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

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.

I

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.

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. [***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.

II

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.

A

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.

B

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.

C

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.


Pennsylvania Supreme Court upholds use of an express assumption of the risk agreement to bar a claim for wrongful death during a triathlon

The court defined the written agreement, signed electronically, as an assumption of the risk agreement, even though a lower court had called it a liability waiver.

Valentino v. Philadelphia Triathlon, LLC, 209 A.3d 941 (Pa. 2019)

State: Pennsylvania, Supreme Court of Pennsylvania

Plaintiff: Michele Valentino, as Administratrix of the Estate of Derek Valentino, Deceased, and Michele Valentino, in Her Own Right

Defendant: Philadelphia Triathlon, LLC

Plaintiff Claims: Pennsylvania Wrongful Death Statute

Defendant Defenses: Express Assumption of the Risk Agreement

Holding: For the Defendant

Year: 2019

Summary

Pennsylvania Supreme Court upholds release to stop claims under PA’s wrongful-death statute. Since the deceased assumed the inherent risks of the sport, that removed the duty of the defendant triathlon therefore, the triathlon could not be negligent. No negligence, no violation of the wrongful-death statute.

Facts

In 2010, Triathlon organized a multi-sport-event, comprised of swimming in the Schuylkill River, cycling for more than fifteen miles, and running for more than three miles. To compete in the event, each participant was required to register, pay a fee, and execute electronically a liability waiver agreement that included an assumption of the risk provision (“Agreement”). On January 24, 2010, Decedent complied with these requisites by electronically registering as a participant in the triathlon and executing the Agreement.

The triathlon took place on June 26, 2010. At approximately 8:30 a.m., Decedent entered the Schuylkill River to begin the first segment of the race. Tragically, Decedent never completed the swimming portion of the competition. Divers retrieved Decedent’s body from the river the next day after he presumably drowned while participating in the triathlon.

The trial court and the appellate court dismissed the plaintiff’s claims based on the express assumption of the risk agreement signed by the deceased. The Supreme Court of Pennsylvania granted the plaintiff’s appeal which resulted in this decision.

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

The release or wavier used in this agreement is not included in the decision. One small section is quoted, which speaks to the risks the participants in the triathlon must assume. Which makes sense since the court refers to the agreement as an express assumption of the risk agreement rather than a release or waiver.

Pennsylvania follows the Restatement Second of Torts in defining assumption of the risk.

The assumption of the risk doctrine, set forth in Section 496A of the Restatement Second of Torts, provides that “[a] plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm.” Restatement Second of Torts, § 496A. Comment c(1) to Section 496A provides that the express assumption of the risk “means that the plaintiff has given his express consent to relieve the defendant of an obligation to exercise care for his protection, and agrees to take his chances as to injury from a known or possible risk.” Id. at cmt. c(1). Notably, the Comment goes on to state that “[t]he result is that the defendant, who would otherwise be under a duty to exercise such care, is relieved of that responsibility, and is no longer under any duty to protect the plaintiff.”

Under Pennsylvania law, “when a plaintiff assumes the risk of an activity it elminates the defendants duty of care”. When the deceased signed the valid agreement and expressly assumed the risks inherent in the triathlon, the decedent extinguished the defendant triathlon’s duty of care.

If there is no duty to the deceased there cannot be any negligence. Existence of a duty and a breach of that duty is the first of four steps to prove negligence.

A negligent act is required to be successful under Pennsylvania’s wrongful-death statute.

Accordingly, once Decedent extinguished Triathlon’s duty of care by expressly assuming all risks in the inherently dangerous sporting event, his heir could not resurrect that duty of care after his death. To do so would afford a decedent’s heirs more rights than those possessed by a decedent while alive.

There were three dissents in the decision. The dissents argued the Pennsylvania wrongful death statute voided the waiver. Since the right of the plaintiff under the wrongful-death statute was a right of a survivor, and the decedent could not sign away a survivor’s rights, the release, waiver or assumption of the risk agreement was void.

So Now What?

You can breathe a little easier in Pennsylvania when using releases signed electronically. It is important to make sure you include assumption of the risk language in your release to make sure the possible plaintiff assumes those risks if the court throws out the release or finds another way to sue the document to defend you.

What do you think? Leave a comment.

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