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trimix
Oct 1, 2004, 11:02 PM
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What is the legality of taking someone climbing with you if he or she gets hurt?
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iclimbtoo
Oct 1, 2004, 11:10 PM
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is it a friend or as a business endeavor?
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t.vegas
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Oct 1, 2004, 11:11 PM
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Well, today is a sue happy world....
One thing positive that you have going for you is the fact that every piece of gear used in climbing has warning lables telling you of the chance of serious injury or death. However, people or their heirs can and will try to litigate after an injury or death has occured.
The only solution that we have come up with in the skydiving world is to have customers sign a release of liability waiver. This document is written by a lawyer, and is three to six pages long. It constantly repeats the message that skydiving is dangerous, that the customer may be hurt or killed, and that they have to sign the contract of their own free will, amoung other issues.
Beyond having a waiver drawn up, I can only suggest to cover these issues on a videocamera before you go out with someone.
The fact is, neither option is very viable to us normal folks, and so we just hope that the situation never arises.
Godd luck!
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caughtinside
Oct 1, 2004, 11:16 PM
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My guess would be that it's an ordinary 'assumption of the risk' activity. By going, you are assuming the risk to your safety. In football, you assume the risk of being tackled and hurt. There's another element in rock climbing, since your partners mistakes can hurt you. I would imagine that you're assuming that risk as well.
Now if you are downright careless and reckless, things may get a bit murkier.
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trimix
Oct 1, 2004, 11:21 PM
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All good advice, I will look on the web for a
Climbing release of liability waiver
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cosmokramer
Oct 2, 2004, 2:12 AM
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A good buddy of mine (24 yrs old) is friends with (in a big brother/mentor sort of way) a 16 yr old, and a few months back the three of us were at the crag and I knocked a bowling ball-size chunk of limestone loose with the foot I was standing on from about 70 feet up. The rock missed the kid's head by six inches -- he didn't even see it coming.
I think my friend would have gotten the ass sued off of him, if not charged with some kind of ridiculous child-endangerment/manslaughter type felony, for the kid would have surely been decapitated. I would say if it is not a dear friend or relative, you are a target for a lawsuit, but that's just my unprofessional, paranoia-driven opinion.
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hikerken
Oct 3, 2004, 6:14 AM
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Actually, depending upon where one lives, there is likely no liability at all. For example, in California, there is immunity. to quote from a law site that talks about this:
In 1992, the doctrine of primary assumption of risk was enunciated by a conservative California Supreme Court in Knight v. Jewett (1992) 3 Cal. 4th 296. The decision outlawed claims for injuries caused by the negligence of a co-participant in causal, recreational athletic games. In Knight, there was no liability for aggressive play in a rowdy amateur contest of touch football.
The concept originally provided that consenting adults in a casual game could not sue one another when rough play resulted in an injury............ today has ......... been expanded ........ to insulate coaches, certified instructors, expert trainers and paid sports professionals from liability when they cause serious injury or death.
In Knight v. Jewett the plaintiff's finger was amputated after another player accidentally stepped on it. 3 Cal. 4th at 300-301. The Supreme Court held there was no liability, because the other player owed the plaintiff no duty of care not to injure her; the court characterized this recreational sport activity as one of "primary assumption of the risk." Id., at 321.
A duty to use due care is one of the elements of every negligence cause of action; if there is no duty, there is no liability. Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal. App. 4th 746, 751. "Primary assumption of risk" created by the California Supreme Court prevents a claim of negligence from being heard by a jury because, when there is no duty of care, there is no case.
The Knight court explained the rationale for "primary assumption of risk" as an exception to the duty of ordinary care, as follows: "in active sports, rules internal to the game are commonly broken and "ordinary careless conduct" is a normal experience." Id., at 318.
The original concept was that in a competitive sporting event to hold another player liable for recreational play would chill participation and alter the fundamental nature of amateur sports. So in cases where the injured plaintiff voluntarily participated in a recreational event with peers, as a matter of law he or she was found to have assumed the risk of injury, including aggressive conduct and rules violations which are inherent in casual sporting activities, such as a robust game of touch football.
since the creation of this judicial rule the reasoning set forth in Knight has been expanded well outside its original bounds by California courts to prevent claims against experienced instructors, coaches, trainers and other quasi-professionals, who have superior knowledge, skill, and foresight and, in many cases, hold themselves out as experts or are paid professionals engaged in a commercial activity for profit.
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The whole website:
http://personalinjurylawpage.com/law-issues/t-sports-injuries.htm
Your state, of course, may differ, and it would perhaps be worth a careful internet search to find out.
So....if you are in California, throw out the waiver........
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climberpunk
Oct 3, 2004, 7:44 PM
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The key is the difference between gross negligence and assumed risk. It sounds like the guy in the lawsuit was having her toprope through webbing ["Stinson secured nylon climbing webbing, similar to a flat rope, to the top of the rock, but improperly attached that webbing to the nylon rope holding Enloe, the suit alleges. The rope rubbed against the webbing, breaking it and sending Enloe to the ground, the suit said. "] or something like that. If she had been injured from rockfall or something less than totally preventable there would probably have been no suit.
But if you're just bringing a friend out i wouldn't worry about a waiver. If you're getting paid, thats a whole different issue, and i would talk to a lawyer.
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hikerken
Oct 3, 2004, 10:09 PM
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I hope people read this case, posted above. I hope there is no waiver in the universe, nor pre-emptive law, that prevents someone from suing any climber who sets up a top rope running the rope directly through the webbing anchoring system, which burns through, and causes a novice climber to fall and get hurt.
I would happily give testimony in such a case.
In fact, I'd testify that doing such a thing is so far from being accepted, that only a person who deliberately wanted to harm someone would set it up that way. Even the California statute does not protect from deliberate infliction of harm.
But also note what the case said:
And although clear precedent exists for accident victims to sue tour groups, resorts or national parks, litigation between people engaging in arguably high-risk outdoor recreation is unusual.
Enloe's Salt Lake City attorneys, Stuart Hinckley and David Burns, have not yet found a similar rock-climbing case in Utah
===============
So, you are not talking about a significant risk.
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armsrforclimbing
Oct 3, 2004, 11:22 PM
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Unless the laws are different in your area there shouldnt be a problem. I run a club at my school, and we go climbing from time to time. I checked with the schools lawyer and he put it to me like this: Unless I go out of my way to make sure that someone falls or gets hurt the normal rules of assumption of risk apply. Unless I somehow assume some of that risk (i.e. accepting payment or otherwise), then I have no liability. Check with a lawyer, its the only way to be sure.
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sarcat
Oct 4, 2004, 3:11 PM
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Great topic. I've always wondered how sue happy someone would get if they got hurt climbing with someone they "just met". It's why I like all parties to check and double check safety issues and anchors when possible. And if you're with a n00b you might want to teach them a few things to always look for to "help out". I always encourage any n00b to ask away about any question. I might even learn something in the teaching process.
It's another reason not to exaggerate your abilites and be careful of the spray you post. Not that legally they can come back to haunt but you may sure look like a tool.
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aarong
Oct 4, 2004, 3:22 PM
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the legality? in america, anyone can sue for anything - liability waiver or not.
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brianinslc
Oct 4, 2004, 3:31 PM
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Actually, I'd hope this suit would be applicable just about anywhere...what a bad deal that was!
"But Enloe said she became angry when a friend looked at the equipment Stinson had used and told her it had been set up wrongly, in a mistake the friend said only a rank amateur would make."
"Enloe did not consider suing Stinson until she discussed the accident with another friend, who encouraged her to find out if it could help her pay for mounting medical bills."
The, uhh, "friend" posts on this website from time to time...(not me!).
Anyhoo, feller billed himself as a 12 year vet. He wasn't. There was also apparently some romantic interests as well... Wierd deal.
Not sure how it turned out (ie, she may have "won" but I never heard if she got a nickel or not. Was pretty beat up and medical bills kinda crushed her).
I take folks climbing all the time (used to more often...). No worries if you're responsible at all, IMHO.
Brian in SLC
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maxdacat
Oct 4, 2004, 3:32 PM
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Surprised a climbing episode hasn't popped up on Law and Order yet? could be an neasy way to top someone then claim voluntary assumption of risk....not that i ever would....but some partners......
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old_apple_juice
Oct 4, 2004, 4:45 PM
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The issue in Outdoor Adventure law suits usually comes down to Duty of Care and the Reasonable person, as several people have already stated.
Whether or not you have a 'duty of care' to your partner is based partially on your ability level.
If you are taking people out who are less experienced then you, (which is a major gray area), you would most likely owe them a duty of care in the eyes of the court, recreational trip of professional trip. The question is whether you conducted yourself as a 'reasonable person' who has the same skills as you (another gray area).
In rock climbing, it is difficult (especially taking out friends) to get them to assume voluntary assumption of risk, because you are the expert and only you truly understand the risk. Waiver's hold up in court, sometimes, but if you are negligent in your anchor setup, that may come into question.
As a side note, waivers are useless for minors (if you take out kids) because they and their parents cannot sign their rights away. Overall, waivers are more useful for telling people about the risk involved in the activity and would fortify a case if something happened.
People have posted various cases, considering the law of precedents, the outcome of those cases, would partially decide how yours was ruled, if you were sued.
I think the long-winded point is, if you're taking people out who would or have parents who would potentially sue--- (this is my personal opinion, with little perspective on your situation) Stick to top rope, with more than 2 bombproof anchors, and nitpick over every detail. Courts don't view risk like climbers do.
Andrew
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fredbob
Oct 4, 2004, 5:30 PM
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In reply to: Actually, depending upon where one lives, there is likely no liability at all. For example, in California, there is immunity.
Hikerken then goes on to quote a discussion about primary assumption of risk as enunciated in the case of Knight v. Jewett (1992) 3 Cal. 4th 296 (which was one of two cases affirming primary assumption of the risk and were decided at the same time). Assumption of the Risk is an old legal concept that was thought to have been eliminated when Comparative Fault was introduced. These cases showed that there are situations where assumption of the risk still applies.
Please do not equate the doctrine of Assumption of the Risk with the broader concept of "immunity." They are simply not the same thing. Whether assumption of the risk will be found a viable defense will always depend on the facts.
In reply to: .Whether or not you have a 'duty of care' to your partner is based partially on your ability level.
I think this oversimplifies the reality. But certainly climbing with a group of one's peers is a very different situation than taking out total novices. A novice is not an equal participant and is more or less completely reliant on your expertise (or lack thereof). It could be argued that they lack the ability to really understand all the risks (though gravity is a familiar concept to most people).
In reply to: the legality? in america, anyone can sue for anything - liability waiver or not.
I suppose anyone can sue for anything. But that really isn't the question is it?
A good waiver will defeat most negligence lawsuits, though in some states they are not completely valid against claims by minors. Also, most good waivers discuss assumption of the risk (as well as explain what the risks are).
A waiver is probably overkill for taking a friend out climbing. But if your friend is a total novice and you make a boneheaded mistake, don't count on assumption of the risk alone to bail you out.
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