New Jersey Supreme Court holds the Rescue Doctrine only applies to rescuing people and not property unless rescuing the property saves people.

Family sues after wife is injured attempting to rescue neighbor’s dog. Supreme court holds rescuing a dog does not qualify under the rescue doctrine.

Samolyk v. Berthe (N.J. 2022)

State: New Jersey; Supreme Court of New Jersey

Plaintiff: Ann Samolyk and John Samolyk

Defendant: Dorothy Berthe, III, Defendant, and Ilona Destefanis and Robert Destefanis

Plaintiff Claims: Rescue Doctrine

Defendant Defenses:

Holding: For the Defendants

Year: 2022

Summary

The rescue doctrine in New Jersey can only be used to recover for injuries sustained when rescuing a person. Rescuing property, in this case a dog, does not apply.

Facts

This matter arises from injuries sustained by plaintiff Ann Samolyk while trying to rescue a dog owned by defendants Ilona and Robert DeStefanis. Ann’s[1] husband, John Samolyk, filed a civil action against defendants, as Ann’s guardian ad litem, alleging defendants were liable under the rescue doctrine by negligently allowing their dog to fall or jump into the canal that borders their property, prompting Ann to dive into the water to prevent the dog from drowning. The complaint also included a per quod claim by John seeking compensation for any loss or impairment of his spouse’s services, society, and companionship due to injuries Ann sustained as a proximate result of defendants’ negligence.

The parties are neighbors in Forked River, an unincorporated bayfront community within Lacey Township. Their homes are situated on a canal. In the evening of July 13, 2017, defendants’ dog fell or jumped into the canal that snakes around the rear area of this shore community. Ann claimed she heard someone calling for help to rescue their dog that had fallen into the canal.[2] A report filed by a Lacey police officer describes the incident as “a report of a dog swimming in the lagoon.” The report states that Ann “entered the lagoon to rescue the dog.” The dog “was removed from the lagoon,” without any apparent harm, by defendants’ son and a family friend. Regrettably, Ann was found “unconscious on a floating dock.” In response to defendants’ interrogatories, plaintiffs allege Ann sustained neurological and cognitive injuries as a result of the incident.

Analysis: making sense of the law based on these facts.

The basic claim of the plaintiff was

“Plaintiffs’ counsel argued that defendants “invited the rescue because the dog was in peril, . . . [and Ann] would not [have] jump[ed] in the lagoon and [nearly] drown[ed] but for the dog being in there and people screaming about having to rescue the dog.”

The rescue doctrine allows an injured rescuer to recover damages from the person who placed another in peril or placed themselves in peril.

The rescue doctrine established in Wagner was originally limited to situations “where three persons are involved, i.e., one party by his culpable act has placed another person in a position of imminent peril which invites a third person, the rescuing plaintiff, to come to his aid.” New York courts later expanded the rescue doctrine “to encompass a two-party situation where the culpable party has placed himself in a perilous position which invites rescue.”

The New Jersey Supreme Court found the claims of the plaintiff wanted to expand the rescue doctrine to the injuries received from rescuing property.

In this appeal, we are asked to expand the scope of the rescue doctrine to include those who voluntarily choose to expose themselves to significant danger in an effort to safeguard the property of another. We decline to modify the rescue doctrine to incorporate such a far-reaching departure from the fundamental principles embedded in Wagner.

Several states have expanded the rescue doctrine to cover property; however, the NJ Supreme Court declined to extend the doctrine in New Jersey. Unless the property being rescued would result in saving a human life, the rescue doctrine could not be used to recover for injuries of the rescuer.

Against this analytical backdrop, we decline to expand the rescue doctrine to include injuries sustained to protect property, except in settings in which the plaintiff has acted to shield human life.

The court then wrote an example of how the rescue doctrine could be used in a case like this.

Following that line of reasoning, plaintiffs’ cause of action would have survived a motion for summary judgment had she jumped into the canal after defendants’ dog as a simultaneous reaction to seeing a child of tender years running after the animal and quickly approaching the edge of the dock. In that hypothetical situation, Ann’s actions to protect the child from imminent danger by rescuing the dog may have been reasonable and could therefore have served as the basis for a cognizable cause of action under the rescue doctrine.

Here the sole cause of the plaintiff’s injuries came from her desire to rescue property, a dog.

By contrast, the uncontested evidence here shows that Ann’s actions were based solely on her perception of danger to the dog’s life. These nuanced distinctions are intended to acknowledge and reaffirm the public policy underpinning the rescue doctrine in our state, to wit, the protection of human life. Thus, plaintiffs’ complaint was properly dismissed because Ann’s decision to jump into the canal to save the dog’s life does not give rise to a cognizable claim under the rescue doctrine.

So Now What?

The rescue doctrine started out, as stated above that someone who rescued someone who had been placed in peril by another could recover for their injuries from the party at fault, the party that placed the person in peril.

The doctrine has expanded from what once was an attempt to punish those who created problems and reward those who solved the problem to providing money to someone who tried to help.

The rescue doctrine does not apply to commercial guides and outfitters because they have a higher duty to keep their customers safe and as such, no matter how the person came to be in peril; it is the fault of the outfitter or guide and their responsibility to rescue them.

The rescue doctrine is interpreted differently in every state, so make sure you understand it before you attempt to recover for your injuries.

Other cases that talk about the Rescue Doctrine see:

Great analysis of the “Rescue Doctrine” in a ballooning case from South Dakota http://rec-law.us/1HCQ0Px

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

To see Jim’s complete bio go here and to see his CV you can find it here.

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Samolyk v. Berthe (N.J. 2022)

Posted: April 24, 2023 | Author: Recreation Law | Filed under: Assumption of the Risk, New Jersey, Search and Rescue (SAR), Uncategorized | Tags: New Jersey, New Jersey Supreme Court, Person in Peril, Rescue, Rescue Doctrine, Supreme Court | Leave a comment

Ann Samolyk and John Samolyk, Plaintiffs-Appellants,
v.
Dorothy Berthe, III, Defendant,

and Ilona Destefanis and Robert Destefanis, Defendants-Respondents.

No. A-16-21

Supreme Court of New Jersey

June 13, 2022

Argued February 1, 2022

On certification to the Superior Court, Appellate Division.

William D. Wright argued the cause for appellants (The Wright Law Firm, attorneys; William D. Wright and David T. Wright, on the briefs).

John Burke argued the cause for respondents (Burke & Potenza, attorneys; John Burke, of counsel and on the brief).

FUENTES, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

In this appeal, the Court considers whether to expand the common law rescue doctrine to permit plaintiffs to recover damages for injuries sustained as a proximate result of attempting to rescue defendants’ dog.

Plaintiff Ann Samolyk sustained neurological and cognitive injuries when she entered a lagoon in Forked River to rescue her neighbors’ dog, which had fallen or jumped into the water. Samolyk’s husband filed a civil action against defendants, alleging they were liable under the rescue doctrine by negligently allowing their dog to fall or jump into the water, prompting Samolyk to attempt to save the dog.

Neither the Law Division nor the Appellate Division found the doctrine applicable. The Court granted certification. 248 N.J. 518 (2021).

HELD: After reviewing the noble principles that infuse the public policy underpinning this cause of action, the Court declines to consider property, in whatever form, to be equally entitled to the unique value and protection bestowed on a human life. The Court nevertheless expands the rescue doctrine to include acts that appear to be intended to protect property but are in fact reasonable measures ultimately intended to protect a human life.

1. Under the rescue doctrine, “[t]he state that leaves an opening in a bridge is liable to the child that falls into the stream, but liable also to the parent who plunges to its aid.” Wagner v. Int’l Ry. Co., 133 N.E. 437, 437-38 (N.Y. 1921). The doctrine has also been held to provide a source of recovery to one who is injured while undertaking the rescue of another who has negligently placed himself in peril. Thus, an actor is liable for harm sustained by a rescuer where the conduct of the actor has created a danger only to himself, if at the time of such conduct he should reasonably anticipate that others might attempt to rescue him from his self-created peril, and sustain harm in doing so. The Restatement (Second) of Torts and a majority of states have extended the rescue doctrine to efforts to save property. (pp. 6-11)

2. The Court declines to expand the rescue doctrine to include injuries sustained to protect property, except in settings in which the plaintiff has acted to shield human life. Notwithstanding the strong emotional attachment people may have to dogs, cats, and other domesticated animals, or the great significance some may attribute to family heirlooms, or works of art generally considered as irreplaceable parts of our cultural history, sound public policy cannot sanction expanding the rescue doctrine to imbue property with the same status and dignity uniquely conferred upon a human life. The risk protected by the rescue doctrine is calibrated only by the reasonableness of the actions taken by the rescuer because all human life is equally precious. The same calculation, considering the necessarily subjective attachments to property, would prove untenable. (p. 12)

3. The Court explains that certain preemptive acts that appear to be driven by the protection of property are, at their core, adjuncts to the protection of human life and thus may give rise to a cause of action under the rescue doctrine. By contrast, the uncontested evidence here shows that Samolyk’s actions were based solely on her perception of danger to the dog’s life. The complaint was properly dismissed because the decision to jump into the canal to save the dog’s life does not give rise to a cognizable claim under the rescue doctrine. (pp. 13-14)

AFFIRMED.

CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON, SOLOMON, and PIERRE-LOUIS join in JUDGE FUENTES’s opinion.

OPINION

FUENTES JUDGE (temporarily assigned).

This appeal requires this Court to determine whether to expand the common law rescue doctrine to permit plaintiffs to recover damages for injuries sustained as a proximate result of attempting to rescue defendants’ dog. After reviewing the noble principles that infuse the public policy underpinning this cause of action, we decline to consider property, in whatever form, to be equally entitled to the unique value and protection we bestow on a human life. We nevertheless expand the cognizable scope of the rescue doctrine to include acts that facially appear to be intended to protect property, but are in fact reasonable measures ultimately intended to protect a human life.

This matter arises from injuries sustained by plaintiff Ann Samolyk while trying to rescue a dog owned by defendants Ilona and Robert DeStefanis. Ann’s^[1] husband, John Samolyk, filed a civil action against defendants, as Ann’s guardian ad litem, alleging defendants were liable under the rescue doctrine by negligently allowing their dog to fall or jump into the canal that borders their property, prompting Ann to dive into the water to prevent the dog from drowning. The complaint also included a per quod claim by John seeking compensation for any loss or impairment of his spouse’s services, society, and companionship due to injuries Ann sustained as a proximate result of defendants’ negligence.

The parties are neighbors in Forked River, an unincorporated bayfront community within Lacey Township. Their homes are situated on a canal. In the evening of July 13, 2017, defendants’ dog fell or jumped into the canal that snakes around the rear area of this shore community. Ann claimed she heard someone calling for help to rescue their dog that had fallen into the canal.^[2] A report filed by a Lacey police officer describes the incident as “a report of a dog swimming in the lagoon.” The report states that Ann “entered the lagoon to rescue the dog.” The dog “was removed from the lagoon,” without any apparent harm, by defendants’ son and a family friend. Regrettably, Ann was found “unconscious on a floating dock.” In response to defendants’ interrogatories, plaintiffs allege Ann sustained neurological and cognitive injuries as a result of the incident.

After joinder of issue and the parties’ answers to interrogatories, as well as production of relevant documentary evidence, but before the parties took depositions, the Law Division judge assigned to manage the case directed the parties to file dispositive motions addressing whether plaintiffs raised a cognizable claim under the rescue doctrine.

Plaintiffs’ counsel argued that defendants “invited the rescue because the dog was in peril, . . . [and Ann] would not [have] jump[ed] in the lagoon and [nearly] drown[ed] but for the dog being in there and people screaming about having to rescue the dog.” In rebuttal, defense counsel noted that no court in this State had extended the rescue doctrine to apply to the protection of property. The Law Division judge agreed with defendants’ position. The judge noted he was not empowered “to start defining what level of property is worth risking a human life.”

The Appellate Division reached the same conclusion in an unpublished opinion, noting that “no reported case from any New Jersey court has applied the rescue doctrine to support a cause of action brought by the rescuer of real or personal property against a defendant who, through his negligence, placed the property in peril.”

The Appellate Division’s thoughtful opinion recognized, however, that the Restatement (Second) of Torts § 472 (Am. Law Inst. 1965) has extended the rescue doctrine to the protection of property. Plaintiffs also relied on caselaw from our sister states tracking the Restatement’s approach. Although the Appellate Division found that “[s]ome of that authority is persuasive and raises a legitimate question [as to] why the rescue doctrine should be limited to the rescue of another human being,” it nevertheless declined to expand the scope of this common law doctrine in deference to its role as an intermediate appellate court.

This Court granted plaintiffs’ petition for certification to determine whether the rescue doctrine extends to property, specifically here, a dog. 248 N.J. 518 (2021).

II.

The parties rely on the arguments they made before the Appellate Division. Plaintiffs urge this Court to rely on the Restatement, as the majority of our sister states have done, and extend the rescue doctrine to protect property. In response, defendants argue it is unclear whether a majority of states have extended the doctrine to protect property, and they emphasize that New Jersey courts have consistently applied the rescue doctrine to encourage voluntary exposure to danger only to protect human life.

III.

This Court reviews the grant of a motion for summary judgment de novo, applying the same standard used by the trial court. Woytas v. Greenwood Tree Experts, Inc., 237 N.J. 501, 511 (2019). We must “consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.” Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c). The issue before us concerns the development of our state’s common law, a responsibility exclusively entrusted to this Court. See DCPP v. J.R.-R., 248 N.J. 353, 373 (2021).

The rescue doctrine is best described by quoting the words of Justice Benjamin N. Cardozo, then Judge of the New York Court of Appeals, in Wagner v. International Railway Co.:

Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer. The state that leaves an opening in a bridge is liable to the child that falls into the stream, but liable also to the parent who plunges to its aid.

[133 N.E. 437, 437-38 (N.Y. 1921).]

The rescue doctrine established in Wagner was originally limited to situations “where three persons are involved, i.e., one party by his culpable act has placed another person in a position of imminent peril which invites a third person, the rescuing plaintiff, to come to his aid.” See Provenzo v. Sam, 244 N.E.2d 26, 28 (N.Y. 1968). New York courts later expanded the rescue doctrine “to encompass a two-party situation where the culpable party has placed himself in a perilous position which invites rescue.” Ibid.

The rescue doctrine “has long been a part of our State’s social fabric.” Saltsman v. Corazo, 317 N.J.Super. 237, 248 (App. Div. 1998) (quoting Burns
v. Mkt. Transition Facility, 281 N.J.Super. 304, 310 (App. Div. 1995)). The doctrine has been applied “to situations where the rescuer . . . sues the rescued victim who is either completely, or partially, at fault for creating the peril that invited the rescue.” Id. at 249. The Appellate Division has consistently applied the doctrine to cases where the rescuer is injured when trying to rescue another person. See id. at 247; Blackburn v. Broad St. Baptist Church, 305 N.J.Super. 541, 544-46 (App. Div. 1997); Tornatore v. Selective Ins. Co. of
Am., 302 N.J.Super. 244, 252 (App. Div. 1997). The first time this Court directly considered the rescue doctrine was in Ruiz v. Mero, a case in which we affirmed the Appellate Division’s opinion, which held that the Legislature abrogated the “firefighters’ rule”^[3] when it adopted N.J.S.A. 2A:62A-21. 189 N.J. 525, 527 (2007). In Ruiz, a unanimous Court upheld the right of a police officer to rely on the rescue doctrine to sue “a commercial landowner for injuries he suffered when quelling a disturbance at the owner’s bar.” Ibid. In the course of explaining the statute’s unambiguous conflict with the firefighters’ rule, Justice Long noted the rescue doctrine was “[d]eeply rooted” in our state’s common law and “provides a source of recovery to one who is injured while undertaking the rescue of another who has negligently placed himself in peril.” Id. at 528-29.

In Estate of Desir v. Vertus, we reviewed the applicability of the rescue doctrine in the context of a “tragic shooting death of an individual by a criminal fleeing from a business.” 214 N.J. 303, 308 (2013). The estate of the victim filed a civil action against the defendant based in part on the rescue doctrine. Ibid. We held the defendant did not negligently create the danger that caused the decedent to come to his aid because the

evolution of the rescue doctrine remains grounded upon essential tort concepts of duty and foreseeability. As the doctrine has been explained, an actor is liable for harm sustained by a rescuer “where the conduct of the actor has created a danger only to himself, if at the time of such conduct he should reasonably anticipate that others might attempt to rescue him from his self-created peril, and sustain harm in doing so.”

[Id at 321 (quoting Restatement (Second) of Torts § 445 cmt. d).]

Those cases illustrate that, as the guardians of our state’s common law, this Court has limited the application of the rescue doctrine to reflect the sound public policy Justice Cardozo eloquently described in Wagner.

We acknowledge that the Restatement (Second) of Torts extends the rescue doctrine to property and provides that

[i]t is not contributory negligence for a plaintiff to expose himself to danger in an effort to save himself or a third person, or the land or chattels of the plaintiff or a third person, from harm, unless the effort itself is an unreasonable one, or the plaintiff acts unreasonably in the course of it.

[§ 472 (emphasis added).]

See also Prosser & Keeton on Torts, § 44 (5th ed. 1984) (explaining that, “[a]lthough there has been some disagreement, the great majority of courts now apply the [rescue doctrine] to one who tries to rescue the property of another, even when under no duty to do so, and even though the property involved is that of the defendant”).

The Second Restatement, however, acknowledges that “a plaintiff may run a greater risk to his own personal safety in a reasonable effort to save the life of a third person than he could run in order to save the animate or inanimate chattels of his neighbor or even of himself.” § 472 cmt. a. Furthermore, the Restatement (Third) of Torts: Liability for Physical and Emotional Harm includes the extension to property, noting: “This Section is also applicable to a rescuer of imperiled property, whether that property is owned by another or by the rescuer.” § 32, cmt. b (Am. Law Inst. 2010).

A majority of our sister states that have extended the rescue doctrine to cover property have done so in accord with the Restatement (Second) of Torts. See, e.g., Estate of Newton v. McNew, 698 P.2d 835, 837 (Colo.App. 1984) (holding that the doctrine is applicable to property after finding that a “majority of states apply” the doctrine to “one who tries to rescue the property of another”); Neff v. Woodmen of the World Life Ins. Soc’y, 529 P.2d 294, 296 (N.M. Ct. App. 1974) (finding the doctrine applicable to property and noting that “[t]he majority of courts . . . have extended [the doctrine] to include situations where property is in danger of being severely damaged or destroyed”); Henjum v. Bok, 110 N.W.2d 461, 463 (Minn. 1961) (holding that the doctrine is applicable “where an attempt is being made to save human life or property”).

Other jurisdictions have declined to expand the rescue doctrine to include the protection of property. For example, the Missouri Eastern District Court of Appeals held in Welch v. Hesston Corp. that, “[u]nlike a majority of other jurisdictions,” it has consistently declined to extend the rescue doctrine to include the protection of property. 540 S.W.2d 127, 129 (Mo.Ct.App. 1976). The court explained that

[t]he policy basis of the distinction in treatment of rescuers of persons and rescuers of property seems “to rest upon that high regard in which the law holds human life and limb; whereas, when mere property is involved, one may not voluntarily subject another to greater liability than that which he seeks to avert.”

[Id. at 129-30 (quoting Tayer v. York Ice Mach. Corp., 119 S.W.2d 240, 246 (Mo. 1937)).]

IV.

Against this analytical backdrop, we decline to expand the rescue doctrine to include injuries sustained to protect property, except in settings in which the plaintiff has acted to shield human life. We are convinced that any attempt to reform the application of the rescue doctrine to include the protection of property, whether animate or inanimate, realty or chattel, must emanate from our innate instinct to protect human life. Notwithstanding the strong emotional attachment people may have to dogs, cats, and other domesticated animals, or the great significance some may attribute to family heirlooms, or works of art generally considered as irreplaceable parts of our cultural history, sound public policy cannot sanction expanding the rescue doctrine to imbue property with the same status and dignity uniquely conferred upon a human life.

The words uttered by Justice Cardozo describe the contours of a cause of action that tolerates a concomitant degree of harm a plaintiff is reasonably willing to risk and, if necessary, endure to protect a human life. The risk factor is calibrated only by the reasonableness of the actions taken by the rescuer because all human life is equally precious. The same calculation, considering the necessarily subjective attachments to property, would prove untenable.

We are also aware, however, that certain preemptive acts that appear to be driven by the protection of property are, at their core, adjuncts to the protection of human life and thus may give rise to a cause of action under the rescue doctrine. For example, consider a neighbor who reports a fire in a nearby house to the proper authorities, then attempts to squelch the fire based on a reasonable, good faith belief that children or other vulnerable inhabitants may be in immediate danger, or because it appears likely the fire may spread to other occupied properties. Under those circumstances, if the fire was negligently started, the neighbor may have a cognizable basis to invoke the rescue doctrine to recover damages for injuries caused by the preemptive measures taken to limit the intensity of the fire, even if it is later determined there was no actual risk to human life because the house was unoccupied.

The judgment of the Appellate Division is affirmed.

CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON, SOLOMON, and PIERRE-LOUIS join in JUDGE FUENTES’s opinion.

———

Notes:

^[1] We refer to plaintiffs by their first names because they share the same last name. We do not intend any disrespect.

^[2] Although defendants dispute this part of the facts presented to the Law Division, we will accept them as accurate for the purpose of addressing the dispositive legal issue raised by the parties.

^[3] The firefighters’ rule was a common law affirmative defense absolving the owner or occupier of land of liability “to a paid fireman for negligence with respect to the creation of a fire.” Krauth v. Geller, 31 N.J. 270, 273 (1960).

———

SAR is not a way to make money, SAR saves lives, probably this #IdiotInTheBackcountry is one of them

Posted: December 15, 2021 | Author: Recreation Law | Filed under: Arizona, Search and Rescue (SAR) | Tags: Helicopter, Helicopter Rescue, Rescue Basket, SAR, Settlement | Leave a comment

https://buff.ly/3lw7A66

State: Arizona

A woman being rescued after falling on a hike is going to receive $450,000 for her injuries after the rescue basket she was in started spinning while she was being hoisted into a helicopter.

The line, used to stop baskets from spinning broke. The woman spun for 40 seconds until the spinning was under control.

She allegedly suffered $290K in medical bills from the spinning.

Why Is This Interesting?

From the spinning for from the fall. Her injuries were a spinal code injury. Would you be more likely to receive an injury falling off a trail or from lying flat in a basket that was spinning?

If she needed evacuated because of her injuries from a fall hiking don’t you suspect those were the worse injuries she could receive?

#ThankGodforSAR @RecreationLaw #SAR #Search_Rescue #BoycottNH #NoChargeforRescue #NoChargeforSAR #RecLaw #RecreationLaw

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Author: Outdoor Recreation Insurance, Risk Management and Law

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By Recreation Law Rec-law@recreation-law.com James H. Moss

More Information about Dr claiming injury to get rescued on Denali

Posted: December 10, 2021 | Author: Recreation Law | Filed under: Alaska, Search and Rescue (SAR) | Tags: Denali, Mountain Climbing, Mountaineering, National Park Service, NPS, Rescue, SAR, Search & Rescue | Leave a comment

https://buff.ly/3FsJyQO

State: :Alaska

#IdiotInTheBackCountry argued that since he had paid his fee to the National Park Service to Climb Denali, they owed him a rescue.

Just for the record, unless you are guiding someone or placed the person in peril, no one owes anyone a rescue in the US. That goes doubly so for the US Government.

Why Is This Interesting?

Taking the money, time and effort to climb Denali and not understanding the issues is stupid. Just because you have the money does not mean you have the brains to be in the backcountry.

@DenaliNPS #IdiotsIntheBackCountry #ThankGodforSAR @RecreationLaw #SAR #Search_Rescue #RecLaw #RecreationLaw #OutdoorRecreationLaw #OutdoorLaw

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Author: Outdoor Recreation Insurance, Risk Management and Law

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By Recreation Law Rec-law@recreation-law.com James H. Moss

Man rescued in Yellowstone park is banned for 5 years and ordered to pay $2880 for helicopter rescue

Posted: November 24, 2021 | Author: Recreation Law | Filed under: Search and Rescue (SAR) | Tags: Helicopter, Rescue, SAR, Yellowstone River | Leave a comment

https://lnkd.in/gp9QKCCG

State: Wyoming

A man searching for Forrest Fenn’s treasure got lost in Yellowstone National Park and had to be rescued. The NPS then charged the man, and he was sentenced to $2880 in restitution, the cost of the helicopter evacuation and banned from the park for five years.

Why Is This Interesting?

As dumb as this idiot might be, it is only going to make SAR in @YellowstoneNPS harder and more difficult putting victims and rescuers at greater risk.

@YellowstoneNPS #IdiotsIntheBackCountry #ThankGodforSAR @RecreationLaw #SAR #Search_Rescue #BoycottNH #NoChargeforSAR #RecLaw #RecreationLaw

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By Recreation Law Rec-law@recreation-law.com James H. Moss

This is why you should BOYCOTT NEW HAMPSHIRE! Do not recreate in this state.

Posted: July 19, 2021 | Author: Recreation Law | 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

Year: 2015

Summary

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.

Facts

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

#BoycottNewHampshire

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

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By Recreation Law Rec-law@recreation-law.com James H. Moss

N.H. Fish & Game Dep’t v. Bacon, 167 N.H. 591, 116 A.3d 1060, 2015 N.H. LEXIS 34

Posted: July 19, 2021 | Author: Recreation Law | Filed under: Legal Case, New Hampshire, Search and Rescue (SAR) | Tags: act negligently, argues, award damages, Costs, Damages, dislocated, Hike, Hiking, hip, ledge, memorandum, Mountains, Negligence, negligent act, Prior Injury, reasonable cost, Rescue, rock, SAR, Search and Rescue, Standard of Care, Trail, Trial court, winds | Leave a comment

N.H. Fish & Game Dep’t v. Bacon, 167 N.H. 591, 116 A.3d 1060, 2015 N.H. LEXIS 34

Supreme Court of New Hampshire

January 15, 2015, Argued; April 30, 2015, Opinion Issued

No. 2014-158

New Hampshire Fish and Game Department v. Edward Bacon

Prior History: [***1] 6th Circuit Court — Concord District Division.

NEW HAMPSHIRE OFFICIAL REPORTS HEADNOTES

NH1.[] 1.

Negligence > Standard of Care > Ordinary and Reasonable Care

The search and rescue response statute plainly is intended to create a statutory cause of action in favor of the New Hampshire Fish and Game Department to recover the costs it incurs in conducting a search and rescue operation for a person whose negligent conduct required such an operation. Whether or not a common law duty exists, a plaintiff may maintain an action directly under a statute if a statutory cause of action is either expressed or implied by the legislature. Also plain is that the statute imposes as the duty of care the common law standard of negligence, which has been 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 acted in a manner that was reasonable under all of the circumstances. Accordingly, the trial court did not err in using the common law standard of negligence to evaluate defendant’s conduct under the statute. RSA 206:26-bb.

NH2.[] 2.

Appeal and Error > Standards of Review > Generally

The court will uphold the trial court’s findings and rulings unless they lack evidentiary support or are legally erroneous. It is within the province of the trial court to accept or reject, in whole or in part, whatever evidence was presented, including that of the expert witnesses. The standard of review is not whether the court would rule differently than the trial court, but whether a reasonable person could have reached the same decision as the trial court based upon the same evidence. Thus, the court defers to the trial court’s judgment on such issues as resolving conflicts in the testimony, measuring the credibility of witnesses, and determining the weight to be given evidence.

NH3.[] 3.

Negligence > Proceedings > Generally

In determining that a hiker was liable under the search and rescue response statute for his rescue costs, the trial court properly found that he was negligent when he had undergone multiple hip surgeries, had an artificial hip that had dislocated five times, had trained in a city park that did not remotely resemble the challenging mountain terrain he [*592] would experience, had continued his hike despite the fact that bad weather had been forecast days in advance and when he encountered high winds and rain early on, and chose to jump backward over a rock ledge he was unable to pass. RSA 206:26-bb.

NH4.[] 4.

Negligence > Proximate Cause > Tests and Standards

To establish proximate cause a plaintiff must show that the defendant’s conduct caused or contributed to cause the harm.

NH5.[] 5.

Damages > Practice and Procedure > Generally

In reviewing damage awards, the court will consider the evidence in the light most favorable to the prevailing party. Furthermore, the court will not disturb the decision of the fact-finder unless it is clearly erroneous. The law does not require absolute certainty for recovery of damages. The court does, however, require an indication that the award of damages was reasonable.

NH6.[] 6.

Negligence > Damages > Particular Cases

The damage award of $9,186.38 against a rescued hiker who was found to have been negligent under the search and rescue response statute was reasonable when it represented the costs for the 15 people who participated in the rescue, including overtime, mileage, and benefits. The hiker’s argument that the Fish and Game Department employees were on duty and would have been paid regardless of their participation in the rescue failed to take into account the overtime paid, and also ignored the fact that by being diverted to the rescue operation, the employees were unable to perform their other assigned duties. RSA 206:26-bb.

NH7.[] 7.

Environment and Natural Resources > Game and Fish > Particular Matters

The search and rescue response statute specifically states that the New Hampshire Fish and Game Department is to receive the reasonable costs associated with a rescue. Nothing in the statute otherwise limits the Department’s recovery, and the court will not add limiting language to the statute that the legislature did not include. RSA 206:26-bb.

NH8.[] 8.

Statutes > Generally > Legislative History or Intent

A court interprets legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include.

Counsel: Joseph A. Foster, attorney general (Philip B. Bradley, assistant attorney general, on the brief and orally), for the State.
Seufert, Davis & Hunt, PLLC, of Franklin (Brad C. Davis on the brief and orally), for the defendant.

Judges: LYNN, J. DALIANIS, C.J., and HICKS, CONBOY, and BASSETT, JJ., concurred.

Opinion by: LYNN

Opinion

[**1062] 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.

The following facts are established by the record. On September 16, 2012, the defendant began a five-day solo hiking trip in the White [*593] 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 [***2] 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.

[**1063] 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. [***3] 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.

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. [***4] 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 [*594] 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.

The defendant testified to a different version of events at trial. For instance, he testified that he was unaware of the weather conditions on the day of the hike because he did not have his reading glasses with him, and that he did not encounter any significant rain or wind. Additionally, he testified that when he dislocated his hip he had not fallen, as he told Kneeland, but instead had jumped backward over a rock ledge and swung his legs up while perfectly maintaining his left leg to avoid flexion and internal rotation.

At the close of the trial, the court accepted closing memoranda from both parties. Thereafter, the court found for the Department “for all of the reasons cited in the plaintiff’s [***5] closing memorandum,” and awarded the Department $9,334.86 in damages. The defendant filed a motion to reconsider, to which the Department objected. The court denied the defendant’s motion, stating that “[t]he actions of the defendant were a gross deviation from those of a reasonable person that surpasses the [negligence] standard required.” This appeal followed.

The defendant raises three arguments on appeal. First, he argues that the trial [**1064] court erred by judging his conduct under an ordinary negligence standard which, he asserts, is not the standard mandated by RSA 206:26-bb. Second, he argues that there was insufficient evidence to support the court’s finding that his actions while hiking were negligent, thus necessitating his rescue by the Department. Third, he argues that the court’s damages award was improper under RSA 206:26-bb because the award included recovery for expenses that the Department would have incurred regardless of its effort to rescue him. We address each argument in turn.

The defendant first argues that the court erred by applying the ordinary negligence standard to determine his liability under RSA 206:26-bb. He characterizes this standard as “incorrect,” and asserts that the court should instead have [***6] applied “the full and complete” civil standard of negligence, although he fails to articulate how this standard differs from the standard of “ordinary negligence.”

To resolve this issue we must engage in statutory interpretation. HN1[] “Statutory interpretation is a question of law, which we review de novo.” [*595]
Appeal of Local Gov’t Ctr., 165 N.H. 790, 804, 85 A.3d 388 (2014). “In matters of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole.” Id. “We first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning.” Id. “We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include.” Id. “We construe all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result.” Id.

NH[1][] [1] We have not previously had occasion to construe the search and rescue response statute. It provides, in pertinent part:

HN2[] I. [A]ny 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 [***7] for the reasonable cost of the department’s expenses for such search and rescue response. 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 … the department may pursue payment by legal action … .

RSA 206:26-bb. HN3[] This statute plainly is intended to create a statutory cause of action in favor of the Department to recover the costs it incurs in conducting a search and rescue operation for a person whose negligent conduct required such an operation. See Marquay v. Eno , 139 N.H. 708, 714, 662 A.2d 272 (1995) (“Whether or not a common law duty exists, … a plaintiff may maintain an action directly under [a] statute if a statutory cause of action is either expressed or implied by the legislature.”). 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. See Gelinas v. Metropolitan Prop. & Liability Ins. Co., 131 N.H. 154, 161, 551 A.2d 962 (1988). Thus, in order to avoid liability for search and rescue costs, the defendant must have hiked in a manner that was reasonable under [***8] all of the circumstances. Accordingly, we hold that the trial court did not err in using the common law standard of negligence to [**1065] evaluate the defendant’s conduct under RSA 206:26-bb.

The defendant next argues that there was insufficient evidence upon which to find that he acted negligently, resulting in his need for rescue by [*596] the Department. In particular, the defendant takes issue with the fact that the trial court’s order stated that it found for the Department “for all of the reasons cited in the plaintiff’s closing memorandum.” He asserts that, in so doing, the court improperly adopted as its findings the facts recited in the Department’s memorandum — which facts, he claims, are not supported by the evidence. We disagree.

NH[2][] [2] HN4[] We will uphold the trial court’s findings and rulings unless they lack evidentiary support or are legally erroneous. Cook v. Sullivan, 149 N.H. 774, 780, 829 A.2d 1059 (2003). “It is within the province of the trial court to accept or reject, in whole or in part, whatever evidence was presented, including that of the expert witnesses.” Id. “Our standard of review is not whether we would rule differently than the trial court, but whether a reasonable person could have reached the same decision as the trial court based upon the same [***9] evidence.” Id. “Thus, we defer to the trial court’s judgment on such issues as resolving conflicts in the testimony, measuring the credibility of witnesses, and determining the weight to be given evidence.” Id.

We first consider the defendant’s argument that the trial court’s findings are not supported by the evidence because the court adopted the Department’s closing memorandum, which he claims relied upon findings that were also not supported by the evidence. Having reviewed both the evidence presented at trial and the Department’s closing memorandum, we reject the defendant’s argument that the Department’s closing memorandum was not supported by the evidence.

NH[3][] [3] We next consider whether there was sufficient evidence to support the trial court’s determination that the defendant acted negligently. 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 [***10] prudent hiker would have acted under the same circumstances. The following facts, recited by the Department in its memorandum and based upon the evidence, support the trial court’s conclusion: 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.

[*597] NH[4][] [4] 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. See Estate of Joshua T. v. State , 150 N.H. 405, 408, 840 A.2d 768 (2003) (stating that HN5[] to establish proximate cause a plaintiff must show “that the defendant’s conduct caused or contributed to cause the harm”). For the foregoing reasons [**1066] we conclude that the trial court’s determination [***11] that the defendant acted negligently does not lack evidentiary support and is not legally erroneous. See Cook , 149 N.H. at 780. Accordingly, we uphold the trial court’s ruling.

Finally, the defendant argues that the court’s damages award was improper because it included wages and mileage for on-duty Department officers who would have been paid regardless of their participation in the rescue operation. In essence, he claims that the damages provide a windfall to the Department. We disagree.

NH[5][] [5] HN6[] “In reviewing damage awards, we will consider the evidence in the light most favorable to the prevailing party.” Gallentine v. Geis, 145 N.H. 701, 703, 765 A.2d 696 (2001) (quotation and brackets omitted). “Furthermore, we will not disturb the decision of the fact-finder unless it is clearly erroneous.” Id. (quotation omitted). “The law does not require ‘absolute certainty’ for recovery of damages.” Id. (quotation omitted). “We do, however, require an indication that the award of damages was reasonable.” Id.
RSA 206:26-bb states that “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.” (Emphasis [***12] added.)

NH[6][] [6] The trial court awarded $9,186.38 in damages to the Department, plus costs and interest. At trial, Kneeland testified that this amount represented the Department’s costs for the fifteen personnel who participated in the rescue, and included overtime, mileage, and benefits. These figures were contained in a document entitled “Search and Rescue Mission Report,” which was admitted by stipulation as a full exhibit. This detailed, itemized report, when viewed in the light most favorable to the Department, indicates that the trial court’s damages award represented the “reasonable costs” associated with the rescue, as required by RSA 206:26-bb.

NH[7,8][] [7, 8] We reject the defendant’s argument that this sum provides a windfall to the Department because certain officers were on duty and thus would have been paid regardless of their participation in his rescue. Not only does this argument fail to take into account the overtime paid to [*598] Department employees who would not have worked in the absence of the rescue, but it also ignores the fact that, by being diverted to the rescue operation, Department employees were unable to perform their other assigned duties. HN7[] The statute specifically states that the Department is [***13] to receive the “reasonable costs” associated with the rescue. RSA 206:26-bb. Nothing in the statute otherwise limits the Department’s recovery, and we will not add limiting language to the statute that the legislature did not include. See Appeal of Local Gov’t Ctr., 165 N.H. at 804 (HN8[] “We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include.”). Because the trial court’s damages award of $9,186.38, plus costs and interest, is reasonable, and thus is not clearly erroneous, we uphold it.

Affirmed.

Dalianis, C.J., and Hicks, Conboy, and Bassett, JJ., concurred.

Do Releases Work? Should I be using a Release in my Business? Will my customers be upset if I make them sign a release?

Posted: May 18, 2021 | Author: Recreation Law | Filed under: Activity / Sport / Recreation, Adventure Travel, Assumption of the Risk, Avalanche, Camping, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Health Club, Indoor Recreation Center, Insurance, Jurisdiction and Venue (Forum Selection), Medical, Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Playground, Racing, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Search and Rescue (SAR), Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Triathlon, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Accidents, Angry Guest, Dealing with Claims, General Liability Insurance, Guide, http://www.rec-law.us/ORLawTextbook, Injured Guest, Insurance policy, James H. Moss J.D., Jim Moss, Liability insurance, OR Textbook, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, RecreationLaw, Risk Management, risk management plan, Textbook, Understanding, Understanding Insurance, Understanding Risk Management, Upset Guest | Leave a comment

These and many other questions are answered in my book Outdoor Recreation Risk Management, Insurance and Law.

Releases, (or as some people incorrectly call them waivers) are a legal agreement that in advance of any possible injury identifies who will pay for what. Releases can and to stop lawsuits.

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Chapter 1 Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2 U.S. Legal System and Legal Research

Chapter 3 Risk 25

Chapter 4 Risk, Accidents, and Litigation: Why People Sue

Chapter 5 Law 57

Chapter 6 Statutes that Affect Outdoor Recreation

Chapter 7 Pre-injury Contracts to Prevent Litigation: Releases

Chapter 8 Defenses to Claims

Chapter 9 Minors

Chapter 10 Skiing and Ski Areas

Chapter 11 Other Commercial Recreational Activities

Chapter 12 Water Sports, Paddlesports, and water-based activities

Chapter 13 Rental Programs

Chapter 14 Insurance

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Artwork by Don Long donaldoelong@earthlink.net

What is a Risk Management Plan and What do You Need in Yours?

Posted: July 25, 2019 | Author: Recreation Law | Filed under: Activity / Sport / Recreation, Adventure Travel, Assumption of the Risk, Avalanche, Camping, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Health Club, Indoor Recreation Center, Jurisdiction and Venue (Forum Selection), Legal Case, Medical, Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Playground, Racing, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Search and Rescue (SAR), Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Triathlon, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Adventure travel, and Law, assumption of the risk, camping, Case Analysis, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Donkeys, Equine Activities (Horses, first aid, General Liability Insurance, Good Samaritan Statutes, Guide, Hang gliding, http://www.rec-law.us/ORLawTextbook, Insurance, Insurance policy, James H. Moss, James H. Moss J.D., Jim Moss, Jurisdiction and Venue (Forum Selection), Legal Case, Liability insurance, Medical, Mountain biking, Mountaineering, Mules) & Animals, Negligence, OR Textbook, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, Paddlesports, Paragliding, Recreational Use Statute, Release (pre-injury contract not to sue), Risk Management, risk management plan, Rivers and Waterways, Rock climbing, Sea Kayaking, ski area, Ski Area Statutes, Skiing / Snow Boarding, Skydiving, swimming, Textbook, Understanding, Understanding Insurance, Understanding Risk Management, Whitewater Rafting, zip line | Leave a comment

Everyone has told you, you need a risk management plan. A plan to follow if you have a crisis. You‘ve seen several and they look burdensome and difficult to write. Need help writing a risk management plan? Need to know what should be in your risk management plan? Need Help?

This book can help you understand and write your plan. This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you plan is a workable plan, not one that will create liability for you.

Table of Contents

Chapter 1 Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2 U.S. Legal System and Legal Research

Chapter 3 Risk 25

Chapter 4 Risk, Accidents, and Litigation: Why People Sue

Chapter 5 Law 57

Chapter 6 Statutes that Affect Outdoor Recreation

Chapter 7 PreInjury Contracts to Prevent Litigation: Releases

Chapter 8 Defenses to Claims

Chapter 9 Minors

Chapter 10 Skiing and Ski Areas

Chapter 11 Other Commercial Recreational Activities

Chapter 12 Water Sports, Paddlesports, and water-based activities

Chapter 13 Rental Programs

Chapter 14 Insurance

$99.00 plus shipping

Can’t Sleep? Guest was injured, and you don’t know what to do? This book can answer those questions for you.

Posted: July 23, 2019 | Author: Recreation Law | Filed under: Adventure Travel, Assumption of the Risk, Avalanche, Camping, Climbing, Climbing Wall, Contract, Criminal Liability, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Health Club, How, Indoor Recreation Center, Insurance, Jurisdiction and Venue (Forum Selection), Medical, Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Playground, Racing, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Search and Rescue (SAR), Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Triathlon, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Accidents, Angry Guest, Dealing with Claims, General Liability Insurance, Guide, http://www.rec-law.us/ORLawTextbook, Injured Guest, Insurance policy, James H. Moss J.D., Jim Moss, Liability insurance, OR Textbook, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, RecreationLaw, Risk Management, risk management plan, Textbook, Understanding, Understanding Insurance, Understanding Risk Management, Upset Guest | Leave a comment

An injured guest is everyone’s business owner’s nightmare. What happened, how do you make sure it does not happen again, what can you do to help the guest, can you help the guests are just some of the questions that might be keeping you up at night.

This book can help you understand why people sue and how you can and should deal with injured, angry or upset guests of your business.

This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you keep your business afloat and moving forward.

You did not get into the outdoor recreation business to worry or spend nights staying awake. Get prepared and learn how and why so you can sleep and quit worrying.

Table of Contents

Chapter 1 Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2 U.S. Legal System and Legal Research

Chapter 3 Risk 25

Chapter 4 Risk, Accidents, and Litigation: Why People Sue

Chapter 5 Law 57

Chapter 6 Statutes that Affect Outdoor Recreation

Chapter 7 Pre-injury Contracts to Prevent Litigation: Releases

Chapter 8 Defenses to Claims

Chapter 9 Minors

Chapter 10 Skiing and Ski Areas

Chapter 11 Other Commercial Recreational Activities

Chapter 12 Water Sports, Paddlesports, and water-based activities

Chapter 13 Rental Programs

Chapter 14 Insurance

$130.00 plus shipping

Do Releases Work? Should I be using a Release in my Business? Will my customers be upset if I make them sign a release?

Posted: April 30, 2019 | Author: Recreation Law | Filed under: Activity / Sport / Recreation, Adventure Travel, Assumption of the Risk, Avalanche, Camping, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Health Club, Indoor Recreation Center, Insurance, Jurisdiction and Venue (Forum Selection), Medical, Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Playground, Racing, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Search and Rescue (SAR), Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Triathlon, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Accidents, Angry Guest, Dealing with Claims, General Liability Insurance, Guide, http://www.rec-law.us/ORLawTextbook, Injured Guest, Insurance policy, James H. Moss J.D., Jim Moss, Liability insurance, OR Textbook, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, RecreationLaw, Risk Management, risk management plan, Textbook, Understanding, Understanding Insurance, Understanding Risk Management, Upset Guest | Leave a comment

These and many other questions are answered in my book Outdoor Recreation Risk Management, Insurance and Law.

Releases, (or as some people incorrectly call them waivers) are a legal agreement that in advance of any possible injury identifies who will pay for what. Releases can and to stop lawsuits.

This book will explain releases and other defenses you can use to put yourself in a position to stop lawsuits and claims.

This book can help you understand why people sue and how you can and should deal with injured, angry or upset guests of your business.

This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you keep your business afloat and moving forward.

You did not get into the outdoor recreation business to worry or spend nights staying awake. Get prepared and learn how and why so you can sleep and quit worrying.

Table of Contents

Chapter 1 Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2 U.S. Legal System and Legal Research

Chapter 3 Risk 25

Chapter 4 Risk, Accidents, and Litigation: Why People Sue

Chapter 5 Law 57

Chapter 6 Statutes that Affect Outdoor Recreation

Chapter 7 Pre-injury Contracts to Prevent Litigation: Releases

Chapter 8 Defenses to Claims

Chapter 9 Minors

Chapter 10 Skiing and Ski Areas

Chapter 11 Other Commercial Recreational Activities

Chapter 12 Water Sports, Paddlesports, and water-based activities

Chapter 13 Rental Programs

Chapter 14 Insurance

$99.00 plus shipping

Artwork by Don Long donaldoelong@earthlink.net

Can’t Sleep? Guest was injured, and you don’t know what to do? This book can answer those questions for you.

Posted: April 16, 2019 | Author: Recreation Law | Filed under: Adventure Travel, Assumption of the Risk, Avalanche, Camping, Climbing, Climbing Wall, Contract, Criminal Liability, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Health Club, How, Indoor Recreation Center, Insurance, Jurisdiction and Venue (Forum Selection), Medical, Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Playground, Racing, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Search and Rescue (SAR), Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Triathlon, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Accidents, Angry Guest, Dealing with Claims, General Liability Insurance, Guide, http://www.rec-law.us/ORLawTextbook, Injured Guest, Insurance policy, James H. Moss J.D., Jim Moss, Liability insurance, OR Textbook, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, RecreationLaw, Risk Management, risk management plan, Textbook, Understanding, Understanding Insurance, Understanding Risk Management, Upset Guest | Leave a comment

This book can help you understand why people sue and how you can and should deal with injured, angry or upset guests of your business.

This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you keep your business afloat and moving forward.

You did not get into the outdoor recreation business to worry or spend nights staying awake. Get prepared and learn how and why so you can sleep and quit worrying.

Table of Contents

Chapter 1 Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2 U.S. Legal System and Legal Research

Chapter 3 Risk 25

Chapter 4 Risk, Accidents, and Litigation: Why People Sue

Chapter 5 Law 57

Chapter 6 Statutes that Affect Outdoor Recreation

Chapter 7 Pre-injury Contracts to Prevent Litigation: Releases

Chapter 8 Defenses to Claims

Chapter 9 Minors

Chapter 10 Skiing and Ski Areas

Chapter 11 Other Commercial Recreational Activities

Chapter 12 Water Sports, Paddlesports, and water-based activities

Chapter 13 Rental Programs

Chapter 14 Insurance

$130.00 plus shipping

What is a Risk Management Plan and What do You Need in Yours?

Posted: April 11, 2019 | Author: Recreation Law | Filed under: Activity / Sport / Recreation, Adventure Travel, Assumption of the Risk, Avalanche, Camping, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Health Club, Indoor Recreation Center, Jurisdiction and Venue (Forum Selection), Legal Case, Medical, Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Playground, Racing, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Search and Rescue (SAR), Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Triathlon, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Adventure travel, and Law, assumption of the risk, camping, Case Analysis, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Donkeys, Equine Activities (Horses, first aid, General Liability Insurance, Good Samaritan Statutes, Guide, Hang gliding, http://www.rec-law.us/ORLawTextbook, Insurance, Insurance policy, James H. Moss, James H. Moss J.D., Jim Moss, Jurisdiction and Venue (Forum Selection), Legal Case, Liability insurance, Medical, Mountain biking, Mountaineering, Mules) & Animals, Negligence, OR Textbook, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, Paddlesports, Paragliding, Recreational Use Statute, Release (pre-injury contract not to sue), Risk Management, risk management plan, Rivers and Waterways, Rock climbing, Sea Kayaking, ski area, Ski Area Statutes, Skiing / Snow Boarding, Skydiving, swimming, Textbook, Understanding, Understanding Insurance, Understanding Risk Management, Whitewater Rafting, zip line | Leave a comment

Everyone has told you, you need a risk management plan. A plan to follow if you have a crisis. You‘ve seen several and they look burdensome and difficult to write. Need help writing a risk management plan? Need to know what should be in your risk management plan? Need Help?

This book can help you understand and write your plan. This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you plan is a workable plan, not one that will create liability for you.

Table of Contents

Chapter 1 Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2 U.S. Legal System and Legal Research

Chapter 3 Risk 25

Chapter 4 Risk, Accidents, and Litigation: Why People Sue

Chapter 5 Law 57

Chapter 6 Statutes that Affect Outdoor Recreation

Chapter 7 PreInjury Contracts to Prevent Litigation: Releases

Chapter 8 Defenses to Claims

Chapter 9 Minors

Chapter 10 Skiing and Ski Areas

Chapter 11 Other Commercial Recreational Activities

Chapter 12 Water Sports, Paddlesports, and water-based activities

Chapter 13 Rental Programs

Chapter 14 Insurance

$99.00 plus shipping

Montreat College Virtuoso Series 2 Day Outdoor Recreation Management, Insurance & Law Program

Posted: February 12, 2017 | Author: Recreation Law | Filed under: Assumption of the Risk, Avalanche, Challenge or Ropes Course, Climbing, Climbing Wall, Cycling, Medical, Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Racing, Risk Management, Rock Climbing, Scuba Diving, Search and Rescue (SAR), Ski Area, Skier v. Skier, Skiing / Snow Boarding, Sports, Swimming, Whitewater Rafting, Zip Line | Tags: assumption of the risk, Certificate of Insurance, Insurance & Law, Montreat College, Outdoor Recreation Risk Management, releases, Risk Management, Risk Management Plans, Seminar, Virtuosos Series | Leave a comment

2 packed Days with information you can put to use immediately. Information compiled from 30 years in court and 45 years in the field.

Whatever type of Program you have, you’ll find information and answers to your risk management, insurance and legal questions.

You’ll also receive a copy of my new book Outdoor Recreation Insurance, Risk Management, and Law

Get these Questions Answered

What has changed in the law Concerning Releases? What states still allow releases and which ones do not. What changes have been made in how releases are written? How can you make sure your release is not as affected by these changes?

Everyone is excited about Certificates of Insurance. Why this excitement is not valid and why most of them don’t work. What must you do to make a certificate of insurance work for your program?

What is an assumption of risk document and why are they important. How can your website be used to prove assumption of the risk.

How should you write a risk management plan that does not end up being used against you in court?

How do you handle an accident so it does not become a claim or a lawsuit.

Put February 24 & 25^th on your Calendar Now.

Course Curriculum

1. Assumption of the Risk

1.1. Still a valid defense in all states

1.2. Defense for claims by minors in all states

1.3. Proof of your guests assuming the risk is the tough part.

1.3.1. Paperwork proves what they know

1.3.1.1. Applications

1.3.1.2. Releases

1.3.1.3. Brochures

1.3.2. The best education is from your website

1.3.2.1. Words

1.3.2.2. Pictures

1.3.2.3. Videos

2. Releases

2.1. Where they work

2.1.1. Where they work for kids

2.2. Why they work

2.2.1. Contract

2.2.2. Exculpatory Clause

2.2.3. Necessary Language

2.2.4. What kills Releases

2.2.4.1. Jurisdiction & Venue

2.2.4.2. Assumption of the Risk

2.2.4.3. Negligence Per Se

2.2.4.4.

3. Risk Management Plans

3.1. Why yours won’t work

3.2. Why they come back and prove your negligence in court

3.2.1. Or at least make you look incompetent

3.3. What is needed in a risk management plan

3.3.1. How do you structure and create a plan

3.3.2. Top down writing or bottom up.

3.3.2.1. Goal is what the front line employee knows and can do

4. Dealing with an Incident

4.1. Why people sue

4.2. What you can do to control this

4.2.1. Integration of pre-trip education

4.2.2. Post Incident help

4.2.3. Post Incident communication

You can decided how your program is going to run!

Put the date on your calendar now: February 24 and 25^th 2017 at Montreat College, Montreat, NC 28757

$399 for both days and the book!

For more information contact Jim Moss rec.law@recreation.law.com

To register contact John Rogers , Montreat College Team and Leadership Center Director, jrogers@montreat.edu (828) 669- 8012 ext. 2761

Sometimes you wish the defendant would lose when a fireman prevents a rescue by someone who probably could have saved the deceased’s life

Posted: September 19, 2016 | Author: Recreation Law | Filed under: California, First Aid, Paddlesports, Search and Rescue (SAR) | Tags: Duty to Rescue, Hazardous Recreational Activity, Immunity, No Duty to Rescue, Surfing | 2 Comments

At the same time, any claim for “negligent rescue” would put thousands of SAR volunteers at risk.

Decker, v. City of Imperial Beach, 209 Cal. App. 3d 349; 257 Cal. Rptr. 356; 1989 Cal. App. LEX-IS 301

State: California, Court of Appeal of California, Fourth Appellate District, Division One

Plaintiff: Glenn A. Decker

Defendant: City of Imperial Beach

Plaintiff Claims: Failure to properly rescue and failure to allow rescue

Defendant Defenses:

Holding: For the Defendants

Year: 1989

The deceased and a friend went surfing off the city beach. There were no lifeguards on duty because it was not summer. Lifeguards were only at work during the summer season. The defendant city does not provide lifeguards for the beach except in the summer.

The defendant’s leash for his surfboard got caught on a line for a lobster trap and he eventually drowned.

While the deceased was still alive several people attempted to assist the deceased until the fire department showed up. On the scene the Fire Chief ordered no more rescues.

An Imperial Beach firefighter, Olin Golden, who was a water safety instructor and life guard, contacted Hewitt about the situation and borrowed Hewitt’s wet suit and surfboard. Imperial Beach Fire Chief Ronald Johnston ordered Hewitt and Golden and all other would-be rescuers to remain on the beach and not to attempt a rescue.

Eventually, the deceased died without being rescued and his body floated to shore. His mother sued the city for the botched rescue or actually no rescue. The trial court granted the cities motion for summary judgment.

This appeal then occurred.

Analysis: making sense of the law based on these facts.

The court first started looking at the requirements for summary judgment in California.

The aim of the summary judgment procedure is to discover whether the parties possess evidence requiring the fact-weighing procedures of a trial. “[The] trial court in ruling on a motion for summary judgment is merely to determine whether such issues of fact exist, and not to decide the merits of the issues themselves.” In reviewing the propriety of a summary judgment, the appellate court must resolve all doubts in favor of the party opposing the judgment.

A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff’s asserted causes of action can prevail.

The city first argued that it owed no duty because surfing was a hazardous recreational activity and there was a statute that protected it from liability issues of such activities.

Government Code 2 section 831.7 provides a public entity is not “liable to any person who participates in a hazardous recreational activity . . . for any damage or injury to property or persons arising out of that hazardous recreational activity.” Surfing is specifically included as a “hazardous recreational activity.” (§ 831.7, subd. (b)(3).)

In reviewing the statute the court found the legislature had you broad language in creating the statute in order to provide the broadest protection for the municipalities.

Instead, the Legislature used expansive language to describe the scope of the immunity, stating it applied to “any damage or injury to property or persons arising out of that hazardous recreational activity.” (Italics added.) This broad language is reasonably susceptible to an interpretation that it was intended to preclude liability for negligently inflicted injuries while rescuing a person who has been participating in a hazardous recreational activity since it can be said the rescue effort “arises out of” the individual’s participation in the hazardous recreational activity.

The court looked at the issues in the case and found the statute was created to encourage rescue. If any rescue was subject to litigation afterwards, no rescues would occur.

The act did seem to have an exception for gross negligence.

An interpretation of the hazardous recreational activities immunity to immunize public entities and their employees for acts of emergency rescue services unless there is gross negligence furthers the strong public policy encouraging rescues and emergency assistance.

However, no gross negligence claim was pled, and none was found in this case.

The court then looked at the Fire Chief “precluding other assistance.”

The facts show Imperial Beach firefighter Olin Golden borrowed Hewitt’s wet suit and requested permission to attempt a surf rescue of Gary. Decker states Golden “was a water safety instructor and a life guard trained in surf rescue.” While Decker presented evidence showing Golden was a water safety instructor and lifeguard, nothing in the record indicates Golden was experienced in surf rescue. Rather, the record indicates Golden had given swimming lessons at a high school pool and had guarded the pool; this was the information known to the fire chief at the time he told Golden to stay on the beach. Under these circumstances, it cannot be said the fire chief’s refusal to allow Golden to attempt a surf rescue constituted gross negligence.

Here the court found the duty of the fire chief in precluding the rescue was based on protecting the rescuer. As such the acts of preventing a possible rescue were not grossly negligent.

The next argument made by the plaintiff, was, the rescue technique used was antiquated and prevented a proper rescue.

Decker presented testimony by Charles Chase, an experienced lifeguard supervisor. Chase testified about the rescue method used by the Sheriff’s dive team (sending out a diver tethered to a rope) as follows: “A life line type rescue is used in special circumstances, but it would never be used with a strong side current [as was the case here] and it would never be used if you could get there quicker in a better way, and it’s a specialized form of rescue. Years and years ago the life line rescue was quite common, and that was prior to the use or the availability of, say, fins and also the availability of good swimmers. If you go back to the 20’s, they had a limited amount of people that could swim as well as a lot of people can swim now and fins weren’t available.”

The court found the technique was disfavored, but did not rise to the level of gross negligence in this case.

This testimony could support a finding that use of the lifeline rescue method is a disfavored surf rescue method and would not be used by an experienced, trained surf rescuer but it does not support a finding the sheriff’s dive team was grossly negligent for having used this method given their lack of training or experience in surf rescue.

Finding no gross negligence on the part of the fire chief or the fire department the appellate court upheld the trial court’s granting of the motion for summary judgment.

So Now What?

This is one of those cases that frustrated the heck out of me. Yet, overall, in hundreds of other situations, this is the good outcome. It will save a lot more other people because rescuing someone will not be a liability nightmare.

This is how the law is to be applied both as it applies to the individual parties who are in the case and future litigants, searches and victims of the city.

Sad, but true.

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Author: Outdoor Recreation Insurance, Risk Management and Law

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Email: Rec-law@recreation-law.com

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By Recreation Law Rec-law@recreation-law.com James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Surfing, Hazardous Recreational Activity, Duty to Rescue, No Duty to Rescue, Immunity,

SAR volunteer may sue victims he was searching for when he was injured

Posted: October 15, 2013 | Author: Recreation Law | Filed under: California, Search and Rescue (SAR) | Tags: Lost, No charge for Rescue, SAR, Search and Rescue | 9 Comments

Sort of a reverse from the normal situation

A 19 and a 20-year-old idiot got lost earlier this spring in Trabuco Canyon, California. During the search for the men, one SAR volunteer fell over a cliff breaking his back. One of the lost men had a significant quantity of drugs in his car, and the two were suspected of being high, thus the cause of them getting lost.

If the lost victim completes a drug diversion program, this will not allow the injured SAR volunteer from seeking compensation for his injuries, which allegedly total $350,000.

There are two problems with the issue of suing the idiots.

1. They probably don’t have a dime to their name which means it would be a waste of time and money.

2. I’m not sure of the necessary legal connection, proximate cause, or link between being allegedly illegally high and lost connects to a volunteer who falls off a cliff.

You sort of hope he can, but I think this will open up a bigger can of worms than charging for rescues. See the Facebook page No Charge for Rescue.

See SAR Volunteer to Sue Trabuco Teens

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

Mobile Site: http://m.recreation-law.com

By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank

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Bill Introduced into the Colorado Legislature to provide additional protection to CO SAR Teams and EMS providers

Posted: February 15, 2013 | Author: Recreation Law | Filed under: Colorado, Search and Rescue (SAR) | Tags: Colorado, Colorado General Assembly, Confidential, Emergency Medical Services, EMS, SAR, Search and Rescue | Leave a comment

If you live in CO, please support this bill.

SB 13-038: Providing for Confidentiality of Certain Communications of Emergency Responders

On Wednesday, January 16, 2013, Sen. David Balmer introduced SB 13-038 – Concerning the

Confidentiality of Certain Communications Among Emergency Responders. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Current law makes certain communications between law enforcement officers and firefighters and their peer support team members confidential for purposes of testifying in court. The bill extends this confidentiality to emergency medical service providers and members of rescue units. The bill is assigned to the Judiciary Committee.

Since this summary, the Judiciary Committee referred the bill, unamended, to the Consent Calendar of the Senate Committee of the Whole.

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Research shows beacons have issues with multivictim searches

Posted: February 14, 2012 | Author: Recreation Law | Filed under: Avalanche, Search and Rescue (SAR), Skiing / Snow Boarding | Tags: Adventure travel, avalanche, Avalanche Beacons, Beacons, Mulit Victim Searches, Mulitvictim Searches, Ski Resort | Leave a comment

Problems may be more prevalent with older models of beacons

The issue is that some beacons will mask another beacon. If two victims with beacons are buried in close proximity then you may only see the one victim.

The article and issues are complex and are still be investigated, however if you are a professional or possibly use your beacon in multivictim situations you should read the article.

See Problems with multivictim searches or watch a Video about the issue.

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Personal Locator Beacons

Posted: January 12, 2011 | Author: Recreation Law | Filed under: Search and Rescue (SAR) | Leave a comment

Technology, Idiots and Instructions: two of these always seem to get connected and the third one never gets read or used!

The question with no answers yet when you discuss Personal Locator Beacons (PLB) is: does the use of PLB’s encourage IIW’s (Idiots in the Wilderness)?

Until such time that we can answer the question, the issue becomes how we get people to read the instructions on how to use, not use and turn off personal locator beacons.

Why? Because they are as much of a problem as they are a lifesaver. SAR reports are full of situations where the beacons came on accidentally (Steve Howe’s Rescue Call from Denali), were switched on when they did not need to be (Yuppie 911) or the people no longer needed rescued but did not turn the PLB’s off.

This is not counting the IIW who thought his PLB was an avalanche beacon, (Alpine Rescue Team needs your help – PLB false alerts in Berthoud Pass (Colorado) area, This is starting to become stupid, Well they found him. He thought his PLB was an avalanche beacon.)
Or the IIW’s who thought the park service was a personal valet called by their PLB, Grand Canyon hikers summon rescue helicopter with beacon because their water ‘tasted salty’.

These examples are the extreme ones that make the news. What does not get press are the constant calls and responses by Search and Rescue (SAR) groups. A major reason is people do not read the instructions with the PLB or do not have access to all the instructions. ?

Yes, a lot of the information on how to use some PLB’s is either hard or impossible to find. So when the information below floated by, I knew I had to post it.

If you own a Spot PLB, or going out with someone who does read the following. You may even want to print this information out and carry it with you.

** During a SAR, would the agency be able to access the person’s online shared page (useful to look at historic progress to estimate hiking speed, ability and route decisions).
Only if contact is made with one of the registered owner’s emergency contacts, and they have the link and are willing to share the password and login to view the historical data received from the unit.
** What if a signal is sent and SPOT is not registered?
SPOT will NOT transmit an SOS/911 signal, unless the SPOT unit is registered with active service.
** COMMAND > OFF: Does turning the unit off while a function is active send a message, e.g., does it send a cancellation message for any command?
(Some users think so, but probably not.)
No, Powering the SPOT unit down or off does not send a cancel message but stops the message cycle. The only message mode that can send a cancel message is Help and SOS/911. To do so, the unit has to already be active in either Help or SOS/911 mode. Next, press and hold the Help or SOS/911 button until the LED light for that message mode turns blinks red. Cancel works like Check-In. It sends one message repeated 3 times. So it takes about 15-20 minutes to complete its cycle.
** COMMAND > OFF > ON: If a function is active and the unit is turned off and then on, does the function resume (via internal memory, after the self-test) or does turning the unit off erase any command?
The function will need to be reactivated once the device is turned on. Messages are not stored. The SPOT unit will only be powered on and in “stand-by” mode until a message function is engaged.
**If the unit can’t get GPS coordinates it won’t send an OK message. (Unlike HELP and 911)
Confirm that if SPOT can’t get location it won’t send an OK message.
This is correct. SPOT will not transmit a message in the Check-ok, Custom Message or Tracking mode, unless it has a GPS fix. However, SPOT will still transmit the message in the Help and SOS/911 modes if it doesn’t have a GPS fix. This way, the IERCC can look at previous messages to get an idea of the location and begin processing for additional information. Both Help and SOS/911 modes transmit every 5 minutes so if one message doesn’t have a GPS fix, the next ones may. The GPS chipset will continue to look for 4 minutes between cycles.
Cancel HELP by pressing HELP button until it turns red.
This is done by pressing and holding the Help message function button until the message function button LED light turns blinks red. This unit must already be in the Help or SOS/911 mode in order to send a cancel message.
** Does cancellation message repeat?
Both Help and SOS/911 message cancellation sends one message repeated over 3 attempts times in a 15-20 minute cycle to ensure reliability.
** If there is no 911 message, but the team sees HELP, thinks there is trouble and calls IERCC, can IERCC access data?
The IERCC does have the capability to contact technical support personnel that can access the data. This does take several minutes to access. Keep in mind, if someone receives a SPOT Help message, it will contain the SPOT ESN number, Lat and Long coordinates, the SPOT user’s pre-programmed message and a link to Google Maps.
** Why doesn’t website or manual give examples of how HELP has been useful and suggestions for effective use, e.g., a preplan for Team?
SPOT has highlighted user case studies using both the Help and SOS/911 button on the Rescues and testimonial section of findmespot.com, online newsletter, and retail in-store videos. However, SPOT is currently working on a user tips campaign to help educate SPOT users on best practice and operation procedures for each message mode especially for Help and SOS/911. SPOT is increasing these efforts to user education.
** What happens if you send a second 911 (press the button briefly) while SPOT is sending its stream of 911 messages?
This will NOT disrupt the SOS/911 message cycle. The only interruption will result from a Cancel or Power Off function.
** Does 911 resume if the device is turned OFF then turned ON, or dead batteries are replaced?
Probably not, otherwise there would be false alarms. 911 will send a distress message, even if can’t get location. (Like HELP)
SOS/911 will ONLY transmit a message when the SPOT unit is powered ON and the user activated the SOS/911 mode by pressing the button. It will NOT resume if the device is turned off and back on or if the batteries die and are then replaced. This stops the message function.
Yes, SOS/911 will transmit a message, even if SPOT doesn’t have the GPS location fix. This is very beneficial as it allows the IERCC the opportunity to begin its process of gathering additional information and working coordinating efforts. They also have the ability to review previous messages (OK, Track or Help) that may have been sent prior, giving an idea of the area where the SPOT user is located.
** Does the distress message go out every 5 minutes until batteries die? (Manual doesn’t say.)
Yes, the SOS/911 message will transmit every 5 minutes for the life of the battery until cancelled or the device is turned off. (pg 16 of the SPOT 2 user manual). The manual for the original SPOT Satellite Personal Tracker does not state this. However, the FAQ section of findmespot.com does state this.
** Do all subsequent signals, including OK, Tracking, and HELP go to IERC?
If the 911/SOS function is activated the IERCC will be able to view all additional functions leading up to the 911/SOS activation and any additional functions activated after the emergency activation until the incident is resolved on the IERCC’s monitoring software.
** Do any subsequent signals, e.g., OK or HELP, go to Team and or to web account?
All the subsequent signals from the device are able to be viewed on the shared page for the device and/or the contacts whom the registered owner has selected an e-mail notification be sent to.
“GEOS Alliance™ operators call customer’s contacts to confirm if the user is potentially in a life threatening emergency.”
Prior to contacting emergency services in the event that a 911/SOS alert is received, IERCC SAR Mission Coordinators (SMC) and Watch Standers (W/S) will attempt to contact the registered owner at the contact numbers provided. This is to try and gather additional information that may be helpful to rescue agencies but also is used to help determine quickly if the signal was a false alarm. (Is the unit currently with the registered owner or was it lent to a friend for a trip, known medical conditions, etc.) If contact is not made with the registered owner, or it is determined that the device is not in the registered owner’s possession. The SMC will contact emergency services based on the latitude and longitude and pass the information regarding the incident. At the same time, IERCC W/S’s begin contacting the registered owner’s emergency contacts to gather additional information that can aid emergency personnel in affecting a rescue. This information will be passed as it is received from the registered owner’s contacts. Throughout an incident IERCC personnel will continue to stay in contact or attempt to contact the registered owner’s emergency contacts to gather additional information to pass to emergency services.
** What proof does the IERCC accept that there is no emergency after 911 activation?
Contact with the registered owner confirming the false alarm, confirmation from emergency services that contact has been made with the registered owner or that registered owner has been located.
What does SPOT pamphlet/instructions say about what constitutes an emergency?
User manual states: For life-threatening or other critical situations.
Website states: Use this function. In the event of a life threatening or other critical emergencies to notify emergency services of your GPS location, and that you need assistance.
** When does the IERCC stop monitoring SPOT after a 911 and returns to normal operations?
After it is confirmed that assistance is no longer needed from the registered owner/or the emergency personnel informs the IERCC that they have located and assisted the individuals in need.
** What else does IERCC ask contacts?
Itinerary, number in party, activity, skill level, names/ages of parties involved, medical history, supplies and equipment, descriptions, last contact, vehicle description.
** Does GEOS dispatch have a written protocol and/or list of questions to ask emergency contacts?
YES
** Can we get a copy of that SOP?
To ensure operational security I cannot release the IERCC’s SOP. The questions are based on the listed categories above. We can put in place a Memorandum of Understanding as we have in place with various Rescue Coordination Centers and response agencies.
** Will the IERCC always release the emergency contact information?
The IERCC release’s all the information obtained regarding an incident to ensure that SAR personnel have all the details available to facilitate the SAR response. The information passed includes, but is not limited to: position, location from a prominent landmark, registered owner name, registered owners contact information, including address and e-mail address, emergency contacts names and numbers, number of people involved, itinerary, description, known health concerns, vehicle description, age, skill level, supplies and equipment. Obtaining some of this information is dependent on contact being made with the registered owners’ emergency contacts.
** IERCC only gives out geographic (e.g. physical description to geo feature) location if asked – not SOP. True?
This is not true; the IERCC is capable of passing the location in several formats. If there is a prominent landmark (i.e. trail head, lake, road, ranger station) available our personnel will pass that information to emergency services.
911 Cancellation Message
Cancel 911 by depressing the 911 button > 5 sec or until button flashes red.
Correct
** Does a 911 cancellation go only to IERCC? I think so.
Yes
** Does a 911 cancellation continue every 5 minutes until turned off or batteries die, like a 911?
No, the cancel sends one message over three attempts over a 15-20 minute cycle. (same as Check/OK)
** If you activate 911, then turn the unit off, does that send a cancellation message?
If the unit is turned off while the 911/SOS function is active the unit does not send a cancel message, and it also does not send a message stating that the unit has been turned off. With that being said there is no way to determine if the unit has been turned off or is experiencing interference sending the message out so our personnel continue to work at an incident until confirmation has been made that there is no longer an emergency. Simply not receiving updates from the unit does not mean the IERCC resolves the incident.
** What happens if the first command you give is a 911 cancellation, without first activating 911? I.e., you hold the button down for > 5 sec? Does it simply go out as 911 or does holding down the button prevent 911 and send a cancellation? Or something else?
The unit can actually send a cancellation message to the IERCC without receiving a 911 message first. This has happened only on one occasion.
** If you sent a 911, but you didn’t notice that it didn’t go out, and then you sent a cancellation that did go out, would the IERC only see a cancellation with no previous 911?
Yes it can happen, but again it has only happened once in over two years. It should be mentioned that the unit’s LED would inform the user that one of the two functions were enabled.
** How would the IERCC respond in that case? Would they notify the EMA?
Our personnel will attempt to contact the registered owner and the emergency contacts to try and gather information on the incident. If contact is not made and if a position is available emergency services will be contacted. In these case emergency services will be advised that the activation was received in the cancel mode.
** Is this scenario possible or is it stupid? (I’m assuming totally ignorant users.)
It is possible.
** Can trying to send another 911 message while 911 is already activated, unintentionally send a 911 cancellation if the button is depressed too long? I assume so. This would occur if the user were panicked and/or didn’t understand the device and thought he had to keep sending 911 manually. For example, a bystander trying to operate the victim’s SPOT.
Yes if the user fails to operate the unit correctly.
** What happens when you send a 911 cancellation and then send OK?
The IERCC will see the both messages and inform the responding agency of the messages. The listed contacts under the users OK message profile will only receive the OK message as an SMS text, an email, or on the registered owners shared page. This provides additional info to the IERCC which can be communicated to the agency.
** What if the first 911 cancellation didn’t get out?
SPOT attempts to send 3 cancellation messages over a 15-20 minute cycle.
** If the SPOT only sends one 911 cancellation, not every 5 minutes like a 911 message, couldn’t they miss it if the signal doesn’t get out? Or does the SPOT know that and keep trying?
SPOT has a 99.94% reliability rate for message transmissions. However, if the unit did not have a clear view of the sky than its possible the cancellation message may never be received.
** After a 911, if you skip the 911 cancel message and just hit OK, what does the IERCC see?
The only way that an O.K. message can be sent after activating the 911 feature is to cancel the 911, or turn off the device and then turn it back on and send an O.K. message. The IERCC will see that the O.K. message was sent from the device after the last 911 message. Personnel from the IERCC will then inform the responding agency of the receipt of the O.K. message.
** Does OK have no effect in that situation, since 911 overrides OK?
Emergency Services will be informed of the O.K. message being sent. That is the only effect it has on the issue.
** If it does send an OK (with no 911 cancel signal) that the same as a 911 cancellation to the IERCC?
No it is not the same; people may send O.K. messages to inform their friends and families that they are not injured. This does not mean that an emergency exists with someone else or that assistance is still needed. We do not have the means to make that determination.
** What does a 911 cancellation message say?
The cancellation message changes the status of the incident on our monitoring software; it also stops the receipt of any additional 911 messages.
** Does GEOS understand that agencies cannot usually cancel their response without direct contact with the user (or the SPOT)?
Every member of our team are either current first responders working on a part time basis, former first responders, or former military search and rescue professionals. So yes everyone is aware of response procedures and policies.
Per manual, use 911/HELP combination to notify IERCC and your team simultaneously.
GEOS recommends against this combination. (To keep the team from interfering.)
Correct.
Miscellaneous Questions and Comments
** Does SPOT keep data on false reports?
Yes we use a shared ticket/call log system, so SPOT has access to all the data inputted from the IERCC.
** What is SPOT’s false alarm rate? (That might be hard to quantify.)
As with any emergency device false alarms can occur. However, in excess of 90% of the false alarms are determined to be a false alarm prior to emergency services being contacted.
** If we are searching for someone, say a non-SPOT user, can we get a map showing SPOT users in the area who have activated their tracking function, and thereby know where we might find witnesses?
I’m not sure this will be useful, but I won’t know until I ask.

In my opinion, this information could be very useful for SAR personnel. Unfortunately, the problem is that we would have to have the ESN’s of every device in the area.

Thanks to Spot for providing this information. I would encourage all makers of PLB’s to make this information available and make it easily findable on their websites.

Otherwise IWW’s will get charged for SARs, something we are trying to prevent. See No Charge for Rescue.

What do you think? Leave a comment.

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Grief over son’s death and lack of knowledge about SAR leads to book about SAR in the US.

Posted: October 14, 2010 | Author: Recreation Law | Filed under: Search and Rescue (SAR) | Leave a comment

The article points out what the father did not know. The book is also a way to deal with the loss of a son.

Jon Francis was lost climbing an Idaho peak in 2005. After two days of searching the search (SAR) was called off. His father did not and continues to not understand why the SAR was canceled.

His son was eventually found by paid searches’ months later. The issues of pleading for help and not understanding SAR in the US lead to the creation of this book. The book was self-published, probably meaning no book publisher would publish it.

The article is full of interesting statements about SAR in the US today. Most of the statements show a total lack of knowledge about how SAR works, both by the father of the missing climber and the journalist who wrote the article.

The father’s grief and frustration come through the most in the article. He describes the reasons why the search was eventually canceled as the people involved in the search were “risk averse.” Yet the search for his son ran longer than 90% of the searches in the US.

His grief also comes through in his reasons for writing the book. He wanted the world to know about his son.
A volunteer who is putting his life on the line, for free, looking for someone who died is not risk averse. The person who must live with the loss of a volunteer from a SAR that goes wrong is not risk averse. These people are volunteers. They are hiking the same trails that killed the son. They are doing this for a multitude of reasons, and will do so to the verge of exhaustion if necessary. They are undertaking the same risks that killed the son. How a grieving father can call volunteers undertaking the identical risk that killed his son as risk averse is unbelievable to me.

The father did not understand that SAR in most states is controlled by the Sheriff. In a few states, other agencies are in charge of SAR. There is a nationwide SAR organization, but the organization NASAR does not run searches. It only assists local organizations.

It is hard to tell, but I don’t believe that the father ever looked at the risk the SAR searches were facing. He wanted his son’s body back so badly, that the lives of others did not seem to register as an issue to him. This may be the way the journalist wrote the article, or it may be an issue. Yet this issue cannot be denied. No body is worth a life.

This is a sad story and probably a sad book. However, there are several things we can learn from this.
Grief in the US is an unbelievably strong motivator. People do not die in the US before they have lived a long life. If they do, we do not accept it. Here the grief led to the creation of an organization to assist others in finding lost people, a book and a five year condemnation of the SAR system.

People in the US do not understand how SAR works. SAR is done by volunteers except in some National Parks. Those volunteers work at the behest and in most cases control of the local sheriff.

SAR volunteers do not get the support, the equipment or most importantly the thanks they deserve.
See The father of a man who died on an Idaho peak wants to reform search and rescue.

What do you think? Leave a comment.

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Who Charges for Search and Rescue?

Posted: October 13, 2010 | Author: Recreation Law | Filed under: Search and Rescue (SAR) | Leave a comment

Or better where should I not go recreate!

This is a list of the states, counties and municipalities that have been identified that charge for rescues. These information comes from the No Charge for Rescue Facebook page and its contributors.

I’ll try and keep this information as up to date as possible, however mistakes will be made. If you have information on a government agency listed here or know of one that should be please let me know. Also post the information on the No Charge for Rescue Facebook page

General SAR Cost Recovery


State	Circumstances or criterion	Law	Limit	Negligence Req’d?	Statute
Hawaii	“intentional disregard for the person’s safety”	H.R.S § 137-2			§137-2
Maine		12 M.R.S. § 10105		No	MRS 12-13-2§10105
New Hampshire	“Determination of negligence”	RSA 206:26-bb (2010)		Yes	206:26-bb
Oregon	“Lack of reasonable care”	ORS § 404.270 (2010)	Maximum $500		401.59
Specific and limited SAR cost recovery
Colorado	“Skier Safety Act”	Duties of skiers – penalties. (3) No skier shall ski on a ski slope or trail that has been posted as “Closed” pursuant to section 33-44-107 (2) (e) and (4). (11) No person shall knowingly enter upon public or private lands from an adjoining ski area when such land has been closed by its owner and so posted by the owner or by the ski area operator pursuant to section 33-44-107 (6). (12) Any person who violates any of the provisions of subsection (3), (9), (10), or (11) of this section is guilty of a class 2 petty offense and, upon conviction thereof, shall be punished by a fine of not more than three hundred dollars.	Maximun fine $300. Restitution has been ordered for costs upon conviction of Class 2 petty offense		CRS 33-44-109.
Colorado	River rescue, commercial outfitters	2) (a) Any actual expenses incurred by a governmental entity for search and rescue efforts stemming from any river running activity conducted for consideration by a river outfitter pursuant to the provisions of this article shall be reimbursed by said river outfitter. Such expenses shall include but not be limited to hours worked, fuel, a reasonable fee for use of equipment, and equipment repair or replacement costs, if any.		No	CRS 33-32-108
Vermont	Ski area access to terrain outside bondary	(c) Civil action to recover. A person who uses the facilities of a ski area to access terrain outside the open and designated ski trails, shall be liable in a civil action brought by any person, including a ski area, rescue organization, municipality or the state, to recover expenses incurred to provide rescue, medical or other services to such person for circumstances or injuries which resulted from such use. The entity seeking to recover may also recover reasonable attorney fees and court costs. No ski area, its owners, agents or employees, individual or entity, municipal or otherwise, shall be held liable for any acts or omissions taken in the course of such rescue operations unless such act or omission constitutes gross negligence. (Added 1993, No. 233 (Adj. Sess.), §88, eff. June 21, 1994.)			12-27-1038
California	Rescuing county bills resident’s home county	The county or city and county of residence of a person searched for or rescued by the sheriff under the authority of Section 26614 shall pay to the county or city and county conducting such search or rescue, in any case where the expenses thereof exceed one hundred dollars ($100), all of the reasonable expenses in excess of one hundred dollars ($100) of such search or rescue within 30 days after the submission of a claim therefor by the county or city and county conducting the search or rescue and the county or city and county conducting the search or rescue shall bear the remaining expense.	Minimum $100	No	26614.5

What do you think? Leave a comment.

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If you leave the ski area, with or without boundary markers you are on your own.

Posted: September 16, 2010 | Author: Recreation Law | Filed under: Search and Rescue (SAR), Ski Area | 4 Comments

If your parents sue because you died outside of the ski area, they are just publicizing your bad decisions.

A family from New York is suing Idaho and Wyoming sheriff’s departments and search and rescue units for failing to rescue their son. It appears that the ski area may be facing suit also. The son skied outside of the boundaries of a ski area and got lost. He notified a sheriff’s dispatcher using his cell phone but died before he could be found.

Now his family is suing for “botched the rescue attempt in January and failed to communicate with Wyoming rescuers trying to locate Fitzgerald after he went outside Grand Targhee Resort boundaries, which the claim says were not adequately marked.”

It is sad when someone is injured or dies. However, leaving a ski resort without adequate knowledge, skill, gear and equipment is just stupid. Doing so when you do not know where you are going is also dumb.

Maybe New Yorker’s just don’t understand the west. While working at a resort in Summit County years ago I was summoned to the clinic. As I walked in I heard yelling from one of the examination rooms. As I walked in the eyes, and arms indicated that the yelling was coming from the room where I was needed.

As I walked through the curtain the person was upset because no one would help her get to her hotel room. She was threatening to call a cab. That alone made me grin, at the time there were no cabs in Summit County. She would have waited several hours for a cab to arrive from Denver. I inquired where she was from, (NY) and told her I was there to help. After about 5 minutes of additional yelling, she explained her predicament; swollen ankle, no shoes and ski boots. We got a pick up and took her the 80 yards to her hotel.

She was applying New York knowledge and logic to her predicament. She did not know where she was and had no idea how to deal with the situation except to insist that someone else solve her problems. You have to be a little more self reliant in the West.

Yelling does not work in the mountains, even if you are lost.
Calling a cab in the mountains does not work.
Colorado, Idaho, Montana and Wyoming are not New York.
Lost is not a TV show in the west, it is a good way to die.
Suing does not bring your dead daughter back.

The only thing a lawsuit might do is make the next lost person die because volunteers did not want to put their lifestyle on the line to save your butt.

See Family of dead skier files lawsuit against Idaho rescue teams

What do you think? Leave a comment.

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US Coast Guard has a new program to return gear, save money and maybe save your life

Posted: September 7, 2010 | Author: Recreation Law | Filed under: Paddlesports, Search and Rescue (SAR) | Leave a comment

We waste a lot of money hunting for people who are not lost.

The United States Coast Guard has a new program to help identify lost paddling gear. This program may also help the Coast Guard start searches early and not start a search if not needed.

The program is Operation Paddles Smart. The idea is an official sticker that you can attach to your gear. The sticker will identify the gear and if contacted allow the Coast Guard to contact the owner of the gear. If no one can be found, a search can be initiated. If the owner is found, the gear can be returned to the owner.

For more information see:
Operation Paddle Smart: A sticker could save your life

The Coast Guard even has a Facebook page: Paddle Smart Identification Stickers.

For more information about the program contact the US Coast Guard Pacific Area Public Affairs at 510-437-3375 or via email at melissa.l.leake@uscg.mil.

Thanks to Sea Kayaker magazine for letting me know about this.

What do you think? Leave a comment.

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LIFE SAFETY ROPE SELECTION

Posted: September 3, 2010 | Author: Recreation Law | Filed under: Search and Rescue (SAR) | Leave a comment

September 7, 2010
1pm – 2pm MDT

This free webinar, presented by PMI President Steve Hudson, will be a workshop focusing on variations of ropes used for rescue and other life safety applications. We will discuss current trends and standards in the industry. Steve will outline desirable performance characteristics of rope required for different kinds of life safety use, including rope access, wilderness rescue, urban/fire rescue, water rescue, cave rescue and others. Steve will also provide a brief overview of the history of ropes used in rescue and information on ropes in use today, covering information on rope construction, materials and selection.

SIGN UP TODAY…………

Take cell phone with you in the back country during avalanche season the future may be used to find you.

Posted: July 8, 2010 | Author: Recreation Law | Filed under: Avalanche, Search and Rescue (SAR) | Leave a comment

Technology developed to spy on cell phone conversation may be used in Europe to locate avalanche victims.

The system developed by French company called international mobile subscriber identity searches for cell phone signals within its range. The technology was developed to be able to spy on cell phone conversations.
The technology uses a box about the size of a laptop with a directional antenna which enables a mobile phone to be localized. If the mobile phone is switched on the device can locate the mobile phone within a 2 km(1.2 mile) area. Testing is ongoing to make sure the device does not interfere with avalanche beacons or ReCCOS.

This would be a real boon in the search and rescue industry. It could also be a disaster. One of the gates keeping idiots out of the backcountry is the cost of an avalanche beacon. $200-$500 it is a significant investment for someone who loves to go backcountry skiing. Each weekend cell phones are advertised for free when you sign up for a long term cell phone plan.

The issue is, if you’re willing to spend $200-$500 for beacon, you will also spend the time to learn how to use it and learn about avalanches. If you can be rescued with the cell phone, you probably won’t learn much.

See Spook’s gadget could revolutionize mountain rescue

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It's not what I write, It's what you Learn

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Everyone has told you, you need a risk management plan. A plan to follow if you have a crisis. You‘ve seen several and they look burdensome and difficult to write. Need help writing a risk management plan? Need to know what should be in your risk management plan? Need Help?

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Everyone has told you, you need a risk management plan. A plan to follow if you have a crisis. You‘ve seen several and they look burdensome and difficult to write. Need help writing a risk management plan? Need to know what should be in your risk management plan? Need Help?

This book can help you understand and write your plan. This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you plan is a workable plan, not one that will create liability for you.

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2 packed Days with information you can put to use immediately. Information compiled from 30 years in court and 45 years in the field.

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Problems may be more prevalent with older models of beacons

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