Liability

[mattp]

Retrosaurus wrote:

Weird. Making a legal case, and why?

 

Paul detrick wrote:

I don't see the legal connection, I thought people just wanted to know what happen, so it could be avoided next time.

 

Retrosaurus:

Smells like money.

 

Figger Eight:

IF carabiners are failing at loads less than their claimed kn limit...might there be a case?

 

Rodchester:

If you mean could Erden have a case...the plain answer is no. The court s would not consider Erden to have been harmed. If you mean could Kropp have a case...the answer is pretty much no.

 

Two legal theories could be used as a basis fo suit. First, that Erden did something wrong negligence theory) and second that the biner manufacturer produced a defective product products liability theory). Niether of these would get to the jury for various reasons. The highest hurdle being what attorney's call a "per se" bar to suit.

 

Not to get into this in to much boaring legal detail, but here goes:

 

In Wash (and most states) we have adopted what is called Restatement (Torts) Second section 520 and 523. Under 520, I believe that climbing is what is termed an Abnormally Dangerous Activity (these usually involve heights, fire, or water). If one participates in an abnormaly dangerous activity knowingly (surely Kropp knew of the dangers of climbing) then he is found to have accepted the risks under 523. The is what is called a "per se" bar to suit....in otherwords there is no liability.

 

There are some minor excepts, fraud, duress, and extremely unusual situations may be argued to over come 523. I've never really found any cases that do so. This is certainly not one to do so.

 

Suits involving climbing are very rare and are almost universally thrown out by the bench judge). Some suits are settled on what the insurance companies call nuisance amounts (just make it go away) or for a cost of defense amount.

 

This is the quick and dirty and is not meant to be legal advice to anyone, just my reading of the law. I'm just a climber.

 

Retrosaurus:

 

Originally posted by Figger Eight:

IF carabiners are failing at loads less than their claimed kn limit...might there be a case?

 

And wouldn't that be great?

 

And if you fuck up... might you die?

 

It is obvious to me that multiple things went wrong in this accident.

 

Is the purpose of this "investigation" to determine cause, thereby increasing knowlege and safety, or to fix blame (as in building a case $$$)?

 

Some of the recent language suggests the latter. I hope not. Too much of the price of US-made products (and services) is already passed directly on to insurance companies and lawyers.

 

Mitch -

I agree with you that fears of liability raise the price of or maybe even slow the development of things like climbing equipment, but on the other hand I would have to say that if it turned out that some party was in some way hugely responsible for this death, I wouldn't be against holding them financially responsible to some degree.

 

For exampe, I have no idea what will turn out to be the facts of this case, but suppose that the rope was a static rope and that the manufacturers/distributors knowingly sold it to

consumers in such a manner that it could be expected that the consumers would use it for climbing without being able to tell the difference between it (an unsafe rope) and a static one (safer). Suppose further, that the investigation revealed that the pro would not have failed had it not been for the use of a static rope. And suppose that the widow was now going to be completely unable to support herself. All of this is a longshot, and you may say a

preposterous one, but in this case I bet Rodchester's "per se" bar would be overcome.

 

Wouldn't it be reasonable to hold the manufacturer/distributor somewhat responsible in a

case like this?

 

If you believe that our legal system should support public safety, you may believe in some restriction of "greedy trial lawyers" or some regulation of our tort system (lawsuits), but the only alternative way to encourage the manufacturer/distributor to be more careful would

probably be greater government regulation, something that I bet you are equally against (yes, I'm putting words in your mouth).

 

Alternatively, one might say let the "fee market" takek care of it. I suppose that the word might spread that such-and-such a dealer has insufficient concern for public safety, but then

they could address this by simply pulling the product and their sales would probably not be all that badly affected (suppose, for example, it was a well established supplier like REI).

 

-Matt

 

[ 10-29-2002, 10:41 AM: Message edited by: mattp ]

[Rodchester]

This is a better place for this topic. Though I do not believe that Erden has any intentions of seeking $$$ through the legal system.

 

Someone said something about the freemarket taking care of problems. I often believe it is an effective way of addrssing problems.

 

Keep in mind that many on both the right and left consider the tort system an active part of the free market system. Not in the sense of generating capital for plaintiff or thier lawyers, but in the sense that it is a tool used get corporations to behave properly and make products that are safe.

 

Its not pefecxt but it does work.

[mattp]

Rodchester -

I agree. It seems to me that it is either government regulation or accountability must be maintained through something like our tort system.

 

Mitch indicates that a 30% contingency fee may seem outrageous in personal injury cases. I used to think so too, until I had the priviledge of sharing an office with a personal injury attorney (my own practice has nothing to do with this). What I see is that Richard works very hard, and has to put out literally thousands of dollars up front in persuing a claim, often against an insurance company that is willing to deny all claims even if the liability is beyond question. I have learned that if I was ever in a car accident where the other driver was at fault, my own insurance company would almost certainly balk at even paying for my basic medical care -- and even that would be cut off after a relatively short period of time -- and the other driver's insurance company would deny all payments unless I was able to hire an attorney with a sufficient "war chest" and sufficient stamina to go the full yardage. In a word, I WANT my attorney in this situation to be "rich" and I would hope that he or she doesn't have to "earn" their 30% but I would not begrudge them for it. After all, if they lose (and even the most "certain" case is still a gamble), they get nothing but the bills.

[forrest_m]

matt, i hear what you are saying, and i know other honorable attorneys who are compensated via the continency system... it's really the only chance any regular person has of taking on a large corporation - if you had to pay your attorney yourself, a misbehaving company could easily just delay you with legal shenanigans until you run out of money. on the other hand, we are all familiar with examples where a "sharp" lawyer was able to squeeze out a huge settlement for ridiculous or seemingly frivolous personal injury suits. the success some people have had with this seems to have bred a culture in which people seem to sue very quickly, not because they wish to redress a wrong or resolve a dispute, but rather because they see it as a possible get-rich-quick scheme. do you see any way to retain the checks-and-balances aspect of the tort system while reducing the ambulance chasing? or is a certain amount of ambulance chasing part of the price of the checks & balances (the way nazi parades are part of the price of freedom of speech/association)

[Rodchester]

Mattp:

 

I agree generally. But I strongly believe that climbing (and SCUBA) is an abnormally dangerous activity (within the Restatement as I discussed above) and that anyone that participates accepts the risk. As such there is, and needs to be, a per se bar to suit....for negligence, including products liability actions.

 

I do agree that 30% for attorneys is no big deal. Most people only hear about the million dollar awards, not about the risks involved, the funds the attorney must put up in order to bring and maintain the suit, or the suits that just plain tank out, neting nothing for the attorney.

 

Funny thing is, when pressed most dfefense attorney s agree that 30% is no big deal. If they all thought it was a get risk quick scam they would all be doing it.

[allthumbs]

Assurance through professionalism.

[JayB]

I'd be interested in learning more about how other countries, including our neighbor to the north handle matters of personal and product liability. They seem to be getting along just fine without lawsuits that award the victims sums that are out of all proportion to the injury they've sustained, class action lawsuits that bankrupt entire industries, insurance premiums that help drive the price of health care and lift tickets( )into the stratosphere, etc, etc, etc.

 

However, I think it's silly to lay responsiblity for the faults that exist in our legal system solely at the foot of the attorneys. Spurious lawsuits certainly require an attorney/law firm to wage them, but the most important ingredient in the current mess is the ethics of a public thats essentially turned our legal system into something roughly akin to a lottery system that no one wants to reform because - who knows! - maybe one day they'll be on the receiving end of a big settlement. Who cares whether it's warranted or not or what it's ultimate impact on society will be. Will it continue to contribute to the ever escalating costs of healthcare? Who cares - I've got my check.

 

In the end, it seems that blaming attorneys for the blight of spurious lawsuits and the attendant costs that they inflict on society is a bit like blaming dealers for the drug problem. Take away the demand and they both go away.

 

[ 10-29-2002, 01:57 PM: Message edited by: JayB ]

[mattp]

Forrest -

For the most part, I have come to see the possibility of ambulance-chasing as a necessary evil in our system of justice. There are those who are unscrupulous in any endeavor and while some would argue that attorney's have less scruples than other professionals, the fact is that an attorney who takes advantage of his or her clients or regularly brings frivolous lawsuits has to be pretty damn quick on their feet to get away with it because they are exposing themselves to disciplinary action with the Bar Association (five attorneys in Washington lost their license this month) and they also face professional malpractice/fraud and other monetary damage claims. More clearly focused efforts to root out corrupt or usurious attorneys may be in order, and there may be some need for tort reform, but in my experience a lot of the people who complain about the trial lawyer's strangle hold on our economy are the same people who argue that it is socialistic to regulate the economy and we should let the free market handle everything. We attorney's are poorly misunderstood and it is the insurance companies and tobacco venders that promote the idea that we are taking advantage of widows and orphans in order to ruin your life.

 

Rodchester-

I agree with the idea that climbing is a dangerous activity and that all of us should be required to accept the risk that we take. I would not agree, however, that there should NEVER be any liability for a climbing guide or an equipment manufacturer or even a climbing partner. The bar should be very high, but there is some point at which it is no longer a question of the climber taking responsibility for the risks they knowingly embrace, but a question of whether the vendor, guide, or climbing partner acted with such a high debree if irresponsibly that they should be liable.

[Beck]

regarding liability in climbing related lawsuits, wasn't the sale of Chouinard Equipment the result of:

A client on a guided climb in the Tetons failed to doubleback their harness buckle after a bathroom break out of sight of the Guide?

 

...ironicallly, in earlier days YC was deadset against harnesses "Chouinard and others are positively oppossed to harnesses and such contraptions, but as a consession to Frost..." 1972 Chouinard Equipment Catalog

[rbw1966]

I don't know how things work in WA with respect to product liability law and climbing. However, Oregon sounds a bit different. I used to work for a law firm that represented several climbing manufacturers locally. These product liability suits were no more or less often discharged via summary judgment than any other tort I have worked on.

 

If lawsuits were routinely thrown out then why do you think gear manufacturers pay so much for insurance? Or even have insurance for that matter.

 

A product has to perform to its advertised standard or its defective. I've never heard the argument that just because you climb your gear doesn't have to meet industry standards.

 

As for contingent fee cases, there really is no fairer way that I have seen to litigate for the little guy who doesn't have pockets bulging with cash. The problem I see, and its just a philosophical one to me, is that often times plaintiffs' attorneys have to do a cost/benefit analysis in determining whether to accept a case or not--regardless of the specific merits of the case. Oftentimes it costs so much to pursue that the costs outweigh the recovery, or the recovery is so small that its just not worth it. But that doesn't remove the wrong.

[Rodchester]

rbw1996:

 

Do you know of any OR cases that actually went to jury on products liability for climbing equipment? Just curious...also, any othem reported. Also has OR adopted Restatement (secoond) Torts 520 and 523?

 

Most states have adopted 520 and 523. (Remember 520 and 523 are not climbing specific, but usually deal with heights, fire, and water)

 

I have done research in OR on climbing specific accidents and have found nothing that I can recall. It was about a year ago. (I haven't done a jury verdict searches though, if I can get some fee search time that is a great way to see what makes it to the jury but does not get appealled).

 

The thing is, when business/commercial attorneys and insurance companies advise on coverage issues theory are extremely careful. They always recommend coverage for the worst case scenarios, triggering more coverge than is often needed (for many reasons, not the least of which is underestimating is legal malpractice). Always tell your clients the worst case scenario. CYA.

 

Any attorneys out there that know of case law on point from any jurisdiction, I would REALLY appreciate the citation. I have begun to keep a library on point.

[rbw1966]

I'm not an attorney--I just play one on TV. I'll get back to you on the case law and restatements question. I personally worked on two cases, one involving biner failure and one involving a harness failure. The harness failure occurred in Arkansas or some place near there.

 

p.s. you may want to do a post to rec.climbing for a more national response.

 

[ 10-29-2002, 03:26 PM: Message edited by: rbw1966 ]