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In need of a lawyer due to climbing gym accident - Denver, CO
Dan Daugherty wrote: According to this article, they only reduced the temperature by ten degrees. @Tambiban- agreed that personal injury lawsuits share the same lottery type results as much of the rest of the economy- some get fabulously rich while most get nothing. But for most people, rather than corporations, just getting sued, even frivolous suits, is expensive, stressful and time consuming. |
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Here in Colorado - and most states - there is an industry of parasites who make their living off of insurance company litigation. If you have even the tiniest shred of an argument, you can sue and become a liability to the insurance company. Your case might have near zero chance of wining, but that doesn't matter - your case could have an almost certain chance of generating a cost of litigation, or the threat of it. This money is generally used to settle - 90+% or so - "cost of litigation" money - out of court. Say an insurance company sees a case that would probably lose in trial, but could generate $50k in fees to get there and being driven by an angry, greedy and naïve client - the insurance company might be willing to negotiate that 50k to settle. All the lawyers know this racket well, it pays their bills. |
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I'm not a lawyer and don't live in Colorado. But in Colorado (and California), liability waivers do not protect you from gross negligence. If I'm belaying someone who gets injured due to my simple negligence mistake, the liability waiver that person signed with the gym will make it difficult for them to win a lawsuit. But if they convince a jury that I exhibited gross negligence, then they could win damages against me no matter what waivers they signed. If we assume the OP made some mistake in belaying or setting up the rope or tying in, litigation would focus on whether or not the mistake was simple negligence (like an innocent mistake or oversight) or gross negligence (being intentionally careless or knowingly using unsafe techniques or equipment). Both sides could spend tens of thousands of dollars arguing that question. Here's a Colorado PIL web page explaining the difference (but not for climbing): https://www.shouselaw.com/co/personal-injury/negligence/gross-negligence/ |
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Bill, I am not a lawyer, but I have been in a few court cases over liability & that ain't the way it works! Ins. companies & large manufacturers have lawyers on staff that are being paid no matter what. The last thing an Ins. co. whats to do is pay out money to a client or anyone. They would much rather go to count & dry you up than payout. They Know their pockets are deeper than yours. |
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A notable story I remember from roughly twenty years ago related to someone presenting themselves as an experienced climber, setting up an anchor incorrectly causing their partner to fall to the ground with numerous injuries. The case was settled out of court for $65,000. News story copied here (I can't find the original): http://canyoncollective.com/threads/novice-sues-veteran-climber-for-nasty-fall.11886/ Presumably a case like this where someone mis-represents their climbing experience could rise to the level of gross negligence. |
Mark Frumkin wrote: That's not true at all. Court represents an unknown and possibly a very expensive outcome. Vegas. It's a lot less expensive for the plaintiff to toss shit on the wall to see if it sticks with an unsophisticated jury than it is to defend against that. That said, of course they don't just pay money to anyone - it's a game - that could well include playing chicken with a plaintiff with a weak case to go ahead take it to a trial - however, that's not what usually happens. Usually the plaintiff has some shred of a point and wants to get paid for it. Every case is different, every case is basically "appraised" for its value - by both sides. That said, I don't think this case is worth squat. As for "gross negligence" - of course, that's what's going to get claimed every time - as our laws reduce the payout substantially for anything less - where it's shown the plaintiff had some level of knowledge, responsibility, assumed risk, etc of the dangers involved - like, no shit - you call yourself a climber and signed a waiver. vvvvvv EDIT: again, that's still not true - there is so much legal work to be done for these insurance companies - much of it is outsourced. A staff lawyer may oversee and make decisions on whether to settle or push ahead - a majorly expensive decision to fuck up - and you're WAY oversimplifying it - but based on the nature of the case, an outside firm that likely specializes in that type of case will be retained - one that is also likely located near the parties to avoid travel expenses. |
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Yes, Bill, it is true! You are thinking logically but that's not how it works. The Lawyers for the Ins. are being paid in court or out of court. There are bigger issues for the Insurer or Manufacturer. |
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The real question is if i find a finger in the anchor at the top of the yellow 5.11+ route in the corner am i eligible for compensation? |
Bill Schick wrote: That is an extraordinarily bold statement given that there are no known facts about the event. |
Credentialed Actuary here. I’d say it’s 50-50. Insurance company will choose the cheaper option between lawyers and paying a claim. Large insurers have reduced costs of dealing with litigation so they are fine going to court, small carriers will just pay the claim. Insurance company is going to do the cheapest and easiest option. You lose an arm in an actual work related activity, they are probably not gonna debate responsibility they will just pay you as little as they have too. You lose in arm while walking away from the jobsite, different story. |
PRRose wrote: I actually chatted with the guy - and that's my opinion. Not that it applies here - but as an extreme example in the context of what was presented here - IMO no matter how negligent your partner in a gym setting - you're going to lose in a lawsuit against them if you get hurt. You might get money from their insurance company - but in a full trial, if you were insane and well funded enough to assert one - you'd lose. Even if you "won", like pigs are flying around outside, the settlement would be reduced to near zero by your own partial liability. If an actual lawyer (I'm not) who has been there has something different to say, I'd love to hear it and why - just out of curiosity - and further information for this thread. |
PNW Choss wrote: Not if it's someone else's finger! If it's your own finger, possibly. (This is my personal opinion, not legal advice.) |
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I work in the field and I'd simply say that the US civil justice system is extremely uneven in its results. It's pretty much a sweepstakes system. The key for any plaintiff is finding a good lawyer who will take a case and actually follow through. Most "ambulance chasers" don't have a lot of cred with the defense bar and are simply filing lawsuits to raise the value of an insurance settlement by a few notches. Above the value of the case but below the cost to defend + the unknown of a jury trial outcome. Multi-million dollar cases are almost without exception extremely complicated situations with a lot of moving pieces and a lot of unknowns. Both the defense and plaintiff bars in both those worlds tend to know each other well and it's a very high-stakes chess game. |
Princess Puppy Lovr wrote: Can confirm. I’ve worked in commercial insurance for the past 8 years. Insurance companies will generally choose the option that, based on both their own and industry experience with similar claims/lawsuits, is projected to be the cheapest option. It’s all about reducing the dollar amount of paid losses, regardless of whether they’re paying their lawyers to defend them/their customers, or paying plaintiffs to go away (settling). |
Bill Schick wrote: Assuming that the potential plaintiff was harmed or injured, do you base your opinion on: 1. The potential defendant did not owe any duty to the potential plaintiff; 2. The potential defendant owed a duty to the potential plaintiff, but didn't breach that duty; or, 3. The potential defendant didn't cause the harm or injury? An interesting legal question is what duty do climbers owe to their partners. I don't know of any cases that address that, but I don't think the answer is "none." I think I could convince a judge that a belayer, and in particular one who represents that he or she is an experienced and competent belayer, owes a duty to give a competent belay to his or her partner. You make a blanket statement that "no matter how negligent your partner in a gym setting - you're going to lose in a lawsuit against them if you get hurt." That strikes me as absurd. Are you suggesting that if your belayer took you off belay mid route you couldn't recover? What if your belayer took you off belay and then yanked you off the holds you were on? How about taking you off belay, soaking the rope in gasoline and lighting it? Or, to get away from belay scenarios, do you think there would be no potential for recovery if you were pulled off the holds while bouldering? |
PRRose wrote: I have been a civil defense attorney at a large firm for 12+ years. Interesting questions. Although, there are just not enough facts to offer a great prediction. But here we go. . . . The OP is not a gym owner. If he were, he knows he has a commercial general liability policy and he would have turned it over. The carrier would then assign counsel. What happened here is likely this: (1) climber hurt in the gym; (2) he received medical treatment and this was paid by his health insurance; (3) the climber may have told a doctor or nurse that his belayer dropped him (or maybe not); (4) when the health insurer looked over records, it noted someone may have been at fault and sent it to its subrogation department; (5) the subrogation department called (or had an attorney call) the OP to try and recoup costs; and (6) the OP freaked out and posted here. This is a pretty common scenario. In fact, I am currently on the mend from a climbing accident that required 12 screws to fix. Not a cheap surgery. My health insurance's subrogation department called me to determine if someone may have been at fault. I answered: "yes. I was 100% at fault and no one else." That ended their inquiry. My general musings and free advice to all climbers (# 1 and 2) is this: (1) If you don't have one already, get a 1M umbrella policy. In my state, it is cheap. I pay about $120/year. (2) If you are being accused of being liable for injury, immediately call your insurer (homeowners/tenant). If you don't, it could be a basis to deny coverage later. (3) Common Law Negligence varies from State-to-State--sometimes significantly. Some states have had very restrictive tort reform that makes it harder to sue for many injuries. (4) My guess is that most States would determine that a belayer "owes a duty" to his/her climber. That would generally mean they must act in the same manner as a "reasonably prudent person in the same or similar situation." (5) There are many doctrines that could eliminate any liability. At the forefront would Assumption of Risk and Consent. (6) From a quick WestLaw search, I only saw one factually similar case. Here it is: law.justia.com/cases/michig… It was dismissed based on Assumption of Risk. (7) With doctrines such as Assumption of Risk, the question arises as to what is an inherent risk in the sport. A belayer having a bit too much slack, or a belayer giving a hard catch, are likely inherent risks. However, if there was evidence, and testimony from an expert to help establish the duty owed, other things might not be. A belayer letting go of the rope to look at FaceBook would not be an inherent risk in the sport; a belayer not paying great attention (too common) is a closer call. And, of course, anything intentional would not be an inherent risk--like a boxer biting an ear off. (8) The gym's Release may be broad enough to cover participants; they may be intended third-party beneficiaries; (9) As to the suggestion that insurance companies just defend at all cost, that is NOT how it works. They are businesses, and there are costs to litigate. Most insurance companies hire outside law firms. Even in a nuisance value case, the cost of defense would still likely be more than $10k. If they can pay 10K and eliminate all risk, most would do so. Depending on the injury and what the potential risk is, that could be much higher. Insurance companies like to manage risk, not gamble. (10) Anyone that guarantees a lawsuit will be dismissed has ZERO experience with judges and juries. Some judges lean left, and some lean right. Some Plaintiffs attorneys get the benefit of the doubt, so do some defense attorneys. There is normally enough case law for a trial judge to do what he/she wants and justify the outcome by citing to authority. If a case were not dismissed, and it were to get to a jury, juries can and do come up with crazy ideas and verdicts. There are no guarantees. Any attorney that says there are guarantees has not tried many cases. From a quick read through, those are my initial thoughts. |
John Miller wrote: That seems like a great summary. It would be interesting to see the waiver the injured climber (presumably) signed. I wonder if it had an indemnification provision that may benefit the OP, so that the OP would be indemnified (even as to attorney's fees), but I don't know if that's how they're usually written. This assumes the OP will not be found to have committed "gross negligence" or worse, in which case it seems he might have some issues. Regarding insurance subrogation, I've had the same experience after being injured in a climbing accident that involved my medical insurance (it was Kaiser) -- got a call from a Kaiser rep that was clearly on the lookout for who, other than me, may have been responsible. I was happy to say it was 100% my fault (or no one's fault really, just ripped a tendon in the act of climbing that required surgery). I wonder how often the insurance companies make such claims. That may be what's happening here, but it doesn't seem to be common, or else I think we'd hear about it more. Or maybe it will become more common as climbing increases in popularity--you see PI attorney advertisements on billboards on I70, maybe we'll see the same thing coming out of the local canyons. |
John Miller wrote: John, That is an excellent response. In Colorado (which is likely where the incident occurred), assumption of risk is a defense. However, it is not a complete defense, rather, it enters into allocation of fault under its modified comparative negligence rule. |
PRRose wrote: ...which would significantly reduce the amount of money they can win, if they actually won. Been there. Seriously - getting a case to that point is just so unlikely - it's the nuclear worst case of where the OP's case could go - and there'd be little to nothing there for the plaintiff. That's the source of hyperbole in my posts. It would be interesting here to hear from an experienced Colorado lawyer on what those allocation modifiers are. It's literally a math equation that I think here would come to zero for most any possible/likely case. Your prior examples would amount to criminal assault, IMO - not examples that relate. Worth repeating [again] is that the OP needs to call his insurance company asap. Agree with most of John Miller's other points.
@John Miller - It's not actually that simple in Colorado. Jury could find partial fault, as you say, but the award could be reduced to zero without being dismissed. ie - you're assuming only 1 of 2 or 3 equations. |
Bill Schick wrote: Bill - There are just a lot of unknowns. If the OP has no insurance that would cover a claim, and if he doesn’t have much in the way of assets, most attorneys wouldn’t waste a lot of time and energy pursuing someone uncollectable. As to your question for a CO attorney, which I am not, it is a pretty standard answer. It is up to a jury to allocate fault. It isn’t algebraic as you suggest. They listen to the evidence, are instructed on the law, and decide percentages of fault. It is a factual question and not a legal question. If there were 100K in damages, and they determined the belayer was 55% at fault and Plaintiff was 45% at fault, then the modified judgment would be for 55K. It is highly unusual for a judge to dismiss a lawsuit on summary judgment based on comparative fault. |
