The Decalibron 14ers Are Closing Again

[TomPierce]

One of things I get from this thread is that Colorado hikers don't WANT to sue landowners, we want access to their land. Lawyers want to sue, hikers want to hike. Let us hike.

Eh, respectfully disagree. A lawyer takes a case brought to him/her by a client. Sure, some lawyers advertise (just watch midmorning TV...) but no case exists until a client contacts the lawyer, thinks about a case, signs a retention agreement, etc. A lawyer is required by the professional code of ethics to zealously represent a client, but the client is the linchpin of the legal process. Yep, some lawyers are jerks/scumbags/whatever, but this idea that it's all the fault of lawyers is IMO just not grounded in reality. In the at-issue dispute, I doubt anyone put a gun to Mr. Nelson's head and forced the filing of the lawsuit.

Being the cynical hard-nosed lawyer that I am, I'd say the middle ground is that hikers don't initially want to sue, but if they are out of work due to an accident (that IMO they probably could have reasonably foreseen/prevented or realized that hiking has some inherent risk which they assumed, but I digress...) or they don't have any/enough medical insurance to cover the cost of treatment, well...they start shopping for a lawyer all on their own.

Some might have an opinion of fellow hikers as wholesome altruistic saints, but IMO the reality is just like real life: Some are, some aren't, and most are somewhere in the middle.

-Tom

Sorry, I shouldn't throw all layers under the bus over this case, but to me this was a frivolous lawsuit. The lawyer should have never taken Nelson's case in my opinion, so put blame on them as a "they should know better" type of thing because they are the professional. I saw the Nelson case as an inherent risk, caused by a natural event, and in no way fit as "willful and malicious". The idea that it was tried and rewarded shows that the problem went far beyond the lawyer. In my opinion their victory sends a bad message that seems to have directly affected access, as evident by these peak closures, and could impact many other access points through private lands beyond just a few 14ers.

My apologies for generalizing the profession over this incident but the whole case bothers me as an example of a system driven by money. As you can tell, my opinion of civil law is not a positive one so sorry for introducing so much of my own bias here. I just want to hike (and bike and ski and rock climb etc), I want the access to do so and I accept that I might get hurt through no fault but my own.

Oh, don't get me wrong: I fully agree with what you've written. I think the Nelson case was wrongly decided, at least with respect to what I think was the legislative intent. But there are so many societal beliefs underneath the legal system ("Someone has to pay for my medical bills, amIright?", the idea that we can't knowingly assume any possibly life-threatening risk, someone has to be at fault if I get injured, etc. etc.) My point was that deleting clients from the mix wasn't fully accurate.

Fwiw, I was out walking my dog this morning, thinking about what it would take for me to sue for a backcountry accident. Actually nothing in the civil sense even came to mind, but maybe I'd pursue a criminal complaint for injuries sustained from a machete-wielding maniac. You know, that happens all the time

Finally, yeah nothing stated in the facts in the Nelson case rose to the level of "willful and malicious." Just my opinion.

-Tom

[Boggy B]

To be clear it's "willful OR malicious," kind of an important distinction and the reason this bill exists.

I'm still surprised anyone familiar with the Nelson case doesn't see a very strong argument for "willful ... failure to guard or warn against a known dangerous condition" on the part of AFA. If the pro-landowner lawyers didn't agree they wouldn't be trying to strike "willful" from the CRUS.

There are lawyers standing by to help you sue the government if you wreck your car on a pothole. It's the same concept and, I assume, the real reason (as opposed to basic courtesy) for "Road Damage" signs.

Even if I agreed the proposed revision to the CRUS were a panacea for landowner liability concerns, I'd distance myself rhetorically from the position that Nelson got what was coming to him, er, before he got what ($$$) was coming to him.

[Stevo]

before he got what ($$$) was coming to him.

Does anyone know how much he received from the lawsuit? After lawyer fees, taxes, etc.

[justiner]

I know a guy

[headsizeburrito]

or they don't have any/enough medical insurance to cover the cost of treatment,

Yes, I think it's worth pointing out that a lot of the incentive to sue comes from the broken healthcare system in this country. If people had adequate healthcare, they would have less need to sue in the first place.

Sorry, I shouldn't throw all layers under the bus over this case, but to me this was a frivolous lawsuit. The lawyer should have never taken Nelson's case in my opinion, so put blame on them as a "they should know better" type of thing because they are the professional.

The lawyer represents the client, and they know they got a good cut of that $7.3m.

To be clear it's "willful OR malicious," kind of an important distinction and the reason this bill exists.

I was going to correct this too. I'm not a lawyer, but as I understand it, there is a significant difference between "and" and "or" and the current law says "or."

The fact that Senator Roberts misquoted the law in their response letter in a way that significantly changes the liability standard makes me wonder if they were willful, malicious, or negligent.

[cougar]

So the Nelson case was a bike path on AFA. Wonder how this now impacts South Table Mtn and the somewhat unofficial trails on Coors land. Don't appear to be any hazards, but it's a similar case of high use by the public (with Coors apparent tacit consent) and no trespassing signs just posted for liability. The steps up Castle Rock there too, which are broken in spots.

For landowners protection, I could see other claims of negligence with livestock. Someone getting gored by an off leash bull sues. Hunting accidents on private property (hunters seem to keep more permission), private roads causing car damage, getting cut on barbed wire (old downed stuff in tall grass), contaminated water. So more than just old mines, things harder to be fully aware of or control.

[daway8]

To be clear it's "willful OR malicious," kind of an important distinction and the reason this bill exists.

...Senator Roberts misquoted the law in their response letter in a way that significantly changes the liability standard...

BINGO!!! That's the sort of concise tidbit I was looking for to use as a comeback! I'll bounce that one back by respectfully pointing out the discrepancy (along with the out of court settlements) and see if that garners any response...

[JROSKA]

I worked with one of the orgs in attempts to reopen peaks and was surprised at how many locals were happy about the closure and had a negative view of those hiking the 14ers.

I think you’ll always get that with small town locals. Most of them only see the invasion and the annoyance and nothing more. I used to see it all the time in Wisconsin. Locals in Door County would complain all summer / fall about the FIB’s and their rudeness (All I can say is, the “I” stands for Illinois), tending to overlook the fact that their tourism dollars completely drive their economy for almost half the year.

I see it as a matter of simple basic economics. If I make a trip to Durango for Chi Basin for a few days and spend a couple hundred $$ on gas, food and maybe a hotel on the way, that helps out rural CO a lot more than if I just hang out in Denver.

Not sure why that is even debatable. Small town locals may not understand it. Any state politician does, for sure. That’s what’s disappointing about Roberts. As a rural politician he understands all that stuff. He’s just looking the other way, taking advantage of ignorance, because he’s got other interests in mind, which probably mean a longer and more fruitful political career for him.

[disentangled]

I see it as a matter of simple basic economics. If I make a trip to Durango for Chi Basin for a few days and spend a couple hundred $$ on gas, food and maybe a hotel on the way, that helps out rural CO a lot more than if I just hang out in Denver.

Maybe, but small-town locals may want something better than a low-wage service tourist economy which accommodates the big shots from Denver and leaves them with crappy gas station jobs.

[Chicago Transplant]

I don't think the language matters in this case, "or" vs "and". Willful to me still means the landowner caused the damage. I fail to see how not adding a sign to something mother nature did would make you willful and continue to say Nelson was wrongly decided. Malicious means the landowner intended to cause harm to others on their property, which they didn't do either. I just don't think landowners should be held liable for natural events.

If courts are going to hold people "willful" for acts of nature then that is going to close a lot of access as they are putting the burden of nature on landowners. Where does it end? Are we going to hold them liable for not mitigating avalanche danger in winter? Or if wildlife attacks you while on their property? Hey Mr. Landowner you should have told me I could get struck by lightning...

Would a sign really have stopped the award in the Nelson case? Obviously the landowners don't think so or they wouldn't be closing access, they would just put up generic "marked and unmarked hazards exist" signs.

[Boggy B]

The courts didn't hold the AFA "willful" for the washout. The statute doesn't say the landowner has to cause the damage. It says: "willful or malicious failure to guard or warn against a known dangerous condition"

It was proved the AFA knew about the washout and willfully failed to guard (fix it) or warn (post a cone, sign, etc.) against it.
Because of "or," they didn't have to also prove the AFA was malicious in that failure. Drop "willful," and then future litigators must prove malice.

A cone or sign would have qualified as a warning and likely not triggered the exception.

[Chicago Transplant]

Thanks Boggy, I didn't realize the statute notes warning, I thought it was only if they cause the damage. I think it goes back to my earlier posts on this whole topic that a sign at the trailhead that says "marked and unmarked hazards may exist" covers it all in my opinion. I don't think its neccesary to have a cone/sign at every pothole or washout along the way or the trail will have so many signs they would lose their effectiveness. Plus people (trail users) will move the cones, knock them over, think they are eyesore and remove them. Does the CRUS really expect the owners to maintain their cone? At that point just have the landowner stand by the washout and say "heads up"? How much guarding does one have to do? I guess I just using extreme hypotheticals to get people to see my point of view that 1 generic sign at the trailhead and you're covered.