no more climbing related lawsuits in washington!

[erik]

HB 1195-S - DIGEST

 

Finds that it is important to the promotion of rock climbing

opportunities to specifically include rock climbing as one of the

recreational activities that are included in RCW 4.24.210. By

including rock climbing in RCW 4.24.210, the legislature intends merely to provide assurance to the owners of property suitable for this type of recreation, and does not intend to limit the application of RCW 4.24.210 to other types of recreation.

Declares that, by providing that a landowner shall not be

liable for any unintentional injuries resulting from the condition

or use of a fixed anchor used in rock climbing, the legislature

recognizes that such fixed anchors are recreational equipment used by climbers for which a landowner has no duty of care.

 

www.leg.wa.gov

 

[Off_White]

Now that makes me a happy guy.

[freeclimb9]

Very cool to get this on the books. Though in the past, I don't know of any successful lawsuit against a landowner, this will save dollars in attorney and settlement fees.

[thelawgoddess]

i'd just sue the guy who put up the bolts.

[PLC]

Laws such as these don't really make any difference to landowners or insurance companies, because lawyers and plantiffs have no significant negative consequences from filing suit. Most landowners will still settle for some "nominal" amount if sued, to avoid the costs of trial and risk of massive damages - even if they are 99% sure they will win.

 

For a law like this to have teeth, plantiffs AND thier lawyers must be held personally liable for filing frivilous suits. How 'bout disbarment for filing more than one frivilous suit in any five year period?

 

This issue doesn't just matter to landowners and climbers - if you're a renter, keep in mind that a significant portion of your monthly rent goes straight to the insurance companies, due to our ridiculous legal system.

[mattp]

PLC-

 

There is already a statute that provides that one who files a frivolous lawsuit pays the attorney's fees of the other side, and the civil rules also make ample provision for this kind of compensation. While it is true that the courts do not enforce these kinds of rules as often as they should, your idea is not a new one nor is it one that anybody would disagree with (including the personal injury lawyer who shares an office with me). The problem is that, with our adversarial legal system (Plaintiff v. Defendant or Prosecutor v. Defense Attorney), the Judges know that neither party is likely to be telling them the whole story - so they really need some clear evidence of someone's attempt to manipulate the system before they can conclude that that someone actually did so.

 

I haven't really studied the issue, but I believe that abuses of the legal system go both ways - and in my experience it seems that defense attorneys are more likely to obfiscate, delay and generally manipulate the process because the defendant can confuse the matter and thereby weaken the plaintiff's case, or they may postpones any monetary loss by causing delays in the process, whereas the plaintiff's reward comes from proving their case and game-playing is not only expensive but it risks seriously weakening their credibility with the Judge or Jury. It costs a lot more money to put on a lawsuit than you might think and I do not know a single plaintiff's attorney who can pay their overhead, let alone derive any income, from "nominal" settlements. The seriously frivolous lawsuits that I have known of have almost all been filed by people who are representing themselves, and either seeking to pay back a pesky neighbor or boss, or to make some kind of political statement.

 

As you stated, anybody can file a lawsuit whether or not they have any grounds for it, and responding to a frivolous lawsuit can be expensive, but I worked for a King County judge for two years and I can tell you that in actual fact I only remember one blatantly frivolous lawsuit coming before "my" judge in that entire time. There were indeed probably more than that, and maybe there were tons of truly frivolous cases that settled out of court for a nominal amount, but I remember only one out of over a thousand cases where I actually had some knowledge of the matter through reviewing legal briefs or watching courtroom arguments and where it was clear that the suit had absolute no basis. I am sure you can log on to some anti-attorney website and find some statistics that show how common these lawsuits are, but I believe the anti-trial-lawyer crusade is distorting the issues in a major way.

 

-Matt

[plexus]

Saw that come by my desk yesterday at work. A co-worker and I were talking about it and it can only mean good. When she was writing for the SLC paper she said that she only ever heard of one such frivolous lawsuit and it got dismissed.

 

There was one case where a guy claimed to be an "expert" climber, took a woman out and she fell and broke her arm to go with other injuries. Seems the "expert" ran the toprope through a sling without any biners. Needless to say he ended up liable.

[PLC]

Matt:

 

I actually know a little about this issue from personal experience.... what I can tell you is that if you own any significant amount of land (say 3 apartment buildings, or a couple small strip malls), you can expect to be sued once or twice a year. Nearly every single one of these lawsuits will be completely without basis. However, to fight the lawsuit would cost, say $250K, where-as the settlment offer might be $15K - and if you lose the case, you could lose everything you've worked for all of your life.

 

The lawyer gets $5K for a couple dozen hours work - bringing a winnable case to court might cost a lot, but filing suit and using the defendent's own legal fees to justify a quick settlement is nearly free.

 

Also, in the very few instances I've seen where the case actually went to court and legal fees were awarded, they were never paid. And the fight to get the legal fees often costs nearly as much as they are worth.

 

Also, beyond the fact that the vast majority of these suits are settled out-of-court, most of the remaining cases go to binding arbitration. So, I'm not surprised that you never saw many of these cases working for a judge.

 

What I'm proposing is actually vociferously opposed by the bar association, and for good reason - their membership would lose a lot of money.

[mattp]

PLC-

If you are settling frivolous slip-and-fall cases filed against you for $15k, particularliy if you are settling them before the plaintiff has even spent the time and money to work up their case, you have a crappy defense lawyer or, more likely, your propery insurer is throwing away their money . If you don't like this, shop around.

-Matt

[Rodchester]

Laws such as these don't really make any difference to landowners or insurance companies, because lawyers and plantiffs have no significant negative consequences from filing suit. Most landowners will still settle for some "nominal" amount if sued, to avoid the costs of trial and risk of massive damages - even if they are 99% sure they will win.

 

For a law like this to have teeth, plantiffs AND thier lawyers must be held personally liable for filing frivilous suits. How 'bout disbarment for filing more than one frivilous suit in any five year period?

 

The law has teeth. and it does hold both the party and thier attroney liable.

 

RCW 4.84.185 is an effective tool toward curbing truely frivolous lawsuits. It applies to the parties, not he attorneys. I have collected on it twice now. Before a suit can be filed it must have a legal and factual basis. Often times the courts will allow the factual basis to be devloped through discovery. However, a legal basis must be present at filing.

 

In the case where a statute such as the one proposed, so clearly prohibits such a suit, any defense attorney would simply file a motion for dimissal under CR 12(b)(6). The plaintiff gets to respond and then after 28 days it goes to oral argument before a judge. Take that before a judge and the plaintiff will get smoked. Then the defense counsel follows up with another motion under RCW 4,84.185 within 30 days and the court is likely to grant attroney fees and costs against the individual plaintiff.

 

The plaintiff's attorney is likely to get nailed under CR 11. CR 11 requires that any pleadings before the court be accurate and based on law. With a statute so clearly against the suit, the court is likely to sanction the attorney. However, defense counsel must first give notice to the plaintiff's attorney that the pleading is baseless and allow him an opportunity to withdraw the pleading. I have nailed attorneys three times under CR 11. It works.

 

If anyones knows any landowner having problems, have them contact me.

 

Most plaintiff's attorneys are good guys just trying to do a good job. There are in fact VERY few lawsuits in Washington stemming from climbing accidents.

[COL._Von_Spanker]

Nice plug mattp...

[PLC]

If you're a property owner who has been sued a dozen times or more, and all the other property owners you know have had similar experiences, and you've settled cases that you knew where baseless, just to save attorney fees, then this law will not likely make you more willing to allow climbing on your property. If you've had these types of experiences you will likely see no upside from allowing climbing and potentially huge downside. Even if the case if baseless and you get it thrown out by following Rodchester's arguments, you're looking at several thousand dollars down the drain. So, it doesn't matter if there are no climbing lawsuits - property owners will still not tend to feel comfortable allowing climbing on their property without real tort reform (a limit to the damages would be a great start).

 

Also, mattp - it's almost never just a slip and fall - usually, they try to make up some negligance or, even worse, discriminatory aspect to the case.

 

Most lawyers might be nice guys (not my experience), but the threat of massive damages from losing (however slight the odds) and the cost of legal fees make property owners highly risk averse. Sometimes you settle for a few thousand bucks, sometimes you fight and it costs you a quarter million dollars (when you win!), sometimes you settle for a lot just to avoid the hassle and risk....

 

Here's a best case scenario - I sold some property on Queen Anne and the buyer ran out of money on the remodel job, so their lawyer started sending my letters, "suggesting" that I might want to send them $10,000 to "settle" things. My lawyer basically told them to kiss off and that if they sent me any more such threats, that she'd have him disbarred. So, it all worked out well - except, it cost me $750 for three letters.

[PLC]

This whole series of posts really only serves to illustrate the different point of views of lawyers versus property owners. From the lawyers perspective, it's all about the legal code and it's almost always better to fight. From the property owners perspective, it's all about risk aversion and it's almost always better to settle.

[mattp]

Wrong again, PLC. Every lawyer I know settles the vast majority of their cases.

 

I agree with you about one thing, though. There are a lot of jerks in the legal profession. I think Rod is right that most lawyer's are decent people who are just trying to do their job, but there are plenty of jerks to go around. However, there are a lot of combative idiots for clients, too. Indeed, anytime a client walks into my office and tells me that they have a long history of legal problems, I immediately assume they must be a jerk and further discussion or involvement shows that this assumption is correct, more-often-than-not.

[PLC]

I didn't say lawyers didn't settle their cases. What I said was that it was generally in the interest of lawyers to fight (the longer the trial, the more money they get, plus they don't have to face serious downside risk).

 

Most lawyers settle most of their cases because it's in their client's best interests...

 

Of course, I've got much less experience in these matters than you... but from a difference perspective.

 

Also, unless you're saying that everyone who owns a few million dollars worth of commercial property is a jerk, your last sentence can't be accuracte. Some of the nicest, most charitable, kind people I know have been sued over and over again, simply because they owned a piece of property where some drunk hit his head or fell asleep in a driveway and got himself run-over.

 

[Rodchester]

. Even if the case if baseless and you get it thrown out by following Rodchester's arguments, you're looking at several thousand dollars down the drain.

 

I guess you didn't read my post very closely. In those cases you get ALL of your feess and costs back. In fact I had two where I got them fees and costs and then on tope of that the oppoisng attroenys were sanctioned $5,000.00. So my client actually made money.

 

Of course this assumes that the case lacks any legal basis.

 

Also keep in mind that this statute, I believe still only a bill, only covers owners and possessors of land not receiving a fee for the use of the land. It does not cover those charging a fee, those climbing with the victim/injured party, manufacturer of any equipment that might have failed, etc.

 

This would not prhobit all suits. But guide companies are generally protected as long as waivers are signed thanks to old Lou Whittaker.

 

Blide v. Rainier Mountaineering, Inc., 30 Wash.App. 571, 636 P.2d 492 (1981) .

 

There is a cogent argument that may be made under Restatement (Second) of Torts § 520 (Abnormally Dangerous Activity ) that a per se bar exists to climbing related suits.

A court would look at the followng six factors to decide if something falls under theis section of the restatement. All six are not required to trigger the per se bar to suit.

 

(a) existence of a high degree of risk of some harm to the person, land or chattels of others;

(b) likelihood that the harm that results from it will be great;

© inability to eliminate the risk by the exercise of reasonable care;

(d) extent to which the activity is not a matter of common usage;

(e) inappropriateness of the activity to the place where it is carried on; and

(f) extent to which its value to the community is outweighed by its dangerous attributes.

 

A great example of an activity that USED to be covered under this section is flying. When it first came out it was not normal to fly. The only difference is that now-a-days flying has a strong social utility.

 

Anyway, just think out loud.

 

[PLC]

Rodchester - what is a "per se bar to suit"?

 

Finally, my point is that I don't believe that you will always get your legal fees back. In the couple times I've seen property owners attempt this, it took several months and cost them a LOT more money, and then one time they got awarded the fees, and then had it overturned on appeal simply because the judge didn't want to drive someone out of business for an "honest mistake".

 

I don't doubt that what you are saying is true. What I am saying is that it's still not worth the risk to the property owner.

 

Beyond the money, you also sacrifice a lot of time fighting these suits. And you never get your time back.

 

OK, that's it, I've got to get back to work!

[Rodchester]

A "per se bar to suit" means that you simply cannot file such a suit. Any such suit would be dismissed.

[Winter]

I'm not sure that this forum is the best place for discussion of tort reform. I mean how many landowners in WA or OR have been sued as a result of a climbing accident? I haven't seen any information suggesting that these suits are a real problem. So if it ain't broke don't fix it.

[Rodchester]

Winter:

 

I have a feeling that this was done with lobbying from groups like the Access fund. This kind of thing can go a long way toward getting landowners to allow access to thier land.

 

And we all know that is a good thing. It simply makes more clear that land owners do not have liability for climbers use of thier lands, even with bolts and anchors being placed into the rock.

[Winter]

Hey I'm not disgreeing with that. To the extent that this law will provide landowners with greater piece of mind and, in the process, improve access opportunities, I'm all for it.

 

I just don't think we should be using tort reform and abuse of lawsuits as a reason to justify this new law. This is an access issue not a tort reform problem.

[Fairweather]

We should police our own. Any (so called) fellow climber who files a lawsuit against a property owner should be made to... "disappear" for good. It is zee only way. Sieg Heil.