On Point - A New Take On Legal News

Survival Test Death Blamed on "Reckless" Guides

Dave Buschow

A liability release should provide no defense for an operator of wilderness survival adventures if its employees withheld emergency water from a New Jersey man who died of thirst while hiking in the Utah desert.

Boulder Outdoor Survival School, known as BOSS, promises the opportunity to “live in the moment and experience the wilderness to the fullest.” During the first, or “Impact,” phase of a BOSS field course, students hike in Utah's Grand Staircase-Escalante National Monument, limited to drinking only such water as they find along the way.

“Our goal is to take you ... past those false limits your mind has set for your body,” the company says on its Web site.

Dave Buschow, 29, reached his physical limits during the “Impact” phase of a 28-day, $3,175 field course last July. After hiking for 10 hours in the desert heat, he collapsed and died of dehydration –- less than 100 yards from a cave with a pool of water.

According to a wrongful-death suit filed last week by his parents, BOSS's instructors on the hike ignored Buschow's symptoms of distress including hallucinations –- at one point, he mistook a tree for a person. And even though they were carrying emergency water, they allegedly never provided him with any.

“The Employees ... knew that Dave was suffering from, among other things, dehydration, electrolyte imbalance, heat exhaustion, and/or heat stroke,” the complaint says, and their “gross negligence was a direct and proximate cause of Dave's death.”

It was the first death on a BOSS survival exercise. “I wanted him to accomplish getting to the water and the cave for rest,” instructor Shawn O'Neal wrote in a statement obtained by the Associated Press, explaining why he did not offer water to Buschow.

In applying for the course, Buschow signed a liability release form which refers to the risk of “heat- and water-related problems” and warns that “you must hike under adverse conditions ... with little or no food or water.” And BOSS has already invoked that release as a bar to any claims resulting from Buschow's death.

“Mr. Buschow expressly assumed the risk of injury or death prior to participating in the BOSS course,” it argued in a complaint for declaratory relief filed in January.

The company also suggested Buschow was not in the best of shape. “[He] told several other students that he had attempted to gain a few pounds before the course but otherwise had done nothing to prepare for the trek.”

But the liability waiver would not be a defense to gross negligence. And O'Neal's statement suggests he was so focused on pushing Buschow past his “limits” that he condemned him to a death march.

“He said he could not go on,” he wrote. “I felt that he could make it this short distance and told him he could do it as I have seen many students sore, dehydrated and saying 'can't' do something only to find that they have strength beyond their conceived limits.”

UPDATE

The parties dismissed the case Dec. 28, 2007 after reaching a settlement.

By Matthew Heller
5/8/07