October 11, 2020
In the fall of 2019, Garrett Madison canceled his expedition on the world’s highest peak. Then one of his clients sued him for breach of contract.
Thanks to the pandemic, Mount Everest has been quiet this year, with just a few climbs made from the Tibet side. But 2020 is still providing drama on the world’s highest peak.
A March 27 lawsuit, filed on behalf of Zac Bookman, CEO of Silicon Valley’s OpenGov, alleges that Seattle-based guide Garrett Madison scuttled their September, 2019, Everest attempt because another of the expedition members was out of shape and quit the trip, which sapped Madison’s incentive to take his other clients to the summit. Additionally, Bookman and his attorney alleged in a January 21, 2020, letter that the Sherpas hired by Madison’s company, Madison Mountaineering, were, “clearly lazy and inefficient,” which may also have contributed to the cancellation. As a result, Bookman sued Madison for $100,000 for breach of contract and fraud.
Firing back, Madison’s countersuit, filed in August, states that the expedition was actually called off because a well-documented and very hazardous ice block overhung the route. It also states that, due to unpredictable conditions, no summit or expedition is guaranteed and that Bookman isn’t entitled to a refund or damages because he signed a standard waiver acknowledging that reality.
According to Jim Moss, an attorney specializing in outdoor recreation, such lawsuits are exceedingly rare. While the guide and his former client dispute the basic facts, the suit could set a terrible precedent, say experts. Were Madison to lose and have to shell out the $100,000 Bookman seeks, Madison says it would bankrupt him. Some worry that fear of such financial repercussions could lead to poor decision-making from guides in the field. “If a guide takes risks she normally wouldn’t for fear of legal punishment, that’s dangerous for the guides, the clients, and on high altitude mountains, anyone else on the route,” says former Everest guide Luis Benitez.
The saga began on September 15, 2019, when Madison and his four clients arrived at Everest Base Camp on the mountain’s south flank. In addition to Bookman, Madison was guiding professional climber Tim Emmett, Mountain Hardwear president Joe Vernachio, and a fourth climber who declined to comment for this story.
The fall season is generally relatively quiet on Everest, and just two other climbing teams were in camp, both Polish. One of them included Andrzej Bargiel, who in 2019 made the first ski descent of K2 and hoped to pull off a similar feat on Everest. Also on the mountain, though not staying in Base Camp, was ultrarunner Kilian Jornet.
In 2019, late-summer monsoons and abnormally warm temperatures created poor conditions on the mountain, and Madison’s Sherpa teams were making slower-than-expected progress setting the fixed lines and ladders through the dangerous Khumbu Icefall to Camp I.
In Base Camp, there was an altercation between the Icefall Doctors and one of the Polish teams, who were upset that the workers weren’t fixing lines through the Icefall quickly enough. Instead, Bookman says the Poles told him, they were, “hanging around camp, smoking cigarettes, and gambling.” Madison helped diffuse the tension and get the workers, employed by Madison, back on track. Partly at issue was a crux section of the Icefall that the Sherpa, uncharacteristically, had been unable to pass. On September 18, Emmett helped the Sherpa push through the difficulties.
Bookman says he was recruited to the trip by Madison, who explained that it was largely an official Mountain Hardwear expedition meant to help test gear. (Madison and Emmett are both sponsored by the brand.)
“Madison called them a ‘team of hard core dudes,’” says Bookman, whose own résumé includes climbs of Denali, Aconcagua, Antarctica’s Mount Vinson, and unguided climbs of Mount Rainier. So Bookman says he was surprised when, during an acclimation hike from Base Camp, Vernachio fell behind and finished the trek an hour behind the group.
On September 21, Madison’s workers noticed a serac hanging nearly 3,000 feet over the Icefall. One of the Polish teams used their drone to get a closer look, and estimated the block of ice to be about the size of a 15-story building. For Madison, it was an awful discovery. In April 2014, a smaller serac had fallen onto the Khumbu Icefall and killed 16 Sherpa working there, including three members of Madison’s team. Madison worked for two days to help recover their bodies. “That wasn’t something I was willing to risk again,” says Madison, who has guided 60 clients to Everest’s summit since 2009.
The following morning, after parsing the drone footage and discussing the situation with Madison, Emmett and Vernachio announced they were leaving the expedition. “It was unfathomable that the serac was still hanging there,” says Emmett. “That’s how precarious it was. There was no way I wanted any part of putting climbers or workers at risk.”
“We chose safety over ego,” Vernachio said in a statement to Outside.
However, Bookman wasn’t present when Madison, Emmett, and Vernachio were making their decision, and was shocked to discover when he arrived in the meal tent that the Mountain Hardwear team was shutting their trip down, and that Madison wasn’t letting his workers return to the Icefall. Instead, Madison told Bookman that he and his team would stand by in hopes that the serac fell and the remaining clients could make a summit bid.
In the week that followed, Bookman and Madison visited frequently with the two Polish teams and with Jornet, who stopped by basecamp for a meal and even played chess with Bookman. “We did discuss the conditions for a long time,” says Jornet. “The serac was a serious threat.”
While neither of the Polish teams tried their luck under the serac, Jornet did make a pair of trips through the Icefall—the ultrarunning champion believed he could move quickly enough to minimize the risk and had no workers to put in danger. Eventually, Jornet abandoned his expedition because of avalanche conditions higher on the mountain. Polish ski mountaineer Bargiel didn’t respond to Outside’s request for an interview, but in a September 29 Facebook post, he wrote, “Walking underneath through the Icefall is extremely dangerous. Unfortunately I will and can not accept this kind of risk. The serac can break and fall anytime and this stops us from pushing forward.” No one ultimately summited Everest last fall.
Bookman, however, came to the conclusion that the serac wasn’t the reason for the trip’s cancellation. “My lawsuit doesn’t mention the serac because it’s a red herring,” Bookman says. “There are hanging seracs all over the west wall of Everest. It’s like saying we can’t walk through the forest until that particular tree falls down. It’s Mount Everest and I don’t want to trivialize it. That’s why I hired a guide. I’m not a fool.”
Instead, he focused on the conflict between the Nepali workers and the Poles, Vernachio’s struggles on the acclimation hike, and the subsequent speedy cancellation of the trip. Madison, Bookman felt, viewed his presence as secondary to that of the Mountain Hardwear team. That, he says, is unethical at best.
Vernachio’s statement didn’t address the allegations of his fitness, but Emmett and Madison both contend that Vernachio was perfectly capable of making it to the summit of Everest.
Bookman says he’d heard Madison’s account of the fatal 2014 serac-fall at least once, “probably as early as the hike into Base Camp,” but still believes Madison was trying to figure out a way to pocket his $69,500 trip fee without having to complete the expedition.
On September 26, says Madison, Bookman became upset and demanded to make a summit attempt or receive a partial refund. “He didn’t feel that the serac posed a credible threat,” says Madison. “He was aggressive. He threatened to sue me.” Madison says he declined to give him a refund, on the grounds that he’d signed a waiver acknowledging that the $69,500 he’d paid for the trip doesn’t guarantee a summit.
Bookman disagrees, saying that Madison was the one who offered a partial refund in Base Camp, and then again at his home in California in October, before going back on his word—that oral contract is the one Bookman says Madison breached. Bookman also denies demanding a summit attempt and threatening to sue Madison while the two were in Base Camp.
Madison offered Bookman a climb on a different Nepalese peak or another Everest attempt in a later year. Bookman declined, he says, because “that wasn’t the trip I signed up for.”
By September 29, the serac still hadn’t fallen, and Bookman flew home after Madison said that he would wait in Base Camp, and if the serac fell in time, Bookman could return to attempt the summit. By October 6, Madison judged that with or without the serac, there wasn’t enough time to complete the climb before winter conditions set in, so he headed home.
As for Bookman’s claim that the trip was cancelled because the Sherpa Madison hired were “lazy and inefficient,” Madison notes that the Sherpa team on Everest last September have 100 Everest summits between the nine of them. “These are my friends,” he says. “The allegation that any of them are lazy is offensive.”
Bookman says that, “my lawyer wrote lazy and inefficient, and that’s unfortunate and shouldn’t have been written.” Bookman was also upset that Madison’s countersuit brought up his occupation as the founder of Silicon Valley’s OpenGov, and included a speculation of the valuation of the company. “It feels like character assassination because I started a tech company,” he says. “They are trying to paint me as some money-grubbing tech titan. What does that have to do with the merits of the case? Don’t all my time and efforts matter?”
Legal experts say that it is rare for breach of contract suits like Bookman’s to prevail, assuming the Madison Mountaineering waiver that Bookman signed is well written. Either way, the lawsuit is still burdensome, says Leah Corrigan, an attorney specializing in outdoor recreation. “It isn’t in anyone’s interest to have a guide potentially weighing fear of being sued when making decisions about the safety of a climb.”
Madison says that during the week he waited in Base Camp for Bookman’s sake, he agonized over his fear of legal reprisal. Though he ultimately stuck to his better judgment, he was devastated to be sued for it. “Nearly all my clients tell me that I’m here with you so I can make it home safely,” says Madison. He is lucky, he says, to have found a prominent law firm willing to take the case pro bono—Madison is being represented by attorney Doug Grady, who worked as a mountaineering guide for a decade.
Ultimately, guides like Benitez and Madison point out, paying for a trip isn’t a guarantee of a summit, and thousands of clients before Bookman have failed to reach the top of Everest because of weather or other conditions. “The typical Everest client can be type-A to a fault,” says Benitez. “They don’t like to take no for an answer.”
Emmett, who was shocked that Madison was being sued for his safety decisions, is less charitable. “Bookman doesn’t understand the mountains in the same way that Garrett does,” he says. “He has paid a lot of money, but he can’t buy his way to the summit of Everest. Mother Nature can be unforgiving to those who make poor decisions, Garrett made the right decision.”
For now, Bookman’s claim against Madison is in limbo. On September 29, a California judge granted a motion to dismiss on the grounds that the suit should be filed in Washington, where Madison Mountaineering is incorporated, rather than in California. Bookman told Outside he isn’t yet sure whether he will do so. Madison’s countersuit, a request for declaratory judgment that would absolve him of harm in the matter, will continue nevertheless.