Climbing fatality & lawsuit for failure to rescue quickly

Filing an injury claim against the State of Oregon can be a challenge. Even if your claim is successful, if you have been injured in an accident in a state owned building or suffer harm due to the actions of a state employee acting in the scope of his or her duties, your compensation may be limited.

As with cases involving the Federal Government, the Oregon State Government is entitled to what is known as “sovereign immunity” regarding matters of liability. Many of our laws are derived from British Common Law. Historically, under the doctrine of “sovereign immunity,” you were not permitted to sue the king. In modern times, there is a general rule that you cannot sue the government, unless the government says you can, and every state has passed its own set of laws (referred to as a “Tort Claims Act”).

Liability Limits under the Oregon Tort Claims Act
The Oregon Tort Claims Act limits the types of lawsuits that may be filed against the state and the circumstances in which they can be brought.

Under the Oregon Tort Claims Act, you may file a claim if:

An injury or death was caused by a slip and fall or other forms of negligence where the government was at fault.
You were injured in an auto accident due to the actions of a government employee who was carrying out his or her duties, or the vehicle was part of a ridesharing agreement.
The actions of a government agency or employee damaged or destroyed your property.

One simple solution would be to . . .

Classic Republican solution, whatever is easiest for him is best for society

Don't forget, we talkin bout Potland, Oregon!! Everyone up there moves sensationally slow....

Approximately two hours of time was lost as the 911 call bounced around until PMR (not named in the suit) was finally activated.

It surprises me that the Swedes and Austrians sue so much. But part of the equation is we have more poor people who sue less, as they cannot afford lawyers, so our numbers are lower.

My understanding, based on a conversation I had two days ago with a member of Portland Mountain Rescue, is that the 911 call was not passed directly to the Sheriff's Office. Rather, it was sent to Timberline Lodge Ski Patrol. The site of the victim was well outside of the area patrolled by Timberline. Approximately two hours of time was lost as the 911 call bounced around until PMR (not named in the suit) was finally activated. Those lost two hours may very well have been the difference between surviving and dying. If the above facts are accurate, the legal question is whether the Clackamas County 911 service is responsible for botching the processing of an emergency call. The fact that climbing is dangerous seems, in this case, to not be pertinent to the legal question of responsibility for processing 911 calls.

I'd say the answer to both is no.

Under state law, all persons owe a duty to use due care in their own actions to avoid creating an unreasonable risk of injury to others.32 By contrast, those who have not created a risk of harm generally have no duty to take affirmative action to assist or protect another.33 Although police officers are paid to act in service of the general public, their official duties do not support liability for failing to prevent injury to an individual; like private citizens, they generally have no duty to come to the aid of others.34 This “no duty” rule will “bar recovery when plaintiffs, having suffered injury from third parties who were engaged in criminal activities, claim that their injuries could have been prevented by timely assistance from a law enforcement officer.”35 If this were not the rule, the police would potentially be “legally responsible to individual citizens to prevent their victimization by crime.”36

The fact that an injured party has requested, or even received, police assistance does not itself create a “special relationship” (discussed below) that gives rise to a tort duty to take action or a certain type of action.37 In other words, a police officer responding to an incident creates no special relationship; the officer need not provide emergency medical aid to any particular individual 38, utilize any particular law enforcement tactic 39, or conduct any particular type of investigation.
40 Even in the face of imminent harm to a person, and even when the police are on the scene observing, the failure of the police to take action to assist the person does not state a claim because the police simply have no legal duty to act.41

The police owed no “duty to … protect” even when a physical attack in their presence was reasonably foreseeable and easily preventable.42

C. A Special Relationship Gives Rise To A Duty
An exception to the “no duty” to assist rule is the special relationship doctrine. A “special relationship” between a citizen and the police, giving rise to a duty, arises only in rare circumstances when police conduct “not only contributed to and increased the preexisting risk, but also changed the risk that would otherwise have existed … (there is) detrimental reliance on the officers' conduct that prevented them from seeking other assistance; and … the officers' conduct lulled the … (citizen) into a false sense of security.”43 A duty of protection or assistance

32 Minch v. Department of California Highway Patrol, 140 Cal.App.4th 895, 908 (2006).
33 Williams, supra, 34 Cal.3d at 23.
34 Id. at 23-24; Zelig v. County of Los Angeles, 27 Cal.4th 1112, 1129 (1998).
35 Zelig v. County of Los Angeles, 27 Cal.4th 1112, 1129 (1998), citing Williams, 34 Cal.3d at 25.
36 Adams v. City of Fremont, 68 Cal.App.4th 243, 275 (1998). 37 Hartzler v. City of San Jose, 46 Cal.App.3d 6, 10 (1975).
38 Rose v. County of Plumas, 152 Cal.App.3d 999, 1004 (1984).
39 Lopez v. City of San Diego, 190 Cal.App.3d 678, 682 (1987).
40 Von Batsch v. American Dist. Telegraph Co., 175 Cal.App.3d 1111, 1122 (1985).
41 Davidson v. City of Westminster, 32 Cal.3d 197, 206-09 (1982).
42 Id. 43 Adams, supra, 68 Cal.App.4th at 284.

I think the legal question would be whether the 911 dispatcher could reasonably be expected to know what agency to forward the message to (a nearby ski patrol seems pretty reasonable to me) and whether anyone had any legal duty to launch a rescue attempt regardless of when the call was received. I'd say the answer to both is no.

Not surprising that our right wing resident kooks lap it up as something "holding America back" rather than making it a healthier place to live. Blaming the victims for seeking and getting redress.

The Sheriff hesitated till he had confirmation from "professionals" that the injuries warranted a helivac.

A deeper concern is the implications of a successful 'failure to rescue' suit could have for bystanders, passersby, climbers in other teams and really anyone in the vicinity of any accident, anywhere, at any time.

Is there a duty to rescue? Is a rescue an entitlement? Should the public be spending sometimes millions to try to find and rescue lost folks in the wild lands?

the victim was climbing with a whippet

If somebody requires a rescue due to stupidity shouldn't he be willing to pony up?

Privatize rescue? Look at our medical system to see how well that worked out.

Canada has a publicly funded health care system, but the vast majority of doctors do not work for the government. A patient is free to choose which doctor they wish to visit, and they are entitled to essential physician health services without charge. Doctors are self-employed, which means they can determine their own hours and work location, and they are responsible for paying their employees, for office space and other overhead expenses. Doctors earn money by billing their provincial government for the services they provide to patients.

The Canadian health system is often referred to as "socialized" medicine, but it is actually a mix of private providers billing governments for publicly funded services.

But should taxpayers subsidize foolishness or ineptitude?