by Jon Krakauer
Anyone unfamiliar with the baroque workings of American jurisprudence might assume that MacDougald’s case against Chouinard would simply be thrown out of court. But, lately, sweeping changes in the interpretation of tort law—the law of accidents and personal injury—have made the outcome of liability suits exceedingly unpredictable. Liability law was intended to protect workers, consumers, and accident victims, but the changes have made it profoundly easier for anyone to sue. The authors of the laws may have had noble motives, but the result is a $300 billion annual drain on the U.S. economy that may benefit no one so much as the lawyers involved. Product liability cases multiplied 400 percent between 1976 and 1986, and plaintiffs are now twice as likely to win as they were twenty years ago. The average judgment has grown from $50,000 in the early sixties to more than $250,000 today, and awards greater than $1 million have become commonplace.
Unwilling to take its chances with the courts in this kind of legal climate, Chouinard’s insurance company settled the MacDougald claim out of court for $350,000. A second lawsuit hit in March 1988. In August of that same year, the Carrington claim was filed, and three more liability suits followed in quick succession. As the lawsuits mounted, Chouinard Equipment’s insurance premiums skyrocketed: for $2 million in coverage—with a $200,000 deductible clause—Chouinard was forced to pay $325,000 a year, an increase of 1,625 percent since 1984.
Although Patagonia, as a separate corporate entity, continued to make money hand over fist, Chouinard Equipment had never been more than marginally profitable at best, and the new insurance burden threatened to drive the hardware company’s books into the red. According to Peter Metcalf, Chouinard Equipment’s general manager, “In December 1989 our policy was going to be up for renewal, and it looked like it might go up yet again, to five hundred thousand dollars a year, if indeed we could even get insurance at all.”
Of the six liability claims made against Chouinard, three could be attributed to blatant misuse of carabiners by nonclimbers (a plumber, a roofer, and the aforementioned window washer). The other three claims, the Carrington suit among them, involved improper use of the Culp Alpine Harness, which by now had been taken off the market. Defending these lawsuits became doubly uncertain, thanks to a videotape produced by one of Chouinard’s competitors—a tape that, shortly after the Carrington claim was filed, began to circulate through the climbing underground like a piece of scandalously exotic pornography.
The handiwork of John Bouchard—the maverick, outspoken owner of Wild Things, a New Hampshire–based outlet for cutting-edge climbing gear—the video graphically depicted the buckle and waist belt of a Chouinard harness (a more recent model than the Culp harness, without designated tie-in loops, but with essentially the same buckle design) coming undone in a laboratory test situation. Bouchard—who was himself facing a product liability suit of dubious merit when he made the tape—says that the video was not intended for public consumption and that the last thing he wanted to do was compound Chouinard’s legal woes. Rather, Bouchard insists, the video was meant to be a shot across the bow of complacent associates in the climbing business, to shock people into realizing that defensive action needed to be taken by the industry as a whole.
Whatever Bouchard’s motives, the video did nothing to lessen Chouinard’s problems. Were it to be admitted as evidence as a trial, it could be damning. Which was unfortunate, because although the buckle in the video did indeed let go under body weight, it failed under conditions that would, in the view of most climbers (Bouchard notwithstanding), be all but impossible to duplicate on an actual climb—and absolutely impossible to duplicate on the Culp harness if the tie-in loops were used as intended.
Such subtleties, however, were likely to be lost on a nonclimbing judge or jury. “The plaintiff would pay five hundred dollars a day to some professor of engineering—a professional testifier—who’d never been near a climb in his life,” explains Jim McCarthy, a New York civil attorney, rock climber, and past president of the American Alpine Club, “and he’d stand up there, introduce himself as an expert, and testify that there’s obviously a design defect here. In conjunction with the video, that could be very effective.”
As Chouinard’s liability predicament intensified, the folks next door at Patagonia began to get nervous. On paper, the two corporations were completely independent, so even if a plaintiff managed to mount a successful suit against the embattled hardware company, he stood little chance of getting his hands on any of Patagonia’s bounteous assets. Nonetheless, given the many close ties between Chouinard Equipment and Patagonia, it was at least conceivable that this “corporate veil” could be pierced, and this remote possibility frightened the lawyers representing both corporations.
As time went on, the previously unthinkable looked like the only remaining option: Chouinard Equipment, foundering on the shoals of tort law, would have to be cut loose. On April 17, 1989, Yvon Chouinard’s namesake business—the enterprise that had launched his charmed career and profoundly influenced the course of an entire sport—filed for bankruptcy under Chapter 11.
Chapter 11 put all the litigation on hold, buying time for Chouinard to figure out a course of action. In the end, the company was put on the block in federal bankruptcy court, and a group of Chouinard employees led by Metcalf formed an entirely new corporation, christened Black Diamond. Metcalf swung a deal to buy all of Chouinard Equipment’s orders, machinery, inventory, and assets “tangible and intangible”—everything, in effect, but the Chouinard name and the company’s onerous liabilities.
On December 1, 1989, when Black Diamond assumed ownership, little seemed to change in the company’s day-to-day operations. But since the corporation was brand new, with no lawsuits hanging over its head, its liability insurance now cost $150,000 yearly with a $20,000 deductible, instead of $325,000 with a $220,000 deductible.
Chouinard solved his liability problems by getting out of the climbing business altogether. And for those operators who haven’t closed up shop, insurance is now actually a little cheaper and a little easier to come by than it was two or three years ago. But the American fondness for bringing lawsuits continues apace. “It’s a terrible, pernicious disease as far as I’m concerned,” says Jim McCarthy. “People in our society refuse to take responsibility for their own actions. ‘It can’t be my fault, it always has to be someone else’s fault.’”
The ramifications of this “pernicious disease” already ripple through the mountaineering industry. The leading American manufacturer of climbing ropes, Blue Water, will no longer sponsor climbing competitions or even donate ropes as prizes for fear that such generosity could invite liability suits. Black Diamond has just invented a unique, quasi-locking carabiner that would solve the problem of gate flutter—a common and potentially very serious phenomenon wherein carabiner gates vibrate open during leader falls—but has been advised by its attorneys not to put it on the market. “It’s too innovative,” explains Metcalf. “It works beautifully, but it’s prone to being misused, so there’s no way we can sell it without risking the company.”
Such fallout, however, is chicken feed compared with the potential consequences of a liability claim slated to go to trial on May 31 of this year in Cheyenne, Wyoming. McCarthy, who will be testifying on behalf of the National Park Service, worries that it could have draconian repercussions not only for climbers but also for all those who enjoy the wilderness.
On June 28, 1987, four college students working as seasonal employees at Grand Teton National Park scrambled up the east ridge of 11,938-foot Buck Mountain, near the southern end of the Teton Range. During the descent, the party split up. Two of the students made it back down by noon, but another became stranded on a ledge, and the fourth slipped on a hard-frozen snow slope and sustained a massive head injury. He managed to regain consciousness, but stumbled into a pool of shallow meltwater from which he was unable to crawl out. The first two students waited until midafternoon before notifying the authorities, who in turn waited severa
l more hours before mounting a search. The student trapped on the ledge was eventually found and rescued at two thirty in the morning, but the fourth student—still lying in the pool—wasn’t located until daybreak, by which time he was long dead from hypothermia. The suit stemming from this incident alleges that the Park Service failed to “adequately regulate recreational climbing activity in Grand Teton National Park” and didn’t execute the rescue fast enough.
“The assumption that the Park Service has an obligation to mount a helicopter rescue every time someone is treed or reported missing is simply outrageous,” says McCarthy. “If the plaintiff wins this one, you’re going to see every national park in the country shut down and closed up.”
Don Coelho, a law enforcement specialist for the park, who is in charge of all court and legal action stemming from incidents there, says that McCarthy’s alarmist rhetoric is not so far-fetched. “We’re all nervous about the outcome….The precedent could be disastrous.”*
Climbing used to be a fringe activity grounded in self-reliance and independence—more a close-knit subculture than a conventional sport. Climbers loved the extreme risk, the low-tech equipment, the very antimodernness of the game. The rules demanded commitment and responsibility, and the players learned them from experienced friends and elders, usually through a long apprenticeship. “Climbing wasn’t something you just did on weekends,” explains Yvon Chouinard. “By God, you understood that you had to dedicate years of your life to learning all its different aspects. Otherwise you stood a good chance of getting killed.”
Times have changed. The victim in the Buck Mountain fiasco was a first-time climber. Likewise, the victims in virtually every other mountaineering mishap that’s resulted in litigation have had either precious little climbing experience or none at all. In part, this could be attributed to the sport’s recent explosive growth, due mainly to the emphasis placed on a relatively new facet known as sport climbing: ascending short, steep cliffs, or even artificial walls, equipped with bombproof, tightly spaced, pre-placed anchors. It’s made the sport easier to learn—and more accessible. For the first time ever, climbing is being aggressively marketed—in some cases by the same climbers who speak of the good old days—and packaged almost as a mainstream sport: thrilling but not particularly life-threatening.
To pick up the sport, many would-be climbers turn to guide services and climbing schools, assuming that their instructor will be infallible: a steel-hard semi-deity possessed of unerring mountain savvy—precisely the image that guides themselves want to project and indeed take great pains to project. Guide services (and equipment companies), after all, are first and foremost businesses, and as such they resort to much the same hyperbolic language and marketing strategies that other businesses employ. In unguarded moments, mountaineering companies will—or used to—admit as much. When, for example, I wrote to Chouinard Equipment in 1979 complaining about my broken crampon, I included a page from the latest Chouinard catalogue, which boasted of the unparalleled workmanship and dependability of the product. In reply, I got an apologetic note from an employee who confessed, “Hey, you know how it is: Advertising and bullshit go together like peanut butter and jelly, like hot dogs and mustard, like Ginger Rogers and Fred Astaire.”
Nowadays, the promotional brochures and catalogues of guide services and hardware manufacturers do include disclaimers: detailed legal boilerplate warning of the hazards of climbing. But the stilted language leaves one with the impression that the disclaimers are mere legal formalities (what lawyers refer to as “flypaper”) and thus are not intended to be taken seriously—an impression reinforced by the pages and pages of cheerful catalogue copy that inevitably follow.
“In a sense,” says Michael Kennedy, an experienced mountaineer and the editor of Climbing magazine, “guide services and gear manufacturers have helped bring the liability crisis on themselves by underplaying the sport’s dangers in their marketing. They know they’re going to have a tough time selling people on climbing if the first thing they tell them is ‘You stand a good chance of getting killed.’ As a consequence, people take up climbing thinking it’s just another form of recreation, without being tuned into its traditions, its spiritual side. Then, surprised when they get hurt, like good Americans they sue somebody.”
The current liability problem is not without practical responses, however. One thing companies could do to discourage future suits is refuse to settle current ones out of court. “A huge number of lawsuits are filed with little or no merit,” explains McCarthy. “But they’re expensive to defend, climbing sounds exotic, the insurance company wants the hell out of there, so there’s a fat settlement. And the plaintiff’s attorney walks away with his one-third, no problem, ready to do it all over again next time.”
Most heads of climbing-related businesses agree, at least in principle, that it would be much better for the industry as a whole if each and every liability claim were fought through the courts. But for all the tough talk, thus far the only company that has actually stuck to the hard line and refused to settle has been John Bouchard’s Wild Things. Yvon Chouinard, when asked why he was so quick to settle out of court, asserts that insurance companies are to blame: “As soon as you buy insurance, you surrender the right to decide whether to fight a case or not. They insist on making that decision.”
Perhaps the best way for a company to avoid being sued, suggests Chouinard, is “simply to stay small, to keep it in your backyard, like I started out. The trick is, you don’t carry any insurance, you figure out a way to keep your assets out of the business, and nobody will be interested in suing you. And if somebody does sue you, you just walk away from it. But you have to make sure you don’t get greedy, because as soon as you get big, you become a target.”
Of course, schools and equipment manufacturers might also reconsider how they sell climbing to the American public. Climbing has marketed so successfully against its dangerous image that the beginner has come to believe that by plunking down his charge card at a reputable climbing school he is buying expertise and safety—that at his level of the game, at least, climbing is fun and maybe scary, but never deadly.
The sale of Chouinard equipment did not make the lawsuits disappear. In early April, the Carrington case was scheduled to go to trial in June or July. However, since Chouinard Equipment declared bankruptcy, piercing the corporate veil has become considerably more problematic. Insiders expected that by the time you read this article the claim will have been settled out of court.
Meanwhile, profits are still piling up in the coffers of Patagonia, Inc. Exum has yet to settle its suit—a suit kept alive, according to Rosa Carrington’s family, at the insistence of Ed Carrington’s old law firm—but is conducting business as usual. Jim Bridwell, who has settled out of court, is presently climbing and guiding in Southern California.
And Ed Carrington, of course, is still dead. No obvious culprit has emerged from the legal fracas, and people still ask why Carrington—taught by a top-notch instructor at a highly respected school using the finest equipment made—is not alive today.
A satisfactory answer to that question will never be forthcoming. The most that can be said with any certainty is that someone made a small, innocent mistake—or more likely still, several people made a series of small, innocent mistakes. And climbing, for better or worse, has always been a game in which the penalty for even a single, apparently tiny error is often considerably more than anyone wants to pay.
PUBLISHED IN OUTSIDE, JUNE 1990
* The United States Court of Appeals, Tenth Circuit, resolved the lawsuit on November 13, 1991, by ruling in favor of the National Park Service.
Gates of the Arctic
The route climbed to a high divide that was notched like a gunsight between bald granite cliffs. Humping a big load up the pass, I was preoccupied with the weight biting into my shoulders and the rocks shifting underfoot, so I didn’t see the bear until it was less than 75 yards away. I paused to catch my breath, glanced up, and
there he was: a 350-pound grizzly, loping across the talus that spilled down from the notch. Because the wind was at the bear’s back he hadn’t yet noticed me, but a single route led over the divide, and I was smack in the animal’s path.
As grizzlies go, it was a relatively small one. His bulk would have dwarfed any lineman in the NFL, however, and the beast’s dull, tiny eyes did not convey congenial intent. I was deep in the Alaskan Brooks Range, well north of the Arctic Circle, so there were no trees for me to climb. I didn’t have a gun. Running, I knew, might invite attack. Too scared to breathe, I tried to remain calm but felt my mouth go dry.
The bear kept coming. At thirty yards, catching my scent, he stopped abruptly and reared onto his hind legs. His shaggy blond fur rippled in the breeze. His arms were as thick as spruce logs. Stories of gruesome bear maulings fast-forwarded through my brain. The grizzly sniffed the air, stared at me, sniffed some more. And then he dropped to all fours and bolted in the opposite direction, sprinting across a jumble of tank-trap boulders at a speed that defied belief.
The date was July 2, 1974. Two decades later, the memory is still vivid. For a long time after the bear ran off, I sat on a rock and just listened to the pounding of my heart. It was an hour after midnight. Mosquitoes swarmed around my face. Far above the divide, a prow of jagged granite burned orange in the twilight, illuminated by a sun that never set. Ranks of nameless mountains marched into the distance as far as I could see.