NH Supreme Court upholds Negligent Hiking Award

[Roy Boy]

For those interested, the NH Supreme Court upheld a negligent hiking award today in the amount of about $9,000.00. The Defendant required a rescue on the Franconia Range in bad weather when his artificial hip dislocated. If I do this right, a link to the decision should be below:

http://www.courts.state.nh.us/supreme/opinions/2015/2015031bacon.pdf

 

[spider solo]

No surprise there, I guess NH looks at hikers as the new Cash Cow for the state...

 

[Tim Seaver]

Classic NH

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.

Fortunately, not many people over 50 are into peakbagging, so we don't have to worry much about any pre-exiting conditions among older hikers messing up their hike and costing them a bundle.

Right?

 

[nartreb]

It's a rather silly thing to be going to court over (You can bet that each side spent a lot more than $9000 at the trial, never mind the appeal), but the decision seems sound enough. Hiker with multiple recent hip dislocations tries the Franconia Traverse with a full overnight pack during hurricane-force winds, apparently told the rescuers he tried to jump backwards over a waist-high boulder. Fifteen paid rescuers (plus thirty-five volunteers) spent "into the early morning hours" (SAR started at 2 PM) carrying this hiker down the mountain, the hiker got a bill that works out at something like $16/hr/rescuer (again, not counting volunteers) including overtime and benefits. I'd say he got a bargain.

This is not really going to deter anybody. He travelled from Michigan for this trip, he's probably looking at expenses in the low thousands for travel. And if/when he ends up in the hospital, he's going to be billed thousands already (on addition to whatever his insurance covers, I mean). Another $9K isn't going to change anybody's behavior. You could bill for $50K and after that hits the news a few times a year for a while, maybe a few people would decide to hike in New York or Maine instead, but I doubt it would have measurable impact.

Not that the state stands to gain anything much. Suing your customers is no way to shore up your finances. Like most things that legislatures do, this has to be understood as politics, not problem-solving.

Edit: clarification about the backwards jump, which was the incident that actually caused the dislocation. This always sounded like a weird thing for a guy to attempt while tottering along on two canes on a windy day. After reading the defense lawyer's closing summary at trial, it seems what happened is that he tried to surmount a wait-high ledge by, basically, sitting on it. Except it was too tall to just turn and sit, so he had to jump up. The defense argued that this particular maneuver was safe, according to medical advice he'd received, and that he maintained his legs in a posture designed to protect his hip while performing the maneuver. The prosecution contended that the tale of the defensive leg position was a later fabrication. The trial court, I think it's safe to say, had doubts about Mr. Bacon's truthfulness.

I think the trial court concluded that a hip dislocation was just waiting to happen, regardless of whether the particular maneuver was negligent or not. He'd already slipped and lost his tent, the trail was getting steeper, and at his pace he would have been on that ridge at least another five hours while the weather got worse and worse. The appeals court quotes the rescuer as saying the wind knocked him (the [experienced and very fit] rescuer) down repeatedly. The implication is that it would be nigh impossible for Bacon to avoid dangerous hip position while being tossed around.

 

[RollingRock]

It's a rather silly thing to be going to court over (You can bet that each side spent a lot more than $9000 at the trial, never mind the appeal), but the decision seems sound enough. Hiker with multiple recent hip dislocations tries the Franconia Traverse with a full overnight pack during hurricane-force winds, apparently told the rescuers he tried to jump backwards over a waist-high boulder. Fifteen paid rescuers (plus thirty-five volunteers) spent "into the early morning hours" (SAR started at 2 PM) carrying this hiker down the mountain, the hiker got a bill that works out at something like $16/hr/rescuer (again, not counting volunteers) including overtime and benefits. I'd say he got a bargain.

This is not really going to deter anybody. He travelled from Michigan for this trip, he's probably looking at expenses in the low thousands for travel. And if/when he ends up in the hospital, he's going to be billed thousands already (on addition to whatever his insurance covers, I mean). Another $9K isn't going to change anybody's behavior. You could bill for $50K and after that hits the news a few times a year for a while, maybe a few people would decide to hike in New York or Maine instead, but I doubt it would have measurable impact.

Not that the state stands to gain anything much. Suing your customers is no way to shore up your finances. Like most things that legislatures do, this has to be understood as politics, not problem-solving.

I agree 100% with you.

 

[DayTrip]

It's a rather silly thing to be going to court over (You can bet that each side spent a lot more than $9000 at the trial, never mind the appeal), but the decision seems sound enough. Hiker with multiple recent hip dislocations tries the Franconia Traverse with a full overnight pack during hurricane-force winds, apparently told the rescuers he tried to jump backwards over a waist-high boulder. Fifteen paid rescuers (plus thirty-five volunteers) spent "into the early morning hours" (SAR started at 2 PM) carrying this hiker down the mountain, the hiker got a bill that works out at something like $16/hr/rescuer (again, not counting volunteers) including overtime and benefits. I'd say he got a bargain.

This is not really going to deter anybody. He travelled from Michigan for this trip, he's probably looking at expenses in the low thousands for travel. And if/when he ends up in the hospital, he's going to be billed thousands already (on addition to whatever his insurance covers, I mean). Another $9K isn't going to change anybody's behavior. You could bill for $50K and after that hits the news a few times a year for a while, maybe a few people would decide to hike in New York or Maine instead, but I doubt it would have measurable impact.

Not that the state stands to gain anything much. Suing your customers is no way to shore up your finances. Like most things that legislatures do, this has to be understood as politics, not problem-solving.

Beat me to it. There was much more to this story than being old and dislocating a hip. No problem with him picking up the tab for this one.

 

[Trail Boss]

Gedankenexperiment (thought experiment)

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.
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).
3. He had hypertension/arrythmia/tachycardia/<insert other heart problem here> and suffered a <insert non-fatal symptom here>.
4. He had myopia, his contact lenses fell out and he couldn't see.
5. He had a trick knee that would occasionally cause pain but this time it immobilized him.

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?

 

[jrbren]

My first reaction is that I disagree with the finding. A key piece of information seems to be missing, but I only browsed the doc. I searched on dr, doctor, and med. with no relevant hits. If he had a hip issue to the point of multiple previous dislocations, I assume he had been examined by a physician and was either cleared to hike in remote locations or not. Is that information in here somewhere ? Without any medical advice telling him not to do it, it does not seem unreasonable or negligent for him to try this. Without this it looks like just an excuse for a money grab. Negligent is a really vague term that means different things to different people at different times. The moral of the story is do not call SAR, which may be the goal here as well.

 

[bobandgeri]

Lot more to the story besides a bad hip - also a bad back, on a variety of medications for multiple ailments, lack of training in anything even close to hike planned, not turning around when he lost some of his gear on day 2, a well forecasted storm with high winds, are some of the items that are called out in the court document.


http://www.courts.state.nh.us/supreme/opinions/2015/2015031bacon.pdf

 

[iAmKrzys]

I guess the lesson is that you shouldn't be calling 911 unless you are really about to die and you will have to part with your $9k no matter what. Of course if you are in enough pain that $9k doesn't matter to you than you can call sooner.

I know, I am blowing this thing out of proportion but a few highly publicized cases will make an impact on people's decisions in the future.

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.

 

[peakbagger]

The lesson is go to https://www.nhfishandgame.com/HikeSafe.aspx and buy a rescue card. Took me one search to find it. Of course they can still bill for recklessness but it would be interesting to see how long it takes to go after someone who bought the card for recklessness. Apparently the card covers stupid.

 

[iAmKrzys]

$25 for an upgrade from coach to business class, err, from negligence to recklessness sounds like a really good deal especially that if I read the decision correctly (I'm not a lawyer) then it is really up to F&G to say what is negligent and my interpretation of negligence might not be quite the same. I do wonder however what recklessness means here. For example, is winter overnight traversal of Presidential Range reckless or just negligent? I am not planning to do this but I am just curious...

 

[Raven]

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

 

[TJsName]

The lesson is go to https://www.nhfishandgame.com/HikeSafe.aspx and buy a rescue card. Took me one search to find it. Of course they can still bill for recklessness but it would be interesting to see how long it takes to go after someone who bought the card for recklessness. Apparently the card covers stupid.

I know it's cynical, but if the court didn't side with F&G on this, it would kind of suck the wind out of the 'HikeSafe' card, right? I don't like the idea of fining victims, but I do agree that the evidence listed suggests that this guy was negligent. Regardless, this sets a legal precedent.

 

[jniehof]

Gedankenexperiment (thought experiment)

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

My guess (really WAG) is that F&G and the court maintained the whole pile of contributing factors so as not to set a precedent one way or the other on any single factor or lesser combination of them.

 

[Trail Boss]

My guess (really WAG) is that F&G and the court maintained the whole pile of contributing factors so as not to set a precedent one way or the other on any single factor or lesser combination of them.

I agree the court had indicated their decision was based on a combination of contributing factors. However, I can't help but feel that they may not have given equal weighting to each factor.

For example, assume all the same conditions (flat-land training, bad back, meds, nasty weather, etc) but he broke his "real" hip. Would they still conclude he was "negligent"?

If NO, then a pre-existing medical condition is a heavily-weighted factor.
Hikers with a pre-existing medical condition ought to take notice. If your condition immobilizes you, you're at higher risk of being judged "negligent".

If YES, then a pre-existing medical condition does not tip the scales.
However, the combination of factors are common to many middle-aged weekend-warriors and they ought to take notice. Training outside the mountains (if you train at all), that half-century-old achy back, the meds you take for <insert middle-aged affliction here>, and your choice to hike in a storm, all conspire to classify you as "negligent".



More Extra for Experts
Assume the same conditions except it was a war vet whose prosthetic leg (having a history of mechanical issues) broke. How now, brown court?

 

[Stan]

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?

I wonder whether its driven up the sale of other licenses ... my choice might be a fishing license instead.

 

[Remix]

I wonder whether its driven up the sale of other licenses ... my choice might be a fishing license instead.

The only problem I had with this whole story is that NHFG cited medical conditions as a contributory factor of a determination of negligence. Older hikers, like any part of the general population, have a higher probability of "medical problems". There does not seem to be any mechanism, such as retaining a physician witness, to prevent NHFG from making utterances about medical conditions when they hunt to find negligence to solve their funding problem.

 

[B the Hiker]

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?[/QUOTE]
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.

 

[TJsName]

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?

I think they went on sale 1/1/15, right? So just 4 complete months. I'd be really curious if the officer had any thoughts on peoples motivation. I'd also be curious about the geographic breakdown (out of state vs. instate), and also what their expectations were. I know a popular theme on this board is the understanding that it supports F&G, with the added benefit of being insurance. If I were to purchase one, it would be along that line of reasoning.