Posted on 12/12/2005 12:40:16 PM PST by SmithL
FRESNO, Calif. - A federal judge has thrown out a $10 million dollar wrongful death lawsuit alleging that Yosemite National Park was negligent in the death of an experienced climber who was killed by a rockfall.
In a ruling released last week, U.S. District Court Magistrate Judge Sandra M. Snyder agreed with National Park Service lawyers who argued that Yosemite was immune from such lawsuits because Congress has given rangers discretion on when and where to warn the public of potential dangers.
The suit was filed by the family of Peter Terbush, a student at Western State College, in Gunnison, Colo., who was climbing with two friends 240 feet above Curry Village, a combination of visitor cabins and duplexes, when he was killed by a falling rock in June 1999.
"We are to this day saddened by this young man's death," said Kristi Kapetan, the assistant U.S. attorney who defended the park. "We just don't feel it's our fault."
Dugan Barr, attorney for the Terbush family, said he like will appeal to the U.S. 9th Circuit Court of Appeals. Park officials briefly closed off the area after a slide just weeks before Terbush was killed, he noted.
"The thing that's galling about this is it's really clear the park knew about the danger," Barr said.
The plaintiffs, James and Stanli Mae Terbush, who live in Buenos Aires, Argentina, argued that the cliff face was destabilized by water overflowing from a 300,000-gallon storage tank atop Glacier Point.
Rockfalls are a natural occurrence in the park where granite cliffs rise some 3,000 feet above the valley floor. In 2003, a rockfall above Curry Village slightly injured four visitors and damaged at least six structures.
The best description of the 9th I've ever heard
Sometimes I really hate the world.
I can't believe this culture we're fostering of "you didn't try hard enough to stop me from killing myself by engaging in obviously dangerous activities."
We're going to have to have official gov't hand-holders to help us cross the street in the near future I'm sure...
The interesting part of this case to me was the fact that there were allegations of recklessness. My recollection was that in the complaint there were allegations that the park service had constructed bathrooms and in the process diverted some water-flow (more like sewage) to the rocks. This was allegedly the cause of the rock-fall in this case. The case was not allowed to proceed to trial, which means that the plaintiff was not allowed to try to prove this allegation. I believe he had an expert lined up prepared to testify. As a climber, I'll take my chances with the natural change in topography or the risk that another climber will dislodge a rock (even if due to carelessness; i.e., negligence), but I'm not happy being faced with a risk created by the installation of more bathrooms if I am not forewarned about it.
What a novel approach. Maybe it will establish a trend in civil litigation.
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