NH Supreme Court upholds Negligent Hiking Award

[Mike P.]

Here is the past thread on the rescue back from when it happened.

http://www.vftt.org/forums/showthre...-on-Franconia-Ridge-fail&highlight=artificial

 

[jfb]

He would have been fine with the traverse had his health been up to snuff.

http://thinkingafield.org/2012/09/injured-michigan-hiker-rescued-on-franconia-ridge.html

 

[bikehikeskifish]

I don't like the idea of fining victims...

The state of NH is not fining victims. There is no tort, therefore, no punishment. Read the first page of the decision, or the RSA itself (RSA 206:26-bb (2011) (amended 2014) - http://gencourt.state.nh.us/rsa/html/xviii/206/206-26-bb.htm). It is fee-for-services rendered, not unlike many other services which charge you, your estate, or your insurance a fee. Whether you disagree with the policy or not, please be honest when discussing it.

LYNN, J. The defendant, Edward Bacon, appeals an order of the Circuit Court (Boyle, J.), following a bench trial, finding that he violated RSA 206:26-bb (2011) (amended 2014) by acting negligently while hiking, so as to require a search and rescue effort by the plaintiff, the New Hampshire Fish and Game Department (Department), and that he, thus, was responsible to the Department for the reasonable costs associated with the search and rescue. We affirm.

As to the definition of negligence, if you've been reading vftt.org for any amount of time, you probably recall me pushing to figure that out. Well, it is purposely vague, and it works for the victim as well as against them, allowing the circumstances and officers and courts to determine what reasonable precautions should have been taken (foreseen).


Tim

 

[dug]

If you had a replacement hip, presumably its in better condition than the first edition, prior to replacement. In theory, he was in better shape due to it? I understand there are many variables, just thinkin'.

 

[Stan]

If there is anything "vague" about it, that's not unlike many laws which have an objective but take a series of administrative or judicial rulings to establish precedence and remove some of that ambiguity.

The objective in this case is not to raise revenue but recover costs from a class of rescues that do not otherwise pay for a license or the like, i.e. us hikers. Of all the groups that are most likely to require rescues (fishermen, hunters, boaters, atvers, snowmobilers ...) hikers are the only ones that don't pay a registration fee or license. That is a sore point in more than one state. The "insurance" is meant to equalize it.

Now back to the "negligence". In this case it is now, by judical ruling, "negligent" when those circumstances are met .... unless it gets reversed by a higher court. What we think no longer matters when these circumstances apply. However, the circumstances will probably never be quite identical so it may take more rulings.

I'm curious, however, about what if this went to a trial by jury. We are entitled to a trial by a jury of our "peers". If those peers were other hikers, this thread suggests even that jury might be unpredictable in its ruling. On the other hand, if they weren't hikers, I bet the jury would come to the same conclusion as the judge. My conclusion is: if you need rescue and want to avoid costs, buy yourself a judge who hikes.

 

[sardog1]

The state of NH is not fining victims. There is no tort, therefore, no punishment. Read the first page of the decision, or the RSA itself (RSA 206:26-bb (2011) (amended 2014) - http://gencourt.state.nh.us/rsa/html/xviii/206/206-26-bb.htm). It is fee-for-services rendered, not unlike many other services which charge you, your estate, or your insurance a fee.

Well, actually, there is a tort, i.e., negligently inflicting the expense of a rescue on the Department of Fish & Game. This particular tort is a statutory one, being the creation of the New Hampshire legislature, which has in turn grafted the common law concept of negligence onto this. (They could have easily made it strict liability, and a court would have upheld it.)

Torts do not require "punishment", they require a wrong (here, negligently inflicting rescue expenses) and a remedy (here, restitution for the same.) For instance, no one is being punished by an action claiming medical malpractice or products liability, both of which are actions to recover from a tort – except perhaps the jury.

 

[Remix]

The objective in this case is not to raise revenue but recover costs from a class of rescues that do not otherwise pay for a license or the like, i.e. us hikers.

Recovering costs is raising revenue. (I think this is just word-smithing, but lets agree to differ) Raising revenue is also the purpose of the hike safe card. Basically the Hike Safe card does nothing to educate people about hiking safe, but if you have no idea what you are getting into, you will not have to pay for your negligence.

 

[TJsName]

The state of NH is not fining victims. There is no tort, therefore, no punishment. Read the first page of the decision, or the RSA itself (RSA 206:26-bb (2011) (amended 2014) - http://gencourt.state.nh.us/rsa/html/xviii/206/206-26-bb.htm). It is fee-for-services rendered, not unlike many other services which charge you, your estate, or your insurance a fee. Whether you disagree with the policy or not, please be honest when discussing it.

I interpreted the cost recovery as a civil fine, therefore I used the word 'fining'. One could use the word 'charging', or 'billing' if they find it more neutral, or extorting if they wish to be more rhetorical.

 

[DayTrip]

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.

It's been a while since I read the particulars of this rescue but I believe there were a lot of issues beyond the question of his hip. The weather had turned extremely poor in advance of his continuing on, the guy had lost/forgotten important gear he should have had for said weather and then he did some sort of risky leaping move (by his own admission) that he shouldn't have. I think a lot of the discussion on here and other sites focuses on "punishing the old guy just because he has an artificial hip" when he did far more than just that.

 

[sardog1]

I interpreted the cost recovery as a civil fine, therefore I used the word 'fining'. One could use the word 'charging', or 'billing' if they find it more neutral, or extorting if they wish to be more rhetorical.

Or "charging" or "billing" or "recovering", if they wanted to be accurate and not polemical. You might well disagree with the policy, but mischaracterizing it does not serve your purpose well.

 

[TJsName]

Or "charging" or "billing" or "recovering", if they wanted to be accurate and not polemical. You might well disagree with the policy, but mischaracterizing it does not serve your purpose well.

Agreed - and I believe we're on the same page, but just to be clear I wasn't trying to be rhetorical, as my post was quite transparent on my stance, even if it wasn't as eloquent as I would have liked. I assure you that I appreciate the attention to the wordsmith-ing. It's worth noting that if you are reading my posts on this matter, I don't feel incredibly strongly one way or the other, which is more likely to result in me carelessly using a word that obfuscates my underlying point.

I think the heart of the debate is the same thing that aggravates airline passengers: there are things people feel should be 'included' that are tacked on as additional fees. Of course, if someone lives out of state it is harder to make the argument about not getting what you paid for, especially if that person is day tripping to the Whites and not contributing much in the way of taxes (lodging, food, gas, ETC). I think many people feel that being billed for rescue services is an ethical question, as it could deter people from calling for help. I think one of the interesting counter-arguments is, even if you are carried down for free, the ambulance ride (if required) is not. It's an interesting paradox of expectations that perhaps should shift, though I'm not thoroughly convince one way or the other yet.

 

[bikehikeskifish]

... there are things people feel should be 'included' that are tacked on as additional fees.

Things that should be included --> "Things I use"
Things that people should be charged for --> "Things you use"



Tim

 

[Remix]

Some more info

http://www.therepublic.com/view/story/cea4679f49484d028658f88f282941d4/US--Hiker-Fined

 

[jrbren]

NH is wrong. Still nothing presented that is even close to negligent. I wonder if he would have been negligent if he was a NH resident ?

 

[jfb]

http://www.hikesafe.com/ does not even have a working link (on 4/30/15 at 9:27pm) to F&G page where you can buy a Hike Safe Card which makes me think that very few folks actually get them.

I tried the link this morning and eventually found this:

Notice: In New Hampshire, if you or anyone in your hiking group acts recklessly -- or fails to practice proper preparation as outlined by the hiker responsibility code -- resulting in Search and Rescue, you could be liable to pay the costs of your search and rescue mission. (New Hampshire RSA 153-A:24)

 

[bikehikeskifish]

http://www.hikesafe.com/ does not even have a working link (on 4/30/15 at 9:27pm) to F&G page where you can buy a Hike Safe Card which makes me think that very few folks actually get them.

I tried the link this morning and eventually found this:

Notice: In New Hampshire, if you or anyone in your hiking group acts recklessly -- or fails to practice proper preparation as outlined by the hiker responsibility code -- resulting in Search and Rescue, you could be liable to pay the costs of your search and rescue mission. (New Hampshire RSA 153-A:24)

Click that nice picture that says "Buy your voluntary NH Hike Safe Card":

Tim

 

[Mike P.]

Why do I foresee that reckless, a somewhat vague term will change in order to generate more money as time goes on. (Or not as if they start calling everything reckless, why would you buy a card.)

As a former golfer, I'd say that heading out to play 9 holes an hour before a line of moderate to severe thunderstorms are expected carrying a bag of lightening rods might be considered reckless. Who'd foresee any issue with that? (See Caddyshack....) Would climbing an open treeline peak with the same weather forecast, say early afternoon T-storms may be severe be just as stupid?

Most of us probably have a tale or two being caught and scrambling for some scrub, a hut or some shelter (have sat on my pack near Red Pond near the Eisenhower loop before) Who'd think being the tallest thing on a high bare ridge might be an issue? Maybe not us but would F&G? Sure the readers of the UL would. Am I not reckless because I left the external frame pack at home....

"...in a situation where a high degree of danger is apparent." If a cold front is approaching after a few hot and humid days & a severe T-storm watch or warning as been issued, that sounds pretty apparent to me that when the front arrives, it will come with a loud light show....

 

[sardog1]

Why do I foresee that reckless, a somewhat vague term will change in order to generate more money as time goes on. (Or not as if they start calling everything reckless, why would you buy a card.)

As a former golfer, I'd say that heading out to play 9 holes an hour before a line of moderate to severe thunderstorms are expected carrying a bag of lightening rods might be considered reckless. Who'd foresee any issue with that? (See Caddyshack....) Would climbing an open treeline peak with the same weather forecast, say early afternoon T-storms may be severe be just as stupid?

Most of us probably have a tale or two being caught and scrambling for some scrub, a hut or some shelter (have sat on my pack near Red Pond near the Eisenhower loop before) Who'd think being the tallest thing on a high bare ridge might be an issue? Maybe not us but would F&G? Sure the readers of the UL would. Am I not reckless because I left the external frame pack at home....

"...in a situation where a high degree of danger is apparent." If a cold front is approaching after a few hot and humid days & a severe T-storm watch or warning as been issued, that sounds pretty apparent to me that when the front arrives, it will come with a loud light show....

As with negligence, whether a person has acted recklessly is a question for the trier of fact in court, be that the jury or the judge. It is NOT something ultimately determined by Fish and Game, and it IS something determined in hundreds, probably many thousands, of cases in this country every week, most of them involving the operation of motor vehicles.

 

[jfb]

Click that nice picture that says "Buy your voluntary NH Hike Safe Card":

Tim

That works if someone wants to buy a card, no problem.

I just thought it strange that a different part of the website used the phrase "or fails to practice proper preparation as outlined by the hiker responsibility code" instead of using the word "negligent."

 

[jfb]

Why do I foresee that reckless, a somewhat vague term will change in order to generate more money as time goes on.

Hopefully not, although if somebody is carrying enough emergency gear to spend the night, then he must know that what he is doing is dangerous. It will be interesting to see what happens when the first fully-equipped card-carrying hiker needs help finding his way home.