Concerning the death accident of a person who joined a climbing tour organized by a mountain guide, liability for damages against the mountain guide was affirmed

The following shows a case where a participant of a mountain tour organized by a professional mountain guide had died of hypothermia after being exposed to strong wind and snowstorm during the tour, and heirs of the participant filed a suit for damages against the mountain guide for default or torts in breaching obligations of considering safety.

The court affirmed mountain guide's breach of obligations of collecting prior information and of considering whether or not to conduct the tour. The court did not approve reduction of damages because weather information should have been collected by the mountain guide, while participants themselves had not been required to predict weather conditions and to consider feasibility of the tour. (Judgment by the Kumamoto District Court on July 20, 2012)

Page 189 of Hanrei Times No.1385
Page 111 of Hanrei Jiho No.2162

Summary of the case

Plaintiff:: X and others (heirs of A)
Defendant:: Y (a professional mountain guide, also working at a climbing gear shop)
Parties concerned:: A, B, C, D and E (participants of the climbing tour)

Y with a qualification accredited by the Japan Mountain Guides Association had organized a 6 days and 5 nights "guided tour of Tsugamishindo through Japan's Northern Alps" starting on October 6, 2006 (hereinafter called "the tour"). The leaflet made by Y described the tour as follows: "On the first day we will use Kurobe Gorge Railway (trolley train) to get to Babadani Onsen, a secluded hot spring, and stay there. Next early morning, we will climb Shiroumadake through Shozu ridge and get to the top (height: 2,933 m), seeing tinted autumn foliage on the way. Afterwards, we will visit Yukikuradake, Asahidake along the ridge with autumn color grass, and finally get into Tsugamishinto. We can dip our hands into the water at the Oyashirazu coast of the Sea of Japan in autumn. It is a recommended course with full of joy and sceneries of tinted autumn leaves". It added "Intermediate course (5-7 hour walk. Rocky areas may be included. Energetic beginners can also join)". The participation fee included guide service, accommodation, transportation, etc.

On October 7 of the year, it was scheduled to walk from Babadani Onsen to Shirouma lodge (distance: 12.668km / difference of elevation: 2,043m / total time required: 9-10 hours). They departed after 5:00. On the way to Shirouma lodge, they were exposed to strong wind and snowstorm. Four participants (A, B, C and D) among five died of hypothermia.

There is only one way from Kaerazudake shelter to Shirouma lodge on this course. In case of urgency, the only possible way is to return to the shelter. The way in the latter half of the course is ascent on the ridge line without trees, so climbers are exposed to snow or strong wind, if any. Moreover, two climbing magazines mention that "The upward way of the course is not recommended because of continuous steep ascent", "The course is suitable for advanced climbers who have energy to get to the lodge on the ridge line within one day" and so forth.

In Japan, the temperature goes down 6 degree centigrade as the altitude increases 1,000m. Therefore, the temperature on a 3,000m mountain is almost 20 degree centigrade lower than that of the flatland. Moreover, it is recognized as general knowledge of autumn weather in Japan's Northern Alps that wild weather would last long on the mountain when a low-pressure system moves up Sanriku offshore along the Honshu coast, and that under the winter pressure pattern (when a high-pressure system is located over the Eurasia continent and a low-pressure system is located over Tokai area in Japan), if isobars are densely located around Japan (mountain snow pattern), mountains at the Sea of Japan side and the backbone range experience heavy rain or snow, strong wind and decrease of temperature. The weather on the guided tour day was just like this. The Japan Weather Association predicted weather for 7th at 17:00 on 6th as follows: "by a movement of a growing low-temperature system heading for Sanriku offshore, the main island at the Sea of Japan side and Northern Japan will experience heavy rain and strong wind". This weather forecast was supported by prediction at the Toyama Meteorological Office that a low-pressure system generated at Tokai offshore would go north east along the south coast of the main island on 6th and 7th, gaining strength.

Y could collect weather information through mobile phone, TV prior to departure on 7th, weather information telephone service (TEL No. 177), telephone contact with Shirauma lodge, etc., but did not take these actions.

Therefore, heirs of A including X claimed damages against Y. In response, Y alleged comparative negligence on the grounds that the death accident was caused by sudden change of weather and Y was not liable for the accident due to unpredictable circumstances and that climbing itself is risky, which A also knew.

Reasons

1. Abstract obligation

The climbing tour was planned and organized by Y, a professional mountain guide. Since mountain climbing is associated with threat to life due to potential distress, accidents, etc., it should be said that those who plan and conduct climbing tours have a duty of care to properly prepare for the tour, instruct participants and take measures to avoid potential risks to participants' life and bodies. In addition, Y as a professional mountain guide planned this tour, called for participation and collected a participation fee to conduct the tour. It is construed that participants had applied for the tour with trust on Y's skills and competence as a professional mountain guide based on an assumption that Y would properly guide the climbing tour. Therefore, it should be said that Y had an advanced duty of care as a professional mountain guide.

It is construed that Y as a professional mountain guide had a duty to collect weather information prior to departure and predict the weather while climbing as well as to take proper measures including cancellation of climbing if it was predicted that weather conditions would be bad during climbing based on the following reasons:

Climbing is associated with risks including potential distress due to weather changes and so forth.
"Guidelines for conducting a climbing tour" developed by the Japan Association of Travel Agents state that it is essential to predict weather changes prior to departure.
The guidelines state that a mountain guide is also required to have meteorological knowledge.
In light of the advanced duty of care owed by Y, it can be said that Y as a professional mountain guide had a duty to collect weather information prior to departure and predict weather while climbing as well as to take proper measures including cancellation of climbing if it was predicted that weather conditions would be bad during climbing.

2. Concrete obligation

It should be said that Y had a duty to take utmost care to avert any accident during the tour and to collect available information in advance including potential for the winter pressure pattern, which will be generated as a typhoon or low-pressure system transformed from a typhoon moves up the Sanriku offshore along the Honshu coast. Based on the premise of a duty of collecting prior information, it should be said that Y as a professional mountain guide had a duty to consider collected information in advance and to take proper measures including cancellation of climbing if it was predicted that bad weather might endanger life and bodies of participants (a duty to consider whether or not to conduct the tour).

3. Y's predictability

It can be said that if Y obtained weather information released at 17:00 on 6th by the Toyama Meteorological Office and the Japan Weather Association, Y could predict that the pressure pattern on 7th would be the mountain snow pattern, one of the winter pressure patterns, as a result of which Y could also predict occurrence of strong wind and snowstorm due to sudden weather changes during the tour.

In light of the above, the court affirmed that Y breached a duty of collecting prior information and a duty of considering whether or not to conduct the tour.

4. Y's liability and comparative negligence

The court judged that Y was liable for damages incurred by X and other A's heirs because the accident could have been avoided if Y had fulfilled a duty of collecting prior information and a duty of considering whether or not to conduct the tour, without pausing to consider negligence. The court did not affirm comparative negligence or reduction of damages on the grounds that damages incurred by X and other A's heirs were caused by Y's negligence of the above-mentioned duties and that weather information should be collected by a mountain guide and it cannot be said that participants themselves should collect weather information and predict weather conditions to consider whether or not to conduct the tour.

Explanation

In recent years, climbing accidents frequently occur. It has been highlighted by accidents during climbing tours participated by many elderly persons. In the case here, all the participants of the tour were elderly women aged more than 60 years. There is a gap between expression on the leaflet and the actual difficulty level of the course. The sole survivor E had years of climbing experience. When E had joined another tour with the same course, E got exhausted and E's leg muscles stiffened on the way. Therefore, E had been training in preparation for joining the tour.

With the rise of popularity of mountains more difficult to climb among middle-aged and elderly persons, guided tour participants without sufficient experience and physical strength more and more likely to expect for and rely on mountain guides. There may be cases where mountain guides do not fully understand such circumstances.

In this judgment, however, the court did not put emphasis on the fact that the participants were elderly persons and affirmed the liability claim on the grounds that the mountain guide breached a duty of collecting prior information on weather and a duty of considering whether or not to conduct the tour. The tour fare included the guide fee, so a certain reliance on the mountain guide can be affirmed. Nevertheless, Y decided to climb a 3,000m mountain via a rather difficult route without checking weather conditions in advance between evening on the prior day and departure. While Y claimed reduction in the amount of damages because of general risks of climbing, the court denied the claim based on a concrete reason that participants do not have a duty of collecting prior information or a duty of considering whether or not to conduct the tour. This judgment implies that the court affirmed participants' reliance on the mountain guide. Furthermore, a climbing tour is conducted based on decision by the mountain guide, even if participants themselves consider it is dangerous to conduct the tour. Such self-judgment means withdrawal from the tour. Probably for this reason, the court placed heavy liability on the mountain guide. Y served as an organizer as well as a guide, so Y is liable as both of these roles.

Reference precedents

Judgment by Toyama District Court on April 26, 2006
(Page 135 of Hanrei Times No.1244, and Page 75 of Hanrei Jiho No.1947)
Judgment by Shizuoka District Court on December 9, 1983
(Page 187 of Hanrei Times No.513, and Page 21 of Hanrei Jiho No.1099)

Judgments