Sport Climbing and Assumption of Risk: Liability for Climbing on Private Bolts and Land

By Byron Kitchen.

 

On July 15, 2021, Ian Manson was severely injured while climbing in Canada. His 60-foot fall was allegedly the result of his guide improperly constructing an “anchor” for use while they descended the wall. He proceeded to sue his guides for the injuries he received from this fall. 

 

This suit is not occurring in a vacuum. In recent years, the sport of climbing has dramatically increased in popularity. With this boost in popularity comes a predictable increase in litigation. While litigation is ongoing, Manson’s case raises interesting questions on the liability for route creators, climbers, and property owners. Because Arizona has over 10,000 outdoor climbing routes and entire industries devoted to this sport, it is critical that climbing liability receives some clarification and guidance. 

 

While there are many outdoor climbing disciplines, this blog focuses on the most common, “sport climbing.” In this discipline, a more experienced climber drills fixed bolts into the rock that subsequent climbers use. These bolts reduce fall risks for future climbers and can be used for decades. Developers rarely identify themselves on the route itself; however, their names are commonly listed online.

 

This blog offers a brief overview of the potential liabilities members of the community face with the rising popularity of this discipline. There are three main liabilities which will be explored: liability for landowners, professional guides, and volunteer setters. 

 

Liability for Landowners

Under Arizona law, landowners at climbing areas are generally not liable to recreational users if they do not charge an access fee. If they charge a fee for climbing, that immunity may not apply. Owners are often government entities or private landowners who allow access to climbers as a courtesy. Owners of climbing areas are seldom private individuals. Arizona’s recreational use statute (RUS) grants broad immunity to both private and public entities when land is opened for recreation without a fee, with exceptions for willful or gross negligence. In some circumstances, similar protection applies when nonprofits or government organizations charge only a nominal fee. 

 

If a landowner charges an entry fee outside those nominal-fee provisions, RUS immunity does not apply, and ordinary premises-liability principles govern. The landowners have an affirmative duty to make their premises reasonably safe. Curiously, the custom of not charging climbers for entry to private property provides a significant shield from liability for landowners due to the protection Arizona’s RUS provides. If landowners choose to charge an entry fee, they should also purchase liability insurance to manage the increased risk.

 

Liability for Professional Guides

Novice climbers often hire professional guides. These professionals handle all technical aspects of the climb, such as rope management, leaving the client free to focus on technique. Normally, professional climbing guides do not have unique duties to their clients, but they must not exacerbate inherent risks present in the sport. As an example, in Regents of University of California v. Superior Court, a man fell to his death while lowering on an anchor made by his guide because a large part of the mountain shifted. The California court found that falls and rock shifts are an inherent part of the sport. The climbing guide, while responsible for the anchor’s original integrity, was not responsible for those inherent risks. Arizona applies similar logic to professional guides, but not specifically to climbing guides. Arizona should extend this logic to limit the liability of professional climbing guides because it would be consistent with its other rulings on similar issues. 

 

Liability for Route Equippers/Volunteers

Despite the increasing prevalence of the sport, there are few published U.S. cases imposing ordinary negligence liability on volunteer bolters. This area of law urgently needs guidance from the legislator and courts. 

 

Bolts are safety equipment drilled into the rock that allow a rope to prevent lethal falls. Arizona’s RUS is likely not applicable here unless the bolter owned the land in question because courts have historically construed this statute narrowly. Further, Regents suggests that courts are reluctant to treat even a professional’s catastrophic anchor failure as grounds for liability without proof that the defendant increased the risks beyond those inherent in the sport (e.g., egregiously nonstandard rigging). Under similar circumstances, it would be odd to hold an unpaid volunteer more liable than a professional guide, who ordinarily owes a higher duty to clients. Hence, the liability would likely be at most a standard of care of not exacerbating inherent risks. 

 

Policy considerations, such as encouraging the development of the sport, also point toward limiting liability in this area. Fixed routes operate for years with little maintenance. Liability would discourage setters from installing routes if they had to continue to maintain the routes for that length of time. Original setters can be difficult to identify, despite the information available online. Liability cannot be imposed if the original setter cannot be identified.  Even if identified, they may be judgment-proof due to their often low income. Finally, imposing liability would deter volunteer bolt setting and damage the sport as a whole. While increased liability for bolting may improve bolt quality, making the sport safer, it will likely also deter bolting. If sport climbing declines as a result of fewer volunteers, substitution to less safe methods may drive accidents up overall. 

 

Conclusion

While the impulse to improve protection by increasing liability is noble, these considerations and existing case precedents in similar areas, urge limiting liability for these volunteer setters outside of willful/wanton conduct.