December 20, 2005
When I expressed dismay this fall about a lawsuit against the National Park Service on behalf of a rock climber killed by a rock slide, several readers told me not to worry, the case would be dismissed. Well, you were right.
Associated Press reported last week:
A federal judge has thrown out a $10 million dollar wrongful death lawsuit alleging that Yosemite National Park was negligent in the death of an experienced climber who was killed by a rockfall.
In a ruling released last week, U.S. District Court Magistrate Judge Sandra M. Snyder agreed with National Park Service lawyers who argued that Yosemite was immune from such lawsuits because Congress has given rangers discretion on when and where to warn the public of potential dangers.
Of course, Greedy Trial Lawyer says the judge made the wrong decision.
Posted by James Hamilton at December 20, 2005 06:17 PMdigg this | reddit
Good. This is a clear case of personal responsibility.
Posted by: T.R. Elliott at December 20, 2005 07:11 PM
Okay, I'll bite. I know this is a no-tort zone, but it is surprising how quickly tort reform advocates change their tune when their own ox is gored. A case in point is Sen. Trent Lott, who has given many speechs on the evils of citizen lawsuits and is currently suing his insurance company for damages related to Hurricane Katrina.
While I don't have enough information to evaluate the merits of the Yosemite case I do know that it is not entirely off the wall. They are alleging that through negligence, the park service increased the likelihood of the rock fall by poor plumbing maintenance. Now maybe this is nonsense or maybe this is true, but the judge dismissed the case only on technical grounds of immunity, not on the merits, so we may never know.
Now assume that you live in a house in the hills of southern California and the neighbor above you, because of negligence regarding faulty plumbing, causes the ground to become saturated with water and a landslide wipes out your home and causes injury. I assume most people would feel justified in seeking redress, by lawsuit if necessary.
Maybe the Yosemite case isn't so crazy after all, but I think it is a cheap shot to make sneering judgements based on a link to a two paragraph blog entry. There is a reason we have trials and that is because most situations aren't clearly black and white and it can take many days of testimony to reveal all the facts.
Posted by: Joseph at December 20, 2005 11:30 PM
Joseph is a man of wisdom, justice and common sense. According to press accounts of the lawsuit, the plaintiffs argued that the cliff face was destabilized by water overflowing from a 300,000-gallon storage tank atop Glacier Point. That sounds like carelessness to me. Are we (as the citizens and taxpayers of the U.S.) really entitled to immunity when a death occurs because of that carelessness? My vote is no.
If the National Park Service intended to create rock slides as an attraction, it should be proudly posting "See The Rocks Falling Like Crazy" signs.
Posted by: Greedy Trial Lawyer at December 21, 2005 02:48 AM
Greedy Trial Lawyer,
I have a series of steps leading to the door of my business. There is also a railing. Due to a Northern climate the steps frequently become covered with snow. We spend a great deal of time shoveling and salting the steps to ensure safe passage. The snow we shovel is thrown to the hillside adjacent to the steps. If one of our more adventurous customers were to scale the snowy hillside and fall due to the de-stabilization effect of the thrown snow, would we also be at fault? Given that there was a bathroom at the top of Glacier Point, am I incorrect in assuming that there was a safer path one might choose to achieve the summit?
Posted by: Rick at December 21, 2005 06:00 AM
There may have been a safer path to the summit for the restroom. I am not sure what that has to do with the negligence of the Park Service that created the falling rock festival on a mountain face used for rock climbing.
To respond to the question you raise based on the hypothetical set of facts I would need to know if the nearby hillside was part of your business enterprise. Were you inviting patrons to climb the hill? Were you aware that thousands of customers were going to engage in that activity? Did you place facilities at the top of the hill for the convenience of your climbers?
Your anology might be more accurate if you chose to pile the removed snow on the roof of your business right above the entrance. Then, when it came loose and crushed a night visitor (who was unaware of the little surprise you prepared for him), you would likely be what is called a tortfeasor.
Posted by: Greedy Trial Lawyer at December 21, 2005 06:27 AM
I love it. The rock slide was not caused by a thousand years of wind, rain, ice, snow, and heat working to dislodge the million pound rock, but was caused by a leaking toilet. Note to idiots: if your family member goes climbing the face of a mountain and gets killed in the process by a falling rock, don't ask me, the taxpayer, to pay for it!
To all those who believe the man had a just case: there is nothing stopping you from making a donation to the family of the deceased. It would have come out of your pocket anyway. Any takers?
Posted by: Tom at December 21, 2005 06:46 AM
Greedy Trial Lawyer...
Just how many paths to the summit should the Park Service be responsible for assuring low risk transit? Perhaps if there was a sign that said "Please climb wall here" and then the Park Service allowed the wall to become unstable due to ice/overflow etc. I could understand. It doesn't sound like this was a maintained or promoted attraction/activity like a ferris wheel, however.
Posted by: Rick at December 21, 2005 08:47 AM
I agree with Tom. I'd like to see Greedy Trial Lawyer cough up some cash for the family. Greedy: Can you post a copy of the check you write to them?
Unless you can demonstrate that the water spillage created an environment of slides outside the long-term probabilitic certainty that rocks fall down mountains, I think the case does not deserve to be heard. The judge decided as such.
Anyone who takes their person or that of another--such as a child--to the base of large decline, and then marches around, is taking into their own hands the possibility that a rock or other large object will follow the laws of gravity and roll downhill.
Given that rocks slides can occur at any time, and anyone walking in a mountainous region, even in a populated area, must assume as such, please provide the evidence that said dead climber performed the appropriate due dilligence to determine that the region he selected for walking was safe.
Posted by: T.R. Elliott at December 21, 2005 08:56 AM
Nicely put, Tom.
I think we ought to all be able to agree that rock-climbing, among other mountain related sports (skiing/snowboarding/biking/canyoning, etc...) carry an extremely high risk of personal injury and/or death, even among the most experienced, most able athletes.
I know that every time I drop into a chute on my snowboard, that I could be buried in a concrete-like pile of snow, or I could lose my edge and bash my face into a rock, etc. I would hope that my family could take a little bit of solace in knowing that at least I died doing something I loved.
When you play with fire, sometimes you get burned. Because the fire happens to be on someone else's property really ought to be of no consequence.
Posted by: doinkicarus at December 21, 2005 09:16 AM
T.R. "Unless you can demonstrate that the water spillage created an environment of slides outside the long-term probabilitic certainty that rocks fall down mountains, I think the case does not deserve to be heard."
Well, there you go. That is exactly what is at issue in the lawsuit and was never adjudicated. Maybe Ranger Ron has been complaining for years to his boss that the leaking tank was making the slope unstable. Maybe he pointed out that thousands of unsuspecting folks climb that cliff and are unaware of the leak. Maybe he suggested posting a sign warning of the unexpected danger. Maybe his boss said they couldn't do that because of budget cuts. You don't know and I don't know what transpired, but you presume to pass judgement based on no facts at all.
The judge made no decision on the facts in the case. There was never an opportunity to discover the facts because the case was dismissed on a legal technicality before going to trial. So based on that technicality they are out of luck, but I would never presume to say that the case was totally without merit without knowing the facts.
Posted by: Joseph at December 21, 2005 11:40 AM
Wow!! I guess there is a macho need on the part of some folks to disavow any legal right to pursue a claim for damages no matter what misconduct may be involved. Please be sure to stamp your body with these instructions before you board a plane, stand near a dam, walk under a bridge, wait on a corner, have minor surgery or fill a prescription.
The very simple point that was made by Joseph quite a few posts ago, was that the lawsuit alleged that the government created and maintained a defective water system that caused the rocks to fall and the death to occur. The judge did not permit any considereation of that claim, ruling instead that the National Park Service is immune. Why should the Park Service be immune when it may have acted unreasonably and caused a death?
Should we consider extending this immunity to airplane manufacturers, drug companyies, bridge builders, automobile drivers, etc.?
Posted by: Greedy Trial Lawyer at December 21, 2005 11:52 AM
What strikes me about these arguments are that they always read like a Drudge Report headline "Man walks in park, hit on head by rock, sues government". Ha, ha.
This is a site that boasts of intelligent scientists that pore over reams of data tables, spend hours doing time series analyses, and endlessly discuss the conclusions in an open and free-spirited debate. Yet on a subject they know nothing about they engage in a process I call determination by anecdote. Why waste so much time on analysis when it would be easier to just write the headline "Neighbor laid off. Economy bad."
Posted by: Joseph at December 21, 2005 12:11 PM
The deceased was engaging in the highly risky activity of mountain climbing. One of the risks of mountain climbing is that a rock may fall on your head. A rock may fall on your head while mountain climbing due to the fact that the rock has become weakened from natural and/or man-made factors.
Without any proof, it is being asserted that the rock fell due to man-made factors and not due to natural causes. No evidence had been provided by the plaintiff to back up that claim. Unsubstantiated conclusions have been presented with out any evidence.
Even if man-made factors caused a rock to fall on to a rock climbers head, due to toilet water erosion or due to negligent factors of the climber above him, or whether the falling rock was a natural event of erosion caused by weather and time is immaterial, because of the inherent risk one assumes when one engages in rock climbing.
Posted by: Tom at December 21, 2005 01:35 PM
Greedy Trial Lawyer...When you start drawing parallels between liability in filling a prescription to climbing a sheer icy cliff, you really live up to your title! Joseph, you make a good point that much of this discussion takes place without a really detailed picture of the case. I think the reason is that for many people it offends common sense that an inherently risky activity that is willfully engaged in should even be considered a potential candidate for a liability suit.
Posted by: Rick at December 21, 2005 01:57 PM
Greedy Trial Lawyer,
Love the name of your blog.
I champion the principle that Americans should be free to engage in risky activities such as rock climbing.
If we live by the rule that it's up to a judge or jury to figure out whether the park service might have increased the inherent risk of such an activity, by improperly maintaining the toilet or whatever theory the next lawsuit may espouse, it is far easier and cheaper for the park service to prohibit climbing than it is to fix every potentially leaky toilet or who knows what else. I therefore see the lawsuit in and of itself as a threat to my personal freedom.
I accordingly dispute most vigorously the notion that it is appropriate for a judge somewhere to determine the facts of the case. I say it is up to me, not a lawyer or a judge, whether I climb up a cliff, if that's my wish.
Posted by: JDH at December 21, 2005 02:09 PM
Rock climing is not dangerous.
Rock climbers are generally smart enough to avoid areas where rockfalls are consitently created by natural forces.
The climber in question was not killed by a single random rock falling, it was a very big and large rockfall that was visible from a very far distance.
Several other very large rockfalls have occurred in the glacier point apron area in the recent past. This is an area with a very long history of very safe climbing dating back to when climbing was popularized in the valley in the 50s.
It now calves rock in a sometimes spectacular fashion on a somewhat regular basis. (every few years) This is uncharcteristic activity compared to all the other formations in the Valley.
Something changed, whether this was a natural process or something caused by a malfunctioning septic tank installed, monitored, and maintained by the park's service is difficult to figure out.
While the courts may not be the best place to uncover the cause of the rockfall, the family has a legitmate question that the park service is completely refusing to acknolwedge.
Posted by: haraldb at December 21, 2005 02:12 PM
"I think the reason is that for many people it offends common sense that an inherently risky activity that is willfully engaged in should even be considered a potential candidate for a liability suit."
I can certainly understand that sentiment, but inherently risky is in the eye of the beholder. Some people would consider hurtling your soft human body down the freeway at 70 mph is inherently risky. So if a drunk runs into you head-on, is it just bad luck? Just because one is engaging in what some consider risky activity you don't give up all rights of liability. What if some tourist is rolling boulders off the top (I have actually witnessed this) even though signs warn against it. Is the excuse that everyone knows rocks fall off mountains so tough luck?
Posted by: Joseph at December 21, 2005 02:30 PM
Joseph, I'm all for prosecuting anyone who rolls boulders off of cliffs. But I see a difference between driving a car and climbing a cliff. I also see a difference between violating the law (driving while drunk in excess of the speed limit) and failing to fix a leaky toilet.
So, my principles are really pretty simple. Put the boulder-rollers and drunken drivers in jail. Let the leaky toilets be.
Posted by: JDH at December 21, 2005 02:45 PM
"So, my principles are really pretty simple."
Fair enough, but what if that leakly toilet was on the hillside above your house and caused a landslide that buried it.
Posted by: Joseph at December 21, 2005 02:51 PM
Joseph, climbing a cliff is different from sitting in my house.
Posted by: JDH at December 21, 2005 03:07 PM
Glacier point apron sits directly above curry village. Rockfall to date has not reached employee housing or the campground. It is getting closer. JDH, what would your sentiments be if a risk averse tourist or curry village employee is killed or injured in the future??
Posted by: haraldb at December 21, 2005 03:19 PM
Haraldb, I want to stay up on the cliff and you guys keep trying to lead me down a slippery slope. Look, sitting in your tent, or your house, or a car, is different from climbing on a cliff. I'm staking out the position that someone climbing a cliff should have no legal grounds on which to sue the park service.
Posted by: JDH at December 21, 2005 03:53 PM
Okay, so we have climbing, risky. Driving on freeway, not risky. Risky climber hit by rolled boulder, bad. Risky climber killed by leaky plumbing, not so bad. Not risky house smashed by leaky plumbing, bad. Not risky driver hit by drunk driver, bad.
With all these distinctions one would think reasonable people could disagree. Might even require a lawsuit to sort it all out. :-)
Posted by: Anonymous at December 21, 2005 04:00 PM
I guess I should add person sitting in tent killed by leaky plumbing, bad. Person leaves tent, puts on climbing helmet and killed by leaky plumbing, not so bad.
Posted by: Joseph at December 21, 2005 04:09 PM
Everything You need to know about our so called judicial system:
The Associated Press
Wednesday, December 21, 2005; 4:25 PM
SANTA FE, N.M. -- Lawyers for David Letterman want a judge to quash a restraining order granted to a Santa Fe woman who contends the CBS late-night host used code words to show he wanted to marry her and train her as his co-host.
A state judge granted a temporary restraining order to Colleen Nestler, who alleged in a request filed last Thursday that Letterman has forced her to go bankrupt and caused her "mental cruelty" and "sleep deprivation" since May 1994.
Nestler requested that Letterman, who tapes his show in New York, stay at least 3 yards away and not "think of me, and release me from his mental harassment and hammering."
* * *
Nestler's application for a restraining order was accompanied by a six-page typed letter in which she said Letterman used code words, gestures and "eye expressions" to convey his desires for her.
She wrote that she began sending Letterman "thoughts of love" after his "Late Show" began in 1993, and that he responded in code words and gestures, asking her to come East.
She said he asked her to be his wife during a televised "teaser" for his show by saying, "Marry me, Oprah." Her letter said Oprah was the first of many code names for her and that the coded vocabulary increased and changed with time.
Posted by: Robert Schwartz at December 21, 2005 07:11 PM
When I think of technicality, I think of some non-related or non-pertinent reason. I'm not a lawyer, so perhaps I'm wrong. But I think of a form not filled out properly. A jurisdiction problem. A filing date missed.
I do not consider this lawsuit to have been thrown out because of a technicality. It was thrown out because the judge looked at the law and said "You don't have a case."
That is not a technicality as far as I'm concerned. What we have is a judge doing his job, as part of the legal system, to remove the chaff. What the judge said is that the congress gave the national parks great leeway in deciding what conditions were dangerous enough to warrant posting.
So please, those who support this case going to trial, don't tell me it needed to go to trial to get the facts straight. You tell me. What fell on the guy? How many rocks? Was he killed in a large slide? Did a handful of boulders roll down the hill? And what is the statistical difference between slides we've seen recently, due to said leaking water, and throughout that region. In time, the material at the top of hills moves to the bottom. It's the way of the world.
Here in San Diego, we have people in our eastern areas, e.g. poway and el cajon, who live below hills with large boulders on them. If you've not seen this, it's frightening to even drive by, considering the possibilities. In the time I've been here, at least one large boulder mades its way through someone's home.
That's what rocks do at the top of hills. Roll down. Given the stated legality of walking in the national park--caveat emptor--and the lack of overt negligence that anyone has pointed out--the leaking toilet, I'm glad this suit was thrown out.
So please, provide the following:
1. Describe why this was a technicality?
2. Describe the exact conditions under which he was killed and a statistical description of how those conditions differed from similar hilly regions.
3. Describe who is liable if I drive my car off the road while driving faster than conditions warrant. And please remember: the driver is responsible for operating the vehicle at a speed appropriate to conditions. Signs do not have to post conditions. They do not have to tell me it is slippery when wet. I am responsible. Stated speed limits are not pertinent if I should be driving slower. I, as a driver, am responsible for operating the vehicle at a safe speed. Since congress has decided that the national parks have leeway in posting dangerous conditions, the same applies. So why do you want the public to be responsible when I drive my car too quickly on a wet curve?
Posted by: T.R. Elliott at December 22, 2005 08:25 AM
This exchange raises an interesting point that I frequently witness. From my personal experience with lawyers in my life, I have noticed that lawyers attain a certain mindset that there is a reason and blame for everything, and that it just needs to be pursued. Unfortunately, they carry this attitude into their personal life, and have a string of failed relationships because that line of thinking just doesn't cut it outside of the courtroom. Eventually, the female lawyers end up divorced and alone, and the male lawyers end up with a younger, but more importantly, easily cowed wife who lets them rant away at whatever. I've realized that if I took my intellectual curiosity and reasoning and applied it to looking for new ways to "creatively" re-interpret laws, I could easily surpass Senator John Edwards' personal take of $175,000,000 during his legal career. Its just too easy.
This has implications to us all. As we approach the peak of oil production and enter the downhill side, and people in general really start to suffer, that period of time will be awash in people trying to blame and sue each other as opposed to trying to work together. Thus, if a big company has some cash reserves to try and finance research to get us out of that mess, it will likely be pilfered away fighting class-action lawsuits by the "justice-minded" (and I use the term very lightly) lawyers. So, in the next decade, as civilization starts down this merry path, we can all rest assured that lawyers will be able to sue the world back into prosperity using just the same logical (but unreasonable) means as the falling rock case demonstrated.
Posted by: jack at December 22, 2005 10:27 AM
The man was climbing a freaking cliff! Now, if there was a park ranger standing at the top with a jackhammer trying to loose the rock-face, then I would want some answers.
I truly believe that our system of adversarial legalism is important in many cases, but I fear that it also seemingly frees people from personal accountability. It is tragic and unfortunate, but he CHOSE to climb that rock-face, and something horrible happened. Why does his family deserve money for that?
Posted by: NRZ at December 22, 2005 10:37 AM
From the excerpt from the story...
The plaintiffs, James and Stanli Mae Terbush, who live in Buenos Aires, Argentina, argued that the cliff face was destabilized by water overflowing from a 300,000-gallon storage tank atop Glacier Point.
Rockfalls are a natural occurrence in the park where granite cliffs rise some 3,000 feet above the valley floor. In 2003, a rockfall above Curry Village slightly injured four visitors and damaged at least six structures.
What part of "rockfalls are a natural occurence in the park" sounds like its anyone but the climber's responsibility to avoid?
Posted by: Huh? at December 22, 2005 11:12 AM
300,000 gallons is an awfully large storage tank for a toilet.
Posted by: Rick at December 22, 2005 02:27 PM
Wieczorek [of the U.S. Geological Survey] has documented more than 500 slides in the park since 1850, and the common demonstrable factors are the effect of the freeze-thaw cycle, heavy rainfall and earthquakes. Although water can trigger slides, he said, natural drainage into the soil from abundant snowfall dwarfs any overflowing bathroom water.
Posted by: Tom at December 22, 2005 05:56 PM