NH Supreme Court upholds Negligent Hiking Award

[Mike P.]

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.

That's what I would be afraid of, the vast majority of jurors and judges operate motor vehicles, they have a clue on what negligent motor vehicle operation entails. I'd wager that most of the jury pool is made up of people my mother was referring to as the people who were smart enough to come in from the rain.... Not sure I'd want them to decide what negligent is for hiking on exposed ridges. Couldn't I read those yellow "STOP" signs when I kept going up when I knew or should have known thunderstorms were highly likely. Didn't I know about Washington's weather reputation? I'd feel better with a jury made of my hiking peers. (Hikers who own Gore-Tex, fleece and have their share of t-storm tales)

 

[Grey J]

The difficulty of determining "negligence" is well illustrated by the many and varied viewpoints expressed here in this lengthy thread. My preference is not to charge anyone but I'd rather see everyone be required to repay the expenses of their rescue rather than have a subjective determination made that hiker x was negligent but hiker z was not.

 

[DayTrip]

The difficulty of determining "negligence" is well illustrated by the many and varied viewpoints expressed here in this lengthy thread. My preference is not to charge anyone but I'd rather see everyone be required to repay the expenses of their rescue rather than have a subjective determination made that hiker x was negligent but hiker z was not.

I don't know why I had never considered that obvious viewpoint. If the money is spent, the money is spent. Does it really matter what the reason was? The issue is funding the organizations that provide the services. That is a whole other argument (i.e. insurance, taxes, etc).

 

[jfb]

The difficulty of determining "negligence" is well illustrated by the many and varied viewpoints expressed here in this lengthy thread. My preference is not to charge anyone but I'd rather see everyone be required to repay the expenses of their rescue rather than have a subjective determination made that hiker x was negligent but hiker z was not.

I thought charging everybody who needed rescuing was discussed when changes to the law were being considered and some thought that policy would discourage hikers from requesting rescues until it was too late.

 

[Grey J]

I thought charging everybody who needed rescuing was discussed when changes to the law were being considered and some thought that policy would discourage hikers from requesting rescues until it was too late.

I agree, it probably would make for delayed rescues and maybe more difficult rescues which is why I prefer not charging anyone. My point was that if you are charging some people, then charge everyone because that's the fairest system and there are no grey areas and no subjective judgments. Its also easy to understand. You need a rescue, expect to pay for it.

 

[GBKDalton]

My poor mother is afraid to even climb Monadnock now, for fear this will happen climbing up to the summit.

 

[iAmKrzys]

While reading some recent posts on this thread I realized that I missed the fact that it was the state that sued Mr. Bacon (originally I thought it was Mr. Bacon who sued NH but it was just an appeal.) Am I understanding this correctly now, or am I just more confused now? I tried to dig up some news on the original suit but came up with nothing. Can someone who watched this case from the beginning tell me why the state sued the hiker to begin with, if in fact this was the sequence of court events? Is it because he failed to pay the charge for the cost of the rescue, or was there some other reason?

 

[sardog1]

While reading some recent posts on this thread I realized that I missed the fact that it was the state that sued Mr. Bacon (originally I thought it was Mr. Bacon who sued NH but it was just an appeal.) Am I understanding this correctly now, or am I just more confused now? I tried to dig up some news on the original suit but came up with nothing. Can someone who watched this case from the beginning tell me why the state sued the hiker to begin with, if in fact this was the sequence of court events? Is it because he failed to pay the charge for the cost of the rescue, or was there some other reason?

The state has to sue to get an enforceable judgment for money, as they did in this case. The other available sanctions are:

(a) Order any license, permit, or tag issued by the fish and game department to be suspended or revoked, after due hearing.
(b) Notify the commissioner of the department of health and human services of such nonpayment. The nonpayment shall constitute cause for revocation of any license or certification issued by the commissioner pursuant to RSA 126-A:20 and RSA 151:7.
(c) Notify the director of motor vehicles of such nonpayment and request suspension of the person's driver's license pursuant to RSA 263:56.

– http://www.gencourt.state.nh.us/rsa/html/XVIII/206/206-26-bb.htm

Otherwise the allegedly negligent hiker can tell them to (fill in blank here with your favorite metaphor.)

In the interest of forestalling any smart-aleck comments from the peanut gallery (aka the bar): Yes, an allegedly negligent hiker could probably bring a declaratory action to prevent the Department of Fish & Game from proceeding. It's about as likely a thing to see as the incumbent governor of a certain state south of here (rhymes with "Joisy") making it to the top of the Rockpile without stroking out.

 

[Stan]

The difficulty of determining "negligence" is well illustrated by the many and varied viewpoints expressed here in this lengthy thread. My preference is not to charge anyone but I'd rather see everyone be required to repay the expenses of their rescue rather than have a subjective determination made that hiker x was negligent but hiker z was not.

Society has long felt that it is a humane thing to save lives and until fairly recently, within the past generation, there was never a charge for most searches or rescues. I agree with that philosophy. A perfect storm combining 1) easier access to dangerous pursuits, 2) increasing stupidity in judgement and preparation, 3) rising costs, and, perhaps most importantly, 4) the inequity of people who pay no fees, licenses or registration (i.e. us hikers and manually powered boaters) being the subject of more searches and rescues compared to other outdoors men and women who pay for hunting and fishing licenses, boat, ATV and snow machine registration etc., which in many jurisdictions is the source of funds to pay for SAR. That is a sore point in many states. Charging everyone equally for SAR is absurd and the fact that there are charges at all is a direct result of those four factors ... to put it in the simplest of terms.

... of course, never say "never" to what you suggest ... things change in the way of attitudes.

 

[Grey J]

Society has long felt that it is a humane thing to save lives and until fairly recently, within the past generation, there was never a charge for most searches or rescues. I agree with that philosophy. A perfect storm combining 1) easier access to dangerous pursuits, 2) increasing stupidity in judgement and preparation, 3) rising costs, and, perhaps most importantly, 4) the inequity of people who pay no fees, licenses or registration (i.e. us hikers and manually powered boaters) being the subject of more searches and rescues compared to other outdoors men and women who pay for hunting and fishing licenses, boat, ATV and snow machine registration etc., which in many jurisdictions is the source of funds to pay for SAR. That is a sore point in many states. Charging everyone equally for SAR is absurd and the fact that there are charges at all is a direct result of those four factors ... to put it in the simplest of terms.

... of course, never say "never" to what you suggest ... things change in the way of attitudes.

Hey Stan
I agree with your points about why its happening. I don't know why you think my suggestion is "absurd." It's certainly straightforward. A rescue costs money. If you require a rescue, you will be billed. I'm not really advocating in favor of that position (I prefer the communitarian approach you cite first), I'm just saying it would be fairer. "Everyone" in my original statement means "everyone who gets rescued."

 

[TCD]

Stan, I think it's a little inaccurate to portray charging for rescue as something that's only come along recently. I know in Colorado around ski areas, for as long as I can remember (first trip 26 years ago), skiers have been warned that off area rescue "may be costly to the skier."

People have always needed rescue. I think we worry more about people's fate today than we did in the past, not less as you suggest. But I think the biggest driver of cost and possibly "over-deployment" is not any of the things you list. Rather, it's fear of lawsuits for potentially "not having done enough" to effect a rescue. "You only deployed one helicopter? My client's family member might have been saved if you deployed 2, or 3 or 10 helicopters." And there goes the cost spiral. I think this is also why after a rescue, whatever agency is in command is always very quick to list the impressive statistics of how many vehicles and helicopters were deployed, and how many searchers were out for how long in what kind of terrible conditions. They are trying to preempt potential lawsuits, by establishing up front the "we pulled out all the stops."

The other factor is that even though rescue is a service, like it or not rescue has also become an industry. Naturally all the elements of that industry desire a consistent guaranteed income stream. You get that from government funding, but not from fees for service. So the industry will resist the "fee for service" model.

I think there is a place for a standard fee, and I don't think it's absurd. As I've posted before, anytime you set up a system where someone has to decide that some people will get charged, and others won't, it's just fodder for the courts. As soon as there's money to be made or lost, everyone involved starts lying, and you can't resolve facts. A standard fee avoids all that.

 

[Stan]

Hey Stan
I agree with your points about why its happening. I don't know why you think my suggestion is "absurd." It's certainly straightforward. A rescue costs money. If you require a rescue, you will be billed. I'm not really advocating in favor of that position (I prefer the communitarian approach you cite first), I'm just saying it would be fairer. "Everyone" in my original statement means "everyone who gets rescued."

Well, "absurd" might be an inaccurate description of what is probably a well thought out and sincere proposal. By "absurd" I mean that it has slim chance of happening anytime soon and there are many who now and will continue to oppose it on humanitarian grounds. Many of those people are or have been in SAR and the motive to engage in SAR and the opposition to universal charge for rescue have a link. If ever that humanitarian aspect is subordinated to the economics it could happen but I, for one, would pity that day.

Where does one draw the line on excluding rescue fees? A person gets hit by a rock from either a slide or the footing of someone else far above the trail? A person who sticks to the middle of a wet and muddy trail on a cold wet day only to find that the wet feet soon lead to frostbite and immobilization? A person who seeks to help a capsized boater and soon ends up in the drink needing rescue? A person can't afford to be rescued ... should rescue be the privilege of those who can afford it ... hey, why bother with preparation and proper equipment, the cost of the ride out is the same in any case? How about the person who delays calling for help in order to save the cost and that delay itself leads to worse harm leading to a more expensive evacuation? The list can go on and on and the gray area more fuzzy. Then we're back in court defining that gray area instead of defining negligence, which I don't think is as difficult as some suggest.

Stan, I think it's a little inaccurate to portray charging for rescue as something that's only come along recently. I know in Colorado around ski areas, for as long as I can remember (first trip 26 years ago), skiers have been warned that off area rescue "may be costly to the skier."

26 years ago is not long ago in the long and glorious history of search and rescue. Besides, a fee for getting bailed out on private property when it is very clear someone was doing something they shouldn't be doing and were warned about it is not the same as universal fees for all rescues.

 

[jfb]

My point was that if you are charging some people, then charge everyone because that's the fairest system and there are no grey areas and no subjective judgments. Its also easy to understand. You need a rescue, expect to pay for it.

I hope they considered that option before changing the law. I don't mind that F&G is allowed to use their judgment in deciding that some hikers need not pay the fee.

 

[iAmKrzys]

Oftentimes an answer just brings about more questions!

The state has to sue to get an enforceable judgment for money, as they did in this case.

If $9k is a fee for service, why do they need to get a judgement? Couldn't they just send him a bill? To use an ambulance parallel, when they take me to a hospital they send me a bill and I pay. Only if I failed to pay they would go to court. Hence, the question in my original post: did he fail to pay the bill before the state went to court?

Yes, an allegedly negligent hiker could probably bring a declaratory action to prevent the Department of Fish & Game from proceeding.

Proceeding to do what? To sue the hiker? I'm not a lawyer, so I don't know how declaratory actions work but I'm guessing that this has to go through the court, and if so, wouldn't the state have the same chance to present its case as in the suit that it filed against Mr. Bacon?