Bolting Is Not a Crime

By Daniel  Zacks

Where does a climber’s legal responsibility start and end when bolting new routes or updating old hardware?

Of all the stomach-churning moments you can have while climbing, one of the worst is clipping a bad bolt.

This is why we are indebted to the selfless climbers who invest their time and money to safely equip and re-equip routes. The climbing community, and particularly recreational climbers like me, should be celebrating these individuals for keeping crags safe. Do you know the name of the person who replaced the chains on the trade routes at your favourite crag? Probably not. Few of us know these climbers and give them their due, and even fewer of us contribute to the cost of their efforts.

One reason for this re-bolting-anonymity is an increasing concern about the legal risks of bolting. For example, a newly established fund to support hardware replacement in Ontario keeps the identities of the bolters who draw on it anonymous. The idea is that if bolters are remain unknown they needn’t fear liability. The initiative is praiseworthy, but its deliberate lack of transparency isn’t good for the community or bolters, and above all, it’s totally unnecessary. Allow me to offer a little help to Canada’s bolters by clarifying bolter’s liability.

When a bolter worries about liability, the worry is of being sued by someone who suffers harm and claims the harm was caused by the bolter. However, when it comes to climbing, people are not as litigious as we might think. There is no case decided in Canada, the US, or Australia where a bolter was sued as a result of installing hardware on a rock climb. And if a bolter has been sued in these countries, the claim didn’t reach trial.

This may seem surprising, especially if you watch many legal dramas, but it makes sense. Climbers tend to be safety-focused people, and a climber is unlikely to start bolting unless they have the knowledge to do it safely.

There will be exceptions, but the exceptions do not define most climber’s behaviour.

Here is a slightly exaggerated hypothetical situation.

Let’s say Chad has just passed his belay test at his local gym, Planet Rock Star. Chad is now eager to prove his stuff, so he borrows his friend’s Hilti and begins to bolt the Rad line at Crushing Crag. Needless to say, Chad is a goof, and he bolts poorly.

Some time later, Gruff attempts the Rad Line in his usual style–tube socks, lederhosen, and a swami. Gruff is an old-timer whose glory days are behind him: he falls at the Rad Line’s first bolt. The bolt fails and Gruff, who resented clipping the bolt anyway because it was beside a perfectly good RP placement, hits the ground, breaks a leg, and soils his lederhosen.

Once upon a time Gruff was training for a trip up the Nose-it never happened-and Gruff watched Street Legal during his rest days. Gruff knows the law. So, Gruff goes to his lawyer and instructs him to sue Chad. The lawyer rolls his eyes. Chad lives in his mother’s basement and spent all his money on a crashpad and a closet full of beanies; he’s broke. Why spend ten grand (or very likely more) suing Chad if Chad has no money?  As they say in the halls of justice, dirt bags are judgment proof.

Now let’s assume for argument’s sake that Chad won the lottery and has money for Gruff to pursue. Would Chad be liable to Gruff?

When Chad equipped the Rad Line, the law imposed a duty on him – whether he knew it or not. Chad’s duty was to bolt the Rad Line so that anyone who Chad could reasonably foresee using his bolts could do so without harm. The only people that Chad could reasonably foresee using his bolts were other climbers, and so Chad’s duty was to ensure that other climbers attempting the Rad Line wouldn’t be harmed by his bolts. As we know, Chad didn’t perform his duty. He installed his bolts poorly, and the foreseeable happened: a climber was injured. As a matter of law, Chad is negligent and liable for Gruff’s injuries. It so happens that Gruff’s injuries were relatively minor-a broken leg and the forced retirement of his favourite lederhosen. However, if Gruff had fallen higher on the Rad Line and suffered a catastrophic injury, Chad could be liable for millions.

What exactly did Chad need to do to perform his duty? Chad needed to meet or exceed what the law calls “the standard of care”, which is the standard of a reasonable person performing the same duty. What is reasonable for a bolter is a question of the local ethic. A bolter that adheres to the local climbing community’s consensus, as to what represents safe bolting practice, is acting reasonably. Obviously, the local ethic depends on the crag. Reasonable bolting at a limestone crag like Ontario’s Lion’s Head is different from reasonable bolting at a conglomerate crag like Newfoundland’s Flatrock (which gets pounded by the salty North Atlantic every winter). What is reasonable also changes over time. Once it was reasonable to use 1/4 inch bolts, now you’d be negligent using anything less than 3/8 inch bolts.

A recent incident in Australia’s Blue Mountains illustrates the relationship between the local ethic and the standard of care. The Blue Mountains’ local ethic is strict: bolters must use glue-ins, which are safest for soft Blue Mountain sandstone. Nevertheless, in 2007 visiting Croatians ignored the local ethic when they established a new route fatefully called Last Chance for a Happy End. They used expansion bolts instead of glue-ins, and the expansion bolts they used were not manufactured for climbing. In 2009, Nick Kaczorowski was climbing near the route Last Chance for a Happy End and strayed onto it. Kaczorowski fell and a Croatian-placed bolt failed. Kaczorowski’s rope severed during the fall and he died.

The negligence of the Croatian party in equipping the route is evident. The Croatian party breached its duty to Kaczorowski by falling well short of the standard of care: they used hardware that was unreasonable in every way for the Blue Mountains. The Croatians were not amateurs-one member is secretary general of the Croatian Mountaineering Association. It’s possible that the hardware they used is standard at Croatian crags. However, that hardware used in the Blue Mountains killed a climber.  Now the Australian police are considering laying criminal charges and I’m told there may also be a coroner’s inquest.

What does all of this mean to you as a bolter? It means you should relax. The standard of care requires a climber bolts competently using the hardware and techniques appropriate for the local crag. Then you’ll have no reason to worry about liability.

I recognize that bolters whose fear of liability drives them to anonymity may want more than an article’s assurance about their exposure to liability before wearing “I bolt for hugs” t-shirts. So allow me to suggest another approach to bolter’s liability: insurance.

Imagine safe climbing associations, either independent or under the umbrella of your local access coalition, which maintain standards of safe bolting and insure their members against lawsuits. It’s an idea less crazy and complicated than you think.

First, you need the people willing to form the association and pay a membership fee.  Yes, a membership fee. Climbers ought to support the creation and upkeep of the bolted routes they enjoy. Ours is no longer a small community, and there is reason why climbers pouring out of the gyms should be entitled to enjoy – without cost – the fruits of someone else’s labour. Hardware isn’t free and it doesn’t just appear. Those climbers who transition from gym to outdoors ought to contribute to the cost of outdoor climbing.  Let the contribution be in the form of a membership fee.

Next, you need to adopt bolting standards like those of the American Safe Climbing Association. These are standards for hardware and hardware installation, not standards for where, what, and when to bolt. Finally, you need an insurance policy to indemnify bolters. This type of insurance is available in Canada and while not inexpensive, it’s certainly not cost prohibitive.

There are many benefits to safe climbing associations. Foremost, bolters would be insured and could bolt proudly and publicly without fear of liability. It would also be a powerful advocacy tool when confronting access issues. Imagine the conversation between an association and a landowner worried about exposure to liability:  “Mr. Landowner, only our members will bolt on your land, and our members are fully insured.  Here are our guidelines for your review. You’ll see that we are extremely safe.”

Either way, bolt safely and worry less about liability.

Daniel Zacks is a lawyer living in Toronto and looking forward to his next road trip to the Red River Gorge.