August 22, 1986, dawned clear and still over Jackson Hole, promising fine weather for climbing in the Tetons. Jim Bridwell rolled groggily out of bed and put on a pot of coffee. Bridwell—the fabled Admiral of Yosemite, the first man to climb El Capitan in a single day, the first to ascend the notorious East Face of the Mooses Tooth in Alaska, a veteran of the planet’s most horrific rock walls—was spending a relatively mundane summer working for the Exum Mountain Guide Service and School of American Mountaineering, instructing tourists in the rudiments of rock-climbing. At 8:30 A.M., he called the Exum office and learned that a group of clients who were booked to depart with him that morning on a two-day guided ascent of the Grand Teton had canceled. It was unwelcome news, for Bridwell—perennially strapped for cash and hounded by creditors—could ill afford the loss of income.
A minute later, however, the phone rang, and Bridwell’s luck appeared to take a turn for the better: A guide was needed right away to teach an intermediate rock-climbing class; was he interested? “Sure,” Bridwell replied without hesitation. He gulped his coffee, grabbed his climbing gear, and hurried off to the Exum headquarters—a small cabin beside Jenny Lake.
The class consisted of four men, all friends, the oldest of whom was an affable, heavyset, forty-one-year-old attorney from Houston named Edward Carrington who had played tight end for the Houston Oilers of the American Football League from 1967 to 1969. Bridwell made sure that each student had signed a standard acknowledgment of risk form and was outfitted with a helmet and climbing harness; then they all caught a boat to the west shore of Jenny Lake, bound for some crags near Hidden Falls known as the Exum Practice Rocks. The four clients—perhaps slightly awed to find themselves under the tutelage of one of American mountaineering’s most notorious and celebrated figures—bantered cheerfully about the climbing to come.
Nobody had any reason to suspect that before the day was over, Edward Carrington would be dead from a bizarre accident, the precise cause of which remains murky to this day. Each year, according to the American Alpine Club, some twenty-five to forty people are killed in climbing accidents in the United States (a fatality rate, according to actuarial experts, that makes climbing slightly less hazardous than operating a power mower), and for the most part these tragedies have little impact beyond the self-contained miasma of grief that descends upon the family and friends of the deceased. Carrington’s death, however, would figure prominently in the decision of Yvon Chouinard, founder of this country’s oldest and largest manufacturer of climbing hardware, to take down his shingle and quit the business. It would also send legal and financial shock waves through the American mountaineering community for years to come.
According to National Park Service documents, Jim Bridwell’s class started off like any other. (Bridwell was unavailable to comment for this article.) The group spent a successful morning at the practice rocks, reviewing the fundamentals of tying in, belaying, and placing hardware for protection, and completed two short climbs along the way. After lunch, they roped together and, with Bridwell in the lead, embarked upon what was meant to be the culmination of Exum’s intermediate climbing course: a three-pitch route called the Hole in the Wall, with a difficulty rating of 5.7. The first two pitches went smoothly enough, and by two P.M., all five men were crowded on a belay ledge in the eponymous Hole, an alcove cut deep into the cliff’s granite facade, which to a neophyte climber contemplating the crux moves above can feel both claustrophobic and exposed. Carrington, in fact, mentioned as much to his guide, confiding that the place scared him.
Bridwell reassured his client, made sure everyone was anchored securely, and then edged out of the Hole and worked his way up the final steep slab that led to the top of the route. Carrington was next on the rope. After cautioning his three buddies, “Check your gear!” he started climbing, protected by a snug rope from above. Moving awkwardly off the ledge on the small handholds, Carrington managed to struggle only a short distance away from the Hole before his companions heard him shout, “Hold me!” and watched as he abruptly popped off the rock. Bridwell, alert to the possibility of such a slip, immediately cinched down the rope, arresting Carrington’s fall after he’d dropped only a foot or two.
Carrington retreated back to the security of the Hole, composed himself, then gave it another try. Once again, he scrabbled clumsily away from the ledge, and once again, his arms gave out just a few feet from the Hole. Forty feet above, Bridwell heard him cry, “Falling!”
“I felt a short jerk,” the guide later told a Park Service investigator, “and then nothing, as if Ed were back on the rock but somehow different. I looked down and saw him falling.” In horror and confusion, Bridwell watched him bounce down the rock face, somehow disconnected from the rope. For a moment after starting to fall, Carrington maintained an upright posture, and it was possible to pretend that nothing was really amiss, that something would arrest his slide, that everything would still turn out all right. But then he was flipped upside down by a sharp blow against the cliff and began to tumble like a rag doll, accelerating earthward amid a shower of stones knocked loose by his repeated collisions with the wall. It became apparent not only that Carrington was going to go all the way to the ground, but that he was hurtling directly toward an unsuspecting group of Exum students gathered around their instructor, Peter Lev, at the foot of the climb.
Overcoming his shock, Bridwell managed to blurt out a warning to those below. Lev—part owner of the Exum school—shouted at his four students to scatter. “It was horrible,” Lev recalls, still haunted by the memory. “Carrington was a very large man. He weighed over two hundred pounds; the earth actually shook when he hit. If I hadn’t jumped out of the way at the last second, he would have nailed me.”
Carrington bounced once and came to rest in the lower branches of a tree, after falling approximately 150 feet. Lev sent a student down to the Jenny Lake boat dock to summon help, then rushed to Carrington’s side, where he was soon joined by a student trained as an emergency medical technician. Carrington, severely injured about the head, lacked any vital signs. One by one, Bridwell’s clients rappelled down from their ledge in the Hole. The first to reach the ground was the victim’s brother-in-law, James McLaughlin, and Lev was forced to break the news to him: Ed Carrington, his neck apparently snapped by the fall, was dead.
At the time of the accident, Carrington, like all Exum clients, had been wearing a Culp Alpine Harness manufactured by Chouinard Equipment Ltd., a standard climbing harness with no previous reputation for problems. Immediately after Carrington fell, Bridwell rappelled down from the top of the route to join his stunned students in the Hole. As he swung from the face into the alcove, he caught sight of Carrington’s empty harness still dangling from the rope. He pulled the harness into the Hole after him, examined it for a moment, then dropped it onto the ledge with a curse. The harness was intact, but the strap that should have been secured around Carrington’s waist had slipped completely through the metal friction buckle during his second fall, dropping him without warning. This was particularly shocking because the Culp harness had been specifically designed to work even in the event of buckle failure. If the harness is used correctly, the knotted end of the climbing rope rather than the buckle itself is primarily responsible for keeping the ends of the belt mated securely; the harness should have held Carrington even if he’d failed to fasten the strap through the buckle.
What was to gnaw at Bridwell—and to puzzle the scores of National Park Service rangers, Exum guides, Chouinard personnel, attorneys, and insurance adjusters who would investigate the accident over the months to come—was why Carrington had not been tied in correctly. A single glance at the harness as it swung at the mouth of the Hole told Bridwell what had escaped his notice during the course of the climb: Carrington had not tied in as he had been painstakingly taught earlier in the day. The rope, instead of being threaded directly through the harness tie-in loops as specified by the manufacturer, had been tied to a locking carabiner, which in turn had been clipped to the waist strap of the harness—a simpler, faster method that made the integrity of the harness wholly dependent on the integrity of the buckle. As the initial shock of the fatality began to subside and finger-pointing commenced in earnest, when—and why—Carrington had attached the rope to his harness in this hazardous fashion were questions for which a great many people were eager to find answers.
As one might imagine, more than a few of those people were lawyers. On August 22, 1988, exactly two years after the accident—and a day before the statute of limitations was due to expire—the Houston law firm that had employed Carrington brought suit against Bridwell, the Exum school, and Chouinard Equipment on behalf of Rosa Carrington, the victim’s widow.
Because the harness had obviously been misused, the case against Chouinard, on the face of it, seemed shaky at best. Exum, the oldest and perhaps most respected company of climbing guides in North America, had suffered only two previous fatalities in its fifty-five-year history (and none at all since 1964) despite logging approximately 3,000 client-days annually—a remarkable safety record that appeared to stack the legal deck in Exum’s favor as well. If one was looking for a fall guy to feed to the plaintiff’s attorneys, Jim Bridwell seemed to be the leading candidate.
A number of figures in the American climbing community felt that Bridwell did not deserve to be a scapegoat. “A client can’t simply switch off his brain because he’s being guided up a climb,” argues a longtime professional guide who prefers to remain anonymous. “In the end there’s only so much a guide can do to counter a client’s acts of carelessness.”
(Indeed, on a guided ascent in the Tetons in 1967, an act of carelessness by this author nearly resulted in an accident very similar to Carrington’s. I was thirteen years old, had graduated from the Exum intermediate rock-climbing class two days before, and was being led up the Grand Teton by a guide named Greg Lowe. I had been carefully tutored, but on this particular morning, I botched up the bowline around my waist, and the knot came untied high on the peak, midway up the crux pitch. I was able to work my way down to a belay ledge and retrieve the rope without falling, and suffered nothing more than an impassioned chewing-out from Lowe, but the consequences of my sloppy knotcraft could just as easily have been terminal.)
In the other camp, Rosa Carrington’s lawyers at Fisher, Gallagher, Perrin & Lewis maintained that even if Carrington had incorrectly attached the rope to his harness, Bridwell should have caught the error and rectified it. They said Bridwell, as a professional guide, had no duty more important than ensuring that Carrington—a rank beginner who had been introduced to technical rock climbing only the day before in an Exum basic rock-climbing class—was correctly tied in at all times. Indeed, the Exum guides manual plainly and repeatedly admonishes the guides to “check all knots.” Bridwell has insisted all along, however, that just prior to the fatal climb he did indeed check to see that Carrington was correctly tied in, with his harness securely fastened.
Bridwell’s defenders have advanced the theory that at some point during the ascent—most likely on the belay ledge after the first pitch—Carrington untied without Bridwell’s knowledge, perhaps in order to urinate. He then could have hurriedly reattached the rope to the harness incorrectly, using the quickie carabiner system that one of Carrington’s companions speculated he’d learned during a guided ascent of Mount Rainier in 1984. This theory is certainly plausible, but it is weakened by the fact that one of the group remembers Carrington relieving himself immediately prior to the Hole in the Wall climb, making it unlikely that he would have done so again only a few minutes later. None of his classmates, in fact, recalled him doing so.
Regardless of when or why Carrington changed his tie-in, the fact remains that he would have gotten away with this quick-and-dirty carabiner attachment method—a method that many climbers employ, with care, in special situations without fearing for their lives—had he fastened the buckle of his harness correctly. By themselves, neither the improperly fastened buckle nor the unorthodox tie-in would have killed him, but the two errors in conjunction sealed Carrington’s fate.
Bridwell had worked as a professional mountain guide for the better part of two decades without incident; a wealth of evidence suggested that he was an able teacher and a conscientious, even conservative guide. Nevertheless, his supporters worried that the Admiral might find himself facing an image problem, thanks to an article in the May 8, 1986, issue of Rolling Stone, which presented him as something of a dissolute thrill junkie. At one point in the article, Bridwell enthusiastically spoke of an experience he’d had with a UFO. At another, climber John Long—a well-known Bridwell protégé—described his mentor as “an occasional abuser of everything, including himself.” Such an image, they feared, would not serve their friend well when it came time for him to stand before a jury of Rotarians and housewives.
Once word of the Carrington lawsuits spread, conventional wisdom in the American climbing community held that Bridwell would probably wind up taking most of the rap for the accident, with some of it spilling over to the Exum school simply for being Bridwell’s employer. When I phoned Larry Boyd, Rosa Carrington’s attorney, in March of this year, I was thus surprised to hear him say that he didn’t think Bridwell and Exum were primarily to blame. “The real culprit,” he declared, “is the company that designed such an unreasonably dangerous climbing harness.”
Whatever the legal merits of Boyd’s case against Chouinard, cynics were quick to point out that Chouinard’s were the only “deep pockets” around. Bridwell was virtually penniless, and the assets of the Exum school amounted to little more than a few dozen ropes, a typewriter, and a locker full of climbing hardware. Chouinard Equipment, on the other hand, took in $6 million annually in gross receipts and could in theory be linked by a clever attorney to Yvon Chouinard’s clothing company, Patagonia, Inc., a $100 million cash cow. When a potential liability claim exists and even the faint scent of that kind of money is on the breeze, lawyers for the plaintiff are going to sit up and take notice.
Yvon Chouinard, a legendary rock and ice climber in his own right, literally built his equipment business piece by piece. In 1957, after three years of climbing using the primitive hardware of the era, he taught himself blacksmithing, figuring he could supply himself and his friends with better pitons and carabiners than those that were commercially available. He sold the pitons out of his car for $1.50 apiece—five times what European pitons cost, but climbers gradually came to appreciate that his were stronger and better designed, and they were soon buying them as fast as Chouinard could make them. In 1966, Chouinard Equipment opened for business in a tin shed, fondly known as the Skunkworks, next to an abandoned slaughterhouse in Ventura. Receipts totaled about $3,000 that year, but sales doubled the next year and for four years after that.
The company owed its early successes to its cutting-edge design and high quality of material and construction. But pieces of Chouinard hardware, most often crampons or ice axes, occasionally broke during use. Since Chouinard did extensive product testing even back then, his products probably broke less than his competitors’, but scores, maybe hundreds of his products did fail. Although no climbers died as a result of poorly made Chouinard gear, more than a few were injured. Yet no lawsuits were filed. Climbers, in those innocent days, simply accepted a certain rate of equipment failure as one of the intrinsic hazards of the game—like avalanches or sudden electrical storms—and prepared for it by carrying an extra ice ax on ice climbs and backing-up belay anchors whenever possible. In 1979, while I was soloing a frozen waterfall a long, long way off the deck, a Chouinard crampon broke and fell off my boot. It was an extremely serious situation. I got myself out of it, but I was predictably upset and fired off an angry letter to Chouinard Equipment. Nevertheless, when the company, unbidden, sent back a replacement part that enabled me to bolt the broken crampon back together, I considered the matter closed. Wow, I remember thinking gratefully at the time, they didn’t even charge me for it.
Not long after that, Chouinard established the most sophisticated quality-control program in the industry, virtually eliminating equipment breakage. It was ironic, therefore, that in March 1986, a window washer in Atlanta named Gilmer MacDougald brought a product liability suit against the company, the first in Chouinard’s twenty-nine years in business. Even more ironic, the equipment in question, a locking carabiner, had in no way failed to perform as intended. MacDougald had fallen from high on the side of a building after improperly twisting down the sleeve that locks the carabiner gate in place, and he was severely injured. His suit claimed the design of the device was “defective and unsafe for its intended use.”
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 several 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.