In September 2019, Himalayan guide Garrett Madison called off a summit attempt on Mount Everest, telling clients that an ice block hanging over the route made it too dangerous. The following March, one of the clients on the expedition, Zac Bookman, sued Madison for $100,000 for breach of contract and fraud. In response, Madison filed a countersuit seeking a declaratory judgment absolving Madison of harm, stating that Bookman wasn’t entitled to a refund because he signed a waiver acknowledging that reaching the summit is not guaranteed due to unpredictable conditions. After more than a year of legal wrangling, the pair settled their dispute last week in a Seattle court with Bookman agreeing through a stipulated judgement that he is not entitled to a refund for the trip.
The signed agreement declared that “Madison Mountaineering and Mr. Madison are the ‘prevailing parties’ and the ‘successful parties’” and stated that “the fear of lawsuits and the financial repercussions from lawsuits can lead to injuries, illnesses, and fatalities for clients, guides, Sherpa, and other mountain professionals.”
The lawsuits made headlines because of the eyebrow-raising prospect of a service dispute between a mountaineering guide and a wealthy client in one of the most exclusive and dangerous locations on earth. The judgment is being hailed in guiding and outdoor-adventure circles. “The real fear within the industry would be that we would get sued every time we made a decision that a client did not like,” says Guy Cotter, CEO of New Zealand–based Adventure Consultants. “The typical client on Everest has always included business leaders of industry and high rollers, some of whom decide that it is they who should be dictating decisions on the mountain.”
Madison, who has guided more than 70 clients to the summit of Everest, believed that the threat of a lawsuit over a judgment call for safety was beyond the pale. “I feel like it’s a big win for myself and my company and for the mountain-guiding industry as a whole,” says Madison. “Expedition leaders should be able to make whatever decision they think is best and safest even if that results in the client not summiting and the clients are unhappy with that.”
Bookman had not responded to Outside’s multiple requests for comment.
“The real fear within the industry would be that we would get sued every time we made a decision that a client did not like.”
During the September 2019 Everest season, several climbing parties, besides Madison’s commercial expedition, were halted by the massive ice block, which was hanging nearly 3,000 feet above the route. The serac was estimated to be the size of a 15-story building, even larger than a similar ice block that had collapsed onto the same area in April 2014, killing 16 Sherpas working on the Khumbu Icefall between Base Camp and Camp I.
Among those who also called off their summit attempts were ultrarunner and mountaineer Kilian Jornet and Andrzej Bargiel, a Polish ski mountaineer who earlier that year made the first ski descent of K2 and hoped to pull off a similar feat on Everest. Two of Madison’s clients headed home, while a third accepted a consolation expedition to climb nearby 22,349-foot Ama Dablam. Bookman, however, declined the offer of a different summit attempt that fall and of a spot on an Everest expedition in a subsequent season. He and Madison remained in camp to see if the serac would fall and clear the way for a summit push. After eight days, Bookman flew home on the condition that Madison would remain in camp to see if the danger would resolve. No one made it to the summit of Everest in the fall of 2019, and the serac fell sometime between October 2019 and November 2020.
In March 2020, Bookman sued Madison in California seeking $100,000 for breach of contract, alleging Madison had orally promised him a refund for the trip. He also claimed that Madison had deliberately scuttled the expedition because one of his other clients had been physically unfit, which sapped Madison’s incentive to push for the summit. Bookman’s lawsuit never mentioned the serac. Bookman told Outside last year that this was because the ice block “was a red herring.” He continued, “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.”
Madison denies ever offering him a refund and in August 2020 filed the countersuit in Seattle. This month’s agreement settles that countersuit. Bookman’s California suit was thrown out in September 2020 on the grounds that it should have been filed in Washington State, where Madison Mountaineering is incorporated. He never refiled the suit in Washington.
In addition to stating that Bookman had “assumed weather, safety, and other risks” on the expedition and wasn’t entitled to a refund, Bookman also agreed in the settlement that his previous attorney “should not have used the phrase ‘the expert Sherpas and ice fall doctors were clearly lazy and inefficient,’” which appeared in a January 21, 2020, letter demanding a refund. Madison told Outside in October 2020 that the members of the Sherpa team he hired had 100 Everest summits between them and that “these are my friends. The allegation that any of them are lazy is offensive.”
“The settlement certainly appears to be a favorable outcome for Mr. Madison and the guiding industry,” says Leah Corrigan, an attorney who represents outdoor-industry clients. Attorney James Moss, author of Outdoor Recreation Insurance, Risk Management, and Law, says he knows of two other legal disputes involving clients seeking refunds from Everest guides. Neither was successful. “If the guide’s contract is well written, it will stipulate that the guide has the right to cancel the trip due to unsafe conditions,” he says. What’s remarkable about this settlement, Moss says, is that it was “written not for the court, but as a press release. It’s meant to dissuade other similar lawsuits.”
Madison says he had no choice but to fight Bookman’s lawsuit because forking over $100,000 would have bankrupted him. Seven Summits guiding garners notoriously thin margins due to the high cost of permits, base-camp equipment, and Sherpas and other personnel. (Madison is currently facing another lawsuit from a client on a K2 expedition in the summer of 2019 that claims Madison charged him unnecessary additional fees and then prematurely called off a summit attempt.)
Madison and his legal team also says they felt bound to stand up for the Sherpa and guide communities. “Our team was particularly concerned about the consequences this sort of lawsuit might have for Sherpa,” said Doug Grady, Madison’s lawyer, in a released statement. Grady’s firm, Baker and Hostetler, took on the case pro bono. “They bear most of the climbing burden and often take the biggest risks,” he continued. “It is one thing for Sherpa to knowingly take those risks as paid mountain professionals, it is quite another for the American legal system to create unhealthy pressures that make their jobs even more dangerous.”
Grady also mentioned tentative plans to design an arbitration procedure for guides and clients that will avoid lawsuits by working out disagreements. “Absolutely no one should be thinking about lawsuits when looking up at the Western Cwm from Everest Base Camp,” Grady said.
The post An Everest Guide Just Won a Legal Battle over a Canceled Summit Attempt appeared first on Outside Online.
by lwhelan via Outside Online
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