I'm not a lawyer but I did stay at a Holiday Inn. Actually I dropped out of law school for what little that's worth.

You're basically right, those are the three parts of proving negligence (damages are assumed, you wouldn't go to court for having fun).

The burden of proof would be on the person suing a route equipper. I'll play that game. I think there is a duty of care by a route equipper. Assumption of some risks does not bar a route equipper from all liability for negligent actions.

According to that wikipedia article assumption of risk applies only to risks at issue that are inherent to that activity. According to ANAM most accidents occur from a fall. Few reported accidents were from equipment failure. Bolts and draws breaking is not an inseperable element of climbing. Just because it happens does not mean it is inherent. Just because we know bolts and draws can break doesn't mean we expect them to, otherwise we'd take further precautions against it. The risk at issue would be a draw breaking. I don't think courts would agree that risk is inherent in climbing, given that it's happened less than 20 times in sixty years according to ANAM.

Even if you did prove that climbers assume that risk you assume the risk of death in surgery. Even so doctors still get sued and still maintain malpractice insurance because of it. I disagree that assumption of risk is an absolute bar against liability.

I would also argue that a route equipper does have a duty of care. They can foreseeably and reasonably realize that their actions, or lack of action to replace worn equipment, may result in injuries. I think any reasonable route equipper would realize that people are going to whip on their gear, probably won't inspect it, and that if they don't replace it on a regular basis then someone could get injured or killed. By opening a route to the public they assume a duty of care. If they don't take reasonable precautions to prevent injuries due to failure of their equipment then they acccept liability if those injuries occur.

Furthermore the implied ownership by route equippers suggests that their is a duty of care. If you're going to say how many bolts go in, come out, or what the route is called, then you have to accept liability if there is an injury due to your action or inaction.

Now if duty of care is established and assumption of risk as a defense of negligence denied then the other parts of a negligence case would depend on the specific circumstances of the situation in determining who was liable and how much so.

Now all this arguing about what the law says is super pointless for three reasons:

1. Even if someone did get hurt by an equipment failure they'd have a hard time finding the route equipper. Not like people are going to tell them who it is if they let on they plan to sue. Even a lot of locals don't know who their route equippers are.

2. Even if someone found the route equipper they'd have a hard time finding a lawyer to pursue such a case. Lawyers go after the person with the deepest pockets that they can get a good case for. Chances are that's not the route equipper. The manufacturers don't hold enough liability to make a reasonable case, and since there is no insurance for route equipping the only person available to sue is the route equipper. There pockets are generally too shallow for a lawyer to waste their time on. As for landowners and public lands. Those would be both difficult sells I think. It's unreasonable to expect landowners and the government to inspect all the routes that climbers put up. They lack ability in many different ways. Now if the land owner was also the route equipper then that's different.

3. I don't know of any specific case law to support either side of this argument. Unless someone comes up with some there's no way in hell to determine what a group of jurors and a judge would find because theirs no way to determine what the composition of that jury would be and where the judgement would take place.

The conversation evolved and expanded and you were a major contributor to this. You brought in bolts and anchors, you brought in landowners.

By the time I stated that "it depends" the conversation was already covering anchors, bolts and draws, and soon to be landlords.

Any liability case is going to be judged by the circumstances. I haven't once excluded a cut and dried case from the assumption of risks clause, if that is what the circumstances are, then it will fall under that. I've maintained throughout that each liability case is different and needs to be examined to include all the circumstances. Then let the case fall were it may. I've only giving examples that fall outside the risk assumption clause to show you and Jay that not everything falls under a blanket statement.

Also, unlike Jay, I hold no ill feelings toward you from this discussion. Everyone has their own perspective and opinion.

Please read through this redlude97. I really think you need to see what and when it was said. It's corresponds to our post in chronological order. I've paraphrased to shorten it up.

The thread started with a guy taking draws.
Discussion then danced around whether or not the draws should be left there. Then on to who could be liable.

You then said there was a presedence for such liability regarding chains and bolts. You added it would probably be the same for quickdraws.

I asked for a legal reference.

You pointed me to another thread.

I pointed out that the other thread was opinion, but no presedence in regard of liability. I also acknowledged that there probably isn't by offering to read any someone could point me to one. I then made this statement.
"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. "
This statement does not in any way say who is right or wrong, it's says it depends on circumstances.


You replied,
"Precedence wasn't the right word. When I said that what I meant was that there had been many bolt failures in the past. There are manly bolts at many crags throughout the us and no one has been sued yet. I think this mostly has to do with the fact that almost everyone associates climbing with inherent danger and that any fixed protection is use at ur own risk ",
I do agree with that.

Jay joins and says,
"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."


I took his blanket of someone being negligent is excused under the iron clad "assumption of risk" clause and shot a hole in it.

Jay cried foul but later acknowledged that it was within his parameters.

I then reminded him that all my original statement implied was, it depends on the circumstances.

Jay didn't like "it depends".

I said blanket statements aren't good.

You then said my example is irrelevant since we were talking quickdraws, not anchors. Then you said,
"Its similar to landowners not being liable for climbers on their land as long as they don't charge a fee to use it. Once a fee is assessed liability is on the landowner ".

I then quoted you as being the one that brought anchors into this conversation a long ways back.

Then I pointed out your landowner blanket statement.

You then bring up limiting liability.

I point your assumption of everything being cut and dried.

You then ask for cases. Earlier neither you or me didn't think there were any, Jay tries this trap later too. You reassert that landowners aren't liable if they don't charge, the opposite of your 1st part of that post.

I try to get it across to you, and knowing Jay's reading, that all I'm pointing out through this entire drift that no case is perfectly clear. Yes sometimes a case may fall under the assumption of risk clause and sometimes not, it depends on circumstances.
I give another example, far fetched but within the liability between a landowner and a climber.


Jay accuses me of strawman.

I showed him how it wasn't.

You then ask for a case that prior to this we have both acknowledged probably isn't there.

Jay admits without saying so he hadn't thought of different circumstances that fit within the parameters.

You took a large leap to construe something that wasn't there.

Jay acknowledges my example as fair.

I say your falling behind in what you've said. I also give you an example you don't like that again falls within your parameters.
I try one last desperate time to explain that cases are different depending on the circumstances and that assumption of risk doesn't excuse all cases. I point out that it's a given if the right circumstances are meet, assumption laws will apply. It all depends, you two can't grasp that.
I also don't believe I'll address any more of Jay's lowball attacks.

Jay makes a rabid post.

Jay then makes a funny post to divert attention from real discussion with a strawman that relies on a third party.

I unfortunately get drawn back in to point out his silly tricks.

Over and out.

I would also argue that a route equipper does have a duty of care. They can foreseeably and reasonably realize that their actions, or lack of action to replace worn equipment, may result in injuries. I think any reasonable route equipper would realize that people are going to whip on their gear, probably won't inspect it, and that if they don't replace it on a regular basis then someone could get injured or killed. By opening a route to the public they assume a duty of care. If they don't take reasonable precautions to prevent injuries due to failure of their equipment then they acccept liability if those injuries occur.

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.

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.

It's not my personal view

Personally I do think that if you are going to bolt routes and fix draws then you need to take responsibility in replacing them when they need it.

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

Didn't seem to be the case in Michigan I posted up thread, where the belayer–defendant who dropped his partner won a motion for summary judgment on the basis of assumption of risk, which was upheld by the appellate court.

Jay

Right. Notice that I did not say that every possible case would be viable, in every American jurisdiction. And from a law professor to a layman, be very careful making inferences about what the law is in general from reading a single case.

From a statistician to a law professor, I wasn't; but if you ever need help calculating how many cases you would need for such an inference to have a 95% chance of being correct, let me know.

Jay

Liability associated with hanging draws is different if a non paid climber hangs them and someone else uses them versus a guide who hangs them and their client uses them. Charging a fee changes liability signficantly.

Liability associated with injuries in a normal climbing situation(ie not tractors, landowners cutting ropes) is different for landowners who allow climbing but do not charge a fee versus those who charge a fee to use their land for climbing. State statues are very clear in limiting liability for the landowners who do not charge a fee compared to those that do.

I doubt we'd ever get enough rock climbing cases to do any kind of valid statistical inference, at least in terms of climber vs. climber lawsuits. The major limiting factor is that it is rarely worthwhile to sue unless the defendant has deep pockets. Climbers, to put it mildly, tend to make poor targets. That's why most climbing lawsuits that I've seen involve either gyms or gear companies as defendants.

And if the above response came across as rude, my apologies.

I just get exasperated when non-lawyers respond to claims like, "In most jurisdictions, the law is x," by replying, "But I once read this case that said y." It takes a large base of knowledge and training to read a few cases and understand how they fit into the larger legal landscape.

No, it didn't.


I completely understand. I did not mean to imply that a single case in a single jurisdiction can be generalized to much of anything anywhere. In theory, I should have made that more clear in my post, but my experience on the internet is that level of rigor is not just unappreciated, but actually derided.

Jay

My personal belief is that if route equippers want to lay claim to the state of the route itself (whether bolts are added or removed, anchors moved, etc.) then yes I think they need to go back and maintain the fixed gear as long as they want sole say over the route.

If they want to bolt it, climb it, name it, and move on then no I think it then becomes community responsibility.

I don't believe you can argue some pseudo ownership of a route and then just deny any responsibility if your fixed gear fails. While I don't believe they should get sued for it that doesn't mean they couldn't be.

Now while what I said above does share a few of my personal beliefs it was more just pointing out the fact that assumption of risk is not full protection for route equippers even if climbers assume all risks. Keep in mind I'm probably not going to be on the jury should some route equipper get sued and most judges and jurors aren't going to necessarily understand or agree with a climber's perspective. It's like if I go install a swing in the park. If I donate it as a gift to the community then people probably aren't going to look for me if it breaks a few years down the road. If I say it's the "Jeremiah is Awesome" swing and people can only swing on it if they think I'm awesome and don't mess with the state of the swing and then some little kid breaks their neck when it collapses then I have no doubt that I'd be sued. Actually it's more likely that the manufacturer would get sued but you get the idea.

I only agree with you about the risk in part. I agree that if we climb we accept all the risks. It's necessary in our participation that we accept all those possibilities but I don't think equipment failure is something that we willingly accept. People know that it's possible that it can happen even if they do everything according to manufacturers recommendations but I don't think anyone would say that properly used equipment failing is something they're cool with. You'll never see a company succeed if people who use their equipment start dying.

My lack of placing bolts has no bearing on whether a court would decide a route equipper was responsible for equipment failure on a route they put up. While I was mostly playing devil's advocate I do myself believe some of the points I brought up.

If someone who has no business bolting routes starts putting up routes with bad bolts (overtorqued, placement in bad rock, whatever) then do you really think they shouldn't have a share in the responsibility if people get injured or killed on the routes they put up?

My personal belief is that if route equippers want to lay claim to the state of the route itself (whether bolts are added or removed, anchors moved, etc.) then yes I think they need to go back and maintain the fixed gear as long as they want sole say over the route.

If they want to bolt it, climb it, name it, and move on then no I think it then becomes community responsibility.

I don't believe you can argue some pseudo ownership of a route and then just deny any responsibility if your fixed gear fails. While I don't believe they should get sued for it that doesn't mean they couldn't be.

Now while what I said above does share a few of my personal beliefs it was more just pointing out the fact that assumption of risk is not full protection for route equippers even if climbers assume all risks. Keep in mind I'm probably not going to be on the jury should some route equipper get sued and most judges and jurors aren't going to necessarily understand or agree with a climber's perspective. It's like if I go install a swing in the park. If I donate it as a gift to the community then people probably aren't going to look for me if it breaks a few years down the road. If I say it's the "Jeremiah is Awesome" swing and people can only swing on it if they think I'm awesome and don't mess with the state of the swing and then some little kid breaks their neck when it collapses then I have no doubt that I'd be sued. Actually it's more likely that the manufacturer would get sued but you get the idea.

I only agree with you about the risk in part. I agree that if we climb we accept all the risks. It's necessary in our participation that we accept all those possibilities but I don't think equipment failure is something that we willingly accept. People know that it's possible that it can happen even if they do everything according to manufacturers recommendations but I don't think anyone would say that properly used equipment failing is something they're cool with. You'll never see a company succeed if people who use their equipment start dying.

My lack of placing bolts has no bearing on whether a court would decide a route equipper was responsible for equipment failure on a route they put up. While I was mostly playing devil's advocate I do myself believe some of the points I brought up.

If someone who has no business bolting routes starts putting up routes with bad bolts (overtorqued, placement in bad rock, whatever) then do you really think they shouldn't have a share in the responsibility if people get injured or killed on the routes they put up?

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:


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 is correct, and consistent with the only case I'm aware of (besides the one Jt brought up). A guy was left paralzyed after a gym accident, and his award was reduced by 75% because he was found 75% responsible, and the gym 25%. My n=1 is good enough for me