What went wrong and how to beat the lawsuit when a guide sues to recover fees, he paid to climb mountain Everest after the trip was cancelled? Several things.

The client was not properly educated pre-trip, and the paperwork did not cover the right issues and/or say the right things.

All over the news, this past ten days is a story about a lawsuit by a Mt. Everest commercial client who is suing his guide service for a refund when the trip was canceled. After arriving in base camp, the trip was canceled because the Khumbu Icefall had a 15 story serac over hanging the route. The outfitter and the other clients decided to bail because of the risk.

I’m even quoted in one article in Outside Magazine.

A Tech CEO Suing His Guide Could Change Everest Travel

CEO Sues Climbing Guide – Could Set a Terrible Precedent for the Travel Industry

It is not the first time that I’ve heard or been involved in these types’ lawsuits. I knew of one from 20+ years ago where the threatened lawsuit was over a refund because the client did not summit Mt. Everest. I never heard what the outcome was.

One of my clients was threatened with a similar lawsuit. The client wanted his money back because he did not summit. I responded to the client’s demand letter listing every Everest summiteers I knew who would testify about the chances of submitting. I never heard anything else.

These refund attempts happen on mountains all over the world.

Usually these start with a guide service needing clients to stay alive or making a profit or not investigating the client thoroughly. When a climbing guide is broke, they have a tendency to say anything to get money in the door or take anyone. Worse are the ones that can right a check without hesitation or who come with a “climbing resume” but only with guide services.

Climbing with a guide is awesome, but the guide makes all the decisions, no matter what the agreement says and how the issue is phrased and the client never engages his brain or understands how decisions are made when climbing a mountain.

Everyone once in a while it is the client who is trying to save face with his friends and neighbors because he did not summit. Getting his money back proves it was not his fault, that he did not summit.

The next step in the process is education. Clients need to learn two things from the start.

  • Their chances of summiting are slim or low based on the mountain.
  • The money they pay to summit is spent way before the client ever sets foot in the country where he is climbing.

No matter the mountain your chances of summiting are based on a lot of factors.

  • The mountain
  • The guide service
    • What the guide service does to get you off the mountain before you can summit

The mountain is obvious, how many days in what conditions and can you survive.

At the same time, there are unscrupulous guide services.

Guide services have been playing games with clients for decades. One game that used to be played on Denali was running the client up the mountain before the client could acclimatize and getting the client sick. This was obvious when you looked at the schedule. There was never enough time between the next load of clients landing on the glacier to acclimatize and summit before the guide had another group to lead.

A different game is still being played on Kilimanjaro. No one tells clients that the hike through the jungle to the base camp is going to leave them and their gear soaking wet. I’ve heard of trips were every single client spent the first two nights shivering in wet sleeping bags before giving up and heading home. No one says to use a waterproof stuff sack or a garbage bag to protect your gear, so thousands each year get to the base of the mountain and turn around.

I’ve not heard of Everest guide services playing any of these games. I do know that your chances of summiting and living are higher based on the amount of money you pay. The past ten years, most of the fatalities have come from guide services that are locally run and very inexpensive compared to everyone else.

I also have only heard great things from the defendant in this case, Garret Madison.

The money paid is gone before you arrive.

Think about the food you will be eating on Mt. Everest. It is purchased in the US, packed for transportation to Katmandu, repacked for shipping to basecamp and repacked for carrying up the mountain. The cost of shipping and packing far outweighs the cost of the food. All of this is done before a US client leaves the US.

Airline tickets, hotel rooms and transportation inside Nepal are paid for in advance. Local guides are hired and paid for, or they find someone different to work for. Competition on Mt. Everest is stiff, so there are plenty of job opportunities for all aspects of getting to basecamp and who you will be climbing with.

Gear is always brought back to the US, cleaned, checked, replaced and then shipped back to Nepal, or used on other mountains in between seasons.

Most of the money you pay to climb a mountain is spent before you leave the US. There are no refunds for food shipped to basecamp, there are no refunds if you can’t summit. I would guess if you wanted some of your money back you can take thirty days of dehydrated food back home with you……. Most is given to the locals and the Sherpa who live on it.

The best way to stop any lawsuit is education and paperwork.

The agreement between the guide and the client must have the following.

  1. The guide is in command, makes mistakes but is in control. Decisions made by the guide are final yet you are in control of your life. You can ignore them at your own risk.
  2. You can’t sue and if you do, you will owe me money for breach of the covenants that go with this contract.
  3. If you do sue, you have to sue me in my little home town a long way from where you live.
  4. You must purchase travel insurance to protect your investment because I’m not going to.

The guide from the articles might have screwed up. To get the client off their back, he might have said something about a refund. The guide also did not do a good job of explaining with the other clients who were leaving what was going on and why. The plaintiff client was left out of the conversation.

However, climbing Everest is not a guaranty, and no guide will ever bet on who will summit and who will not because the odds are stacked and change constantly.

Worse, it is obvious that this plaintiff thinks his luck is pretty good or the amount of money he paid is too much to lose, e way he puts little value on his life.

Guide says to go home, too dangerous! my response is get out of my way!

Do Something

If you want to climb big mountains and intend to hire a guide to do so.

  1. Get in shape
  2. Learn how to climb and climb well. If you can’t run up your local mountains without fear or concern, don’t leave them.
  3. Go climb big mountains with and without guides. Learn how to make decisions and why on when to climb, where to camp, what to do and when to go home.
  4. Expect to spend a lot of money, go cheap you might never go home.
  5. Communicate. Make sure all the promises your guide makes are in writing.
  6. Cowboy up if you can’t get to the top, you probably ignored steps 1-4.
  7. Your money is gone and will not be coming back.

If you are a guide service.

  1. Have enough guts to withstand angry clients because you can’t keep them all happy.
  2. Get good contracts and releases. Get agreements written by an attorney who knows what a mountain is, what making decisions means and has made those decisions and most importantly knows what goes into the agreement and why!
  3. Understand that marketing makes promises that risk management has to pay for is true. You tell a client, he or she will summit, you better have a way to get their butt to the top, or you will be in court.
  4. Make sure your insurance covers advertising, and you have a comprehensive policy to cover those lawsuits that arise more than the negligence lawsuits do.
  5. Tell everyone you cannot guaranty they can get out of basecamp, even get to basecamp, let alone summit.
  6. Get good contracts and releases!

What do you think? Leave a comment.

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2 Comments on “What went wrong and how to beat the lawsuit when a guide sues to recover fees, he paid to climb mountain Everest after the trip was cancelled? Several things.”

  1. Forrest Merithew says:

    I read the article with Luis and your quotes. Congrats on the interview. You and I are always on the same page on this stuff and our disgust with people pursuing claims that are unrealistic or caused by their own fault. In this email you do wisely highlight that there are also legitimate questionable tactics and practices, with potential resulting claims. You mentioned in this email the issue of the money being spent already. I think that is another important prong of Client education and Contract/Release drafting – wherein you should have very clear “non-refundable” language, when accurately applicable about how those funds will have already been spent.

    Congrats on the publicity and continued great work protecting the industry! I’m back in Western NC for the year and then back to Colorado 2021 forward. We’ll see when the next OR show occurs.

    Like


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