American dead hiker’s family won NIS 2.7 m., but did the Israeli court really dig in?

The court said it dismissed disputed aspects of the students’ narratives since there was no way to reconcile contradictions, they had clearly influenced each other, and because of inconsistencies.

MARK AND ELLEN NEWMAN with Ariel at his high-school graduation a few months before his death. (photo credit: Courtesy)
MARK AND ELLEN NEWMAN with Ariel at his high-school graduation a few months before his death.
(photo credit: Courtesy)

On June 8, Jerusalem District Court Judge Chaya Zandberg ended a nine-year-long saga of a criminal probe and later civil wrongful death lawsuit regarding the 2014 death of American hiker Ariel Newman, granting NIS 2.7 million compensatory damages for Newman’s parents, but rejecting punitive damages.

The rulings related to the unexplained death of Ariel Newman, 18, a student from Great Neck, New York, during a hike in the Judean Desert on September 10, 2014. It centered on former officials at the now-defunct Mechinat Yeud program for Diaspora youth.

The defendants’ insurance company, Phoenix, has already paid out the ruling and no appeal is expected from their side.

The Jerusalem District Court's ruling on Ariel Newman's death

The civil wrongful death ruling comes years after the criminal case was opened and closed multiple times, including due to multiple exposes in The Jerusalem Post, until it was finally permanently closed without the filing of an indictment by the High Court of Justice in 2019.

Judge Zandberg’s ruling confirmed two critical points at the heart of the civil case: that Newman had in fact died of heat stroke and that the negligence of Mechinat Yeud and two out of three defendant officials made them liable for his death.

Ein Gedi 465 gallery 4 (credit: YONI COHEN)
Ein Gedi 465 gallery 4 (credit: YONI COHEN)

Based on those two bedrock rulings, the court granted the NIS 2.7 million compensatory damages, something which Ariel’s father, Mark Newman, and lawyer, Amos Fried, both praised.

However, Judge Zandberg rejected some of the other broader narrative points made by the plaintiffs: that the defendants had been so grossly negligent as to justify punitive damages.

Rejection of punitive damages 

In rejecting these points, Zandberg found in favor of the defense on a number of issues: she rejected crucial testimony from a number of students who had been on the hike and who testified for the plaintiffs, she rejected the plaintiff’s argument relating to hiking guide, Josh Ettinger’s presentation of his qualifications and a broader narrative that Ettinger had ignored a direct warning from Ariel Newman mid-hike that he was in danger and could not continue.

To be more exact, the court did not reject the plaintiff’s version of events on all of these issues. Rather, it found that it could not arrive at any definitive finding due to what it said were a large amount of questionable and contradictory evidence regarding them – which meant it could not find for the plaintiffs.

Significantly, Judge Zandberg’s finding tracks earlier findings by the High Court of Justice and the state prosecution that despite some significant evidence of civil gross negligence or criminal negligent homicide, that even as a civil matter, the evidence was insufficient.

The criminal investigation was closed too early

What was different about Zandberg as opposed to the state prosecution, however, was that she heard several co-students of Newman testify in person and be cross-examined about their allegations against Ettinger and against Mechinat Yeud ex-director Yaakov Shapira.  

Fried said that there were multiple key moments in the trial when a sports and hiking expert for the defendants admitted that he would not have taken the students on the hike, knowing what the incredibly hot temperatures were expected to be.

He also said that the same expert admitted that even if there were other possible causes for Ariel Newman’s death, that heat stroke was the most likely given the temperatures and the aspects of the circumstances which are undisputed.

However, Fried expressed intense disappointment with the court regarding the dismissal of the other students’ testimony.

In February 2017, The Jerusalem Post exclusively reported that the state prosecution had closed a criminal investigation into the incident without even bothering to interview multiple key witnesses whose testimonies would have shed light on the case.

Initially, police and prosecutors were slow to even open any investigation and only did so after Fried got involved and met with then-justice minister Ayelet Shaked.

From a record of the file obtained by the Post in 2017, they also closed the case without carrying out a basic step in a police investigation – challenging Ettinger to explain possible contradictions between his testimony and that of the other witnesses.

Reopening the case: Examining contradicting witness testimonies 

Following the Post’s report, the prosecution reopened the case to examine the written testimonies of the two former students who were on the hike with Newman.

In 2015, Ettinger told police that Newman did not complain to him at all during the hike. On the other hand, the testimonies of the other two witnesses, obtained by the Post, claim that Newman screamed at Ettinger and pleaded with him to let him stop hiking.

Yeud, based in Kibbutz Migdal Oz in Gush Etzion, was a program for Modern Orthodox American high-school graduates to spend a gap year while studying traditional Jewish texts in a yeshiva. Unlike many other such programs, it had a significant hiking component.

However, only eight days into his gap year in Israel, Newman collapsed and died on the second day of a long trek in the Judean Desert in conditions of extreme heat.

His parents, Mark and Ellen Newman, obtained a medical report that cited the cause of death as exertional heat stroke, along with dehydration, something the civil court would later accept.

According to a 2015 affidavit by fellow student Solomon Shapiro, “Ariel complained of feeling very dehydrated and having symptoms of heat exhaustion, but Josh [Ettinger] said that since he was able to drink and eat while we were having lunch he was not dehydrated and he would be fine to continue.”

It continued, “The three of us asked if there was any way to get the bus to come back for us... but Josh said that the bus is an hour and a half or so away and it would be inconsiderate to make the driver come and pick us up.

“Ariel was in the worst condition out of the three of us and could barely stay awake but Josh said he would be able to continue.

Further, it said, “Josh kept dismissing his pleas for help by saying that, ‘If he was really dehydrated he wouldn’t be able to drink’ to the point where I can remember Ariel basically yelling at Josh that he couldn’t go on and that he was dehydrated... Josh kept prodding him to continue and telling him he would be ok... that he knows what heat exhaustion looks like and that Ariel did not have it.”

Shapiro confirmed the validity of this narrative in his testimony during the civil trial. Ettinger rejected this narrative both in a previous interview with the Post and in his court testimony.

Evidence of negligence from another hiker

The other evidence came from a Facebook post from February 28, 2017 and a three-page affidavit from March 5, 2017 by another hiker, Ross Abramson.

In the affidavit, Abramson wrote that Ariel, “exclaimed out loud to Josh (Josh was directly in front of him), ‘I feel like I’m going to die.’ Josh asked ‘What’s wrong?’ Ariel said ‘I think I have heat stroke.’ Josh responded by saying ‘You don’t have heat stroke – I know guys who had heat stroke. You wouldn’t be able to function if you had heat stroke.’ “I remember Ariel saying ‘I don’t want to do [it] anymore’ (Ariel was referring to hiking). The moment he said that was either when the food car was still present or right after he left,” wrote Abramson.

Abramson also mostly confirmed this narrative during his court testimony, though he had to explain other points where his narrative was inconsistent. Once again, Ettinger rejected this narrative both in a previous interview with the Post and in his court testimony.

The prosecution did review these affidavits after the Post exposes, but both it and the High Court ultimately decided that even with these affidavits, there would be no way to prove negligent homicide to a criminal standard of beyond any reasonable doubt and eventually dismissed the case without an indictment.

But civil cases for damages have a lower standard of proof where any side wins if their story is more likely than not.

This led the civil court to hear the students in person and rule for the plaintiffs for compensatory damages.

However, Fried was upset that the court wholesale rejected those aspects of the students’ testimony which could have proved gross negligence against Ettinger and the other defendants and led to punitive damages.

The court dismissed certain testimonies due to contradictions

The court said it dismissed aspects of the students’ narratives that were in dispute because there was no way to reconcile contradictions, because they had clearly influenced each other and because of inconsistencies.

According to Fried, there is no legal principle requiring a wholesale tossing of three witnesses just because of imperfections in the testimony or circumstances surrounding the testimony in a civil case.

Rather, civil courts can still decide whose account they find most likely to be right and Fried said there was far more general and detailed testimony for the plaintiffs.

Despite this disappointment, Fried did take some satisfaction that Mechinat Yeud and the other defendants had finally been held to account for Ariel’s death.

Ettinger had no additional comments, but previously told the Post, that what might have started as the parents’ “quest for truth and justice” evolved into “a desire to assuage their sense of loss and regret for withholding vital information and not considering Ariel’s past medical history and the known inherent physical risks of the program to him based on that history.”

The legal system needs reform: A civil victory despite a tragic event

Shapira noted to the Post that the criminal case was completely rejected and that in such civil cases where there is an insurance company to pay, the courts often grant damages to the families to assuage their pain, even if the defendants were not negligent. 

Both Ettinger and Shapira called the event a tragedy and said they felt the pain of the Newmans.

In contrast, Mark Newman was proud of the civil victory, but still fiercely critical of the Israeli prosecution and judiciary for not letting the criminal indictment go forward and has alleged that the legal system is broken and needs reform, much as the current government is pushing for.