Hilton Hotel does not need a warning sign

Signs, signs, everywhere there's signs*, except at the Lily Pad Walk at the Hilton Milwaukee Center. Briane Pagel Jr. and his family sued the Hilton Milwaukee Center which is or has a waterpark on its premises. Mr. Pagel had been injured when he fell off the lily pad walk.

The lily pad walk is a series of large floating vinyl pads. There is an overhead net someone can grab to assist their walk or stop their fall. Mr. Pagel tried the walk and fell into the water. Then he tried again, falling and injuring his back.

Mr. Pagel claimed the hotel should have posted warning signs. The trial court judge dismissed the case and awarded the hotel their costs of $1,394. The appellate court agreed, stating the dangers were open and obvious to the reasonable user and not warning or signs were required.

See Hilton wins lawsuit

*Apologies to Tesla and the song Signs

Pagel v. Marcus Corporation, 2008 Wisc. App. LEXIS 423

Criminal Charges brought against Everest Guide in the UK

The Yorkshire Post UK, Everest killing charge , reported on what appears to be the extreme result of frustration, anger and loss. The father of a climber lost on Everest in 1999 has brought criminal charges against three of the outfitters and guides on the climb. David Matthews's, 62, millionaire father of the missing and presumed dead Michael Matthews, 22, an Everest summiter, brought the prosecution. Charged where Jonathan Tinker, Henry Todd and Michael Smith with unlawfully killing and manslaughter in Central Criminal Court, London. The charges were eventually dismissed by the court. (See Everest verdict that frees the mountain.)

Michael Matthews disappeared as he was descending from the summit in 100 mile per hour winds. Mr. Matthews has also sued the outfitter and guides in this matter. The civil lawsuit is still pending in the US.

As most readers to this blog know, any mountain holds the lives of the climbers on its flanks and consequently the lives of those relatives sitting at home. Those who tackle these mountains accept that risk, in fact thrill in revel in it. However families at home may or may not understand both the risk and our acceptance of it.

Complicate this lack of understanding of the motivation with the question what happened? We have grown up learning each day how our world works. Green cheese once formed the moon we then saw a rock that came from the moon. Transplanting hearts from the dead to the living was the subject of movies and nightmares; today there is someone in every community who lives because of it. Yet, how and why someone dies on the summit of Everest, at least for now is a mystery. We can speculate based on those who have come close and survived as well as the research done by our scientist, but we want a body and we want to know why and how a loved one died.

My father had a large life insurance policy on me for many years. He figured half would go to get my body home. I never cared and told him to spend the money, rather than bring me home but he said "your mother would insist on it."

At what point do those unanswered questions require an answer so badly that we not only sue someone, but we have them charged criminally. At what point does the loss of a loved one, require the destruction of the people the deceased wanted to spend time with. No more answers are going to be forthcoming. No answers at all will be found in either the criminal or civil courtroom. In fact, rarely are any answers found in court.

This lawsuit and these criminal charges will bring no satisfaction and no answers. At best it may create some level of retribution, possibly justice to the father when it is done, but even that is doubtful. At some point in life, you just must accept the fact that a loved one lived and died doing what they enjoyed and accept as much comfort as you can from that.

Litigation v. Jail Time

Many times I hear the argument that we need to adopt the European legal system. The belief is that the Europeans don't sue, make it very hard to sue and that is a better system for defendants. That is correct; however the European system also has a little twist we don't have in the US: Jail Time.

In Europe the requirements to start a lawsuit are very high and the types of things you can sue over are limited. However the requirements to be arrested and charged with a crime are low, are much broader and the level of proof to convict someone are much lower. Example of this is playing out in the US and France this week.

On July 25, 2000 a Concorde jet crashed in France killing all on board. On July 3, 2008 Continental Airlines and two Continental employees were charged in a French court with manslaughter. The crash was attributed to a piece of a Continental jet falling off as the jet was taking off. That piece of metal was run over by the Concorde jet causing a tire to blow out and the parts going into the engine causing the crash.

Here in the US, Continental might be sued for this type of thing. Maybe money would be exchanged, maybe. No crime would be charged because there was no scienter or "criminal mind." No one was attempting or thinking about a crime, there was no criminal intent.

That is not required in Europe or France, where by the way you are guilty until proven innocent to some extent.

In most European countries there is a very different way of approaching problems. There the government is in charge of making the public safe. In realty, in our "Laissez-faire" business environment most businesses are kept in line by the threat of litigation. In Europe businesses are kept in line by the government who puts you in jail if you are not doing a good job, if you fall out of line.

For information on the charges against continental airlines see: Airline to be tried for Concorde crash and French court to try US airline over Concorde crash.

Laissez-faire by the way is a French term.

Cyclists suing over hole in bike path

A cyclist is suing King County Washington for $20 million for an accident he had on a bike path. Injured bicyclist sues King County over hazard in path. While on a bike ride in September of 2006 the front wheel of his bike hit a hole around a metal monument in the bike path. He fell from his bike suffering a traumatic brain injury even though he was wearing a bike helmet. He is still recovering from the accident.

Your heart has to go out to the cyclists and his family. A man was cycling one minute and two years later is trying to learn how to walk again.

It is hard to get more bike paths when we sue over the ones we get. Bike paths in most states are not a fiscal priority. In fact it takes tons of work by cyclists to get more bike paths. When a million dollar bike path turns around and costs the county $20 million and legal fees a lot of bike paths, nationwide suffer. This problem is currently facing RAGBRAI in Iowa. After lawsuit, Crawford County bans RAGBRAI.

Historically the courts have held you assume the risk of cycling on the streets. (See Case Brief: New York Court Finds for Club Med in 2002 Patron Bike Fall and Furgang v. Club Med, Inc., 299 A.D.2d 162; 753 N.Y.S.2d 359; 2002 N.Y. App. Div. LEXIS 10593. Subscription site).

It will be awhile before we know the outcome of this case. However we will probably feel the effects immediately.

GCRGA and the BQR

I get a ton of magazines, online and in print. The one that is always scanned before I leave the post office and read as soon as I get back is the Boatman's Quarterly Review. The BQR is the quarterly publication of the Grand Canyon River Guides Association. I work in the Grand Canyon as a boatman every once in a while and it's never enough time in the canyon. However my reasons for loving the BQR are the publication itself. It is filled with articles about the history, flora, fauna, geology and people of the Grand Canyon. Most importantly each article is filled with passion for the Grand Canyon. It is extremely well written and brings to life that beautiful part of the world in my home in Colorado that is a thousand miles away.

If you are a lover of the Grand Canyon, have hiked it or rowed it I strongly urge you to join the Grand Canyon River Guides Association. The GCRGA is working hard to preserve the canyon. The association will, if you want, keep you up to date on what is going on both at the bottom of the canyon and the top of the bureaucracy. The GCRGA is a great organization that is full of passionate, hard working people that I am proud to be allowed to associate with.

If you don't know anything about the Grand Canyon but each quarter want a publication that will leave you breathless and wondering why you have not gotten there or back there, become a member of the GCRGA. You don't have to be a river guide, only a lover of great writing and/or the Grand Canyon.

Membership is $30 a year or you can get a lifetime membership for $277. (As they say, one dollar for every mile the river flows.)

You should also go, see, and experience the Grand Canyon.

The word “Safe” comes back to haunt outfitter and travel agent

The Jackson Hole News is reporting that a lawsuit has been filed over a rafting accident that occurred in 2006. Robert and Patricia Rizas are suing Vail Resorts, Grand Teton Lodge Company and Tauck Inc. for loss of income, earnings, medical expenses, pain and suffering and physical disability and loss of enjoyment of life and hoping for punitive damages.

The accident that gave rise to the litigation occurred at Deadmans Bar on the Snake River in Grand Teton National Park. Three people died in the suit, two of whom were the brother and sister in law of the plaintiffs. However none of the claims being alleged assert a claim for the loss of life of their relatives.

Few states allow a sibling to recover for the loss of life of another sibling. Those states that do allow a sibling to recover for the loss of another sibling only allow recovery of minimal damages. In order to recover damages, the person who survives must have a direct and past or future monetary relationship with the deceased. By that I mean parents and children can sue for the loss of the other as well as the spouse for the loss of a spouse. Very rarely do courts allow or provide monetary damages for the loss of a sibling.

The defendants in this case are a little hard to sort out. Grand Teton Lodge is a lodge located in Grand Teton National Park. The lodge as part of the activities it offers guests is

river trips on the Snake River. Grand Teton Lodge is owned by Vail Resorts Management Company, Inc.
Tauck Inc. is a company selling tours, which in this case included nights at the lodge and the river trip. The river trips are described on the Grand Teton Lodge website as float trips.

The general allegations are the lodge and Vail conspired with the tour company to mislead and defraud the plaintiffs into taking a river trip which was described as safe.

The plaintiff's state the Tauck brochure described the river trip as a "serene float through magnificent mountain scenery" which is very similar to how the Grand Teton Lodge website describes the river trip. They are also claiming the brochures, the lodge and the raft guide described the river trip as safe. The river was running at run off levels at the time of the trip.

The complaint states the shuttle driver said the river trip was safe. The complaint also states the shuttle ride was more dangerous than the river trip.

The complaint states the companies were negligent in failing to warn of the dangers of the river during peak run off. The defendants were also negligent for not properly training the passengers, failing to provide a competent guide and equipment suitable for the conditions.

They plaintiffs are also claiming fraud because the defendants hid the dangers of the river. Had the plaintiffs known of the dangers of the river they would not have gone on the river trip. The complaint allegedly states the defendants "place corporate profit above the personal safety."

There are several interesting legal issues floating around in this case. The first is an attempt to have any release or acknowledgment of risk form thrown out of the case. The accident occurred inside the Grand Teton National Park so supposedly the river outfitter would be operating under a Permit or Concession contract with the National Park Service. As a permittee the only document that can be used to reduce liability is the NPS acknowledgment of risk form. Here claim that there was fraud involved will void any contract between the parties.

The second is the use of the word safe. When people hear the word safe it is not a word that brings up a comparison of how safe, but to most people means absolutely risk free. So when any person, website or brochure states an activity is safe, that activity is risk free. Families take safe trips, they do not take dangerous ones. Fathers and mothers do not take their kids on risky activities.

Yet safe is a relative term. The most dangerous place in the US is the home bathroom. It is more dangerous, in most cases, to drive to the river than to raft the river. Although who knows based on the description of the shuttle ride in this case.

However here, the defendants are going to have an uphill battle if the statements are proven that the river trip is safe. People were injured, people died and people did not have a good time, therefore the river trip was not safe.

Safe is not a word that you should use in any communication with a possible client. Life is not safe.

Everyman lives for the time and the place to prove he is more than everyone else believes he is.