By Jon Heshka, Associate Professor at Thompson Rivers University
In a bizarre case pitting a Silicon Valley CEO who’s also a Yale and Harvard educated lawyer that clerked for the U.S. Court of Appeals for the Ninth Circuit and was a client on a Mount Everest expedition in 2019 against a mountain guide who cancelled a trip due to concerns over the expedition’s safety, a Washington state court recently issued a declaratory judgment against the CEO effectively saying he had agreed that the guide had final say on such matters.
The client, Zachary Bookman, had filed suit in San Francisco County Superior Court in the spring 2020 seeking $100,000 in punitive and compensatory damages, claiming fraud as guide Garrett Madison didn’t even try to summit Mount Everest and that Madison “represented that the summit of Everest was going to happen.” Bookman also alleged that Madison breached an oral agreement made at Base Camp for a partial refund of $50,000 due to the expedition being cancelled.
Madison disputed Bookman’s allegations. Madison’s core defense was that the route was threatened by a gigantic serac, a freestanding column of glacial ice, looming about 2600 feet above the climbing route between Base Camp and Camp 1. It’s estimated that the serac weighed 54 million pounds and was the size of a 15-story building. In 2014, a serac collapsed on Mount Everest which triggered an avalanche that killed 16 Sherpas in the same area of the Khumbu Icefall.
The San Francisco County Superior Court dismissed Bookman’s suit because it lacked jurisdiction as Madison’s company is based out of Washington state. Bookman never refiled the suit in Washington.
In August 2020, Madison filed his own suit in King County Superior Court in Seattle seeking a declaratory judgment that Bookman assumed the risks associated with the expedition, had no right to a refund and that he should pay all of Madison’s legal fees, expenses and costs.
In Madison and Madison Mountaineering LLC v. Bookman, Judge Samuel Cheung stated in the December 21, 2021 declaratory judgment and agreed-to-facts that Bookman signed “a contract that provided, generally, that Mr. Madison and Madison Mountaineering LLC had the exclusive authority to make all decisions regarding the health, safety, and welfare of the expedition.”
Bookman attempted to dismiss the extent to which the seracs posed an unreasonable risk and justification for cancelling the expedition. He characterized it as a “red herring” saying in an interview: “There are hanging seracs all over the west wall of Everest. It’s like saying we can’t walk through the forest until that particular tree falls down.”
The sustainability of that argument seriously concerned the adventure industry. The industry would be doomed if guides couldn’t make risk management decisions and clients called the shots on what constitutes unreasonable risk.
Judge Cheung not only reaffirmed that Madison’s role as mountain guide included the exercise of discretion and judgment in matters related to risk management but also that “[t]elephoto and drone images confirmed the serac might collapse at any moment, almost certainly killing everyone in its path.”
Bookman also signed an Assumption of Risk and Release of Liability Agreement which stated that he was aware of the inherent risks and dangers involved, including but not limited to weather and forces of nature. These contracts exist to apprise clients of the activity’s inherent risks and help protect operators/guides from liability in part due to the nature of the extreme environment in which the activity is undertaken.
Compounding Bookman’s position is that the contract he signed had an explicit no-refund policy which stated: “You are required to pay a $69,500.00 USD nonrefundable, nontransferable full payment to reserve your space on the trip.” Clauses like this exist due to the enormity of sunk costs involved in organizing such complex trips.
The declaratory judgment stated that Madison’s decision to pause and ultimately conclude the expedition “was made solely to protect the health, safety, and welfare” of expedition members including Bookman and that Bookman now agrees that “these were the only reasons for pausing and concluding the expedition.” Further, it said that Bookman now agrees that he “assumed weather, safety, and other risks” associated with climbing Mount Everest and that he had no right to a refund.
Madison fulfilled his duty of care in his role as mountain guide by properly identifying and assessing the risk, communicating that risk to the clients, and making the reasonable call in the circumstances to not unnecessarily expose the clients to the very real chance of the serac collapsing and thereby killing them.
In an interesting aside, Judge Cheung incidentally opined that “the fear of lawsuits and the financial repercussions from lawsuits can lead to injuries, illnesses, and fatalities for clients, guides, Sherpas, and other mountain professionals.”
While Madison withstood this broadside across the bow, the victory to him and the adventure industry will likely only be fleeting. Despite the judgment, it’s probable with the proliferation of well-heeled clients in the mountains that there will be more lawsuits questioning and second-guessing guides’ decisions, especially if it thwarts clients’ notch in their belt summit ambitions.
