This is why you should BOYCOTT NEW HAMPSHIRE! Do not recreate in this state.Posted: July 19, 2021 Filed under: New Hampshire, Search and Rescue (SAR) | Tags: act negligently, argues, award damages, Charging for Rescue, Charging for SAR, Costs, Damages, dislocated, Hike, hip, ledge, memorandum, Mountains, reasonable cost, Rescue, rock, SAR, Search & Rescue, Search and Rescue, Trail, Trial court, winds 2 Comments
New Hampshire charges for Search & Rescue. To be able to charge it must prove you were negligent. If you get hurt or need rescued you are NEGLIGENT in New Hampshire.
N.H. Fish & Game Dep’t v. Bacon, 167 N.H. 591, 116 A.3d 1060, 2015 N.H. LEXIS 34
State: New Hampshire, Supreme Court of New Hampshire
Plaintiff: New Hampshire Fish and Game Department
Defendant: Edward Bacon
Plaintiff Claims: Negligent
Defendant Defenses: No proof that the defendants actions were negligent
Holding: For the Plaintiff, state of New Hampshire
A law in New Hampshire, which you cannot beat or get around, requires the state to charge you for the costs of search and rescue. The court simply stated the New Hampshire Fish & Game statement that the actions of the defendant were negligent. Proof was the prior injuries the plaintiff had suffered in his life. Boycott New Hampshire.
On September 16, 2012, the defendant began a five-day solo hiking trip in the White Mountains, during which he planned to hike several mountains with summits over 5,000 feet. At the time of the hike, the defendant was fifty-nine years old, had undergone four hip surgeries since 2005, and had an artificial hip that had dislocated on five occasions, twice during the prior year. The defendant also had a “bad back” and was taking a variety of medications for multiple ailments. In preparation for his hike, the defendant trained in a city park in Michigan, which had 250-foot hills and some “gravelly” spots. The conditions on the Franconia Ridge Trail between Liberty and Little Haystack Mountains, on which the rescuers eventually located the defendant, are rocky and steep in various locations.
On September 18, the defendant left the Liberty Springs campsite to begin a planned hike to the summits of Liberty, Little Haystack, Lincoln, and Lafayette Mountains; he planned to end at the Greenleaf Hut, which provides overnight accommodations to hikers. Days in advance, stormy weather had been forecast for the morning the defendant began the hike, and rain began a few hours after he departed the campsite. A bit later, the defendant’s pack cover “on its own accord came off and flew away in the wind.” Sergeant Brad Morse, a Conservation Officer with the Department who helped rescue the defendant, testified that the winds were among the worst he had ever experienced in that part of the Franconia Ridge Trail and had repeatedly blown him to the ground. Sometime that morning, the defendant slipped on loose gravel, slid down the trail, hit his pack on a rock, and lost his tent which fell down a ravine. At noon time, the defendant took a photograph of two other hikers he encountered on the trail, both of whom were wearing full rain gear with their hoods over their heads.
At around 1:00 p.m., the defendant encountered a waist-high rock ledge that he needed to traverse in order to continue on the trail. He attempted to jump backward up onto the ledge and, in the process, fell and dislocated his hip. Approximately one hour later, Morse received an alert that a hiker had dislocated his hip and needed assistance. He responded immediately and eventually located the defendant on the trail between Little Haystack and Lincoln Mountains. Morse testified that when he found the defendant his left leg was flexed and internally rotated, the very position that the defendant’s orthopedic surgeon had warned him to avoid due to his hip replacement.
Approximately fifteen Department personnel and thirty-five volunteers participated in the defendant’s rescue during the afternoon and evening of September 18 and into the early morning hours of September 19. When Lieutenant James Kneeland visited the defendant in the hospital after his rescue, the defendant explained that he had misread the weather report: he thought the forecast called for 30-40 mph winds with gusts up to 70 mph and heavy rain, instead of the actual forecast of 30-40 mph winds increasing to 70 mph and heavy rain. The defendant also told Kneeland that he had caught his left leg while attempting to jump backward up onto a rock ledge and dislocated his artificial hip when he fell.
Analysis: making sense of the law based on these facts.
The New Hampshire Supreme Court first looked at the statute in question.
§ 206:26-bb. Search and Rescue Response Expenses; Recovery
I. Any person determined by the department to have acted negligently in requiring a search and rescue response by the department shall be liable to the department for the reasonable cost of the department’s expenses for such search and rescue response, unless the person shows proof of possessing a current version of any of the following:
(a) A hunting or fishing license issued by this state under title XVIII.
(b) An OHRV registration under RSA 215-A, a snowmobile registration under RSA 215-C, or a vessel registration under RSA 270-E.
(c) A voluntary hike safe card. The executive director shall adopt rules under RSA 541-A for the issuance to purchasers on the department’s Internet site, and subsequent annual renewals, of a hike safe card prior to a person’s need for a search and rescue response. The annual fee for a hike safe card shall be $25 for an individual or $35 for a family. A “family” shall consist of the purchaser, the purchaser’s spouse, and the purchaser’s minor children or stepchildren. In addition, if the purchaser or the purchaser’s spouse has been appointed as a family guardian for an individual under RSA 464-A, that individual shall be considered part of the purchaser’s family. A transaction fee determined by the department shall be for the Internet license agent as provided in RSA 214-A:2. The executive director shall forward to the state treasurer the sum collected from each individual hike safe card purchased and each family hike safe card purchased, less the amount of such transaction fee, for deposit in the fish and game search and rescue fund under RSA 206:42.
I-a. The executive director shall bill the responsible person for such costs. Payment shall be made to the department within 30 days after the receipt of the bill, or by some other date determined by the executive director. If any person shall fail or refuse to pay the costs by the required date, the department may pursue payment by legal action, or by settlement or compromise, and the responsible person shall be liable for interest from the date that the bill is due and for legal fees and costs incurred by the department in obtaining and enforcing judgment under this paragraph. All amounts recovered, less the costs of collection and any percentage due pursuant to RSA 7:15-a, IV(b), shall be paid into the fish and game search and rescue fund established in RSA 206:42.
II. If any person fails to make payment under paragraph I, the executive director of the fish and game department may:
(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.
III. Regardless of a person’s possession of a document satisfying subparagraph I(a), (b), or (c), a person shall be liable to the department for search and rescue response expenses if the person is judged to have done any of the actions listed in RSA 153-A:24, I.
As you can see in reading the statute, there is no definition of what a negligent act might be in New Hampshire that would trigger this requirement. To the best of my knowledge and research, neither does the New Hampshire Fish & Game Department. EVERY ACT where a rescue is run is negligence and everyone gets charged.
There are four steps to prove negligence in most states. Duty, Breach of the Duty, Injury and Damages. The last to I suppose are the cost of the rescue to New Hampshire. But what is the duty of care and who is the duty of care owed too?
A duty is a level of doing or not doing something, below which the action or in action is actionable if it causes injury. So, a hiker, as in this case, owed a duty to New Hampshire? For what? There is a duty not to get injured? There is a duty not to require assistance in getting out of the backcountry? If the duty is either of those issues, then there is a breach of duty every time and thus negligence every time.
However, at no time, has New Hampshire ever argued or proved any duty. No other state has ever identified a duty of a person away from the city owing a duty to the state to be good.
If the failure to be good is so great it violates a criminal act, that is another story. A criminal act is action so bad it causes harm to an individual or society. So, is New Hampshire arguing that an individual causing a financial loss to the state is breaching a duty to the state? Absurd!
This is how the court explained the duty of care in this case.
Also plain is that the statute imposes as the duty of care the common law standard of negligence, which we have defined as how a reasonable person would be expected to act under the same circumstances. Thus, in order to avoid liability for search and rescue costs, the defendant must have hiked in a manner that was reasonable under all of the circumstances.
“Hiking in a manner that is reasonable under all circumstances” If this is the standard of care, then every hiker in New Hampshire is violating the standard of care. What is reasonable? In this case, there was no expert testimony as to the reasonableness of what the defendant did. Is it reasonable to step on a rock that may roll causing the hiker to fall. Or is it reasonable to step in the mud and water between the rocks suffering foot injury, cold and other injuries.
If you can’t Hike in a Manner that is Reasonable under ALL Circumstances, don’t go to New Hampshire.
The court continued to justify its findings.
As previously stated, a person violates RSA 206:26-bb by not acting as a reasonable person would have acted under the same circumstances. The defendant argues that he did not act negligently because he was prepared for the conditions, physically capable, had proper equipment, and had adequately planned his hike. The trial court concluded to the contrary when it found that the defendant did not act as a reasonably prudent hiker would have acted under the same circumstances.
What more is needed to hike other than prepared for the conditions, physically capable and proper equipment? The 10 essentials (which there are hundreds of versions of) seems to be covered here.
However, the court found the defendant was not reasonable because of his prior injuries.
…the defendant had undergone multiple hip surgeries; he had an artificial hip that had dislocated five times, twice within the year prior to his hike; he had trained in a city park that did not remotely resemble the challenging terrain he would experience in the White Mountains; he had continued his hike despite the fact that bad weather had been forecast days in advance and that he encountered high winds and rain early into his hike; and he chose to jump backward over a rock ledge he was unable to pass, despite his artificial hip and experience with hip dislocation.
So, anyone with any prior injury should not hike in New Hampshire because that is proof, they are hiking in a reasonable manner under all circumstances.
I wonder what the Americans with Disabilities Act says about that?
And because the defendant had had prior injuries, it was foreseeable as determined by the NH Fish & Game and the court that he would get injured again.
To the extent that the defendant argues that his injury was not foreseeable, we agree with the trial court’s conclusions that the defendant’s injury was foreseeable and directly caused his need to be rescued by the Department.
This explains why there are no professional sports teams in New Hampshire, they would spend the off-season in court. Fans could sue any team arguing that since they played previously injured players, they were negligent in playing them in New Hampshire.
So Now What?
What is the real issue? The real issue is this puts rescuers at greater risk. Instead of calling at 2:00 PM in the afternoon when the weather is sunny and nice, a victim waits and calls when they are desperate, 2:00 AM. Darkness, bad weather, and little sleep put rescuers at greater risk of becoming injured in a rescue. Charging for a rescue puts rescuers at risk!
Besides the simple fact that charging for rescues increases the risk to the people in trouble and the rescuers, New Hampshire continues to do so. Either to keep people from recreating in the state or because the Legislators & the Courts are not too bright or refuse to understand.
To not pay New Hampshire for a rescue, recreate in a state other than New Hampshire.
Boycott New Hampshire
For additional Articles & Support on this subject see:
Who Charges for Search and Rescue? http://rec-law.us/xtM6hp
Update: Give me a break! Teen charged $25K for a rescue he did not need http://rec-law.us/zndiA7
What do you think? Leave a comment.
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You write something like, “to the best of your knowledge and research, anyone hurt is deemed negligent.
The truth is that less than 20% of people rescued are considered negligent. They don’t even bill all of them. Overall, less than 10% of people are billed for rescue in NH.
Thanks for the info. The issue still puts rescuers & victims at risk.