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Re: [jt512] Draw Thief Caught:
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MS1
Jan 3, 2011, 12:39 AM
Views: 15958
Registered: Feb 24, 2009
Posts: 560
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jt512 wrote: moose_droppings wrote: redlude97 wrote: moose_droppings wrote: redlude97 wrote: There is already a precedence for gear on anchors, no one blames the bolter if an anchor chain or bolt fails, so why would a QD breaking be any different. Majid your logic is flawed on this in so many ways. Legal reference please. You'd have to prove negligence in the first place. I don't think this has ever been brought up in court. Here is one such discussion about the legal ramifications http://www.rockclimbing.com/..._reply;so=ASC;mh=25; which you posted in. I dont think the concerns have changed but I don't think there have been any successfull lawsuits either There is plenty of opinions and concerns in that other thread, but no precedence set as to where the liability will fall. To my knowledge, there is no precedence on this matter. I would like to read of any if there is though. I also believe it's not as simple as an anchor or a quickdraw failure, I'm sure there would many other factors and circumstances to consider that would have to be taken into account and each incident would have it's own threshold to either side of the argument. You guys have no idea what you are talking about. Look up "assumption of risk." Negligence is not a cause of action when the plaintiff has knowingly participated in a dangerous sport. Therefore, if the person who hung the draws was "negligent" with respect to their condition, he would not be legally responsible for injuries resulting from someone who relied on them. Jay P.S., Do I have to do all the work around here? I'm not even a lawyer.
To the extent you are trying to describe the modern state of the law, this is misleading. See, e.g., the Restatement of Torts (3d) on Apportionment of Liability § 7 cmt. k:
Restatement wrote: Comment k. Defenses other than plaintiff's negligence. Comparative responsibility does not mean that every defense operates as a percentage reduction of, not a bar to, the plaintiff's recovery. Under comparative responsibility, most courts merge several defenses into plaintiff's negligence, such as implied assumption of risk, avoidable consequences, and mitigation of damages. See § 3, Comments b, c; Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex.1984). These defenses are based on the factfinder's evaluation of the reasonableness of the plaintiff's conduct. Other defenses--such as contractual assumption of risk, immunity, privilege, statute of limitation, and certain statutory defenses under the Uniform Commercial Code--are based on other policy considerations. No reported decision has applied them as a percentage reduction. They continue to constitute an absolute bar to recovery.
What this is describing is a modern trend away from formalistic approaches like the version of assumption of risk you were describing, which used to absolutely bar plaintiffs from suing where they had been negligent themselves or engaged in dangerous activities. Nowadays, most courts apply what is called "comparative fault," which means that a plaintiff can still sue even if he was negligent, but his damages will be reduced to account for his own role in bringing about his injury by a proportionate amount. As the comment describes, there are still ways you can get absolutely barred from suing---such as a signed waiver excusing liability for negligence or (in many jurisdictions) being more negligent than the defendant was---but just doing something risky won't necessarily bar the action.
Now, as a practical matter, I imagine that most juries and judges would not be terribly sympathetic about claims like the ones being discussed, and might bend the rules a bit to keep climber plaintiffs from recovering. But I can certainly imagine hypothetical cases where one climber's claim against another for negligence would be strong enough that a good lawyer would advise settlement, at least in jurisdictions applying the modern comparative fault rule.
-Mark
(This post was edited by MS1 on Jan 3, 2011, 1:21 AM)
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Post edited by MS1
() on Jan 3, 2011, 1:21 AM
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