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Outside Magazine July 2002

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Risk (Cont.)

BEFORE HE STRAPPED ON HIS crampons, Pete Ro signed two liability waivers releasing Jeff Lowe and San Juan Mountain Guides from responsibility if he were injured or killed during the seminar. How, then, can his widow sue? Because as powerful as they are, liability waivers cannot (and should not) prevent people from seeking relief 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 a pretty high bar to clear, so the first move by Ro's lawyer has been to try to get the liability waivers thrown out of court, in which case he'll only have to prove that Lowe acted with simple negligence—that is, the failure to use ordinary care. (If negligence is overlooking a client's frayed harness, gross negligence is getting drunk and waving a loaded .44 around the campfire.) To do that, he'll likely take direct aim at the very nature of release forms.

These forms were generally toothless until the early 1980s, when the words "fully cognizant" turned things around. The more a client knew about the dangers he faced going in, the better the release fared in court. "I get awful picky when I draw up releases," says Jim McCarthy, 69, a Wyoming attorney and former president of the American Alpine Club who often represents guides and guide services. "I want clients to initial the four or five key paragraphs so later when they say, 'Oh, they stuck the form under my nose but I didn't read it,' you've got their initials there in six different places."

Did Pete Ro correctly sign his release? Jeff Lowe's attorney, Denver lawyer Monty Barnett, thinks so. Ro signed the first release two months before the seminar and the second the day before he died. (On Barnett's advice, Lowe declined to comment for this article.) Hiroko Ro's attorney, San Francisco lawyer Walter Walker, disagrees. In pretrial documents, Walker describes the two releases as "a mishmash of exonerations that are clear to no one" and claims that Ro signed the second release under duress. Since he had spent a lot of money and time to get to the ice-climbing school, the argument goes, he basically had to sign whatever was put in front of him to experience his vacation.

"San Juan Mountain Guides [had] Mr. Ro in a box when he arrived in Ouray," Walker argues in court papers. "Where else was he, a resident of Japan, going to go? How was he going to find another masters seminar?"

If the release holds, Walker will be forced to press on with the difficult task of proving that Lowe—one of the world's most respected ice-climbers—behaved with gross negligence. He claims that Lowe crossed this line when he assumed the role of go-between for Ro and Lucy Creamer. The reason? Lowe's bronchitis impeded his ability to help when he saw trouble. "Lowe knowingly and voluntarily chose to take on this safety role in his incapacitated condition," asserts Walker. This decision, he claims, constitutes "willful and wanton negligence."

Barnett scoffs at this argument. "The allegation about Jeff Lowe's voice is a red herring," he counters. "That had nothing to do with the accident, period. There is absolutely no negligence, even if we didn't have a release."

Lowe, however, may also be a victim of bad timing. In recent years two equal and opposing ideas have percolated through separate state court systems. One—call it the Wyoming Principle, after the state whose judges have upheld it—holds that instructor misjudgment is part of the inherent risk of any outdoor activity. The other—call it the California Principle, because it's gathering steam in that trend-setting state—maintains that an instructor bears a heightened duty to protect his students from harm. Those ideas came into direct conflict the moment Pete Ro died.

Reb Gregg, who is not involved in the Ro lawsuit but represents clients who might be affected by it, champions the Wyoming Principle. "We're arguing for cutting the instructor a little slack," says Gregg. "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."

Still, recent liability cases in California have established that a coach or instructor may have a heightened responsibility when it comes to risk. In one case, a high school swimmer who was paralyzed when he followed his coach's instructions to dive into the shallow end of a pool won $11.5 million from the school district.

"A coach has a heightened responsibility when it comes to those risks," says Walker. "We feel that's the case with Jeff Lowe. If you enhance the natural risk of a physical activity, you can be responsible for that."

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