Did federal negligence help kill two hikers?

Note: This article is a sidebar to this issue's feature story, I came, I saw, I wrote a guidebook.

SALT LAKE CITY, Utah - Who's to blame when a backcountry hike turns deadly? Expert witnesses are being interviewed now for a trial next year that will ask that question. The case revolves around a disastrous hike that left two men dead just hours after a youth group rappelled some 60 feet into Kolob Canyon, in southern Utah.

Mormon Church expedition leaders David Fleischer, 28, and Leroy Kim Ellis, 37, drowned July 15, 1993, in the raging waters of Kolob Creek on public land just outside Zion National Park.

Widows of the men, along with 13 other heirs or survivors of the outing, then sued the National Park Service and the Washington County Water Conservancy District in federal court last August.

The suit says the federal agency and water district were negligent because they failed to warn Fleischer's group adequately. Both agencies deny liability, and last year the federal government denied a similar $24.5 million tort claim against the Park Service. Agency officials said the group was issued a permit after being told the hike would be difficult and time-consuming. "They take on the personal responsibility," said park superintendent Larry Wiese.

Guidebook authors and experienced canyoneers have ventured second guesses about what went wrong in the narrow slot canyon. Their view is that the boys and their three adult leaders were not well enough prepared and died because they made mistakes (HCN, 8/22/94).

The case could set a precedent for determining land agencies' liability when the desire for adventure leads people into trouble.

Tragedy struck only a few hours after the group rappelled into the canyon depths. Instead of ankle-deep water, the hikers found themselves fighting strong, knee-high currents caused by releases from an upstream reservoir. Fleischer and Ellis died trying to force their way past waterfalls and plunge pools.

The surviving adult, Mark Brewer, 37, abandoned any attempt to go forward and huddled with the hungry, cold teens in a small alcove beneath a cliff to await rescue, which came five days later.

Survivors, with the exception of one teenager who has not joined the lawsuit, say they suffer lingering nightmares and physical ailments. Widows and children of the dead men say they have suffered emotionally and economically.

More than 80 witnesses will be called to testify at the trial, according to documents filed with U.S. District Court in Salt Lake City. They include psychologists, doctors and sociologists. The trial is expected to focus on three key issues:

Attitude. Fleischer was called a thrill-seeker by his widow, and the defense will call experts to bolster the contention he took unnecessary risks in Kolob Canyon;

Preparedness. An investigation by the Park Service indicates that the hikers had little experience with canyoneering; defense witnesses will testify to the adequacy of their equipment and how the Mormon Church selects and approves leaders of youth activities.

Damages. Two doctors will testify about claims that hike survivors suffer from post-traumatic stress disorder, a condition diagnosed in some war veterans.

A conference to set a trial date was scheduled for December, but plaintiffs told Judge J. Thomas Greene that their trial preparation work had been delayed by the still-dangerous waters of Kolob Creek.

"Continued high-water flows through Kolob Creek Canyon (caused by natural conditions beyond the control of the parties) have made it impossible for plaintiffs' canyoneering expert, James Dunaway, to safely enter the canyon to complete his work," said the hikers' attorneys, Dale Kimball, Robert Clark and Mark James of Salt Lake City.

• Recreation