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drivel
Jul 5, 2011, 10:23 PM
Post #126 of 134
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cracklover wrote: drivel wrote: GO seemed to want to talk about his offhand comment about gear failure in general being a personal moral failure, and how I take issue with that. Um... either reading comprehension FAIL, or you're trying to misrepresent me. Either way, I never said any such thing. I have been making the following three points: 1 - Once you leave the ground, the only one who can keep you safe is you (and your partner). 2 - Complex gear with multiple moving parts is an area where people can have reasonable arguments about where the primary burden of inspection should lie. In such cases, I might have a minority opinion, but this is not such a case, as the inspection of webbing is straightforward, and is not an undue burden on the purchaser. 3 - When it comes to climbing (or caving), IMO the courts should not be a refuge for the stupid, careless, or ignorant. GO
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drector
Jul 5, 2011, 10:50 PM
Post #128 of 134
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MS1 wrote: drector wrote: MS1 wrote: So I think a warranty theory would be just as hard to pursue as a tort theory. In either case, you would have to convince a judge or jury that it is reasonable for a climber to trust their lives to a single, non-redundant strand of uninspected webbing. Most climbers would find such an idea ridiculous (at least where the defect was easily noticeable), but as others have noted, the chances of a climber being on the jury are negligible. Yet every day, people trust their lives to uninspected car brakes and uninspected car airbags. I don't know what is right in this case but the difference between rock climbing and stepping into an elevator is likely to be the most important issue related to this case. This seems to be the situation with every equipment related lawsuit in the climbing and recreation industry. When does a person have an expectation that someone else is overseeing their safety and when do they have that responsibility themselves? Where is a list that tells me things in life fall into each category? Dave I think you are offering a bad analogy. Faulty brakes or airbags are hard-to-spot defects; the climbing analogy there might be a faulty cam with a head that pops off under normal climbing loads, or a rope with a weakened core but a normal looking sheath. In both cases, full liability to the manufacturer for the product defect seems pretty obvious. Here, we have a visible defect and a product used in a manner that few would recommend. A better car analogy would be taking a car that was missing a brake pedal entirely and driving on the interstate with it. I doubt any jury in the country would find that a reasonable use of the product, and so it would be very hard to get damages out of the automaker even though a car without brakes is dangerous and defective. The only reason this case will come out differently is that jurors are familiar with how reasonable drivers behave, but have no ability to distinguish between safe and unsafe climbing practices.
It was a question. When is a defect or "splice" become easy to detect? Airbags are impossible to inspect whereas the color of my bubblegum is fairly easy. Who decides what is easy and should that really be the people that are extremely experienced with the particular type of equipment? I can easily inspect the brake pads on my car and know if they have enough material to provide proper braking. Most cannot.
It was not an analogy, BTW. It was a comparison of things that can be inspected for their proper function and things that cannot. The intent was to show that different people draw their line int he sand in different places depending on their own experiences.
Dave
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stealth
Jul 5, 2011, 11:22 PM
Post #130 of 134
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Registered: Jun 29, 2011
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iknowfear wrote: healyje wrote: iknowfear wrote: healyje wrote: stealth wrote: ...seems like this is a win for the lady There is no after-the-fact 'winning' in court that will ever change or make up for the losses she suffered on rock after failing to build an adequate anchor and inspect the webbing. well, I finally found it: According to UIAA-102 (or EN-564): If cordelette or webbing is offered on a spool or packaged in another way, the entire lenght is to be made of a single piece. (original text: Wenn Reepschnur auf einer Trommel oder anderweitig verpackt angeboten wird, muss die gesamte Länge aus einem Stück bestehen. (P.147, Pit Schubert, "In Sicherheit in Fels und Eis III, Second Edition, 2008) And exactly how does that help her pain and injuries? not at all. It might help to pay for the bills, though. The webbing was sold in a way which is against the norm (at least in europe.) how much that amounts to in an us court? we'll see. Sure she should have inspected the webbing. Sure she should have built an anchor that deserved the name. Should the store have sold spliced webbing? Hell no. with such a case in these parts of the world, the insurance would probably sue the manufacturer of the webbing for part of the cost.
Good job researching, at least this lady should get a financial settlement.
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healyje
Jul 5, 2011, 11:53 PM
Post #131 of 134
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Registered: Aug 22, 2004
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stealth wrote: ... at least this lady should get a financial settlement.
Nothing like a lovely "what, me worry?" day at the crag knowing there's a 'financial settlement' ahead in case you end dead or injured. And hey, what a comfort knowing that, despite having no clue what you're doing, you can feel secure just going ahead and doing it anyway.
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j_ung
Jul 6, 2011, 12:46 PM
Post #132 of 134
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Registered: Nov 21, 2003
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drivel wrote: j_ung wrote: I think the word fault is inadequate to describe the situation, even though some of us are using it pretty liberally. There's plenty of fault to go around in this case, but there's only one person responsible for the position the climber is in. the situation with the spliced webbing is it's own ball of worms, yes, and at least two people fucked up big time that I can count, but GO seemed to want to talk about his offhand comment about gear failure in general being a personal moral failure, and how I take issue with that. But I do have a serious issue with the whole "your situation is your fault/responsibility" thing, just because it involves rock climbing. Is rock climbing really it's own special and unique snowflake? A nd possibly it's just a semantic problem. But would you say a car accident is your responsibility if a drunk driver hits you, because you chose to drive a car? Would getting hit on a bike be your responsibility because you choose to ride one on rural roads that are not exactly cyclist friendly? Would you say being raped is your responsibility if you chose to get blackout drunk and some dude takes a fancy to you?
I still don't necessarily agree that your analogies apply here. Rock climbing is not a unique snowflake, but dangerous recreational activities are, IMO. By that standard...
Car accident analogy: This involves the commission of a crime on the part of another, both in the legal and moral sense. It also involves an activity, driving, that many of us arguably have to do to survive.
Bicycling: I think this falls in the same category as climbing. If I choose to ride on bike-unfriendly rural roads, then yes, I have either accepted the risks or I'm simply running on ignorance.
Rape: This also involves a crime, not to mention a deliberate act on the part of one person to do harm to another person.
Choosing to willfully take part in an activity that holds inherently extreme personal risks—for recreation—changes the equation, IMO.
Go ahead and throw some more analogies at me. I'm not afraid to test my philosophy, even if it means I might be proven wrong.
(This post was edited by j_ung on Jul 6, 2011, 12:47 PM)
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Speed4TheNeed
Jul 8, 2011, 4:16 AM
Post #133 of 134
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Registered: Jun 6, 2011
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While I do think the store employee was stupid to sell spliced webbing, I still think the "victim" was even more stupid to not have inspected it.
Do I think the stupidity of the store employee entitles the user to a financial settlement, even partially? No. Climbing and caving is inherently dangerous..we hear this every single day so much that it becomes a boring and somewhat of a moot point..until something like this happens.
Inspect your gear. All of it. This is just plain common sense and just because someone lacks plain common sense doesn't mean they are entitled to anything. It is unfortunate for sure, but at least it was not fatal as it very well could have been (and even if so this still wouldn't change my opinion).
The only argument I can see is that the person who sold the webbing also lacked plain common sense (which is true) but I still maintain the ultimate responsibility lies with the user.
If I buy a brand new climbing rope and somehow it slipped passed quality control and was obviously damaged but I failed to inspect it, I don't think I would be entitled to anything. Visible damage (such as taped over spliced webbing) is completely different from invisible damage on a brand new item.
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rescueman
Jul 8, 2011, 5:00 AM
Post #134 of 134
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Registered: Mar 1, 2004
Posts: 439
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I'll admit to having read only the first and last page of the six pages of responses, and I'm glad to read that some climbers accept personal responsibility for their choice to participate in a potentially life-threatening activity.
But two things are perfectly clear:
1) the store was at fault for selling a short section of webbing with a taped splice.
2) the climber/caver was at fault for not noticing the splice.
The relative share of responsibility can be determined only after all the evidence is presented.
Whether the store should financially compensate the victim for their part in the accident is, however, an entirely separate matter.
If we lived in a society which took care of the disabled, then there would not be an issue of compensatory damages. And if we lived in a society in which each individual was completely responsible for their own actions, then there would be no issue of punitive damages.
Given that neither of those is the case, then it's reasonable for a jury to determine either or both. What's not reasonable is for a tort attorney to take 50% of the award.
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