The punishment (criminalization?) of risk management in outdoor adventure
Two recent (USA) court cases pose a new threat to outdoor adventure, for both commercial and private adventurers, and run contrary to practices and values which the outdoor community has worked hard to develop. I will outline the two cases, and offer some analysis of the threats which the cases may pose. I would like to thank my attorney colleagues who have pointed out that only one of the two following cases is technically a "criminal" case - the other is a "civil" case for an alleged breach of contract.
At the risk of being simplistic, we can divide outdoor risk management into two parts: Proactive, and responsive. Examples of proactive risk management would be assessing conditions and making judgment calls, setting turnaround times, and managing your group to avoid getting into trouble. Examples of responsive risk management would be reporting incidents and near-misses, analyzing what happened, and trying to educate others about lessons learned. Unfortunately, recent legal actions serve to undermine both proactive and responsive practices, in ways that may ultimately leave people less able to manage risk as a result.
Case One: Everest Guide Sued For Breach of Contract After Turning Back in Hazardous Conditions
In March of 2020, just as the COVID-19 pandemic was getting underway in the United States, the CEO of a tech company in California sued a Seattle, WA-based climbing guide for breach of contract after the guide called off a 2019 attempt on Mt. Everest due to hazardous conditions. A huge block of ice (known as a serac) was hanging precariously over the standard climbing route, threatening to take out anyone in its path (as we saw in a 2014 incident which killed 16 climbers in the same area). The serac is highlighted in the following video, filmed by another party in the area at the same time:
Video: Bartek Bargiel
After assessing conditions and consulting with other climbers and team members, several climbers decided that they were not willing to take the risk and opted to go home. The guide ended up waiting in basecamp with the remaining clients for several weeks in hopes that the serac would fall, before ultimately calling the trip off as they had run out of time for the climbing season. Many climbers abandoned their summit efforts, and ultimately no one summited Everest that fall climbing season.
Analysis: There are many more nuances and details to the story, and if you'd like to read a more detailed version, several are readily available online, including here. For our purposes, the guide had done many things right: Recruited experienced team members, put himself and his clients in a position to succeed, recognized and assessed the unusually hazardous conditions, and done what the clients had in fact paid him to do: Use his judgment and leadership experience to manage risk while being in a situation where summiting was possible. From a legal perspective, the client had reportedly signed a waiver acknowledging that summiting was never guaranteed and could be affected by the uncertainties of weather and other variable conditions. However, the client claimed that the guide had verbally offered to refund some of his money, a claim which the guide (and original written agreement) does not support. The CEO is suing the guide for $100,000 - more than he paid to go on the climb.
Risk management implications of this legal action: If the lawsuit is successful, not only might it put the climbing guide out of business, but it would set a dangerous precedent in the eyes of other guides faced with similar decisions. How might a successful lawsuit here affect a guide's ability to make conservative judgment calls in future hazardous situations? There are many cognitive biases that make these kind of judgment calls difficult for outdoor leaders -- stacking the deck with collective fear of a possible six-figure penalty for being conservative in decision-making skews the risk calculation in a riskier direction to keep clients happy (ironically). Another possible downstream effect could be increasing insurance premiums for guide services as a result of this lawsuit.
Status of case: Case was actually originally filed in California, and it has been dismissed in that state - but the case could be filed and continued in Washington State, where the guide service is located.
Case Two: Colorado Skiers Indicted For Reckless Endangerment After Reporting Avalanche
Back in March of 2020, two men triggered an avalanche while backcountry skiing near Dillon, CO (above the Eishenhower Tunnel). Avalanche conditions were rated to be moderate at the time. The slopes they accessed were not closed, and it was legal for them to be skiing where the avalanche began. However, the avalanche (which started as a small slide) grew as it made its way down the slope, triggering a much larger slide that buried a service road below. Notably, no one was hurt in the incident, though some state-owned avalanche mitigation equipment was damaged in the slide. The skiers are being charged with a class 3 misdemeanor, and are liable for up to $168,000 in restitution to the state.
A video of the incident is available here, shared by one of skier's helmet cams (Warning: graphic language is used in the video).
Helmet Cam Footage / Evan Hannibal
The skiers felt a responsibility to report what had happened, and to share their learning with the local avalanche information center (CAIC) in order to help others benefit from their experience. However, in a precedent-setting decision, the local district attorney reviewed the helmet cam footage and for the first time in state history, charged the skiers with reckless endangerment. “They were both experienced skiers, and based upon that experience should have been able to contemplate the danger that arose from skiing an avalanche chute directly above the tunnel, where automobile traffic goes directly underneath,” Fifth Judicial District Attorney Bruce Brown said. “They triggered an avalanche, and luckily no one was harmed. But the charge of reckless endangerment is that you do something recklessly and that you create a substantial risk of serious bodily injury to another person. In this case, it was the community in general driving on the roadway below.”
Analysis: With the gift of hindsight bias, it's easy to pick out things that the skiers may have done differently, or to ascribe blame to them. It's easy to make an argument that they should have known better. However, there is an element of human error in almost any outdoor accident (or near-miss), and as Dr. Todd Conklin says, "If you look for human error, you will find it 100% of the time." It's a common fallacy, post-incident, to mistake outcome with process when evaluating safety. Regardless of your personal assessment of whether or not the event was "preventable," or if there are lessons to be learned from this, we are focusing here on a separate aspect: being charged with a crime for (a) triggering an avalanche and (b) reporting it.
Risk management implications of this legal action: Setting any potential human error aside, the skiers followed a risk management principle by voluntarily reporting the incident, and sharing their footage with the avalanche information center, never imagining what would ensue.
Citing them with a crime creates a figurative slippery slope for future backcountry users to be forthcoming in sharing their experiences and observations about avalanches. We have seen social media posts from attorneys already advising their clients to be cautious about sharing their helmet cam footage or reporting incidents to authorities, which undermines the community's collective sense of responsibility to learn from each others' incident report. If people are afraid of being blamed, shamed, or criminally prosecuted for reporting their incidents, they may understandably more afraid to do so in the future. In Hannibal's own words, "I think the backcountry community should be worried about the repercussions here when you report an avalanche and tell the truth and get charged with a crime.”
Expanding from backcountry skiing to the larger outdoor industry, anytime someone submits an incident report of any sort, there is a natural (human) anxiety about what will become of the information, how it could affect one's standing going forward, and often a lack of clarity about who will decide, and how they will make those decisions. It's important for programs to try to de-mystify these questions and make the process as transparent as possible. Unexpected consequences to reporting can have a chilling effect on people's willingness to be forthcoming in the future.
Conclusion - Getting on the Same Page about Trip Goals and Risk Tolerance
As outdoor adventurers (or educators, etc.) on public lands, we may have a different contextual understanding of risk-taking. We see that no outdoor pursuit can be conducted risk-free -- and if it were, would it hold the same joy, purpose, and sense of accomplishment? However, we live and operate within a society that is quick to judge, and which may lack personal experience with outdoor adventure. The criminalization of practices that actually help us to pursue outdoor adventure more safely is an ironic byproduct of this societal world view about risk.
Whether you run a guide service, an outdoor education program, wilderness therapy operation, conservation corps, school, or are a private adventurer on public lands, having a clear understanding with your clients, staff, or partners about trip goals and shared risk tolerance is one concrete step you can take to help ensure that everyone is on the same page, before the trip begins. Be careful not to over-promise or "guarantee safety" (or success) on your programs. Be realistic and accurate in your trip descriptions. And of course, work with recreation law attorneys to assess if your liability waiver, participant agreements, etc. provides adequate protection for you.
Further upstream, we also recommend networking, partnering with, and supporting collaborations between public agencies, information centers, and outdoor organizations, such as what we have seen with the Recreate Responsibly Coalition. Coalitions like this help to create partnerships and shared practices around risk management outdoors.
Status of case: Ongoing, as of this blog post.
Notice: The author is not an attorney, so this blog does not provide legal advice. Experiential Consulting, LLC is not affiliated with either case referenced in this article, and are using these cases as examples for educational purposes about risk management concepts.
Steve Smith, MA
Steve is the founder of Experiential Consulting, LLC, specializing in risk management services for outdoor programs. He has written emergency response plans, training manuals, field manuals, designed crisis response scenarios, conducted risk management audits, presented at dozens of conferences, and published articles in outdoor magazines, podcasts, and journals. He volunteers in support of risk management for the outdoor industry in a variety of ways, including serving on the steering committee for the Washington Recreate Responsibly Coalition; the Standards and Accreditation Committee for the Gap Year Association; and the Safety Committee for the Northwest Outward Bound School.
Steve lives in Seattle and loves to explore and photograph the wildlife, mountains, and coastlines of the Pacific Northwest.