I can't help but check out the tortscape when I travel. As mentioned last week, I have been traveling recently in Utah. The sights are breathtaking. And as an indicator of the health of the American tort system, I am pleased to report, Utah has many places where one can fall to one's death.
If your foreign friends are like mine, then you too are tired of being teased about fencing at the Grand Canyon, supposedly erected by the National Park Service to protect itself from lawsuits.
It's nonsense, of course. There are a very few railings and barriers installed at the most popular viewing areas at the Grand Canyon. Given the often present throng, the limited installations are only sensible, to protect the canyon as well as the people. Plenty of visitors still manage to fall and die. And if anything about such deaths speaks powerfully to "the American way," it's the sovereign immunity that usually dispatches any subsequent lawsuits.
(In all seriousness, for a tragic and compelling problem in this vein, and an excellent case for torts profs to introduce the Federal Tort Claims Act, see the recent and pending claim against the National Park Service by the family of Esther Nakajjigo, a human rights activist and tourist who was decapitated by a swinging traffic control gate at Arches National Park in Utah in 2020. Read more from Moab Sun News, NBC News, Fox13 Salt Lake City, and Yahoo News Australia. The case is Michaud v. United States, No. 1:21-cv-01547-KLM (filed D. Colo. June 8, 2021) (Court Listener).)
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| Railings such as these represent a reasonable exercise of discretion by any global measure: surrounding a viewing platform at Sipapu Bridge at Natural Bridges National Monument. |
My friends' teasing persists because it capitalizes on two stereotypes of Americans: first, as camera-happy tourists who don't know how to handle themselves when voyaging giddily away from home on their precious ten days of unguaranteed vacation; and second, as lawsuit-addicted complainants eager to forsake personal responsibility for a pay day. Corporate America's tort-deform messaging has saturated the globe.
I should know better. But, I admit, my insecurities are allayed whenever I discover a new place one can fall to death amid the sublime splendor of an American natural wonder. And I found many such places in Utah. I'm thinking about writing a book in the vein of Patricia Schultz's 1,000 Places to See Before You Die. Mine will be "1,000 Places to Fall to Your Death in America." It's simultaneous travel literature and tort-reform opposition.
This is my favorite new candidate for the book: Kodachrome Basin State Park in Utah. It's oddly appropriate because the park is in fact named after a corporation. National Geographic featured the land in color photography in 1949 and, with permission of the Eastman Kodak company, named the area after the company's pioneering color film, which had been introduced in 1935 (and was discontinued in 2009). The park is a worthwhile stop, or destination unto itself, on Utah's famed Scenic Byway 12, near Cannonville.
Kodachrome Basin boasts some 67 "sedimentary pipes," columns of rock rising from the basin floor. According to park literature, the pipes are the result of erosion, but geologists are not sure whether historical earthquakes or ancient springs explain the erosion-resistant columns. There are more than 14 miles of trails in the park from which one can see the pipes and take in the park's chromatic appeal.
Here's a 360-degree panoramic:
In further furtherance of the pioneer spirit, there's one other unmitigated way to die in Utah, and that's in an agricultural encounter. At the American West Heritage Center in Wellsville, Utah, I was surprised to see this sign:
In 1L Torts, I always include some coverage of sector-specific statutory liability limitations, usually adopted to protect domestic businesses especially from suit by out-of-state tourists. In my first year as a legal writing instructor in the 1990s, colleagues and I used a problem involving the Colorado skier responsibility law. Utah has one, too. This was the first time, though, that I've learned of a sector-specific liability limitation in "agritourism." Actually, this was the first time I ever heard of agritourism (also "agrotourism").
The cited section of the Utah Code indeed defines agritourism as "the travel or visit by the general public to a working farm, ranch, or other commercial agricultural, aquacultural, horticultural, or forestry operation for the enjoyment of, education about, or participation in the activities of the farm, ranch, or other commercial agricultural, aquacultural, horticultural, or forestry operation."
The statute doesn't depart radically from the negligence standard, but, like the sign says, affords service providers an assumption-of-risk defense when signs are posted. The statute specifies risks inherent in agritourism:
a danger, hazard, or condition which is an integral part of an agricultural tourism activity and that cannot be eliminated by the exercise of reasonable care, including:
(i) natural surface and subsurface conditions of land, vegetation, and water on the property;
(ii) unpredictable behavior of domesticated or farm animals on the property; or
(iii) reasonable dangers of structures or equipment ordinarily used where agricultural or horticultural crops are grown or farm animals or farmed fish are raised.
I didn't run into any of those problems. I must be a pioneer at heart.
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| Me holding up a natural bridge on the Hickman Bridge Trail, Capitol Reef National Park |
