If this happened to me, I would appreciate it if the party above expressed their sympathy for the accident. But not for one second would I expect the party above to admit any kind of legal responsibility or negligence. Because then the injured party could go to court and say "this person has admitted such and such". So it doesn't surprise me that you have not heard from Jonathan.
I also put myself in the shoes of both involved in this accident Paul and Johnathan. If I would f*#k up with my haul bag clipping and it fell on someone below I would definitely at least expressed my sympathy for the accident to the injured climber. As to formally "admit any kind of legal responsibility or negligence" - the fact that my haul bag become un-clipped- this is fact of negligence recorded in SAR rescue report.
Likewise in case of being in position of injured by someone dropping haulbag on me - I would expect that this person contact me and explain himself. And because Johnathan did not do this - this is most disturbing part , which I would bother me most [ and probably Paul too]. Everyone can made mistakes, the difference is how you handle them
For me there is clear analogy to driving hit [unintentional] and run accident.
And some blames on Paul that he climbed in El Cap base taking big risk [ because some aid climbers climbed above] is really unfair- thousands of people climb in El Cap base and failing haul bag on your head is last consideration of risk you taking climbing there.
Mike.

climber
Mar 6, 2018 - 07:30am PT
Jonathan rendered aid to the victim on the scene, yet some are miffed that there was not some formal apology or expression of sympathy? How genuine do you think such "feelings" are when they're demanded?

Paul, anyone who's been busted up climbing knows the frustration of it. Assigning blame for the accident is not going to change where you are now. Move on, and do it with dignity like so many others before you.



vv PS: Dave, I found that detail disconcerting. Cheers, man.
steve s

Trad climber
eldo
Mar 6, 2018 - 08:42am PT
What are some of the many “justifiable” reasons for putting yourself in harms way by climbing below other climbers that would hold up in a court of law ? I don’t think “because everyone else is doing it” would hold up in court. Honest question. Thanks

Edit: to rescue someone?
Spanky

Social climber
boulder co
Mar 6, 2018 - 09:46am PT
I hear what people are saying about climbing under other parties and the objective hazards involved in climbing but I think this situation is a bit different. I'm more than willing to accept falling rock and the occasional dropped carabiner as objective hazards but a dropped haul bag is totally avoidable if you know what you are doing. You should have that sh*t backed up 6 ways from Sunday. As a party rapping It is my responsibility to descend safely and not to send a 100 pound missile down the cliff. I believe dropping your haul bag does count as gross negligence in the same way that an earlier poster used the analogy of reckless driving. Driving a car does involves accepting risk but if someone is reckless and hurts someone they can legally be held accountable for their actions. The hard part is proving negligence and then deciding what sort of damages are reasonable based on the events.

Also If I was the party responsible and dropped a bag I would feel like sh*t and would be morally obliged to make reparations for my mistake that ended up injuring someone else.

my 2 cents
Reilly

Mountain climber
The Other Monrovia- CA
Mar 6, 2018 - 09:51am PT
Was it gross negligence? Good luck finding a lawyer.
Jon Beck

Trad climber
Oceanside
Mar 6, 2018 - 10:06am PT
spanky - did you even read the accident report?
Spanky

Social climber
boulder co
Mar 6, 2018 - 10:21am PT
I did read the accident report. From what I can tell they had 2 slings holding the bag but the locker was unlocked. Every time I have rapped with a bag they always get caught on something and I generally have 2 lockers to make things as redundant as possible. I was actually in the valley at the time and climbed the shield ahead of the party that dropped the bag. I do believe that dropping the bag constitutes negligence but proving that in a court is a different story.

I guess I'm just surprised that no one seems to think that the dude who dropped the bag is responsible in some way.
blahblah

Gym climber
Boulder
Mar 6, 2018 - 10:40am PT
What are some of the many “justifiable” reasons for putting yourself in harms way by climbing below other climbers that would hold up in a court of law ? I don’t think “because everyone else is doing it” would hold up in court. Honest question. Thanks

Edit: to rescue someone?

People ride bicycles on roads all the time, even, if you can can believe it, when there are cars on the same roads.

Have they "assumed the risk" that they'll get run over by a negligent driver?

I am not sure that "standard" recreational climbing is really any more dangerous than riding a bicycle on a busy road--they are both somewhat dangerous, but also activities that people engage in all the time without being viewed as engaging in some sort of ultra-hazardous activity.
thebravecowboy

climber
The Good Places
Mar 6, 2018 - 10:53am PT
aaand this is why I zero interest in El Cap.
WyoRockMan

climber
Grizzlyville, WY
Mar 6, 2018 - 10:57am PT
aaand this is why I zero interest in El Cap.

and the piss smell.
August West

Trad climber
Where the wind blows strange
Mar 6, 2018 - 11:11am PT
I guess I'm just surprised that no one seems to think that the dude who dropped the bag is responsible in some way.

Over the normal course of long climb career, everybody drops things. One hopes that it is never a partner, or ones self, or something critical like a haul bag. And if it is something like that, one hopes it is no more than a major annoyance and good camp fire story.

Given how common this, I disagree with the notion that dropping a haul bag in the manner describes here rises to gross negligence.

If someone drives 75 on a snowy highway, I would call that gross negligence. Forgetting to fully check your mirrors before changing lanes I would describe as negligence. Saying I forget I was driving on snow is not plausible. But you don't make a conscious decision to not check your mirrors. It is just one of those human mistakes that humans occasionally make. Sure, if you change lanes and hit someone, the person you hit can collect from your insurance.

But this standard has most explicitly not been applied to climbing. If you are a race car driver and are seriously injured because another driver screwed up, I don't think you are going to be able to successfully sue.

I would think that forgetting to lock a locking biner is something that happens to everybody who climbs long enough.

If routine negligence is the standard for liability for climbing, the sport would take a huge hit. I'm mildly surprised, and glad, that land owners including the government in places like Yosemite have not been held responsible for dangerous conditions.
FTOR

Sport climber
CA
Mar 6, 2018 - 11:23am PT
if you feel you are entitled to sue another climber for any injury sustained for any reason, you need to go find another sport. climbing is an inherently dangerous activity and you accept these risks by participating, period. many injuries i've seen can clearly be attributed to belayer failure. so what are you going to do now, call your f king attorney? this is really sad.
Spanky

Social climber
boulder co
Mar 6, 2018 - 11:25am PT
Dropping a haul bag should not happen if you know what you're doing. It is solely the result of operator error. I've been climbing walls for almost 20 years and have never dropped one and before this accident I have not heard of climbers routinely dropping a haulage. Yeah gear gets dropped like carabiners, cams, and such but since a haulage represents a significantly bigger risk steps should be taken to make sure it doesn't happen. This was an error made by a person that resulted in a life threatening injury. How is the guy that dropped it not responsible for his actions? if this incident happened on a highway like I mentioned previously I have no doubt he would have been liable and be required to pay damages. It doesn't matter whether it was intentional or not the guy screwed up and someone else life will never be the same. Any decent human being would feel the need to make amends on some level. It has nothing to do with the fact that climbing is inherently risky. driving is risky and society still holds us accountable for risky/reckless behavior.

In my head this is different from something like loose rock that is there as a result of nature and that will inevitably fall off as time progresses.

Skiing is also inherently risky but if you run into someone and kill them you are subject to manslaughter charges
Mike.

climber
Mar 6, 2018 - 12:34pm PT
Dropping a haul bag should not happen if you know what you're doing.

Right, it shouldn't. Yet it does.

I know what I'm doing, and my line got halfway chopped while using standard methods, including a generous let-out. That load would have killed someone, and came as close to going down as it could have without going.

Lots of weird sh#t happens up there, despite best practices. Stuff you'd never plan for or imagine.
Alexey

climber
San Jose, CA
Mar 6, 2018 - 12:51pm PT
if you feel you are entitled to sue another climber for any injury sustained for any reason, you need to go find another sport. climbing is an inherently dangerous activity and you accept these risks by participating, period. many injuries i've seen can clearly be attributed to belayer failure. so what are you going to do now, call your f king attorney?

"for any reason"? there are some border cases how people being dropped by belayer- absolute negligence, or even intentional [ I do not know any cases but why not?] so what you are going to do - silently cry to your fukking pillow? Why belayer can do whatever and not to be blamed? And in this particular case with dropped haulbag- - if tosser would took the moral responsibility - probably no one be so pissed that going to bring the lawyers
Moof

Big Wall climber
Orygun
Mar 6, 2018 - 12:55pm PT
I don't think negligence has anything to do with it. I was raised with the "You brake it you bought it" ethic. If I did it intentionally that is criminal as well. But either way it takes some major dumbassery to lose control of a haul bag, and major asshatery to not try to make amends.

The right thing would to be man up and for the bag dropper to ask "How can I make this right?" Going radio silent leaves the victim with few options to deal with big medical bills and lost paychecks. I think he has every right to become angry over it. I also agree that getting a lawyer to take such a case is going to be a losing effort.
blahblah

Gym climber
Boulder
Mar 6, 2018 - 01:13pm PT
Lots of weird sh#t happens up there, despite best practices. Stuff you'd never plan for or imagine.

If weird sh#t happens that isn't foreseeable, you're probably not responsible for damages you cause one way or the other.
In the present accident, however, everyone seems to agree the bag dropper was at least negligent, and possibly grossly negligent. (In general, there's really no "right" or "wrong" in deciding whether something is negligent or grossly negligent--that's why we have trials, so that a jury (or in some instances a judge) can decide.)

A lot of people are assuming that the bag dropper may be liable if he was "grossly negligent," but not if he's just regular negligent.
I'm not at all sure that's the law (which would depend on the jurisdiction), or even if there is settled law on this point in general. It would be a reasonable way to do things.

Still, it seems to me that "normal" negligence law should apply at least with respect to standard rock climbing (including trade routes on El Cap), as it's a commonly engaged in activity that isn't crazy dangerous when people act responsibly. Here's an analogy (in addition to my bicycle riding one): hunting. Every year, hunters are killed in hunting accidents. There is something inherently dangerous about people wandering around in the woods discharging firearms. But do we think that a hunter should escape liability if he mistakes another hunter for a deer and shoots him?

In addition to basic fairness, isn't it a good idea to incentivize people to act non-negligently?
stevep

Boulder climber
Salt Lake, UT
Mar 6, 2018 - 01:23pm PT
While I feel bad for the victim in this case, absent clear evidence that the this was caused by significant negligence, it's hard for me to support a lawsuit. Accidents happen.
And while it would have been nice if the guy responsible for the rigging on the dropped bag was a little more willing to check in and be supportive. I'm not sure I view that as required, or an indication that he's a bad guy. He probably feels pretty bad about it too, and may not want to expose himself to financial liability on top of that.
ontheedgeandscaredtodeath

Social climber
Wilds of New Mexico
Mar 6, 2018 - 01:30pm PT
Agreed that it is not a negligence v. gross negligence question- I think someone got side tracked on waivers a ways upthread (I think in California waivers can protect against negligence but not against gross negligence or intentional acts).

I was thinking this would be a great final exam question in a torts class. Negligence generally has four components- legal duty, breach, causation and damages. Or something like that.
Anyway, the last two are easily satisfied but whether the dropper breached any legal duty doesn't seem clear to me. To get full credit on the torts exam you'd have to weave in a discussion about comparative fault and assumption of risk!


WBraun

climber
Mar 6, 2018 - 02:04pm PT
Just see here this thread ......

Internet social media forum virtual kangaroo court in action by more wannabee lawyers than ever seen before ..... :-)
ron gomez

Trad climber
Mar 6, 2018 - 02:09pm PT
BINGO! Werner ya got it.
Peace
Jon Beck

Trad climber
Oceanside
Mar 6, 2018 - 02:35pm PT
Under Ca law climbing is categorized as ultra hazardous. This bars claims by participants. Not sure if the doctrine applies under federal law, maybe a PI attorney could chime in. I am pretty sure Federal law applies
kunlun_shan

Mountain climber
SF, CA
Mar 6, 2018 - 02:55pm PT
This lawsuit BS is unfortunately NOT unique anymore to just the US. There's a woman in Canmore, AB who is suing a backcountry lodge operator, the Association of Canadian Mountain Guides, and two ski guides after she and 4 other skiers were buried in an avalanche, and her husband died. She's alleging criminal negligence and that the defendants "ignored avalanche predictions, failed to communicate avalanche predictions to the group and failed to exercise reasonable care."

What I see as similar between the above and the haulbag accident is, as we are all aware, accidents do happen even when skilled individuals are involved, when it comes to risky activities.

https://globalnews.ca/news/4037125/widow-of-alberta-man-killed-in-golden-area-avalanche-sues-guides-lodge-operator/
donini

Trad climber
Ouray, Colorado
Mar 6, 2018 - 05:14pm PT
Guides, generally speaking, work hard to keep clients alive. Doing so leads to more tips, return business, and good word of mouth advertising.
WBraun

climber
Mar 6, 2018 - 05:15pm PT
When a guide gets a client killed I think some serious questions are in order.

That's why you should never advertise as a guide.

Always advertise as a mental speculator.

That way if you end up in court the judge will shake their head and say, "You fool you hired a mental speculator, get the fuk out of my courtroom"
kunlun_shan

Mountain climber
SF, CA
Mar 6, 2018 - 05:27pm PT
When a guide gets a client killed I think some serious questions are in order.

I personally don't have much knowledge of the situation mentioned above, but skiers die every year in BC while under the care and direction of guides. I know of only one other situation in Canada where a lawsuit (involving a ski guide) made it to court. Backcountry and heli ski operations maintain high standards and have a waiver that explicitly states the inherent dangers involved with activities in the mountains.

I'd bet the Golden Alpine Holiday and ACMG suit will be kicked out of court. Fortunately, lawsuits in Canada for this type of thing don't get far. Its disappointing though to read of a skier thinking that guides are to blame considering the standards involved.
Splater

climber
Grey Matter
Mar 6, 2018 - 05:31pm PT
"virtual kangaroo court in action by more wannabee lawyers than ever seen before"

If you read the actual transcript of the judges summary in the negligence wrongful death trial of the California college outing group that had a faulty belay anchor,
you will find that the actual legal system in that case was equally a kangaroo court.
Reilly

Mountain climber
The Other Monrovia- CA
Mar 6, 2018 - 05:36pm PT
Werner wins. Shut this stoopid shite down.
Reilly

Mountain climber
The Other Monrovia- CA
Mar 6, 2018 - 06:10pm PT
Locker, I was getting worried about you. Instarted a thread for you Sunday but you musta been


















out climbing.
Gary

Social climber
Desolation Basin, Calif.
Mar 6, 2018 - 06:38pm PT
Yer gonna Die!
Reilly

Mountain climber
The Other Monrovia- CA
Mar 6, 2018 - 06:53pm PT
http://www.supertopo.com/climbers-forum/3066855/Here-ya-go-Locker
RussianBot

climber
Mar 6, 2018 - 07:12pm PT
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!
ontheedgeandscaredtodeath

Social climber
Wilds of New Mexico
Mar 7, 2018 - 08:18am PT
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.
Scole

Trad climber
Zapopan
Mar 7, 2018 - 08:20am PT
Don't climb beneath other parties! This accident was easily avoided. If you choose to climb below another party you accept the risk.
blahblah

Gym climber
Boulder
Mar 7, 2018 - 09:45am PT
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?
ontheedgeandscaredtodeath

Social climber
Wilds of New Mexico
Mar 7, 2018 - 10:00am PT
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.
Jon Beck

Trad climber
Oceanside
Mar 7, 2018 - 10:32am PT
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.

the Fet

climber
Tu-Tok-A-Nu-La
Mar 7, 2018 - 11:25am PT
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.
Reilly

Mountain climber
The Other Monrovia- CA
Mar 7, 2018 - 11:34am PT
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.
ionlyski

Trad climber
Polebridge, Montana
Mar 7, 2018 - 12:20pm PT
Anybody get the idea Paul is not reading any of these posts?
the Fet

climber
Tu-Tok-A-Nu-La
Mar 7, 2018 - 12:30pm PT
^^ 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.
August West

Trad climber
Where the wind blows strange
Mar 7, 2018 - 01:31pm PT
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.
John M

climber
Mar 7, 2018 - 01:38pm PT
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.
ontheedgeandscaredtodeath

Social climber
Wilds of New Mexico
Mar 7, 2018 - 01:47pm PT
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!
Jon Beck

Trad climber
Oceanside
Mar 7, 2018 - 03:47pm PT
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.
nah000

climber
now/here
Mar 7, 2018 - 07:13pm PT
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...
Toker Villain

Big Wall climber
Toquerville, Utah
Mar 8, 2018 - 08:40am PT
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,...
blahblah

Gym climber
Boulder
Mar 8, 2018 - 09:16am PT
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.
fear

Ice climber
hartford, ct
Mar 8, 2018 - 09:26am PT
I'd wager a gofundme or similar type donation site would be best to recoup what you can from not just sympathetic climbers but perhaps from the bag dropper himself (anonymously without any legal ramificatons)....

Involving the courts and lawyers for this is like calling the police when you have a fight with your SO... nothing good will ever come from that.
alpineblissed

Trad climber
The Town, CA
Mar 8, 2018 - 10:47am PT
^^^^ completely agree with this....i am super sorry to hear @ your freak accident paul and would gladly contribute if you had a gofundme set up. involving courts is just a really sketchy route to take but you also need to take care of yourself.

wishin you the best in recovery~
RussianBot

climber
Mar 8, 2018 - 11:11am PT
Free supertopo legal advice! You’re welcome!

Sure, lawyers speculate about stuff too. They speculate about what the law means, and about what a judge and jury will decide. They speculate about what’s the best argument to make to convince other people to take their side. Then maybe they go to court to test their speculations against the reality of what the judge and jury will decide. One side speculates one side, the other speculates the other side.

Then one side or the other wins, regardless of what it was that the geniuses on the other side speculated.

You go out and you speculate that you can make the climb. Maybe you fall, maybe you don’t. You speculate that if there’s no-one in front of you on the climb that you’re not going to get hit by a falling haul bag, or falling rock.

Then you go out and climb, and you either get hit by the falling haul bag or the falling rock or you don’t.

Stop speculating if you think that’s gonna work better for you. Good luck!
Splater

climber
Grey Matter
Mar 8, 2018 - 11:16am PT
My point of bringing up the Roettgen case is that it shows the futility of suing over climbing accidents, at least in California, which is probably good for the sport as a whole.

In that case it was an official outing of the Univ of California, and the leaders were supposedly qualified to set up topropes. In an official outing, which is similar to a commercial operation, the duty of care would be higher than for any outing with friends or below strangers. Yet even that case was dismissed.


Besides the point now, but in my opinion Roettgen has some questionable logic, that climbing is so hazardous that you are quite likely to die, even in an official top-roping outing. As was discussed in the 2010 thread.

"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."

"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. Inherent in the sport of rock climbing is the fact a fall can occur at anytime, regardless of the negligence of one's coparticipants."

These statements show the court clearly does not understand much about different types of climbing and that there is a difference between toproping on solid anchors and R/X routes.

"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."

"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."

Since the two who setup the faulty anchor questioned it somewhat themselves, the least they could have done is to severely bounce test it from the ground.
The fact that the leaders had led previous trips does not prove they had much experience in setting anchors in suspect rock.


http://www.supertopo.com/climbing/thread.php?topic_id=1233535
(the route was actually Haystack, not Bears Reach)
RussianBot

climber
Mar 8, 2018 - 11:23am PT
Fair enough. I’d say that shows the futility of suing over climbing accidents in the same way that people trying and failing to climb 5.16 shows the futility of trying to climb 5.16.
t-bone

climber
Bishop
Mar 8, 2018 - 11:36am PT
Interesting legal issues aside, this case is really not too complicated.
Man up and take responsibility, you were cragging at the base of El Cap after all.
Your dignity is worth more than the $25K you're wanting to sue for.
Hope you're enjoying your current Baja ride, a trip many can only only dream of.
Braunini

Big Wall climber
cupertino
Mar 8, 2018 - 10:30pm PT
Wow, legal action.

Probably have prospective climbing partners lining up around the block once that's over.
climbski2

Mountain climber
The Ocean
Mar 23, 2018 - 03:45am PT
Mistakes are part of climbing. It's probably the biggest risk factor there is. It's the one that many people tend to write off as not applicable to themselves. They think they are safe climbers because they know how to do things right and that they won't do the dumb things you hear about in accident reports.

False thinking.

You absolutely will make stupid mistakes climbing. Everyone has everyone will everyone does. Fortunately usually it does not kill you or someone else.


Thus simple mistakes are not negligence they are standard risk. The more people the more risk.

Knowing this fact it is almost easier to claim you were negligent by accepting the risk of climbing under others on a newby wall which is probably the worst place to climb under people.

Yet I still would not call that negligence. It's risk taking for your dream.

If some idiot tossed the bag intentionally then yes gross negligence.

I feel for you...it's a horrible thing to have medical costs destroy your life more then the injury itself
eagletusk

Trad climber
Boulder, CO
Topic Author's Reply - Jun 9, 2018 - 08:40am PT
Thank you all for your thoughts on this accident.

I have received a response from Jonathan.

I have taken 2 months to deliberate and I have written back to Jonathan and this also is in the form of an open letter.

In this letter you will find that I have laid out a path for Jonathan and I to walk through using the model of restorative justice.

The open letters are here:
http://themountainfold.com/?page_id=1059

More information on restorative justice can be found here:
https://en.wikipedia.org/wiki/Restorative_justice

For those that have expressed interest in helping me out via go fund me page and those of you that have reached out to me directly as well as my family and friends, I am asking people direct their funds towards the newly established American Alpine Club Climbing Grief Fund.

https://americanalpineclub.org/climbing-grief-fund/
https://chuffed.org/project/climbinggrieffund

I believe this is a honest and very much needed effort by the American Alpine Club and it will do a lot of good for our sport and the world is general. Thank you AAC.

To the best of my ability I have opened the door for Jonathan and I to walk through.

Thank you,

-Paul

P.S. If you would like to reach out to me you can do so here: sobczak.paul+yosemite.accident@gmail.com
Russ Walling

Social climber
from Poofters Froth, Wyoming
Jun 9, 2018 - 09:03am PT
Good Lord... "restorative justice"...?? cray cray bro
Guernica

climber
dark places
Jun 9, 2018 - 09:14am PT
I missed this the first time around and can't believe what I'm reading. I'm glad you have photos of yourself on your website so I can stay far the f*#k away from you. God, what a dick.
Reilly

Mountain climber
The Other Monrovia- CA
Jun 9, 2018 - 09:24am PT
Karma’s a bitch.
High Fructose Corn Spirit

Gym climber
Jun 9, 2018 - 09:31am PT
Paul, I can only imagine in the barest outline the horrific ordeal you've had to endure across this time. Regarding restorative justice you might find useful some ideas and insights from Tamler Sommers and Sam Harris...

1) In Defense of Honor, A Conversation w Tamler Sommers (May 2018)
https://samharris.org/podcasts/126-defense-honor/

2) Why Honor Matters (2018), Tamler Sommers
https://www.amazon.com/s/ref=nb_sb_noss_2?url=search-alias%3Daps&field-keywords=tamler+sommers

A direct gofundme might not be a bad idea. Maybe consider it.

As of course you know, you are going to get a lot of mixed views here at ST just as you would on any open, public social media platform nowadays. Hang tough. TFPU.
JLP

Social climber
The internet
Jun 9, 2018 - 12:22pm PT
Someone is incredibly naive on how lawsuits and collections work - especially for people with no money going after people with no money. Good luck with that.
Jason Hughes

Big Wall climber
Uk
Jun 9, 2018 - 12:37pm PT
Hi all , lurked here for god knows how long , but could not contain myself any longer
My god ! You climbed a wall you got hurt , you took on a sport with massive risks
You rolled the dice and unfortunately you lost , it’s just about money the dollar nothing else
Why you just couldn’t accept a good old apology, adjust ei ching , Darwin adapt overcome
Instead claim nation isn’t it , go fund me ...... world has gone mad truly has ,
I’m sorry you got hurt truly am but if you can’t see the big picture before you stepped up to that face then you are to blame , you knew it could happen but chose to climb regardless
Now I sound harsh I best go cuddle a teddy bear Or something you making me feel I need some restorative closure god day to you sir .
nah000

climber
now/here
Jun 9, 2018 - 02:29pm PT
holy lick.



paul:

1. you were asked two direct questions immediately following your first post: A. do you have evidence that the bag drop was intentional? and B. regardless of the answer to "A." do you have intentions of possibly suing jonathon? as far as i recall seeing, you answered neither and so i'm left to assume that the only reason that you are making all of this public is in a misguided attempt to put social pressure on jonathon because you don't have the money to actually pursue a lawsuit [at least that's the only reason that i have so far been able to imagine that might explain your strategies]. know that in at least my eyes [and based on the other responses, others as well] this strategy has failed miserably and the only thing you've succeeded in doing is squandering any chance at cashing in on some genuine public sympathy and the few bucks a few [myself included] might have been willing to throw at a go fund me to support your healing.

2. and so free legal advice from an amateur internet based lawyer*: if you're going to saber rattle in public make sure you have a sword. otherwise you just appear at minimum careless, maybe feckless and quite possibly metaphorically dickless. ie. if you want to be transparent: then commit fully and be straight with what you are actually intending. and if you're going to sue jonathon: quit saber rattling and just do it already. otherwise you're only assuming that the public reading your "contributions" to the public realm are going to be as dopey as you seem to be. while i will admit that the public [myself included] can be pretty dopey... damn, you have assumed the bar was pretty low if you thought this strategy was going to help your cause. [*and for the dolts: ianal - and for the double dolts: that acronym means something entirely different than some might expect]



jonathon:

1. while it'd happen only if there is a confluence of sequential blue moons, know that, assuming there is no rest of the story that becomes public, i'd be happy to contribute relatively generously to a go fund me if you were req'd to defend yourself in a lawsuit. this would be done purely based on principle due to the absurdity of the situation that you would have found yourself in. of course it seems pretty clear that you'll never have to take me up on this: just wanted you/paul to know how well paul's strategies have alienated at least this member of the initially indifferent public.

2. more free legal advice from an amateur internet based lawyer [hahaha!]: what you've already done by responding went way above and beyond what you were required to by common decency - let alone legally [given paul's continued lack of transparency regarding his intents.] and so to ever answer that goof again, assuming the present path continues, would be a waste of your time/energy in all/any of its faculties.



damn... hope you forget this goofiness paul and get to focusing on the remainder of your recovery.
Gnome Ofthe Diabase

climber
Out Of Bed
Jun 9, 2018 - 02:39pm PT
RESTORATIVE justice? -WHITE RASTAFARIAN- WHO MOVED THE ROCK BACK INTO THE CRASH ZONE

All those involved, have a different take, some feel they Missed the original location by \_/ This much, so
Maybe, in that very singular case?
But:
Looking for Restorative Justice, for this Accident, Is delusional.
a VERY CLEAR EXAMPLE OF THE ALIENATION OF RATIONAL THOUGHT .

That one could expect,
having chosen to take part in a gravity deifying/challenging related endeavor - where the very nature of the risk, & mitigation of risk, is 90%^ dependent on the decision making process that guides safety, can be grounds for any such thing is ridiculousness.

The accident is more your fault than anyone else's. while ignoring the obvious increased chances of having something drop on you, by choosing a popular climbing area, therefore placing more than 70% of the risk taken on you, & only 30% on the accidental/random other party,

if you go by the -They were there 1st- so were in the location that was yours alone to avoid. . . 30% seems right.

well. . . Ive re-considered, the fault was not yours but the sad roll of the dice, a terrible CASE OF BEING IN THE WRONG PLACE AT THE WRONG MOMENT

(edit:I re-read the whole megillah - that you were, in fact, sitting on a ledge waiting to rap, -truly very bad luck-, offset by the droppers of the bag being, EMT & WFR, so, able to save your life, very good luck?)


eh?
Oh & that restorative justice? you've got it backwards, coming from you and from an un-provoked accidental event that is an obvious risk if you take part in climbing,
you are beyond an inconsiderate person.
Are you culpable under the law? I don't gnow - most likely?

How dare You choose such a dangerous practice? Your failures to make the proper decisions led to the PTSD that the person -who you propose was responsible(?)- That person, who, you have signaled out, will now suffer, and that is your fault.
You should be held liable for your mistakes & the resulting damages to his on-going quality of life.
Add to that He can never climb again safe in the knowledge that other climbers have his back . . . .

I think that Suspected dropper of said bag has sufficient grounds to sue you for a myriad of things, and I hope if you file his 'Counter' takes you a decade to satisfy.

I MOVED THE ABOVE TRASH FROM THE LAST POST ON THE PREVIOUS PAGE SO THAT THIS



nah000

climber
now/here

Jun 9, 2018 - 02:29pm PT
holy lick.



paul:

1. you were asked two direct questions immediately following your first post: A. do you have evidence that the bag drop was intentional? and B. regardless of the answer to "A." do you have intentions of possibly suing jonathon? as far as i recall seeing, you answered neither and so i'm left to assume that the only reason that you are making all of this public is in a misguided attempt to put social pressure on jonathon because you don't have the money to actually pursue a lawsuit [at least that's the only reason that i have so far been able to imagine that might explain your strategies]. know that in at least my eyes [and based on the other responses, others as well] this strategy has failed miserably and the only thing you've succeeded in doing is squandering any chance at cashing in on some genuine public sympathy and the few bucks a few [myself included] might have been willing to throw at a go fund me to support your healing.

2. and so free legal advice from an amateur internet based lawyer*: if you're going to saber rattle in public make sure you have a sword. otherwise you just appear at minimum careless, maybe feckless and quite possibly metaphorically dickless. ie. if you want to be transparent: then commit fully and be straight with what you are actually intending. and if you're going to sue jonathon: quit saber rattling and just do it already. otherwise you're only assuming that the public reading your "contributions" to the public realm are going to be as dopey as you seem to be. while i will admit that the public [myself included] can be pretty dopey... damn, you have assumed the bar was pretty low if you thought this strategy was going to help your cause. [*and for the dolts: ianal - and for the double dolts: that acronym means something entirely different than some might expect]



jonathon:

1. while it'd happen only if there is a confluence of sequential blue moons, know that, assuming there is no rest of the story that becomes public, i'd be happy to contribute relatively generously to a go fund me if you were req'd to defend yourself in a lawsuit. this would be done purely based on principle due to the absurdity of the situation that you would have found yourself in. of course it seems pretty clear that you'll never have to take me up on this: just wanted you/paul to know how well paul's strategies have alienated at least this member of the initially indifferent public.

2. more free legal advice from an amateur internet based lawyer [hahaha!]: what you've already done by responding went way above and beyond what you were required to by common decency - let alone legally [given paul's continued lack of transparency regarding his intents.] and so to ever answer that goof again, assuming the present path continues, would be a waste of your time/energy in all/any of its faculties.



damn... hope you forget this goofiness paul and get to focusing on the remainder of your recovery.
Could get the rightful respect it deserves.


it sounds like a terrible and ugly injury, Im sorry for you, and would be the 1st to call out a climber, as here , who showed callous indifference, that was not the case here.
I hope, given the severity of the injury & compounding complexities of the chosen treatment, then infection, and so delayed P. therapy during the protracted full healing time,
& suffering still - I'm sure, beyond the not un-substantial physical, but psychological as well. That I hope you have found some thing to help with

how you doing going forward in life if you never get any further resolution?

there was never any informal or implied obligation to provide you with a higher level of safety/security, than you had chosen to provide for yourself.
Gnome Ofthe Diabase

climber
Out Of Bed
Jun 9, 2018 - 02:56pm PT
(HAD A FISH ON-LINE - THATS WHO I WAS ASKING, HE DELETED , SO I 'LL JUST LEAVE THIS HERE*) DID YOU CATCH THIS ? [Click to View YouTube Video]I had hoped that by posting the wide why of a video, it would have at least given pause.
was not trolling,
this is an important line,
It needs to be kept in the other sport, that is also climbing.
That other climbing, that happens in glorified airplane hangers on cool sculptures with attachable holds and survivable waivers.

it has to be a line,
there are acts of mayhem that occur not so much at random, but often due to un-for seen conditions/events that occur outdoors. . .

Important to the discussion:

1) he chose to go climbing/cragging at the base of El Cap in the middle of wall season. Was sitting (unawares, not stanced in the moment fully)which is fine, on a fair day at the Gunks but not June !9 at the top of Little John Pinnacle, (below an active wall.)

2)

3)Climber was lucky that skilled 1st responders were on the scene,
willing to jump in, when they could have "Left To Go Get Help"

4) Now, as lucky as can be to be whole, has seen it in his right to ask for, demand ? anything more while possibly defaming those good Samaritans . . .







Trump.
Pussy Grabber & Thief
Repugnant tyrant-wana'be
leader of the deplorables
Jun 9, 2018 - 03:42pm PT
What a bunch of hooey because everyone knows that it’s 90% your faulty decision making!! And when I say 90% it’s not like I made that sh#t up either - I measured that 90% with my own objectively double blind mind.

Yes, pot, the kettle sure is black.
Pussy Grabber & Thief! Is That You Who yoodooin?(#howmany?paidwhorwivz)

% value of decision: choice of Location,=? Choice to sit=? Choice to top out as a party of 3, at some point the %value of the choices made far out weigh the % value of the accidental actions of others.
Trump

climber
Jun 9, 2018 - 03:42pm PT
What a bunch of hooey because everyone knows that it’s 90% your faulty decision making!! And when I say 90% it’s not like I made that sh#t up either - I measured that 90% with my own objectively double blind mind.

Yes, pot, the kettle sure is black.
A Essex

climber
Jun 9, 2018 - 05:08pm PT
Wow, some real haters here.

Regardless of how they are dealing with their grief, dude nearly lost his arm for real for the crime of being in the path of a heavy bag?!

yet, those that lost their lives while essentially soling while roped together with minimal or no gear are celebrated? not to say that they shouldn't be, but the cognitive disconnect here is palpable
climbski2

Mountain climber
The Ocean
Jun 9, 2018 - 06:42pm PT
No cognitive disconnect...

While I do have exteme sympathy for the harm.. I have no sympathy for trying to share the harm.

Life is unfair..trying to share the unfairness you are dealt is cowardice.

Pretty much sums up a lot of this worlds issues
Trump

climber
Jun 9, 2018 - 06:48pm PT
And not being willing to share the harm inflicted on other people, in the right context, is called white privilege. We pick our sides on this world’s issues, one way or the other.
climbski2

Mountain climber
The Ocean
Jun 9, 2018 - 06:53pm PT
True..I suppose it is a matter of perspectve..but in climbing for me it takes a lot to consider someone else responsible for misfortune.

definately Beyond the normal and expected truth that people make honest mistakes in an unforgiving realm
Trump

climber
Jun 9, 2018 - 07:07pm PT
Nicely said.
A Essex

climber
Jun 9, 2018 - 07:57pm PT
honest mistakes happen all the time on the freeway and there are consequences
Jon Beck

Trad climber
Oceanside
Jun 9, 2018 - 08:04pm PT
I do not think we want to reduce climbing to a sunday drive. Do you really want the land managers demanding proof of insurance before racking up?
Mei

Trad climber
mxi2000.net
Jun 9, 2018 - 08:37pm PT
I don't know what to think about this particular incident and the events that unfolded afterwards. Or, I think I know what I think, but I also know I'm not in either person's shoes, so my opinion is not worth mentioning other than sending my sympathy to both parties of the unfortunate event.

Even though the sad outcome did not change in the case of the recent accident that killed two superstars in Yosemite, I was relieved to hear that nobody's haul bag was implicated. If that had not been the case, I have no doubt a third person's life would be forever ruined, both emotionally and financially.
clinker

Trad climber
Santa Cruz, California
Jun 9, 2018 - 09:45pm PT
If the haul bag had ended the career of one of our darlings, oh the outcry!
Dude, you might have better luck coming back as a cedar, that by chance, grows at the base of a nice sport line.

F*#k responsibility, hit and run rules!
Sierra Ledge Rat

Mountain climber
Old and Broken Down in Appalachia
Jun 9, 2018 - 10:49pm PT
We all have to be responsible for our own choices, and if you chose to climb under another party then you accept the risk. But - when you have another party below you, there is a responsibility for being careful and not knocking something down on them.

An anecdote of mine - once I was climbing in the Bugaboos. Were were ascending a terribly loose, steep moraine, and it was impossible to avoid triggering rockfall no matter how careful you were. You know how loose active moraines can be.

A couple of Scots appeared and started ascending directly below us. I warned them of the rockfall danger and recommended that they ascend somewhere besides directly downhill from us, as it was terribly loose. They ignored me and kept following.

We really tried to avoid knocking anything off, but it was impossible to avoid. The Scots were enraged, and were screaming obscenities at us. But they kept ascending directly below us.

Once on top, my partner dropped his glacier glasses, which fell down into the talus. We stopped to fetch his glasses, so the Scots caught up to us.

The Scots started a fist fight over the matter of the rockfall. Our ice axes trumped their fists.

Stupid f*#king Scots.
A Essex

climber
Jun 10, 2018 - 06:07am PT
So I'll play along with the 'accept the risk' line of reasoning for a minute

why then, is this guy being actively berated for asking for $ via a voluntary GoFundme, while two guys roped together, essentially soloing, are being showered with national media attention and money?

I really don't understand.

wrong place at the wrong time = no sympathy and active hostility

knowlingly taking huge risks for speed = much sympathy and outpouring of support
nah000

climber
now/here
Jun 10, 2018 - 07:06am PT
A Essex wrote: "why then, is this guy being actively berated for asking for $ via a voluntary GoFundme"

are you posting to the correct thread?

if so, go back one page and [re]read the last post from eagletusk and then go back to the first page and [re]read his first post...

if this was about a gofundme, i suspect this would be an a lot more boring thread.

as it stands, the story i've seen so far, is that it's about a climber who chose to climb underneath someone else and who is now posting public, vague, possibly "lawyer" reviewed letters about implied potential lawsuits and "restorative justice" because they believe the other person is somehow at least partially responsible for an accident that occurred. this assumed responsibility is despite the apparent fact that the o.p. climbed underneath of the other group without giving that other party a say in the matter [or at least without asking to make sure the other party had liability insurance to cover a mishap or more importantly that the higher up on the rock climber was in agreement with this climber's historically atypical approach to liability and responsibility in the face of an accident (an accident that happened within an endeavor that is both non-necessary/completely voluntary and, as we are reminded with every disclaimer that we ever read in climbing, is an "inherently dangerous activity")]

ie. the distance from your synopsis of what's happening in this thread to what i've seen happening, is about as far as east is from west.
John M

climber
Jun 10, 2018 - 07:11am PT
wrong place at the wrong time = no sympathy and active hostility

knowlingly taking huge risks for speed = much sympathy and outpouring of support

Its not that hard to understand. you left out a part.

Knowingly climbing under another group= you take responsibility if an accident happens that doesn't involve a high level of willful neglect or carelessness.

If he wasn't trying to make the other group pay, then he would get a lot more empathy. Most people here seem to believe that he should accept most of the responsibility because it was his choice to climb under another group. If the group that dropped the bag did it because of negligence, then they would be to blame, but since it was an accident, then in climbing circles, the person climbing below takes the responsibility.

I'm sure the group above is very sorry this happened, but the community feels that they should not be held financially responsible. Hence, this guy doesn't get sympathy.
Flip Flop

climber
Earth Planet, Universe
Jun 10, 2018 - 07:49am PT
If there's a crowd then I go elsewhere. I was taught that people drop things and cause rockfall. Climbing under other climbers is somewhat negligent
August West

Trad climber
Where the wind blows strange
Jun 10, 2018 - 10:33am PT
I do not think we want to reduce climbing to a sunday drive. Do you really want the land managers demanding proof of insurance before racking up?

When do the self climbing robots replace the human climbers?

But climbing is more like a nascar race than a Sunday drive. You assume the risk of somebody else's mistake and that is just part of the sport.
stevep

Boulder climber
Salt Lake, UT
Jun 10, 2018 - 03:29pm PT
Like others I'm sorry for the OP's pain and long recovery. And had he treated it like just an accident and asked for financial help most here would have had a lot of sympathy.

But A Essex, that hasn't been the approach. The OP himself suggested this "restorative justice" idea. From the Wikipedia link for that:
"Restorative justice is an approach to justice in which the response to a crime is to organize a mediation between the victim(s) and the offender(s), and sometimes with representatives of the wider community. The goal is to negotiate for the offender(s) to deliver a restitution to the victim(s), to the satisfaction of all participants."

Response to a crime? I don't think anyone here would want climbing accidents treated as crimes. That's why we have had such a negative reaction.
phylp

Trad climber
Upland, CA
Jun 10, 2018 - 04:58pm PT
Knowingly climbing under another group= you take responsibility if an accident happens that doesn't involve a high level of willful neglect or carelessness.

If he wasn't trying to make the other group pay, then he would get a lot more empathy. Most people here seem to believe that he should accept most of the responsibility because it was his choice to climb under another group. If the group that dropped the bag did it because of negligence, then they would be to blame, but since it was an accident, then in climbing circles, the person climbing below takes the responsibility.

Sums it up well and deserves repeating.
Jon Beck

Trad climber
Oceanside
Jun 10, 2018 - 07:54pm PT
OP could have raised some coin off a tactfully executed GoFundMe campaign. Instead he went over the top with the demands for justice. Now if the other party aquieses to any of the demands he will be viewed with as much contempt as the OP. Curious how is this playing on MP?
steve s

Trad climber
eldo
Jun 10, 2018 - 08:00pm PT
Also note the shameless name dropping by the op in first post. Sorry ya got hurt.
Mr_T

Trad climber
Northern California
Jun 11, 2018 - 08:42am PT
This would be a good topic for the legal blog https://www.popehat.com/. While the author doesn't seem to specialize in this sort of thing, he might weigh in. It could satiate the arm-chair-lawyers here.


fear

Ice climber
hartford, ct
Jun 11, 2018 - 09:32am PT
damn... hope you forget this goofiness paul and get to focusing on the remainder of your recovery.

Ditto that....

Be thankful for what you still have and move on.
Toker Villain

Big Wall climber
Toquerville, Utah
Jun 12, 2018 - 04:36pm PT
I was on a route in Eldo when a party rapped from the top to do the Diving Board.

One of them dropped a rock that put me in a wheelchair. When I started there was nobody above me. So I hadn't really assumed that risk.
the Fet

climber
Tu-Tok-A-Nu-La
Jun 12, 2018 - 07:15pm PT
Paul, thanks for coming back and posting an update.

Knowingly climbing under another group= you take responsibility if an accident happens that doesn't involve a high level of willful neglect or carelessness.

If he wasn't trying to make the other group pay, then he would get a lot more empathy. Most people here seem to believe that he should accept most of the responsibility because it was his choice to climb under another group. If the group that dropped the bag did it because of negligence, then they would be to blame, but since it was an accident, then in climbing circles, the person climbing below takes the responsibility.

I'm sure the group above is very sorry this happened, but the community feels that they should not be held financially responsible. Hence, this guy doesn't get sympathy.

Again that is a great summary. For "Most people here seem to believe that he should accept most of the responsibility". I agree, but as stated "most" not "all". Johnathan did accidentally drop a haul bag on him. Seem like he would bear some responsibility. I have no idea how much.

My wife, infant son, and I were driving down a freeway and a truck in front of us dropped a big piece of agricultural equipment on the road (about the size of a refrigerator) we had to swerve to avoid it and the car rolled (POS Ford Explorer). Luckily the truck had insurance and they had to pay the medical bills. I would imagine there's specific rules of the road in that case but the situation is they caused they accident (didn't properly secure a load, I don't know if they attempted to secure it (accident) or didn't even try (probably negligence)). I guess being on a public road is different than under a 3,000 foot cliff, so we had less responsibility.

It sucks that in sue happy USA Jonathan had to put "I have been advised not to respond". He should be able to say "I'm really sorry this happened. It was an accident. I wish I would have done something different." without opening himself up legally. Just emotionally I would want to hear that.

I kind of feel Paul should have approached Jonathan with something like "I have $15,000 in uncovered medical bills, and $12,000 in lost wages. Since we are both partly responsible for the accident would you consider paying half of this?" Or maybe 25% or something? Or perhaps just contribute how much you feel you should.

I don't blame Jonathan at all for being frightened away by the open ended "I am requesting that you make financial reparations in accordance with the magnitude of the injury and financial loss I am facing as a result of your negligence" That could be hundreds of thousands of dollars. And as mentioned earlier it wasn't negligence, it was an accident.

I also agree it would have been better to not claim negligence and make this an open discussion, and instead just posted a go fund me.
August West

Trad climber
Where the wind blows strange
Jun 12, 2018 - 11:10pm PT
Fet do you mean he should bear some moral responsibility? Because unlike your truck example, I don't think he has any legal responsibility. Sure a court could at some point set a new precedent but I don't see a reason to expect that.

Toker. Unless it is illegal for someone to rap in from above, I would say you did assume the risk that something like that could happen.

I know there are some climbers that believe whoever starts up first should have absolute rights to not have anyone above them. But I'm not aware that would give you any more legal standing.

The etiquette of passing is it's own thread. But in an environment where there are multiple routes, faster parties are going to pass a slower first start party. And in some environments parties are going to rap in from above.

Accidents and injuries are a drag. I was bed ridden and then in a wheelchair for a while. Although that didn't involve any mistakes but my own.
clinker

Trad climber
Santa Cruz, California
Jun 13, 2018 - 04:41am PT
Although that didn't involve any mistakes but my own.

There you have it.
justthemaid

climber
Jim Henson's Basement
Jun 13, 2018 - 05:27am PT
It sucks that in sue happy USA Jonathan had to put "I have been advised not to respond". He should be able to say "I'm really sorry this happened. It was an accident. I wish I would have done something different." without opening himself up legally...

I kind of feel Paul should have approached Jonathan with something like "I have $15,000 in uncovered medical bills, and $12,000 in lost wages. Since we are both partly responsible for the accident would you consider paying half of this?" ...

After some reflection... I've come around to that sentiment^^^ Legally responsible (in this situation)- No (IMO) Morally...perhaps yes.

It's unfortunate that this wasn't handled off-screen with some kind of mediator. The minute a loud public demand for reparations is made - one is forced up their guard and can accept no responsibility. It's simply too dangerous to be sympathetic at that point. Trust that it can be handled in a civilized manner is broken.

Side story: A conversation with a non-climber about this accident...
His question..."So if a regular-Joe hiker is walking at the base of a cliff and a climber dropped a haul bag on them- does liability shift?" My answer (IMPO with no clue about actual law) was "yes". Sure- it's still an "accident" but a hiker does not assume that particular risk .
Gnome Ofthe Diabase

climber
Out Of Bed
Jun 13, 2018 - 05:51am PT
IF SIZE MATTERS?, so does location.

Just The Maid? are you trollin'? or just trippin'!
No one should have to be told that taking a walk under a wall where climbing is taking place, puts one at great risk. Gravity sucks, constantly & the risks of having the effects of gravity be proven in dramatic fashion, increase in exponential magnitude depending on what might be or is going on above any location


When, there is an opportunity, choosing between destinations, any one who enters into an area where there are people working above, takes on the responsibility for that decision.

just a house keeping thing
J.T.M!
Sorry that you're up so early. . . .Wow,
it never would have occurred to me that it might be beyond someones grasp that an unintentional act of gravity, might occur while walking under a cliff..
I had no idea that the populations general inability to be aware of the obvious,had fallen to such a deplorable level,
(I should have realized, Trump, may have actually been elected?)
driving in traffic is now making more sense, thnx, `=)
justthemaid

climber
Jim Henson's Basement
Jun 13, 2018 - 06:11am PT
It's all hypothetical sidetrack- but My point about a totally average Yosemite visitor that is a non-climber bringing this up was... he basically had ZERO clue that any risk of falling gear even exits when walking at a cliff base. I had to explain what a haul bag was and that gear can and does get dropped and that climbers can knock rocks off. It's so far out of the realm of reality it would never cross his mind that it was a bad idea to linger under climbers until our discussion. Maybe you think he's stupid- but I think he's probably the norm for a NP visitor. We as climbers have privileged information about risk assessment in these scenarios and should take responsibility accordingly.

Natural rockfall is a different matter that should fall in the realm of common sense with the average human.

Edit to add @ Gnome- it was a weird discussion for sure- a bit of an eye opener.
fear

Ice climber
hartford, ct
Jun 13, 2018 - 08:58am PT
Just as a side note, if the bag dropper were somehow to formally accept negligence on his part he could be then held liable and sued by the health insurance company to the tune of lots more $$$ and lawyer fees.



the Fet

climber
Tu-Tok-A-Nu-La
Jun 13, 2018 - 09:19am PT
Fet do you mean he should bear some moral responsibility? Because unlike your truck example, I don't think he has any legal responsibility.

I guess so. I guess I would feel some moral responsibility if I had accidentally done the same thing. But as mentioned a choice was made to climb under the other party, and that implies some acceptance of responsibility, and accidents do happen.

From what others are saying here if you climb under someone you accept the responsibility for the danger from accidents, but I wonder if that is actually legally the case? If so I'm fine with that but it would be nice to have a definite answer. e.g. if someone topping out isn't being careful enough and knocks rocks down on you and their bear no responsibility I'd be even more inclined to not climb under someone on many climbs.

On the Nose if you refused to climb without anyone above you, you'd pretty much have to climb in the winter to avoid any other parties.
Jon Beck

Trad climber
Oceanside
Jun 13, 2018 - 09:25am PT
If the dropper was to reach out and help the dropee then the dropee would not be able to use that against the dropper later. The intent is to encourage people to act civily. The health provider has no standing to pursue the dropper directly, there would likely be a subrogation claim against the dropee, assuming the dropee did not waive subrogation by entering into a settlement agreement that left out the healthcare provider. In order to protect healthcare providers in CA there is an automatic health provider lien on any recovery. Many lawyers have gotten in trouble ignoring those liens
fear

Ice climber
hartford, ct
Jun 13, 2018 - 10:39am PT
Curious about that John. The subrogation claim from the insurance company would be against the at-fault dropper unless there was a formal legal settlement reached by both parties in court that specifically excluded the health insurance company right?

In this state I know more than a few lawyers who just specialize in these kinds of clawbacks... Maybe it's a state by state thing?

Of course if the dropper has no income or assets to attach liens on... then they'll likely give up.

Jon Beck

Trad climber
Oceanside
Jun 13, 2018 - 10:55am PT
Subrogation is contractual, between the insurer and insured. It is in all insurance policies. The insured agrees to assign the claim to the insurer. If the insured settles the case without providing for reimbursement to the insurer then the insured is in breach of contract with the insurer and the dropper is off the hook.
Toker Villain

Big Wall climber
Toquerville, Utah
Jun 13, 2018 - 02:29pm PT
August West
while it IS legal to rap from above I do not think it is reasonable to expect it.

In any case all I asked for from the offending party was for one of them to give me a ride home from the hospital, as I had health insurance.
donini

Trad climber
Ouray, Colorado
Jun 13, 2018 - 02:37pm PT
Negligence vs. an accident. One could argue that dropping a haul bag is nearly always negligent. If you’re careful (eg. not negligent) you should never drop a bag absent some material failure which is unlikely.
Toker Villain

Big Wall climber
Toquerville, Utah
Jun 13, 2018 - 02:44pm PT
Negligance

A neglige worth another glance?
donini

Trad climber
Ouray, Colorado
Jun 13, 2018 - 03:09pm PT
Ah...a typo needed correcting...done!
the Fet

climber
Tu-Tok-A-Nu-La
Jun 13, 2018 - 05:38pm PT
From findlaw.com re: negligence

In most situations, a defendant is required to exercise the same level of care as a reasonable person would in similar circumstances.

Two leashes on a haul bag seems like what a reasonable person would do. Accidents happen all the time in climbing and don't always mean negligence. If someone left a haulbag un-tethered on the edge of a ledge and it fell I'd say that's negligence. But somehow messing up clipping something in happens quite often even when people are exercising care.
August West

Trad climber
Where the wind blows strange
Jun 13, 2018 - 10:42pm PT
One could argue that dropping a haul bag is nearly always negligent.

Sure. If you hang out in a courtroom you could argue all sorts of things.


Now legally winning arguments, that's a different story.

The legal response isn't whether the party was negligent. The argument is that if lawsuits were allowed the sport would cease to exist.

Since the participants are assumed to want the sport to exist, the law assumes they have acquiesced to not being able to sue for damages.

If a nascar driver is negligent and injures another driver, I'm not aware that they can succeed in a civil case.
August West

Trad climber
Where the wind blows strange
Jun 13, 2018 - 10:51pm PT
August West
while it IS legal to rap from above I do not think it is reasonable to expect it.

I totally agree about the reasonableness of expecting it.

But climbers assume all the risk, even the unexpected.

If you read enough accident reports, you find out injuries can come from many weird angles.

Although some are pretty common. Lead fall inadequate gear. Exposure to weather. Off route, dark. Failure of belay chain from lack of focus.
August West

Trad climber
Where the wind blows strange
Jun 13, 2018 - 10:52pm PT
You can sue anybody. You just won't win.
Braunini

Big Wall climber
cupertino
Jul 24, 2018 - 07:29pm PT
Restorative justice, ha ha ha what a dickhead

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