NH Supreme Court upholds Negligent Hiking Award

[expat]

As a 60 YO with two artificial hips, I paid my NH Hiking Tax (hikesafe card) and I'm taking my NH trips without concern about whether my hips (which have been doing just fine, thanks) will be a "problem" if I should need a rescue for some reason.

That said, I could certainly see that having the card could possibly change the point in my decision process about whether I call for a rescue. I have never gotten to the point where I have considered it, so I'm not sure whether I would think differently now. On one occasion about 20 years ago, a group of us were delayed in our trip completion and the wife of one of the group members contacted WMNF about requesting a rescue. The ranger suggested waiting a bit since we were all well-prepared, and it turned out that nothing was started before we trudged out. However that same story might have a different ending now, and it's worth it to me to pay $25 to not be liable for something else outside of my control.

 

[peakbagger]

There was an initial flurry or PR for the Hike Safe card but of late its been quiet.

With the deeper than normal snowpack I expect a lot of folks are going to be surprised at the conditions in the whites and that can lead to rescues similar to recent rescue in VT of two hikers from NJ who were hip deep in snow and called for help.

 

[Remix]

Negligence is a failure to take reasonable precautions or foresee an outcome that a reasonable person should have.

Assume all the same conditions except a different "known and pre-existing medical condition". Would a rescued hiker be found "negligent" if:

1. He had osteoporosis, fell and broke his hip. It would depend on what a jury concluded, but perhaps not
2. He was allergic to bees, was stung which caused rapid and severe anaphylaxis (feel free to include/exclude an available EpiPen in this scenario). If s/he had an epi pen, probably not.
3. He had hypertension/arrythmia/tachycardia/<insert other heart problem here> and suffered a <insert non-fatal symptom here>. It would depend on what the physician had told the hiker.
4. He had myopia, his contact lenses fell out and he couldn't see. Probably not. I suspect most of us do not expect our eyeglasses or contact lenses to fail us.
5. He had a trick knee that would occasionally cause pain but this time it immobilized him. Almost certainly not, since this was not reasonably foreseeable

Extra for Experts
Assume it was a bluebird day and his artificial hip failed or any of the scenarios above. Still deemed to be negligent?

I make no claim to being an expert, but again, it would depend on what his physician had told him. Think in terms of an old car. One day it just conks out. If the car had been running fine and was just old, it is unlikely that one could reasonably have foreseen it would die. However, if it was acting as though it was on its last leg and one took it for a long drive anyhow, that could be deemed negligent.

Negligence really isn't that high a standard. If a reasonable person could have foreseen something might have happened, and took no efforts to prevent it beforehand or deal with it should the event occur, there might be negligence. If you're allergic to bees and bring an epi pen, then one took reasonable precautions. If one thinks one could be stuck overnight and brings the appropriate gear, one is likely not to be deemed negligent.

If one goes out alone in a forecast of high winds, takes an action a reasonable person would not have once caught in them, and isn't able to deal with the circumstances after having done so, it is possible one could be deemed negligent.[/QUOTE]


As I recall, his DOCTOR approved him for hiking. What I find objectionable is a bureaucrat not consulting an authority before making a charge of negligence partially on medical information. Because everyone agrees that that a negligence finding solves a financing problem, some bureaucrat is biased to interpret medical information negatively, whether it is relevant or not.

Even insurance companies are required to hire physicians and get medical opinions from them before denying or approving a treatment which requires pre-authorization.

 

[Raven]

Another great move by NH in the sphere of public relations: "Take that, Old People - you should be smart enough to stay out of our mountains with your crappy hips!'" All for $9000.

And that's assuming he pays.

 

[iAmKrzys]

For those interested, here is the six page discussion we had last year regarding Mr. Bacon's unfortunate mishap.

http://www.vftt.org/forums/showthread.php?52326-Cost-of-hiking-on-Franconia-Ridge-fail&highlight=rescue+Franconia+negligent

Raven - thanks for the link to the old thread. I had a chance to catch up on this and think it through a bit. As a New Hampshire visitor who has to drive 7 hours each way every time I come to visit I think I may have a slightly different perspective than many folks who live in the area.

First of all, I truly appreciate top-notch SAR team and their efforts to save people's lives. I think it is also pretty obvious that these efforts cost money and that money has to come from somewhere. As a person who doesn't like to free-ride on someone else's back I think I should be somehow materially participating in maintaining SAR capabilities in case I ever need to be rescued - I have never called for help in the past, but who knows what could happen to me in the future. I think of it a bit like calling 911 when I get really sick - I expect to pay the cost of ambulance if they take me to emergency room. Being at least somewhat prudent person I purchase health insurance to cover such cost and I guess HikeSafe card is meant to be analogous here. However, it is a bit different - my health insurance covers me in every state while HikeSafe only works in NH.

Last year I hiked in 6 different states, so if every state charged me $25 then I would have to pay $150 and at this point finding a global SAR insurance may be cheaper with the difference being that none of this money would go NH F&G unless I had to be rescued which I believe is not the primary intention of people who wrote the law invoked in this case.

For the past several years, we have been coming to NH in the summer bringing several friend families with us and staying at a campground on beautiful Saco River. My family and our friends were mostly interested in floating down the river while I lobbied hard for hiking trips. If I got lucky I would get older kids and 2-3 adults to hike with me to Mt. Washington. Otherwise I was hiking alone. Fast forward to 2015 and suddenly I will have to tell them to get family SafeHike cards for $35. I bet that they will find it too expensive for a single day of hiking.

I could be wrong but I wouldn't be surprised if 80% of NH hiking visitors were hiking to the top of Mt. Washington. I call it "trophy hiking" - get to the top of the highest peak, take a trophy picture that you can post on Facebook and spend following days recovering from sore muscles drinking wine or beer in North Conway. Will these visitors buy $25 HikeSafe cards for this one hike? I seriously doubt it. If F&G were smart about it they would put up a big sign about potential cost of SAR next to Pinkham Notch Visitor Center and sell daily HikeSafe passes for $3/person or $5/family which would bring in a lot more money towards funding SAR team than they will ever get from selling $25 cards to short-term out-of-state visitors.

Will I buy HikeSafe card? Most likely yes, since I love White Mountains too much to be deterred by $25 but it depends a bit on what I find out about cost of global SAR insurance and what are respective policies in NJ, NY & PA where I do most of my hikes. Prior to this case I have never heard of anyone being billed for SAR in North East (I vaguely remember someone being charged for a helicopter rescue off what I think was Mt. Rainier some time ago.)

Will this hurt NH economy? I am quite certain that enough bad press will eventually trickle into peoples' vacation decisions. Unfortunately, once good reputation is lost it may take years to recover and everyone catering to hikers from hotels, B&B's, campground operators to the folks who run strawberry stand on West Side Road in North Conway will pay the price for recovering $100k from few misfortunate hikers regardless of how negligent they were.

 

[jfb]

For the past several years, we have been coming to NH in the summer bringing several friend families with us and staying at a campground on beautiful Saco River. My family and our friends were mostly interested in floating down the river while I lobbied hard for hiking trips. If I got lucky I would get older kids and 2-3 adults to hike with me to Mt. Washington. Otherwise I was hiking alone. Fast forward to 2015 and suddenly I will have to tell them to get family SafeHike cards for $35. I bet that they will find it too expensive for a single day of hiking.

Here's my simple answer: If you are a competent hiker and follow the guidelines on the Hike Safe website and you make sure your friends follow that advice, don't bother buying a card and don't worry about being charged for a rescue.

 

[jrbren]

For what it's worth, we spoke with a Fish and Game officer last night who estimates that over 1400 of these Hike Safe cards have been purchased to date -- they've been available for what, five months now?

My guess is that this is the real issue. He did not purchase a hiking permit for NH, it has nothing to do with negligence. "Hike Safe" is a horrible and misleading name for this permit.

 

[Raven]

Keep in mind too folks that unless you are considered negligent, you will not be charged regardless of whether you have a card or not. I can't say I'm a big supporter of the card, but I will give the state the benefit of the doubt in determining negligence at this point.

Make sure you are prepared and don't hike into Armageddon-like conditions and I expect you will be fine. It will take a series of errors to be considered negligent IMO. Like in this case.

 

[jfb]

Keep in mind too folks that unless you are considered negligent, you will not be charged regardless of whether you have a card or not. I can't say I'm a big supporter of the card, but I will give the state the benefit of the doubt in determining negligence at this point.

Make sure you are prepared and don't hike into Armageddon-like conditions and I expect you will be fine. It will take a series of errors to be considered negligent IMO. Like in this case.

If I had read the Supreme Court's decision and thought "But, he didn't do anything wrong!" then I'd be one who should purchase a card.

 

[IQuest]

Keep in mind too folks that unless you are considered negligent, you will not be charged regardless of whether you have a card or not. I can't say I'm a big supporter of the card, but I will give the state the benefit of the doubt in determining negligence at this point.

Make sure you are prepared and don't hike into Armageddon-like conditions and I expect you will be fine. It will take a series of errors to be considered negligent IMO. Like in this case.

FWIW, I was under the impression that if you were deemed reckless (knowing what you were getting into but continued anyway) that you would be charged, regardless if you had the Hike Safe card or not.

 

[Raven]

FWIW, I was under the impression that if you were deemed reckless (knowing what you were getting into but continued anyway) that you would be charged, regardless if you had the Hike Safe card or not.

Yes, that is also true.

My point is that if you are not negligent, you do not need the card and will not be charged.

 

[Cristobal]

I'm a middle aged guy, owner of two artificial hips and a complicated medical history, a frequent solo hiker, and I like to challenge myself on hikes. I consider these factors when I decide whether to undertake a hike or not. I'm a reasonable person. Mr. Bacon is not. The totality of factors are so extreme that no reasonable person could find Mr. Bacon's actions anything other than negligent. That's why the court ruled as it did.
That said, I think the policy of charging rescued parties, even negligent parties, is bad policy. But that's another topic.

 

[jrbren]

I disagree with the majority & NH on this thread. I do not see anything negligent in the this case.

 

[jfb]

I do not see anything negligent in the this case.

From the Hike Safe website: Weather changes quickly in the mountains. Fatigue and unexpected conditions can also affect your hike. Know your limitations and when to postpone your hike.


Just a thought: I wonder how this would have turned out if he had chosen not to do the traverse and dislocated his hip while descending the Liberty Spring Trail?

 

[Raven]

From the Hike Safe website: Weather changes quickly in the mountains. Fatigue and unexpected conditions can also affect your hike. Know your limitations and when to postpone your hike.


Just a thought: I wonder how this would have turned out if he had chosen not to do the traverse and dislocated his hip while descending the Liberty Spring Trail?

Had he chosen to descend, my assumption is that he would be acting in a way considered reasonable based on the conditions (both his physical conditions and the weather). Thus, no bill nor negligence.

 

[Mike P.]

I'm a middle aged guy, owner of two artificial hips and a complicated medical history, a frequent solo hiker, and I like to challenge myself on hikes. I consider these factors when I decide whether to undertake a hike or not. I'm a reasonable person. Mr. Bacon is not. The totality of factors are so extreme that no reasonable person could find Mr. Bacon's actions anything other than negligent. That's why the court ruled as it did.
That said, I think the policy of charging rescued parties, even negligent parties, is bad policy. But that's another topic.

This is how I remembered the case also. His hip had on several occasions become dislocated. I've hiked with strong hikers with artificial knees and we know there are some with prosthetic limbs also. It's not just about an artificial joint. His behavior would be akin to a diabetic going out all day without medication or food, if controlled with snacks, and being surprised that he requires medical attention during a long hike. Not read the current brief but when he was first rescued, we debated his actions on VFTT.

 

[jrbren]

From the Hike Safe website: Weather changes quickly in the mountains. Fatigue and unexpected conditions can also affect your hike. Know your limitations and when to postpone your hike.

Do you find that at all vague ? It sounds like a get out of jail free card for the bill collectors that can cover every situation. If I take that literally I would never go into the mountains because the weather could change. If that constitutes negligence everyone of us are negligent every time was leave the TH. As for his physical limitations, I really would be interested in seeing what his physician said about this trip. I could be persuaded he was negligent if his physician advised against it. It would be gray if he never told his physician. I assume he has a physician familiar with his medical history & did not fix his previous hip issue with self surgery like the guy from No Country for Old Men. I find damning against the state that they never mention this, unless I missed it. Is the burden of proof to prove he was negligent or he was not negligent ? I assume the former.

 

[jrbren]

Just a thought: I wonder how this would have turned out if he had chosen not to do the traverse and dislocated his hip while descending the Liberty Spring Trail?

No difference in my opinion, the issue is his hip dislocation. He would have been fine with the traverse had his health been up to snuff.

 

[jfb]

Do you find that at all vague ?

Totally vague. They have the power to do what they want.

I didn't write the law, I only try to understand it. If they charge me for a rescue, I'll pay the bill.

 

[jfb]

No difference in my opinion, the issue is his hip dislocation. He would have been fine with the traverse had his health been up to snuff.

When I first read about the rescue, I also thought the issue was the hip dislocation. I now think the issue is more about not knowing his limitations.