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A Tech CEO Suing His Guide Could Change Everest Travel

 Poster: A snowHead
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Just came across this really interesting read on Outside about an Everest summit that was cancelled, with one of the clients suing the guide for the "failed" attempt.

https://www.outsideonline.com/2417327/madison-mountaineering-zac-bookman-everest-lawsuit

Will be interesting to see how this plays out
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@extremerob, British climber Tim Emmett was on the same team. His version documented here:https://gripped.com/profiles/mountain-hardwear-and-tim-emmetts-smart-decisions-on-everest/

Quote:
The Sherpas reached camp one, but on their return noticed a nearly 100-metre tall dangling serac above their route. The Polish team used their drone to fly above to take images, which revealed that the serac appeared to be closer to falling off. The last time a serac collapsed was on April 14, 2014; it killed 16 Sherpas. The new dangerous serac was bigger and higher on the mountain. The experts in base camp anticipate it would do far more damage.

Emmett, thanks to years of making decisions about objective hazards informed the team of his thoughts. The objective hazards led to Madison calling off the attempt. Emmett wrote on social media, “All through my life I have navigated risk. I try to make good decisions in potentially dangerous environments using education and my gut instinct to guide me. I’ve lost too many friends to turn a blind eye and plead ignorance… I lay in bed last night, awake for most of it contemplating our next move, knowing there was no way I could let myself and any of our team be subjected to this potential catastrophe.”

Over the past few years, the climbing community has lost dozens of cutting-edge climbers to avalanches and serac fall. “Mountaineering has its own risks which have to be accepted for one to move forward, but this particular one is way outside the norm and a game of roulette, with many bullets,” said Emmett. “For sure I am totally gutted to miss this chance to experience something I have been curious about for much of my life, but when you see a red flag, take note and make good choices.”


I think (I hope) the American dude will fail.
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Unless Bookman files the suit again in Washington (which he seems unsure whether he will), then I don't think it will make any difference at all. Even if he does, he doesn't appear to have a particularly strong case (note: IANAL) with no support for his case from anyone else who was present.

As mentioned, you pay your money and sign the waiver, and there is never any guarantee of a summit. Some climbers take several attempts to summit just once, it's not unusual not to get there. I think that generally, the climbing community accepts this, but unfortunately Everest attracts certain people who do not.

That said, there are some guides who will take more risks than others, but research is key. Madison does not appear to be someone who tolerates excess risk, which is understandable given his experiences.
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Interesting. If you didn't climb due to the risk of serac fall there would be a lot of routes, including the 3MB route to Mont Blanc, that would be off limits and Jornet's comments are correct. At the same time there is a difference between speed climbing through an ice fall and having a team of sherpas fixing ropes and ladders or slow clients moving in the same area.

The guide has an obligation to put in sufficient means to reach a summit (lazy sherpas may be a point) but doesn't have an obligation of outcome. The sherpas were probably smoking and drinking because they couldn't work safely on the mountain.
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And if the serac had fallen and killed Mr Impatient, I think we can safely assume his family would be suing the guide for criminal negligence. In these cases there really is a need for expert witnesses.
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davidof wrote:
Interesting. If you didn't climb due to the risk of serac fall ....
Obviously there's risk in everything, the issue is the degree of that risk.

I have come across a certain type of rich person who hasn't understood that money can't (for example) change the weather,
or their skill level, or the snow pack. Perhaps that's the issue here. I have found it's only a very small minority of people who
don't get this sort of thing - I think the issue isn't particularly that they're rich and stupid, just that they're stupid. The "rich"
bit puts them into the situation where they are dependent upon others, and gives them the ability to litigate.

Even if you could get "experts" to say they'd have done differently (with the benefit of hindsight...) I can't see that
would make any difference. I'm sure there'll have been a waiver where the guests accepted that the guide's decision
is final. You could litigate if they were negligent irrespective, but this sounds like the opposite of that.
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I've climbed and skied with guides who have talked of trouble with clients who really have very little mountain sense - they see people climbing or skiing in a certain area and can't understand why the guide refuses to take them there. I think the more experience you have the easier it is to understand to accept your guide's judgement that it is too risky. TBH I am generally more concerned of the opposite risk - that guides err on the side of taking more risk in order to give clients what they want / think they've paid for*. If a guide tells me that something is too risky I'll not be arguing!

*I went to one of Henry's Avalanche Talks when he admitted that there had been occasions when on reflection (even)he had be swayed in that direction
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I agree it's a very interesting case.

Seems to me that there were errors on both sides.

Quote:
Madison offered Bookman a climb on a different Nepalese peak or another Everest attempt in a later year. Bookman declined, he says, because “that wasn’t the trip I signed up for.”

Surely this would have been a reasonable outcome? And on this basis alone he should lose.
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Tend to agree - looks like there was universal judgement on the mountain over why the summit couldn't be attempted and only Jornet took a different view based on his own risk appetite which interestingly enough didn't allow him to summit wither. So looks like rich bro taking out his frustration on something which wasn't the reason. Sure when I write a complaint letter I'll list every ancilliary failing like rudeness by staff or poor grasp of obligations but they won't be the root of my complaint
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I don't think the attempt by Jornet is relevant. Jornet climbs alone, at speed, and will be in another league experience and fitness wise compared to your average guided client.

Quote:
Quote:
Madison offered Bookman a climb on a different Nepalese peak or another Everest attempt in a later year. Bookman declined, he says, because “that wasn’t the trip I signed up for.”

Surely this would have been a reasonable outcome? And on this basis alone he should lose.

No idea about the legal basis (I agree it's a very reasonable offer), but even with this, Madison would have been significantly out of pocket. By the time the party is up at base camp, most of the money has been spent – travel, Sherpas, food, equipment, permits etc. which is another reason you can't expect to get anything back for a failed attempt.
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If the other groups had been successful, he might have had a case.

I think the fact that nobody summited in that period is an important factor. It appears none of the other groups even tried to climb through the icefall under that Serac.

Obviously, all the other other guides took a similar view of the risk, and deemed it too high.

His pride is hurt because he lost his bar bragging rights.

I doubt he will take the case further, probably was hoping to get an offer of partial payment against the threat of bankruptcy.

Hopefully, nobody will want to climb with him again, meaning his chances of ever getting to the summit are practically zero.
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brianatab wrote:
.....Hopefully, nobody will want to climb with him again, meaning his chances of ever getting to the summit are practically zero.

Hopefully & rightly so.
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brianatab wrote:


Hopefully, nobody will want to climb with him again, meaning his chances of ever getting to the summit are practically zero.

hopefully?
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ed123 wrote:
brianatab wrote:


Hopefully, nobody will want to climb with him again, meaning his chances of ever getting to the summit are practically zero.

hopefully?

Very unlikely any other guides will ever take him to join their guided groups. So yep, his chance of ever getting to the summit are now non-existing.


Last edited by You know it makes sense. on Tue 13-10-20 1:51; edited 1 time in total
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Analogous to those who arrive in St Anton and demand that their guide take them to Valluga Nord, regardless of the conditions.
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Would recommend watching the Sherpa trouble on Everest documentary and you will get an idea of what some of these people on Everest expeditions are like.

It's worth remembering this risk is not a one off either. Maybe the tourists will only go through limited times, but some of the Sherpas might do 10 trips through the ice fall carrying everything up for the camps. The guide has to think of their safety too, even if the clients couldn't care less.

I don't think the guy trying to sue has a leg to stand on in the current case. However, there probably are legitimate cases where the companies/guides do not deliver on their promises. 2 years ago all the climbing agencies continued to offer a high camp on island peak throughout the season, even though a high camp was never established meaning people had to do it in a single push from base camp. Also plenty of cases of being supplied underqualified guides and poor equipment.

Quote:

Very unlikely any other guides will ever take him to join their guided groups


There's too much money involved. I'm sure if he's willing to pony up the $50k or whatever the cost is now some company will accept him. This is business, not climbing/guiding as most people know it.
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boarder2020 wrote:

Quote:

Very unlikely any other guides will ever take him to join their guided groups


There's too much money involved. I'm sure if he's willing to pony up the $50k or whatever the cost is now some company will accept him. This is business, not climbing/guiding as most people know it.

It IS a business decision. Will you take a client who had past experience of suing for no reason? Will you take a 50k at the risk of 100k legal fee to defend your business when he does the same again?
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the title of the research paper says it all:

Mountaineering, commodification and risk perceptions in Nepal's Mt. Everest region

https://www.researchgate.net/publication/286457901_Mountaineering_commodification_and_risk_perceptions_in_Nepal's_Mt_Everest_region

Quote:
They argue that as mountaineering is becoming more commercial, increasing number of western climbers come to Everest to enhance their ego and personal achievement who often overlook basic rules of mountaineering safety for themselves as well as their Sherpa guides and porters


Last edited by Well, the person's real but it's just a made up name, see? on Wed 14-10-20 17:47; edited 1 time in total
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Quote:

It IS a business decision. Will you take a client who had past experience of suing for no reason? Will you take a 50k at the risk of 100k legal fee to defend your business when he does the same again?


It will get thrown out, they will get legal fees back. If he fails to sue this time I doubt he will try again. You could even make him sign a contract prior to signing up. If an expedition needs another body to run they will take him. Maybe not an issue next year as I suspect demand will be bigger than supply. I fully expect he will summit Everest at some point on a guided expedition as money doesn't seem to be an issue.

Nepal and Everest don't run the same way as your western ski guide.
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As a fun aside, tech company billionaires have got, on average, 41% richer during the COVID period. So its not surprising they've got a few bob going spare to splurge on the finer things in life, like mountain tourism, Nepalese climbing permits and lawsuits.
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Quote:

It will get thrown out, they will get legal fees back.

Don't think so.
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Things need to change there anyway. It’s a hot mess now.
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Quote:

Don't think so.


Well thats great. Let's ignore the fact that the guy signed a waiver making it clear that the expedition/summit was not guaranteed. I'm sure the legal team can reference the precedent of abc saying he doesn't think so as a solid case rolling eyes The guy has no good argument: he signed the waiver, the guide is clearly more experienced than him to make the correct decision, the other expeditions made the same decision. I don't think anyone is taking his claim seriously.
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@boarder2020, you’re assuming it gets to court which is unlikely
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abc wrote:
Quote:

It will get thrown out, they will get legal fees back.

Don't think so.


Are you a lawyer?
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boarder2020 wrote:
Quote:

Don't think so.


Well thats great. Let's ignore the fact that the guy signed a waiver making it clear that the expedition/summit was not guaranteed. I'm sure the legal team can reference the precedent of abc saying he doesn't think so as a solid case rolling eyes The guy has no good argument: he signed the waiver, the guide is clearly more experienced than him to make the correct decision, the other expeditions made the same decision. I don't think anyone is taking his claim seriously.


Yes, it's a frivolous claim. The super rich just use their lawyers like muggers use their knives.
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boarder2020 wrote:
. Let's ignore the fact that the guy signed a waiver


the terms of the waiver may not be legal
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All the original filings are all available online, as is the waiver (with personal details redacted).
Madison is the guide, Bookman the customer. Madison's lawyers are working for free.

There's what looks like a "letter before action" from Bookman's lawyers [21/1/2020, in the counter claim documents] which
asserts that Madison cancelled because the Mountain Hardware crew pulled out, not because of the ice fall etc.

Their argument changed by the time they actually issued proceedings. On the plaintiff form page 7 Bookman instead claims:
  • (a) that the defendant fraudulently represented that it was possible to summit that season; and
  • (b) offered and then withdrew a significant refund.
They pivoted away from the original accusation, which presumably is why Madison's people copied this letter in.
The "no refunds" waiver clauses are likely defensible in court as most of Madison's costs would be sunk.
I guess that is why Bookman eventually chose to litigate on (a) and (b), not on the waiver terms or this earlier accusation.

(a) To establish a balance of probability for fraud Bookman would have to find evidence that Madison knew that it was impossible to
summit from the time the contract was made.... which seems a stretch. Especially as this fraud would include those Mountain Hardware
who unexpectedly failed to perform... which seems unlikely. Even if you could prove Madison knew the about the ice-fall issue,
you couldn't prove he knew it would wipe out the whole season. Other expeditions also tried and failed that season, and Bookman
even references those other attempts. This looks very weak to me.

(b) Talking about stuff doesn't necessarily make a verbal contract, and proving that the former somehow overrides the
latter would be quite hard considering the clarity of the waiver.

Madison's counter-suit asks for the Washington court affirm that Bookman has no case and asks the court to
award all costs plus what I think is damages as the judge sees fit.
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Who wants to climb the thing anyway? It's too high for comfort, over crowded and the hassle of getting to base camp (+ weather) means you have a tiny window to try for the summit. Then from pics I've seen you ascend in a long queue. On top of all that it seems some of your companions may be major pains in the posterior. Other mountains are available. Madeye-Smiley
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Ed_sec wrote:
Who wants to climb the thing anyway? It's too high for comfort, over crowded and the hassle of getting to base camp (+ weather) means you have a tiny window to try for the summit. Then from pics I've seen you ascend in a long queue. On top of all that it seems some of your companions may be major pains in the posterior. Other mountains are available. Madeye-Smiley


Other sorts are available.
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Ed_sec wrote:
Who wants to climb the thing anyway? It's too high for comfort, over crowded and the hassle of getting to base camp (+ weather) means you have a tiny window to try for the summit. Then from pics I've seen you ascend in a long queue. On top of all that it seems some of your companions may be major pains in the posterior. Other mountains are available. Madeye-Smiley


I totally agree. In my view, anyone who wants to be guided up Everest is just on an ego trip and doesn't really love mountains or mountaineering.
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jedster wrote:
... In my view, anyone who wants to be guided up Everest is just on an ego trip and doesn't really love mountains or mountaineering.
Yeah, its not something those people could expect to boast about amongst anyone who actually has any connexion with the sport. They should just build a lift up there and sell ice creams.
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Oh for the old days, when they had to hike for a couple of weeks, and carry all their supplies to base camp before even contemplating the mountain. rolling eyes rolling eyes

Then hike out again!

That was an achievement, not flying in for a couple of days and joining a (very slow moving) queue.


Last edited by Well, the person's real but it's just a made up name, see? on Thu 15-10-20 15:26; edited 1 time in total
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Ed_sec wrote:
Who wants to climb the thing anyway? It's too high for comfort, over crowded and the hassle of getting to base camp (+ weather) means you have a tiny window to try for the summit.

Apart from the overcrowded bit that it is exactly why people want to climb it. It's a great mountaineering challenge. And many of these factors are not unique to Everest.

Ed_sec wrote:
Then from pics I've seen you ascend in a long queue.

There was one infamous pic from a couple of seasons back of this. Though I think that is unusual to that extent.

Ed_sec wrote:
On top of all that it seems some of your companions may be major pains in the posterior.

Again, not unique to Everest.

Ed_sec wrote:
Other mountains are available. Madeye-Smiley

Indeed. Me and the missus climbed Kilimanjaro 16/17 years ago. Summit day was horrible. The rest was nice. Missus adamant she'll never go to that altitude again.
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Pruman wrote:


I think (I hope) the American dude will fail.
'Me too.
I don't understand law suites like this.
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Quote:

That was an achievement, not flying in for a couple of days and joining a (very slow moving) queue


Even flying into lukla you are still looking at 60 days for an Everest expedition. You could walk in from jiri like the original climbers, but it's only adding 5 days or so. For most people climbing Everest is difficult enough, if that's your goal why waste energy lower down.

Quote:

Oh for the old days, when they had to hike for a couple of weeks, and carry all their supplies to base camp before even contemplating the mountain


The reality is not as nice as you are imagining. I've read numbers like 300 yaks, 50 mules and 100 porters for the early expeditions. It was a huge noisy caravan leaving huge amounts of rubbish. As someone that has made the trek in from jiri I can tell you even 10 mules passing is not pleasant (dust, noise, poop), using helicopters to supply lukla/namche/ebc has made the trekking routes far more pleasant.

Quote:

Who wants to climb the thing anyway?


Everest is an obvious choice. It's iconic for being the highest, relatively safe, and requires little technical skill. It also has a certain amount of exclusivity due to the high cost. It's not hard to see why some people would want to climb it, it's an achievable goal for many (providing you have the money).

Quote:

In my view, anyone who wants to be guided up Everest is just on an ego trip and doesn't really love mountains or mountaineering


I would strongly disagree. Some of the people sure, but there are plenty of serious mountaineers that join guided expeditions. It's not easy to organise your own expedition with all the logistics and costs.
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Quote:

anyone who wants to be guided up Everest is just on an ego trip and doesn't really love mountains or mountaineering

Quote:

but there are plenty of serious mountaineers that join guided expeditions. It's not easy to organise your own expedition with all the logistics and costs.

Serious mountaineers may "join" guided expeditions to reduce the permit cost (and pay their share of the logistic cost). They're not necessarily "being guided up Everest". They make their own decision, often independent of the "guided expedition" they're in.
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Gosh, this is a really interesting thread.
People who have the cash and inclination to summit Everest are often those 'driven, successful, single minded types' The type who die with lots of money, adventures but few real friends.
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Quote:

People who have the cash and inclination to summit Everest are often those 'driven, successful, single minded types' The type who die with lots of money, adventures but few real friends


Yes to the driven and successful, but the dieing with few friends is a bit of a silly unsubstantiated claim. Quite a few climbers are doctors and surgeons for example.

Quote:

Serious mountaineers may "join" guided expeditions to reduce the permit cost (and pay their share of the logistic cost). They're not necessarily "being guided up Everest". They make their own decision, often independent of the "guided expedition" they're in.


I guess our definitions of what a guided expedition is differ. If Sherpas are fixing your route through the icefall, portering and setting up all your high camps and oxygen bottles, and fixing ropes to the summit, for me it's a guided expedition regardless of if you get accompanied on summit day or not. I've seen "guided expeditions" offering far less than that!

I'd be interested to know how many of these people you mention don't summit on the same day as their team. Assuming the team has much better weather forecasting info and the expeditions try to work it out among themselves to make sure the crowds are spread out, I'd expect it's a lot easier to keep the peace and go with your team.
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[quote="boarder2020"]
Quote:

People who have the cash and inclination to summit Everest are often those 'driven, successful, single minded types' The type who die with lots of money, adventures but few real friends


Yes to the driven and successful, but the dieing with few friends is a bit of a silly unsubstantiated claim. Quite a few climbers are doctors and surgeons for example.

You clearly don't know too many surgeons - lol

There's a big difference between general climbers and those who shell out loads of cash to get a fully organised trip and expect to be led up. I've watched and enjoyed al the docs.
Some of those big decisions where people are near the summit, the guide says no - it's too late, turn back - but they continue, putting everyone in danger....

Fascinating topic.
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