Outdoor Law

Like flies on carrion, where lawsuits go, lawyers follow.  People blame lawyers, but it's people not accepting responsibility for their actions that look for lawyers...or lawyers look for.  This drives up insurance rates, which is either passed down (pricing people out) or shuts down parks/adventure groups altogether.  It already affects the brochures you read.  The law is constantly unfolding, but here's a brief history.  Most of this came from Outside magazine, July 2002, with supplements and fill-in from the internet.  It affects anyone who enjoys the outdoors, as a few lawsuits could bankrupt and shut down the National Parks, one by one.

Summer, 1929.  The original Adventure Law case started on a warm summer day in 1929.  In those days, personal responsibility and common sense was more understood than today, and luckily older law takes precedent over newer law (unless a dramatic case or Congress overturns it).  On this day, a man named James Murphy brought a ticket for a ride called The Flopper, an attraction at Coney Island's legendary Steeplechase Park.  

The ride was a herky-jerky moving sidewalk that threw it's riders like a bucking bronco.  Murphy hopped aboard, got thrown, cracked his kneecap, and sued.  The issue went before future Supreme Court Justice Benjamin Cardozo, then a judge in the New York State Court of Appeals.  He rejected Murphy's claim so soundly that Murphy vs Steeplechase Amusement Co, Inc, became a standard case study in law school.  Applying the English common-law principle of volenti non fit injuria--he who consents cannot be injured--Cardozo ruled that if you buy a ticket for the Flopper, you can't collect damages when it flops you.  He concluded, "The timorous must stay at home."  The Steeplechase Principle was set.  False advertising and gross negligence weren't protected, but frivolous lawsuits faced an uphill battle.

February, 1974:  That phrase set the law's theme for all such cases until Feb10, 1974.  A 20-year-old novice skier named James Sunday went down the beginner's slope at Vermont's Stratton Mountain Resort.  He caught his ski on a hidden clump of brush and fell hard, becoming a quadriplegic.  Sunday sued, claiming negligence, and was awarded $1.5 million (a huge settlement in those days), sending a wave of panic through the ski industry.  This became known as the Sunday Principle.  

As the first major reversal of the Steeplechase standard, the verdict in Sunday vs. Stratton Corp. was a watershed event.  It came at a time when outdoor recreation was exploding in popularity who looked at risk in a new way.  In the fifties and sixties, most skiers were hardy outdoorsmen, accustomed to ungroomed hills and frequent injury.  The 1970's boom attracted people who were inexperienced, less adventurous, and more likely to sue over a broken leg.  The courts decided these people needed protection.  "The timorous no longer need stay at home.  There is concerted effort to attract their patronage." the Supreme Court of Vermont noted in its 1978 ruling on Sunday.  

To allow them to survive the Sunday decision, outdoor-industry leaders lobbied lawmakers in recreation-dependent states like Colorado, Wyoming, and Vermont to pass recreation safety acts.  These new laws held outdoor enthusiasts responsible for the inherent risks of their sports, thus (for those states) weakening the effect of Sunday and strengthening the assumption-of-risk idea that evolved from Murphy v. Steeplechase.  

The Sunday Principle weakened Steeplechase.  It wasn't bad in concept--companies at this time (and over the next 20 years) were advertising the fun and safety, and downplaying almost any risk.  An effort was made to attract new people who were inherently ignorant of the risks involved in outdoor adventure, and the outdoor recreation sites thought they were relatively safe.  Remember, too, that basic downhill skiing was considered an extreme adventure in the time, relatively tame compared to the X-Games of the mid-2000's.  While the Sunday verdict served as a reminder and a wake-up call to the industry, it also opened the door and lowered the bar for frivolous lawsuit.

1975-Next few years:  Similar outdoor recreation protection laws were put on the books in 26 states over the next 25 years, but are still not strong enough to protect outdoor businesses against Sunday claims.  All sorts of outdoor recreation companies had to change the language they used.  The Sunday decision didn't require companies provide perfect safety for all outdoor activities, but did require they be very careful not to put anything in writing that promised safety for the client.  

Charles R. "Reb" Gregg, a 66-year-old Houston attorney is considered the dean of the outdoor bar.  He represented the National Outdoor Leadership School since the 1970's, and co-edits the "Outdoor Education & Recreation law Quarterly.  He is famous for his mock cross-examinations, which goes like this:
"Your brochure states 'Safety is our number one priority,' does it not?"  
Yes, says the CEO.
"And later in the same document you talk about clients coming to take risks.  Is that right?"
Yes again.
"Now my dictionary defines safety as (opening a dictionary) 'free from harm or risk.'  I wonder if you'd choose one or the other, because you can't have both."

In other words, outdoor recreation companies had to get rid of the word "Safe."  Outfitters removed the promises of safety from brochures and liability wavers, replacing them with dire warnings of risk, the blunter and more graphic the better.  Even today, Gregg says, a well-crafted release will almost always hold up.  As time went on (and they learned from lawsuits) the words "Fully Cognizant" showed up.  Later, people would claim they didn't read what was shoved under their nose and the "initial every page/paragraph" release became common.

While these wordings would have severely  hampered an early outdoor recreation industry, television shows like "Wide World Of Sports" and increasing outdoor stunts and recreation being shown on movies and TV maintained the popularity.  In the early 70's, people were watching bowling...and they went bowling.  By the end, the were watching slalom racing and ski jumping....and they were hitting the slopes in record numbers.

The 2000's:  Outdoor recreation is an industry in it's own right.  Movies and TV glamorize extreme stunts, the X-Games are held every year, and advertisements for Soccer Mom Vehicles 2-wheel drive vehicles used for groceries feature vehicles not at the store, but blazing trails up mountains.  It is a huge industry run mostly by small outfitters, with corporations only backing a few large-scale, relatively safe projects like ski resorts (remember when that was consider risky and extreme?  Now grandparents take their grand-kids).  With so many small outfitters, no real accreditation or certification, high risk activities, and the "it's not my fault" and "sue everyone" environment, it was a perfect mix for something to happen.  And it did.

In 2003, the outdoor recreation industry is waiting the outcome of a case that may decide the new direction of outdoor law, in a Colorado district court.

On January 17, 2001, Peter Ro was a 35-year-old climber on vacation from his job as a public affairs manager for the American Chamber of Commerce in Tokyo.  Ro was taking an advanced ice climbing seminar from Jeff Lowe, 52, the sport's preeminent figure at the famous Ouray Ice Park.  As evening was coming and most of the 22-person class packed up, Ro chose to take on one last climb, a challenging 140-foot pillar of chandelier ice called La Ventana.  He was belayed by Lucy Creamer, 31, a noted British climber and a fellow student.  Ro, Creamer, and Lowe  agreed that when Ro safely reached the top, he would unhitch and wait to be picked up at a nearby parking area on the upper rim, rather than rappel down.    As Ro climbed, Lowe scrambled up a nearby gully to a point where he could see the whole route and, as he stated in a later police report, "aid in communication" between the two students.

Ro climbed well, but was slowed by the difficult upper pillar.  As he neared the top and disappeared from Creamer's sight, she shouted to ask if he had finished.  Reports conflict about Ro's reply.  Lowe and one other climber believe they heard him say "Off belay!"  Creamer and another climber heard "OK!"  In either event, Ro seemed to be acknowledging he topped out, which Creamer took to mean she could release the safety rope.  (Note:  Language wasn't a barrier.  Ro was born and raised in California and English was his native language.)

Creamer unhitched the rope from her harness.  Lowe, seeing the dangerous confusion, tried to warn both Creamer and Ro.  But he was battling bronchitis and apparently his horse voice didn't carry.  "In a matter of a few seconds, Pete was taken off belay," Lowe told the police, "and shortly afterwards he inexplicably leaned back, as though he expected to be lowered."

George McEwan, a 39-year-old Scottish climber enrolled in Lowe's seminar, was in a position to see what occurred next.  "I heard a noise, looked up, and saw what I took to be a jacket falling through the air," he told the police.  "It wasn't 'till Pete hit the deck that I realized what had happened."  Ro fell about 135 feet, landed on his right side, and lost consciousness within 5 minutes.  He was pronounced dead on the scene at 6:05 p.m. 

Nine months later, Ro's widow, 31-year-old Hiroko Ro, sued Lowe, the San Juan Mountain Guides (the sponsor of Lowe's seminar), and Creamer (the fellow student who stepped up to belay) charging gross negligence and asking for $10 million.  Ro v. San Juan Mountain Guides could have several effects if Ro wins.  Ouray Ice Park is a unique, volunteer-run ice-climbing area operated by Ouray county.  It charges no fees and operates on the patchwork of U.S. Forest Service, county, city, and private land that is Uncompahgre George.  The park is protected under the Colorado Recreation Use statue, which limits the park's liability to $400,000 in case of a lawsuit, but it will affect the 35 guides who operate there.  

Let's take a break from the story to explain why insurance is important to the Recreation industry, and how it's changed over time.  Obviously, you're insuring a high-risk event (as opposed to insuring a building full of office workers from having a copier fall over on them).  But the costs should be flat and manageable...right?

The Finances:  The $10 million award in the Ro v. San Juan Mountain Guides dwarfs any recent outdoor liability decisions in a time when guides have trouble getting liability insurance at all.  Both Jeff Lowe and San Juan Gides are covered by Colorado Western Insurance Company in Wheat Ridge. In normal times, when the economy is on an even keel, companies like Colorado Western are not averse to insuring high-risk activates because they make money in two different ways:

After peaking at $336.3 billion in 1999, the industry  saw it's net worth drop to $289.6 billion by the end of 2001, eventually closing their books with a $52.6 billion loss.  The next year, 2002, faired no better, closing with a $30.5 billion loss according to the Insurance Information Institute.  The insurers who backed the WTC spread their risk through a world-wide network of re-insurers, so nearly every insurance company will pay a piece of the estimated $50-70 billion that makes up the largest property claim in history.

Financial Effects:  A stingy stock market means insurance companies don't like to insure risky ventures.  The crazy lawsuits of the 80's (like the man who sued successfully because he jumped in front of a NYC transit train to commit suicide and it didn't slow down--$650,000) and Black Tuesday (Oct 19, 1987) deepened the crisis.  The same thing is happening again today, as companies Frontier Insurance Company (who focused on outdoor insurance) go insolvent, or other companies like TIG are pulling back from outdoor insurance.

In 2002, outdoor recreation insurance premium cost jumped 15-30%.  A small, independent rock-climbing guide in the Adirondacks saw his annual premium jump from $1,500 to $2,800.  New York-based Outward Bound USA which guides more than 30,000 clients each year, got hit with a 30% hike.  Zoar Outdoor is one of the East Coast's biggest outdoor outfitters.  When Frontier Insurance went bust, they switched to TIG, until TIG Insurance was downgraded so low that Zoar had to find another provider.  His bill went from $17k in 2000, to $27k in 2001, and he's facing another 25% hike in 2002.  New rules come into effect, like no one under 25 can drive company related vehicles, difficult in an industry where lots of guides are in their 20's.

Can you go without insurance?  In the West coast, you're on federal land.  No one operates without insurance.  In the East, you run into private landowners and public utilities with similar "no pay-no play" rules.  So what does it take to make insurers back completely out?  A big ticket judgment...for say $10 million.

Back to The Case:  Before he strapped on his crampons, Peter Ro signed two liability waivers releasing Jeff Lowe and San Juan Mountain Guides from responsibility if he were injured or killed, so how can he sue?  Because liability waivers cannot (and should not) prevent lawsuits when their guides have behaved with gross negligence, which the law defines as "willful and wanton" actions that indicate a high degree of recklessness.

Gross negligence is hard to prove, so the first move by Ro's lawyers has been to try to get the liability waivers thrown out.  This means he'll only have to prove simple negligence--the failure to use ordinary care.  To do that, he'll take aim at the very nature of release forms.  Ro signed the first waiver two months before he climbed, and the second one the day he died.  Ro's attorney, San Francisco lawyer Walter Walker, describes these releases as "a mishmash of exononerations that are clear to no one" and claims Ro signed the second release under duress.  Since Ro spent a lot of money and time to get to the ice-climbing school, he basically had to sign whatever was put in front of him to experience his vacation.  "Where else was he, a resident of Japan, going to go?  How was he going to find another masters seminar?" Ro's lawyer argues in court papers.

If the release holds, however, Walker will be forced to press on with the task of proving Lowe--one of the world's most respected ice-climbers--behaved with gross negligence.  Walker claims Lowe crossed this line when he assumed the role of go-between for Ro and Lucy Creamer because Lowe's bronchitis impeded his ability to help when he saw trouble.  Barnett (defendants lawyer) scoffs at this argument.  "The allegation about Jeff Lowe's voice is a red herring.  That had nothing to do with the accident, period.  There is absolutely no negligence, even if we didn't have a release."

Unfortunately, this happened at a time when two equal but opposing ideas have percolated through separate state court systems.  The minute Pete Ro died in Colorado, they rain into each other.

Wyoming Principle vs. California Principle:  Each named after the state it's coming from.
• Wyoming Principle--holds that instructor misjudgment is part of the inherent risk of any outdoor activity.
• California Principle--maintains that an instructor bears a heightened duty to protect his students from harm. 

Reb Gregg, who is not involved but represents clients who might be affected by it, champions the Wyoming Principle.  "We're arguing for cutting the instructor a little slack.  One of the toughest concepts for people to get their arms around is the difficulty of making just the right decision in a wilderness environment.  A jury will inevitably search for the right response.  But there's a gap between the drop-dead right answer and a reasonable answer.  What I'm saying is that a decision may ultimately prove to be wrong, but that doesn't mean it was unreasonable.  And being wrong is not the same as being careless or negligent."

However, California cases have established the heightened responsibility.  In once case, a California swim coach told a high school swimmer to dive into the shallow end of the pool.  He was paralyzed, and won $11.5 million from the school district.  Walker feels the same responsibility holds for Jeff Lowe.

Closing:  Ro v. San Juan Mountain Guides is set to begin jury trial on 29 Sept 2003.  But the effects are felt.  Daryl Miller, 58, is the head of mountaineering operations at Denali National Park.  In 1995, miller and his ranger began bombarding mountaineers with facts about the risks they faced on Mt McKinley.  A risk management program was put in place, including a mandatory PowerPoint briefing, get fresh information on the route, and Rangers hammer home that there is no "right" of rescue.  The results have been dramatic.  On a mountain known for atrocious weather and attracting hairball climbers, accidents have declined every year since 1995, and there hasn't been a fatality since 1998.

The lawsuits make us acknowledge the risks we face, what we hope to gain for what we risk to lose.  Risk management is about having the candid exchange about risk and death between the client and the guide.  Says risk consultant Preston Cline, "The point is to protect the clients by not lying to them.  And if you tell them it's safe, you're lying to them."

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Study: Return of Wolves Changes Ecosystem

GRANTS PASS, Ore. - Scientists studying the broader effects of wolf reintroduction said a growing body of evidence suggests that killing off predators such as wolves and grizzly bears in the last century started a cascade of effects that threw ecosystems out of balance.  Researchers from Oregon State University found that a thriving wolf population not only changes where and how elk browse — it even reverberates down to the number of willows that grow next to streams.  "We are just at the very infancy of understanding the importance of these apex predators sitting at the top of the food chain affecting entire ecosystems," said forest resources professor William J. Ripple, co-author of a new study.

The research, published in the Oct. 25 issue of the journal Forest Ecology and Management, comes as states begin to wrestle with a problem they haven't faced in nearly a century: how to deal with wolves.  After wolves were reintroduced to Yellowstone National Park in 1995 and 1996, researchers noticed they were most successful bringing down elk where the prey had to deal with a change in terrain, such as crossing a stream. Elk soon learned to avoid those areas.  "When you remove the wolves, the elk are able to browse unimpeded wherever they want, as long as they want," said co-author Robert L. Beschta. "Now that the wolves are back, the ecology of fear comes into play."

Comparing old photographs and other descriptions of the area with present conditions, Ripple and Beschta found streamside vegetation sharply declined in the mid-1920s, about the time the last wolves were killed. Vegetation along streams prevents erosion, cools the water for fish, cycles nutrients through the food web, and provides habitat for birds and amphibians. Ripple and Beschta established a study area in 2003 in the Gallatin National Forest where Tepee Creek runs into the upper Gallatin River. Elk use the area for winter range. No livestock graze there. Three wolves from Yellowstone arrived in 1996, and the pack grew to as many as 13.

The scientists charted the growth of willows along 1.8 miles of the Gallatin and 1.8 miles of Tepee Creek, and compared growth inside and outside two fenced-off areas.  Outside the fenced-off area near the river, considered a high-risk area for wolf attack, the amount of willows eaten dropped from 92 percent in 1998 to zero percent in 2002. There was little change around the fenced-off area in an open area away from the river identified as low-risk for wolf attacks.

Jim Peek, professor emeritus of wildlife biology at the University of Idaho, said it was too early to know whether the study's findings would hold up over time, but the observations were valid.  "It's important work, because it directs our attention toward things other than the fact that predators eat prey," Peek said. He said he doubted wolves would have as much impact on elk browsing in more open country, such as central Wyoming. Duncan T. Patten, with Montana State University, agreed that wolves have changed elk behavior, but felt reduced elk numbers, mild winters that allowed elk to eat grass instead of willows, and changes in the river from beaver dams were more likely explanations.