By Jon Heshka, Associate Professor at Thompson Rivers University
Mountains were formerly thought of as a refuge of scoundrels. From Warren Harding’s iconoclastic first ascent of The Nose on El Cap in Yosemite to Osama Bin Laden hiding in the mountains in eastern Afghanistan, its reputation as a place unsullied by the constraints of civilization and untouched by the law has been challenged by lawsuits last year involving a mountain guide, a millionaire client, and the world’s highest peak.
The client, Zachary Bookman, is a Yale and Harvard educated lawyer who clerked for the U.S. Court of Appeals for the Ninth Circuit and is the CEO of Silicon Valley technology company. The guide, Garrett Madison, says he’s “America’s premier Everest guide and climber.”
Bookman paid Madison $69,500 to join a Mount Everest expedition that Madison was leading. Bookman alleges that Madison cancelled their September 2019 Mount Everest expedition because a member of the four-person team – the president of an outdoor company who was paying for or otherwise subsidizing the trip – was so out of shape that the trip was cancelled one day after the president quit. Madison is sponsored by the same company and endorses its gear.
Bookman filed suit in San Francisco County Superior Court in the spring 2020 seeking $100,000 in punitive and compensatory damages, claiming fraud as Madison didn’t even try to summit Mount Everest and that Madison “represented that the summit of Everest was going to happen” and also that Madison breached an oral agreement made at Base Camp for a partial refund of $50,000 due to the expedition being cancelled.
Bookman claims it was largely an official expedition meant to test gear and take pictures as part of a photo shoot and that once its president and another client – who was also a sponsored climber with the same company – left, Madison had no real reason or the motivation to continue. Bookman also alleges that the Sherpas hired by Madison were “lazy and inefficient” and had not prepared the route through the Khumbu Icefall above Base Camp.
Madison disputes Bookman’s allegations.
What is not disputed is that there was a gigantic serac, a freestanding column of glacial ice, looming about 2600 feet above the climbing route between Base Camp and Camp 1. It’s estimated that the serac weighed 54 million pounds. In 2014, a serac collapsed on Mount Everest which triggered an avalanche that killed 16 Sherpas in the same area of the Khumbu Icefall.
Madison says the executive was in excellent physical shape and that he and the other client pulled out of the expedition because of his concerns about the serac. The executive has said they “chose safety over ego” and Madison has stated in court filings that it was a “no-brainer” to pause climbing after becoming aware of the serac and the danger it posed.
The decision by the executive and sponsored climber to cancel was made one day after being made aware of the serac. Bookman was not present when those two were making their decision.
The San Francisco County Superior Court granted Madison’s motion to dismiss the suit because it lacked jurisdiction as his company is based out of Washington state.
In the fall 2020, Madison filed his own suit in King County Superior Court in Seattle seeking a declaratory judgment that Bookman assumed the risks associated with the expedition, has no right to a refund and that he should pay all of Madison’s legal fees, expenses and costs.
The adventure industry is concerned and worried about this case. Notwithstanding the optics of the executive pulling out of the expedition and that Madison’s decision to cancel it outright appears to have been hastily made (expeditions regularly wait out storms for days or even weeks), he has a strong case.
It is highly improbable that Madison would have ever made any sort of representation to Bookman about guaranteeing a summit attempt. Madison fulfilled his duty of care in his role as mountain guide by properly identifying and assessing the risk, communicating that risk to the clients, and making what seems like the reasonable call in the circumstances to not unnecessarily expose the clients to the very real chance of the serac collapsing and thereby killing them. Lastly, Bookman – a trained lawyer from an Ivy League law school who clerked for the Ninth Circuit – will likely be deemed to have understand what he signed and be bound by the contract which has an explicit no-refund policy which stated: “You are required to pay a $69,500.00 USD non-refundable, non-transferable full payment to reserve your space on the trip.” Bookman also signed an Assumption of Risk and Release of Liability Agreement which stated that he was aware of the inherent risks and dangers involved, including but not limited to weather and forces of nature.
The case has not gone to trial and none of the charges have been proven in court.