Interesting CA case on sheriff’s failure to start SAR & run SAR

Posted: October 24, 2022 | Author: Recreation Law | Filed under: California, Mountain Biking | Tags: Discretionary, Hypothermia, Immunity, Mountain biking, SAR, Search and Rescue, Sheriff's Department | Leave a comment

County lost appeal because employees’ actions were out of line and the deceased, at least from the facts presented could have easily been found before he died.

Arista v. Cnty. of Riverside (Cal. App. 2021)

State: California; Court of Appeal of the State of California Fourth Appellate District Division Two

Plaintiff: Christyna Arista

Defendant: County of Riverside

Plaintiff Claims: Wrongful death, negligence, and negligent infliction of emotional distress

Defendant Defenses: Government Code section 8453, which provides public employees are not liable for the failure to provide sufficient police protection; section 820.2, which provides that public employees are not liable for injuries that result from acts or omissions stemming from discretionary decisions; Health and Safety Code section 1799.107, subdivision (b), which provides that emergency rescue personnel are not liable for injuries caused by actions taken within the scope of their employment, unless the actions were done in bad faith or with gross negligence

Holding: For the Plaintiff

Year: 2021

Summary

A lawsuit was filed against Riverside County Sheriff’s department for negligent Search and Rescue training and procedures. The trial court granted the Counties motion for summary judgment, and the plaintiff’s appealed. The case was sent back by Appellate Court for trial. The deceased died of hypothermia and was easily found by friends of the deceased. Sheriff’s department assumed deceased was having an affair and did not search for him.

Facts

On March 1, at 3:00 p.m., when Marin [deceased] failed to return home, Wife called and texted Marin’s cell phone every 15 minutes but received no answer until 5:14 p.m. when Marin answered Wife’s call. Marin said he had fallen from his bicycle and suffered an injury. Marin seemed confused and disoriented but said that, said that, prior to the fall, he had reached Santiago Peak and was on his way home. At 5:32 p.m., Wife began calling various agencies, e.g., a ranger station, but was unable to reach anyone. At 5:36 p.m., Wife called 911 and the operator advised her to wait at home. At 6:30 p.m., Corona Police arrived at Wife’s home, and Wife explained that Marin was injured, on his way down from Santiago Peak, and lightly dressed.

At 8:00 p.m., Riverside County Sheriff’s Deputy Zaborowski2 arrived at the Family’s home. At that point, deputies had already checked trailheads in the CNF, traveled along access roads looking for Marin, pinged Marin’s cell phone, and contacted civilian volunteers to tell them “to be ‘on alert’ for a potential call to assist.” Wife provided Zaborowski with the same information she provided the Corona Police. Zaborowski told Wife that the ping of Marin’s phone showed he was in the area of Santiago Peak. Zaborowski also said Verizon service employees were in the area of Santiago Peak and had been asked to “be vigilant for Marin’s location.”

Lieutenant Hall (Hall) was the Sheriff’s Department’s Incident Commander for the search for Marin. Hall stayed at his home during the search. He was not trained in search and rescue. Hall did not consider the risks that Marin faced from the weather. Hall did not know Santiago Peak has an elevation of 5,689 feet. Hall was unaware that the trail Marin had planned to use has an elevation of 3,000 to 4,000 feet. Hall did not know what, if any, equipment Marin had with him for cold weather.

At 10:00 p.m., Detective Holder arrived at the Family’s home. While at the residence, Holder spoke to Zaborowski. Holder said “he [(Holder)] was ‘not sure what we’re doing here,’ that Marin was ‘probably just running around on his wife’ and was ‘just covering his tracks,’ suggesting that Marin was not missing, but instead involved in some adulterous affair.” Holder informed Wife that the Sheriff’s Department was suspending its search for the night and would resume searching in the morning. Wife asked Holder, ” ‘[W]hat are the chances he [Marin] dies of hypothermia?’ ” because the temperatures at Santiago Peak were expected to be in the mid-30s to mid-40s. “Holder replied that Marin was ‘a grown man’ and that ‘he can survive the night.’ ” Holder further said “that ‘if it was a child, [he] would send a helicopter out there right now.’ ”

After being told that the search was suspended for the night, Wife organized relatives to perform their own search. Unidentified County personnel asked Wife not to initiate her own search because the County would conduct the search. Nevertheless, Wife and six relatives began searching for Marin, on foot, at 3:45 a.m. Pat Killiam who is a mountain biker and search and rescue volunteer “had heard about the ‘missing biker,’ ” and began his own search for Marin using a motorcycle on the access roads. Killiam found Marin’s body on a maintained fire access road. The precise time that Killiam found Marin is not alleged in the TAC. Marin died of hypothermia due to being exposed to cold environmental temperatures.

The County’s Sheriff’s Department has an Off-Highway Vehicle Enforcement unit (ROVE) that is equipped with all-terrain vehicles that have lights. The vehicles can operate in the mud at night. ROVE was not dispatched to search for Marin. Because Marin was on a maintained fire access road, he could have been rescued by people using all-terrain vehicles.

The real basis of the claims of the plaintiff were summed up by the Appellant court in this statement.

In the Family’s wrongful death cause of action, it alleged the following: The Sheriff’s Department assumed the responsibility of searching for Marin by starting the search and telling Wife not to conduct her own search. The Family alleged that it relied upon the County to rescue Marin after the County assumed control of the search and rescue. In taking responsibility for the search, the Sheriff’s Department owed a duty to conduct the search with reasonable care.

The County should not have assigned Hall to be the incident commander for the search because Hall lacked search and rescue training. Hall acted with reckless disregard for life by managing the search from his living room. The County’s employees acted with bad faith and gross negligence by (1) failing to contact people who had knowledge of the trails and service roads in the CNF; (2) failing to deploy the ROVE team on the night of March 1; and (3) failing to consult a medical professional with knowledge of hypothermia regarding Marin’s possible injuries and the risk of hypothermia.

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

After reviewing the procedural issues on appeal, the court looked at the arguments. The first was whether or not the County had immunity from suit for its rescue personnel under several California statutes.

Health and Safety Code section 1799.107, subdivision (b), provides, “[N]either a public entity nor emergency rescue personnel shall be liable for any injury caused by an action taken by the emergency rescue personnel acting within the scope of their employment to provide emergency services, unless the action taken was performed in bad faith or in a grossly negligent manner.”

The family, the plaintiff’s, argued there could not be any immunity because the actions of the individuals were grossly negligent. The Appellate court agreed that if the actions of the county personnel were found to be grossly negligent, then the individuals were not protected by the statute.

Gross negligence if plead and proved supersedes an immunity statute in California. Unless the statute provides immunity to the entire claim, the statute does not provide immunity: “…it is an error to grant summary judgment unless the defense is “a complete defense to the entire action.”

Knowing that based on the clothing and the weather conditions, there was a good chance that the deceased would die of hypothermia, failure to start a search by the sheriff’s department employee could be considered gross negligence.

I suspect that these factors were made more apparent when the deceased was so easily found by the family members when they searched.

The next immunity statute was Section 845, which was created to give law enforcement wide range in making budgetary decisions. Meaning how many law enforcement personnel were hired and deployed to certain areas within a community could not be subject to judicial scrutiny.

Neither a public entity nor a public employee is liable for failure to establish a police department or otherwise to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service

No budgetary decisions were made in deciding not to rescue the deceased. The lawsuit was not over whether or not enough SAR personnel were sent to the scene, the lawsuit was based on negligence in handling the entire incident.

The final immunity is usually the broadest and provides the most protection to state and local governments. The actions of an employee of a local, state or federal government are discretionary. As long as the decisions of the employee are not arbitrary, fanciful, or unreasonable, the decision will be upheld.

The appellate court did not rule the actions of the sheriff departments employees were not discretionary, only that the county, if relying on that defense must show that each of the decisions made by the employee was discretionary. The appellate court in this case increased the burden on the county to prove immunity in this case.

If the County seeks to have every material search decision Hall made protected under section 820.2 then it needs to provide evidence of what material decisions were made, provide evidence of the discretion exercised in making those decisions, and provide argument as to why each of those decisions is deserving of immunity under section 820.2. Without that information, it was not proper to grant summary judgment pursuant to the discretionary decision immunity (§ 820.2) because the County only addressed a portion of the Family’s allegations.

The motion for summary judgment granted for the County by the trial court was overruled, and the case was sent back for further adjudication.

So Now What?

Most states have various forms of immunity to protect state and county employees from lawsuits over the discretionary parts of their job. Governments would never accomplish anything if every time they did something a citizen did not like, the citizen sued them. Most Search and Rescue litigation is avoided or dismissed quickly because of this.

Here, the county’s overt actions in responding to the family as well as how easily the victim was eventually found, give credence to the claims of the family. Suggesting a mountain biker was not missing but having an affair may be a common issue in the minds of law enforcement, but expressing it or placing it in the paperwork is just stupid.

This decision seems to be a stretch, though based on the facts it does not seem to be out of line. What it is, is an example of doing dumb things, treating people badly or making a judge made can still make you lose no matter how strong the law is on your side.

Don’t do stupid things, treat people right, do your job and when in doubt, try to help would have prevented this lawsuit and probably this death.

What do you think? Leave a comment.

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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Arista v. Cnty. of Riverside (Cal. App. 2021)

Posted: October 23, 2022 | Author: Recreation Law | Filed under: California, Legal Case, Mountain Biking | Tags: County, Discretionary, Government, Hyphermia, Mountain biking, SAR, Search and Rescue | Leave a comment

Arista v. Cnty. of Riverside (Cal. App. 2021)

CHRISTYNA ARISTA, Individually and as Successor in Interest, etc. et al., Plaintiffs and Appellants,
v.
COUNTY OF RIVERSIDE, Defendant and Respondent.

E074815

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

April 14, 2021

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.No. RIC1502475)

OPINION

APPEAL from the Superior Court of Riverside County. Daniel A. Ottolia, Judge. Reversed.

Tiedt & Hurd, John E. Tiedt and Marc S. Hurd for Plaintiffs and Appellants.

Disenhouse Law, Bruce E. Disenhouse; Arias & Lockwood and Christopher D. Lockwood for Defendant and Respondent.

In a third amended complaint plaintiff and appellant Christyna Arista and her children (collectively, the Family) sued defendant and respondent County of Riverside (the County) for wrongful death, negligence, and negligent infliction of emotional distress.1 The trial court granted summary judgment in favor of the County. The Family contends the trial court erred by granting summary judgment. We reverse the judgment.

FACTUAL AND PROCEDURAL HISTORY

A. THIRD AMENDED COMPLAINT

The facts in this subsection are taken from the third amended complaint (TAC). Christyna Arista (Wife) was married to Andres Marin (Marin), and he is the father of her children. On March 1, 2014, at approximately 6:30 a.m., Marin left home, in Corona, for a bicycle ride to Santiago Peak in the Cleveland National Forest (the CNF). The ride would be approximately 55 miles, and Marin was expected to return home by 2:00 p.m. On March 1, the temperature in Corona was 50 to 60 degrees with periodic light drizzle. For the bicycle ride, Marin was wearing knee-length bicycle shorts, a bicycle jersey, calf-length socks, bicycle gloves, shoes, and a helmet. Marin carried $10, water, snacks, and his cell phone.

On March 1, at 3:00 p.m., when Marin failed to return home, Wife called and texted Marin’s cell phone every 15 minutes but received no answer until 5:14 p.m. when Marin answered Wife’s call. Marin said he had fallen from his bicycle and suffered an injury. Marin seemed confused and disoriented but said that, prior to the fall, he had reached Santiago Peak and was on his way home. At 5:32 p.m., Wife began calling various agencies, e.g., a ranger station, but was unable to reach anyone. At 5:36 p.m., Wife called 911 and the operator advised her to wait at home. At 6:30 p.m., Corona Police arrived at Wife’s home, and Wife explained that Marin was injured, on his way down from Santiago Peak, and lightly dressed.

B. SUMMARY JUDGMENT

The County moved for summary judgment. In its presentation of the facts, the County asserted that, on the evening of March 1, 2014, “it was raining and there was a thick cloud cover and fog in the [CNF].” The County asserted the weather “made it too dangerous to fly” a helicopter to search for Marin. The County also asserted the weather conditions and risks of landslides made it too dangerous for rescuers to search on the ground.

The County asserted that the Family did not cite a statute to support direct liability on the part of the County, which meant the Family was relying on respondeat superior liability. The County asserted that its employees’ decision to suspend the search for the night was objectively reasonable and fell within the standard of reasonable care.

Next, the County asserted three separate immunities applied. First, the County cited Government Code section 8453, which provides public employees are not liable for the failure to provide sufficient police protection. The County asserted section 845 made it immune from the allegation that it “should have provided more or different training.”

Second, the County cited section 820.2, which provides that public employees are not liable for injuries that result from acts or omissions stemming from discretionary decisions. The County argued, “The undisputed evidence shows that a discretionary decision was made, based on all of the available evidence, and after considering the risks to [Marin], the weather and the trail conditions, the conflicting cell phone location information, and all the other information . . . , not to risk rescue personnel by a further nighttime search, but to wait until morning.”

Third, the County cited Health and Safety Code section 1799.107, subdivision (b), which provides that emergency rescue personnel are not liable for injuries caused by actions taken within the scope of their employment, unless the actions were done in bad faith or with gross negligence. The County asserted, “The undisputed evidence . . . shows no gross negligence and no bad faith in deciding to wait until morning to do additional searches of the forest. Rather, the undisputed evidence shows an objectively reasonable decision, based on all of the available evidence, not to expose searchers to the high risks of a night time [sic] search under those weather conditions when decedent’s location was only vaguely known.”

C. OPPOSITION

The Family opposed the County’s motion for summary judgment. The Family asserted there is a triable issue of material fact regarding whether the Sheriff’s Department’s employees’ conduct/omissions constituted an extreme departure from the ordinary standard of conduct. The Family asserted the following constituted gross negligence: failing to set up a command post in the CNF; failing to establish a search area; not having a deputy trained in search and rescue evaluate the trail and road conditions; not contacting the ROVE team in a timely manner; having Hall command the search from his living room; and failing to consult with a medical professional regarding Marin’s injuries and risk of hypothermia.

The Family asserted the immunity for failing to provide sufficient police protection (§ 845) is meant to protect budgetary and policy decisions, not negligence by a particular law enforcement officer. As to the immunity for discretionary decisions (§ 820.2), the Family asserted (1) the County was liable for the negligent way in which it handled the search prior to deciding to suspend the search for the night; and (2) immunity for discretionary decisions applies to operational and policy decisions not to decisions such as Hall’s decision to suspend the search.

In regard to immunity for rescue personnel (Health & Saf. Code, § 1799.107, subd. (b)), the Family asserted there were triable issues of fact regarding whether County personnel acted in bad faith or in a grossly negligent manner. As to bad faith, the Family pointed to Holder’s comments that Marin was likely having an affair. In regard to gross negligence, the Family pointed to a declaration by Richard B. Goodman, who was the Search and Rescue Resource Officer for the New Mexico State Police from 1994 to 2002, reflecting that the Sheriff’s Department’s actions were “an extreme departure from what a reasonable . . . law enforcement [officer] assuming search and rescue activities would do in the same or similar circumstances.”

D. HEARING

The trial court found there were triable issues of fact regarding “whether the County breached the duty to rescue that it undertook.” The court determined that the County was immune from liability because Hall exercised discretion when deciding to suspend the search for the night (§ 820.2). The trial court said it was familiar with the trails leading up to Santiago Peak, and that “deputies have an incredibly difficult job. They have to consider so many factors.” The trial court said to the Family’s counsel, “I’d invite you to go on a ride-along, if you never have, just to find out what a deputy’s job is like.” The trial court granted the County’s motion for summary judgment.

DISCUSSION

A. STANDARD OF REVIEW

“A motion for summary judgment should be granted if the submitted papers show that ‘there is no triable issue as to any material fact,’ and that the moving party is entitled to judgment as a matter of law. [Citation.] A defendant meets his burden of showing that a cause of action has no merit if he shows that one or more of the elements of the cause of action cannot be established, or that there is a complete defense. [Citation.] Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of material fact exists.” (Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 224, 229.)

“In reviewing a trial court’s ruling on a motion for summary judgment, the reviewing court makes ‘ “an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. [Citations.]” ‘ [Citation.] [¶] ‘On review of a summary judgment, the appellant has the burden of showing error, even if he did not bear the burden in the trial court.’ ” (Bains v. Moores (2009) 172 Cal.App.4th 445, 454-455.)

B. HARMLESS ERROR4

In the trial court, the County made 55 objections to the Family’s evidence. At the hearing, the trial court said, “The Court is overruling all evidentiary objections by both plaintiffs and defendants in this matter.” In its respondent’s brief, the County contends the trial court erred by overruling its objections to the declarations of Richard B. Goodman, who was the Search and Rescue Resource Officer for the New Mexico State Police from 1994 to 2002, and to Ken Zafren, M.D., who is an emergency physician with expertise in hypothermia.

Our understanding of the County’s argument is as follows: If the Family is correct that the trial court erred in its analysis of the summary judgment motion, then those errors are harmless. (See Code Civ. Proc., § 906 [respondents can argue error within a prejudice analysis].) The errors are harmless because if the trial court had sustained the County’s objections to Goodman’s and Zafren’s declarations then it is probable summary judgment would have been granted because there would not be a triable issue of material fact. (See Code Civ. Proc., § 475 [“a different result would have been probable if such error . . . had not occurred”].) The County’s argument is not persuasive because we do not need to consider the Family’s evidence due to the County failing to meet its burden to show the causes of action have no merit.

In a motion for summary judgment, the moving party, in this case the County, bears the burden of demonstrating the causes of action lack merit. (Code Civ. Proc., § 437c, subd. (p)(2).) In the County’s motion for summary judgment, it asserted the Family’s causes of action had no merit because the County’s employees’ decision to suspend the search was objectively reasonable. The County’s argument fails to specifically address the other allegations in the Family’s TAC, such as Hall’s alleged negligence in conducting the search from his living room. In the TAC, within the wrongful death cause of action, the Family alleged, “It is a reckless disregard for life for Lt. Hall to manage a wilderness search from a home living room.” Other allegations in the Family’s TAC were that the County acted with gross negligence by (1) not involving personnel who knew the CNF, (2) not deploying the ROVE team on the night of March 1, and (3) not consulting a medical professional regarding hypothermia and Marin’s possible injuries.

The County focused only on the decision to suspend the search for the night, but the Family is also suing due to the manner in which the search was conducted prior to the search being suspended. In the motion for summary judgment, the County failed to address all of the Family’s allegations of gross negligence. Thus, the County did not meet its burden of demonstrating the causes of action lack merit. (Code Civ. Proc., § 437c, subd. (p)(2) [defendant bears the burden of establishing the “cause of action has no merit”].)

Because the County did not meet its burden to establish that the causes of action lack merit, the burden did not shift to the Family to demonstrate a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2).) Therefore, any error related to rulings on the County’s evidentiary objections is irrelevant in that the Family’s evidence need not be considered. Accordingly, we are not persuaded by the County’s assertion that any error alleged by the Family can be found harmless.

Next, on appeal, the County renews its objections to Goodman’s and Zafren’s declarations. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534 [renewed objections on appeal when the trial court failed to rule on the objections]; Valentine v. Plum Healthcare Group, LLC (2019) 37 Cal.App.5th 1076, 1089 [same].) The County asserts that the Family relies almost exclusively on Goodman’s and Zafren’s declarations in the Family’s appellants’ opening brief, so if the declarations are inadmissible then the Family’s appellate argument fails. It is unnecessary to rule upon the County’s renewed objections because Goodman’s and Zafren’s declarations are not relevant to resolving the alleged errors relating to the immunity defenses. Accordingly, we will not rule upon the County’s renewed objections.

C. IMMUNITY FOR RESCUE PERSONNEL

The Family contends the immunity for rescue personnel (Health & Saf. Code, § 1799.107, subd. (b)) does not support a grant of summary judgment.

In the wrongful death cause of action, the Family alleged, “Further, the [County] knew that the injured Marin was going to be left in predicted cold temperatures that could expose him to hypothermic conditions and jeopardize his life, but through gross negligence, the [County] let Marin die on [its] watch.” As explained ante, the County did not establish that the Family’s cause of action lacks merit. Therefore, at this stage of the proceedings, there is merit to the Family’s gross negligence allegations.

If we assume, without deciding, that Health and Safety Code section 1799.107, subdivision (b), applies in this case, it would not support a grant of summary judgment because, at this stage, it does not provide a complete defense given the gross negligence allegations. (See Mallard Creek Industries v. Morgan (1997) 56 Cal.App.4th 426, 438 [it is error to grant summary judgment unless the defense is “a complete defense to the entire action”].) Accordingly, summary judgment could not be granted on the basis of the immunity afforded rescue personnel (Health & Saf. Code, § 1799.107, subd. (b)).

D. IMMUNITY FOR FAILING TO PROVIDE SUFFICIENT POLICE PROTECTION

The Family contends the immunity for failing to provide sufficient police protection does not apply in this case.

Section 845 provides, in relevant part, “Neither a public entity nor a public employee is liable for failure to establish a police department or otherwise to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.” Section 845 “was designed to prevent political decisions of policy-making officials of government from being second-guessed by judges and juries in personal injury litigation. [Citation.] In other words, essentially budgetary decisions of these officials were not to be subject to judicial review in tort litigation.” (Mann v. State of California (1977) 70 Cal.App.3d 773, 778-779, fn. omitted.) “Thus, section 845 was not intended to provide immunity against a particular police officer’s negligence in the performance of his duty in a particular situation.” (Wallace v. City of Los Angeles (1993) 12 Cal.App.4th 1385, 1402.)

The Family is not suing the County for budgetary or political decisions. The Family is suing due to the alleged negligence of particular County employees. The County asserts the Family’s lawsuit is partially based upon a failure to provide adequate search and rescue training to its Sheriff’s Department personnel. However, the County cites to the Family’s appellants’ opening brief, not the TAC or the Family’s opposition to the summary judgment motion, to support its argument. In the TAC, the Family alleges the County had the ROVE team and if it had been utilized, then it “would have located Marin on the Evening of March 1, 2014.” The Family specifically alleges, “The COUNTY failed to deploy trained personal [sic] to manage . . . critical decisions concerning Mr. Marin.” In our reading of the TAC, the Family is not asserting that the County failed to train its personnel, but rather that the County was negligent in failing to deploy the trained personnel it had.

The County asserts that the failure to deploy the ROVE team is protected under section 845. In support of that argument, the County cites Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6. In that case, the victim called the police and said her estranged husband was coming to her residence to kill her. The police told the victim to call them back when her husband was at the house. Forty-five minutes later, the victim’s husband stabbed her to death. The police arrived after the victim died. The appellate court explained that the wrongful death cause of action failed because the police had immunity under section 845. (Hartzler, at p. 8.) The appellate court explained that the exception to section 845 is when there is a “voluntary assumption by the public entity . . . . Even though there is initially no liability on the part of the government for its acts or omissions, once it undertakes action on behalf of a member of the public, and thereby induces that individual’s reliance, it is then held to the same standard of care as a private person or organization.” (Hartzler, at p. 9.) The appellate court concluded that the plaintiff failed to plead facts supporting a special relationship between the victim and the police. (Id. at p. 10.)

In other words, Hartzler established that section 845 provides immunity when the complaint concerns a general failure of policing, i.e., the police should have come to my aid but they did not come, but section 845 does not provide immunity when the complaint concerns the manner in which police executed a particular undertaking after a special relationship has developed. (See Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 317 (dis. opn. of P.J. Kline) [” ‘where there exists a special relationship . . . liability may be imposed irrespective of the immunity granted by . . . section 845’ “], citing Hartzler v. City of San Jose, supra, 46 Cal.App.3d 6.) In the instant case, the Family is complaining that the County had a special relationship with Marin and that the County was negligent in searching for Marin. Therefore, the County’s reliance on Hartzler is misplaced.

E. IMMUNITY FOR DISCRETIONARY DECISIONS

The Family contends the trial court erred in granting summary judgment based upon the immunity afforded to governmental discretionary decisions (§ 820.2).

Section 820.2 provides, “[A] public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” “Discretion” is not to be read literally because nearly every act involves some discretionary choice ” ‘ “even if it involve[s] only the driving of a nail.” ‘ ” (Johnson v. State (1968) 69 Cal.2d 782, 787-790.) In eschewing a literal approach to the term “discretion,” concentration has been placed on policy, in particular, “whether the agency in a particular case should have immunity.” (Id. at pp. 789-790.)

Policy decisions made by the legislative and executive branches are subject to immunity because review of those decisions “would place the court in the unseemly position of determining the propriety of decisions expressly entrusted to a coordinate branch of government.” (Johnson v. State, supra, 69 Cal.2d at p. 793.) As an example, judicial immunity applies to the California Division of Juvenile Justice’s “determination of whether to place a youth on parole” because that decision involves “the resolution of policy considerations, entrusted by statute to a coordinate branch of government, that compels immunity from judicial reexamination.” (Id at p. 795, fn. omitted.) By contrast, judicial immunity does not apply to the “determination as to whether to warn the foster parents [of a juvenile parolee] of latent dangers facing them” because “to the extent that a parole officer consciously considers pros and cons in deciding what information, if any, should be given, he makes such a determination at the lowest, ministerial rung of official action. Judicial abstinence from ruling upon whether negligence contributed to this decision would therefore be unjustified; coupled with the administrative laxness that caused the loss in the first instance, it would only result in the failure of governmental institutions to serve the injured individual.” (Id. at pp. 795-796.)

In the County’s points and authorities in support of its motion for summary judgment, it asserted Hall made a discretionary decision in deciding to suspend the search for the night. The County did not cite specific evidence to support its assertion that a discretionary decision was made; rather, the County wrote that the evidence was “addressed above.” We infer the County was referring to the “facts” section of its points and authorities.

In the “facts” section, the County wrote, “[Hall] discussed and evaluated all the available information and weighed the risks and benefits of a night time [sic] search. [Citations.] Lt. Hall was aware of the risks of [Marin] freezing to death [citation] but Lt. Hall and his supervisor Chief Deputy Alm made a discretionary risk/benefit decision that the risks to search personnel of a further night search outweighed the potential of locating [Marin] in the dark and they make a discretionary decision not to conduct additional searches in the [CNF] until morning. [Citation.] The factors they considered included: [¶] 1. The rain and thick fog . . . [¶] 2. [Marin’s] location was only vaguely known . . . [¶] 3. Visibility was extremely limited . . . [¶] 4. The rain and fog made the trail dangerous . . . [¶] 5. County employees were not familiar with the area . . . .”

The County’s argument in the points and authorities is focused on the decision to suspend the search, but the Family’s lawsuit is not solely focused on the decision to suspend the search. The Family is also suing due to manner in which the search was conducted prior to the search being suspended. For example, the Family complains of not involving personnel who knew the CNF and not deploying the ROVE team on the night of March 1.

In the County’s brief to this court, the County takes the position that every decision involved in the search was a discretionary decision and that all of those discretionary decisions deserve immunity. The County does not direct this court to evidence indicating what decisions Hall made during the search, or to evidence that Hall weighed and balanced particular factors in making those decisions. Additionally, the County fails to explain why every decision Hall made during the search process is deserving of immunity under section 820.2. (See Johnson v. State, supra, 69 Cal.2d at pp. 789-790 [“discretionary decision” is not meant literally; whether immunity applies is a policy question].)

F. CONCLUSION

In sum, it has not been shown that the causes of action lack merit and the County failed to demonstrate that it has a complete defense to the entire TAC. Therefore, we conclude the trial court erred and the grant of summary judgment must be reversed.

DISPOSITION

The judgment is reversed. The trial court is directed to vacate its order granting summary judgment. Appellants are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER
J.

We concur:

McKINSTER
Acting P. J.

FIELDS
J.

——–

Footnotes:

1. This court previously issued an opinion in this case reversing the trial court’s sustaining of the County’s demurrer to the Family’s second amended complaint. (Arista v. County of Riverside (2018) 29 Cal.App.5th 1051.)

2. In the TAC, the deputy’s last name is spelled Zaborowski. In the motion for summary judgment, the deputy’s last name is spelled Zabrowski. In a declaration by Lieutenant Hall, the deputy’s name is spelled different ways including Zaborwski. We use the Zaborowski spelling because that is the spelling used in Deputy Zaborowski’s declaration.

3. All subsequent statutory references will be to the Government Code unless otherwise indicated.

4. A harmless error analysis typically follows a finding of error. In this case, we begin with the County’s assertion that the trial court’s error is harmless because the triable issue of material fact matter discussed as part the harmless error analysis will simplify our discussion post of the Health and Safety Code section 1799.107, subdivision (b), immunity.

——–

This is a confusing case concerning whether or not a person is an intendent contractor or employee, has the right to sue the employer and whether the insurance company for the employer must provide coverage because of the confusion

Posted: May 9, 2022 | Author: Recreation Law | Filed under: Climbing, Mountaineering, New Jersey, Release (pre-injury contract not to sue), Rock Climbing | Tags: Atain Speciality Insurance, Condition of Coverage, Insurance policy, Mountain Clmbing, Mountaineering, NE Mountain Guiding, Negligence, Northeast Mountain Guiding, Recision, Rock climbing, SAR, Search and Rescue | Leave a comment

This is a long and complicated case because know one understood what was needed and no one read their insurance policy.

Atain Specialty Ins Co v Ne Mountain Guiding LLC D NJ 2020

State: New Jersey, US District Court for the District of New Jersey

Plaintiff: Atain Specialty Insurance Co.

Defendant: Northeast Mountain Guiding, LLC, et al.,

Plaintiff Claims: negligence

Defendant Defenses:

Holding: Mostly for the Plaintiff

Year: 2020

Summary

An employee or independent contractor was hurt, maybe working, and sued his employer over his injuries. The insurance company for the employer, mountain guiding company, denied coverage because he was not an employee and they did not provide coverage for independent contractors.

This case is still a mess, but the important part is make sure you are honest on your insurance applications and make sure you know what you are buying when you purchase a policy.

Facts

Vulpis is the founder and sole member of NMG, a limited liability company in the outdoor adventure and education industry Vulpis has significant training and experience, as well as multiple certifications, in the field in which NMG operates. Enberg provided administrative assistance to NMG, developed a search and rescue training for NMG to provide to clients, and served as a mountaineering guide for NMG. Manchester performed work for NMG as a Lead Backpacking Guide and Assistant Rock Guide.

Donald Pachner is the sole member of Pachner & Associates, LLC and Pachner Risk Management, LLC. Donald Pachner and Pachner & Associates, LLC possess insurance broker licenses under New Jersey law.

Vulpis retained Pachner to obtain general commercial liability insurance for NMG. As part of this process, Pachner and Vulpis worked together to fill out an application (the “Application”) for insurance. The Application required Vulpis to estimate NMG’s gross revenues for the coming year. On Pachner’s advice, Vulpis checked the “No” box when answering the Application’s question concerning whether NMG “hire[s] Concessionaires, Independent Contractors, or Subcontractors.” As part of the Application, Vulpis initialed next to a requirement NMG (1) obtain from all participants an Atain-approved waiver of liability form, and (2) maintain those forms for three years. In response to NMG’s Application, Atain issued an insurance quote (the “Quote”), which Vulpis reviewed with Pachner. Among other things, the Quote contains a summary of several of the terms the Policy would contain

Pachner procured insurance (the “Policy”) from Atain for NMG. The Policy limits coverage to “GUIDED MOUNTAINEERING INCLUDING TOP ROPE CLIMBING & RAPPELLING; GUIDED KAYAK TRIPS; GUIDED SNOWSHOEING; GUIDED HIKING/BACKPACKING INCLUDING CAMPING.” The Policy excludes coverage for injuries suffered “in the course of employment by or service to” NMG.

On November 21, 2015, Manchester suffered an injury (the “Injury”) while using certain equipment (the “Equipment”) to engage in a certain activity (the “Activity”). Much of the dispute in this case centers on the proper characterization of the Activity and the Equipment. The essence of the Activity is that the participant uses the Equipment to move between two points. The evidence conflicts concerning whether the Equipment is a “Tyrolean Traverse” or a “Clifftop Zipline.” Ziplines were derived from Tyrolean Traverses, but the differences are too fine for untrained individuals to differentiate between the two.

On November 21, 2015, three NMG guides—Christy DeMarco, Enberg, and Vulpis—went to Allamuchy State Park to test the Equipment NMG expected to offer in the future for its customers. Vulpis and the other three guides set up the Equipment. Manchester was present at the time, and engaged in the Activity by traveling on the Equipment. While engaged in the Activity, Manchester suffered the Injury.

Following his Injury, Manchester filed a state court negligence action against Vulpis, Enberg, and NMG. NMG made a claim for coverage with Pachner and Atain. When reporting the claim to Atain, Pachner described Manchester as an independent contractor for NMG.

Atain filed this coverage action against its Vulpis, Enberg, and NMG, and also joined Manchester as a defendant. Atain seeks declaratory judgments against Vulpis, Enberg, NMG, and Manchester, authorizing Atain to disclaim coverage Manchester’s Injury. Additionally, Atain seeks a declaratory judgment voiding the Policy under common law rescission principles and the New Jersey Insurance Fraud Prevention Act, N.J. Stat. Ann. § 17:33A-1 et seq.

Vulpis, Enberg, and NMG brought a third-party action against NMG’s insurance broker Pachner, alleging Pachner’s negligence caused any failure of coverage by Atain. Manchester brought a similar action against Pachner.

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

The is the second of two decisions so far in this case, and it is still on going. This decision is based on multiple motions to dismiss, and motions for summary judgment filed by everyone.

I’m not even going to cover every issue involved in this order, just a few to make some points.

Another issue is the language of mountaineering, rock climbing and guiding is not totally understood by the court, so in some cases the decisions are not made for that reason. That can be because the court was not made away of the issues or the attempt to educate the court failed on the part of the parties.

First Issue: The activity giving rise to the injury is not covered.

The first issue is whether the activity giving rise to the injury is one that is covered under the insurance policy. The injured employee/contractor was not on the trip to learn; he just tagged along. He had not paid to attend the training and was not required to be there.

Because the insurance policy is unclear as to how it is interpreting what occurred, and the court is unclear on what relationship employee/contractor had while on the trip, the court determined it could not decide the issues on a motion for summary judgement.

Second Issue: Worker’s comp exclusion

In every general liability policy, there is an exclusion, no coverage for claims that should be insured by worker’s compensation. In this case that exclusion was called Employer’s Liability Exclusion. Employees in all states must be covered by worker’s compensation for any injury they receive while on the job. Since this person was claiming, in some aspects of the case, to be an employee, the general liability insurance company based on this exclusion should not have to pay for the damages.

The court refused to rule on this saying several of the statements made by the injured employee/contractor indicate he was not an employee.

Manchester was a participant acting outside the scope of his NMG employment at the time of his Injury. Manchester testified he had come to participate in the Activity because he “thought it would be fun.” Vulpis testified similarly: Manchester “came just to travel along the Tyrolean traverse. He wanted to try it out.” Manchester testified he never informed NMG he would be attending the Activity and further testified NMG did not know he would be attending. Manchester did not consider himself an employee or representative of Vulpis or Enberg at the time of the Injury.

At the same time, the court found several issues that indicated the injured employee/contractor was an employee at the time of his injury.

Most importantly, Manchester acknowledged he performed work for NMG as a Lead Backpacking Guide and Assistant Rock Guide. Vulpis and Manchester both testified Manchester came to be at Allamuchy State Park on the date of his Injury because Vulpis posted an invitation to a Facebook group whose members consisted only of NMG guides and staff Enberg testified although Manchester was not involved in setting up the Equipment and mostly observed others do so, Manchester did help Enberg “pull tension once, so just pull on a rope for me.” Enberg also testified, “[A]s far as I know, we just there all volunteering and testing the system.”

Until a jury determines the legal classification for the injured plaintiff, what insurance coverage is available cannot be decided.

Issue three: recission of the policy

Recission of an insurance policy is a rarely seen legal argument. It is granted when there is proof of fraud when entering into the contract. When there is recission of a policy, the court places the parties back in the position they were before the policy was issued. The insured gets a full refund, and the insurance company does not have to pay a claim.

“In the field of insurance, rescission has long been recognized as an available and necessary remedy to combat fraudulent behavior by an insured” It is settled that a material factual misrepresentation made in an application for insurance may justify rescission [of the resulting insurance policy] if the insurer relied upon it to determine whether or not to issue the policy” Rescission voids the [insurance policy] ab initio, meaning that it is considered ‘null from the beginning’ and treated as if it does not exist for any purpose.”

Here the insurance company was requesting recission of the policy because of fraudulent misrepresentation.

Rescission of an insurance policy for fraudulent misrepresentation is appropriate if four conditions are satisfied: (1) the applicant must make an “untruthful” representation to the insurer, (2) the representation must be “material to the particular risk assumed by the insurer,” (3) the insurer must “actually and reasonably rel[y] upon [the representation] in the issuance of the policy,” and (4) if the “insurance application . . . calls for subjective information,” then “the insured [must] kn[o]w that the information was false when completing the application.”

Again, the court would not rule on this motion because recission takes more than a mere oversight or honest mistake. It must be based on a specific intentional act or acts to defraud the insurance company. Here the answers placed on the policy were done so with the help of the insurance agent. And the court was not sure the acts of the insured were intentional. The other issue was, did the insurance agent supply the answers or where the answers supplied by the insured.

Fourth Issue: Projected Revenues

Most insurance policies are issued based on the projected revenues of the company. In rare instances, some outdoor recreation policies are issued based on expected user days. User days are used when it is easy to verify the number of user’s days, as in a whitewater rafting company working on river controlled by a federal land management agency which is also tracking user days. User days are the number or days a client is on the river. A half day counts as a full user day.

So, an insurance policy application has a place for the applicant to enter an estimate of the projected revenues for the season or year. Your premium is based on that number. When you sign the application, in most cases, you are also agreeing to be audited to make sure the number you put on the application is what your sales or income is. In this case, those projections were lower than the prior year.

Atain argues the projected amount listed on the Application was substantially lower than NMG’s actual revenue for the year preceding the Application and disproportionately less than the revenue NMG actually received in the Policy year.

The court rejected this argument because the projection was based on several factors that made the insured believe that his income was going to be lower that year.

First, Vulpis was divorcing his spouse, which he believed would impact NMG’s ability to remain in business. Second, Vulpis had hired new guides, and expected revenues would be lower while his new guides gained experience. Third, “a chronic, life-threatening auto-immune disease” hospitalized Vulpis shortly before he filed the Application, and he was “not sure [he] would live through” the year, “much less have any revenues in NMG.” Even taking those factors into account, the revenue Vulpis projected on the Application was approximately equal to NMG’s annual revenue two years prior to the Application, and was slightly lower than the average of the revenue for the preceding three years. Taking these facts in the light most favorable to NMG, a reasonable fact-finder could determine NMG did not knowingly misrepresent its projected income.

Fifth Issue: use of independent contractors

The outfitter specifically stated on the insurance application that he did not use sub-contractors or independent contractors. Then after the accident it came to light that some people working for the outfitter might be independent contractors.

The court did not accept this motion because it was unclear what the people working for the outfitter were. Also, the outfitter had been told by the insurance agent to say no on the application about sub-contractors or independent contractors.

You had two conflicting issues that prevented the appellate court from deciding this issue. The first was further complicated because the court felt the insurance did not understand what an independent contractor was.

Sixth Issue: Knowing Misrepresentation

The insurance company argued that the policy should be rescinded because the outfitter made knowing misrepresentations, about whether or not he was hiring independent contractors or used only employees.

The court through this motion because it felt the outfitter really did not know the difference.

Given the issue’s complexity, the Court is not surprised Vulpis’s testimony suggests he had genuine difficulty distinguishing between employees and independent contractors. Vulpis’s testimony concerning his thinking at the time demonstrates his confusion. For instance, Vulpis described his guides as “1099 employees,” something of a misnomer. When completing the Application, Vulpis discussed how to answer the “independent contractor” question with Donald Pachner, whose less-than-illuminating explanation was to describe the meaning of independent contractor as a “gray area Even when answering interrogatories in this case—presumably with the assistance of counsel—Vulpis initially described his guides as independent contractors, then amended his answer to strike that characterization. The Application does not instruct the applicant on the meaning of “independent contractor,” nor does it suggest which (if any) of the legal tests an applicant should apply—missing an opportunity to dispel Vulpis’s confusion.

The court stated:

The variety of tests creates a “paradoxical truth that even when the same person performs the same acts at the same time in the same place under the same conditions,” the person “may be considered an employee for one purpose and an independent contractor for another.”

The court recognized the issue that whether or not a person working for you is an independent contractor or not is not only confusing and constantly litigated by the courts, not necessarily something a non-lawyer can understand.

Viewed in the light most favorable to non-movant NMG, a reasonable fact-finder could determine Vulpis merely failed to appreciate every nuance of the difference between employees and independent contractors when he wrote on the Application NMG did not use independent contractors or subcontractors. Such a misunderstanding would constitute an “honest mistake,” not a “lie” or a “willful” falsification.

Seventh Issue: Failure to Maintain Signed Liability Waivers

This next issue is a two-factor issue. If the employee/contractor signed a release, he was probably not an employee and was either a contractor or guest. A release was a factor required by the insurance company. If a release was signed it would stop the lawsuit by the injured employee/contractor. A release or liability waiver signed by all participants was a condition of coverage under the policy.

If there was no release signed, then the injured employee/contractor was probably an employee and covered by Worker’s Compensation. Either way, a signed release or no release provided an out for the insurance company.

New Jersey law permits an insurer to escape liability for its obligations under an insurance policy if the insured breaches a condition of coverage, but only if the insurance carrier suffers appreciable prejudice from the breach.

There is a two-factor test under New Jersey law the insurance company must meet to win on a coverage condition argument.

“[F]irst, ‘whether substantial rights have been irretrievably lost’ as a result of the insured’s breach, and second, ‘the likelihood of success of the insurer in defending against the accident victim’s claim’ had there been no breach.”

Since the insurance company wrote the policy, the insurance company has the burden of proving both factors of the test.

The motion for summary judgment was denied because the outfitter said that he misplaced the waiver. An even bigger reason for not granting the motion was:

Second, even if Atain cannot obtain Manchester’s waiver in time to rely on the waiver against Manchester in the underlying state court litigation, the absence of Manchester’s waiver will not necessarily reduce “the likelihood of success of the insurer in defending against the accident victim’s claim.”

The court is probably correct in this statement because the injured guide had signed several releases previously. There was just not one for the day of the accident.

NMG has provided Atain with Manchester’s signed acknowledgment of receipt of NMG’s employee handbook, which contains a waiver form. Moreover, while Vulpis acknowledged he could not locate the forms, Vulpis testified Manchester had previously signed a waiver (1) when Manchester initially became was a customer of NMG prior to serving as a guide, and (2) for the year 2015, when Manchester served as a guide. The only contrary evidence is Manchester did not sign a waiver on the day of the Injury. Atain points to no evidence contradicting Vulpis’s testimony concerning Manchester previously signing a waiver before the day of the Injury. Viewing the facts in the light most favorable to NMG, a genuine issue of material fact exists concerning whether NMG’s loss of Manchester’s waiver will appreciably prejudice Atain’s defense of Manchester’s underlying state court litigation.

At this point, the case is scheduled to proceed to trial.

So Now What?

1. I’ve said dozens of times, every person on a trip has to be identified as either an employee or a participant. If the person is an employee, they have to be listed on the worker’s compensation insurance. Everyone else, paying customer, friend, independent contractor or your mother-in-law must sign a release.

2. Independent contractors are a liability mess. Many companies attempt to use independent contractors because they believe it saves them state and federal taxes. It might. And it can be a good way to get a company started for the first several months. However, the issue of independent contractors has more traps than value.

There are no liability savings. As the outfitter or company, you are liable for any incident no matter if the person who caused the issues is an employee or independent contractor. If nothing else, you are liable for hiring an independent contractor who failed to do their job properly.

First contractors, especially in the outdoor industry, don’t have health insurance. So many, if injured, have no way to pay for their medical bills. Consequently, using independent contracts increases your chances of having a lawsuit, just like this one, because an independent contractor needs money to pay his or her medical bills and other bills when they can’t work.

On top of the other issues, proving someone is an independent contractor is very difficult. Many states have adopted the rule that says unless certain requirements are met, such a written contract, an independent contractor is an employee. An independent contractor has the right to show up at the job site at any time they want unless written differently in the contract. They should bring their own tools to work and have the freedom to make decisions. The only control the person hiring the contractor has over the independent contractor is to specify the job, the time frame, and how much they are going to pay for the job.

An even bigger issue for an employer is what is everyone else in the industry doing. If all of your competitors are using employees and not independent contractors, you face an insurmountable hurdle.

As the court stated:

Distinguishing independent contractors from employees is among the most contentiously litigated issues in courts today, arising in a host of different contexts, each with a different standard.

3. UNDERSTAND your insurance application, do not lie on it. If there are issues or questions, then attach a supplemental letter to the broker or to the policy explaining the decisions or answers on the application.

4. When you get your policy read it. You must know and understand all conditions of coverage. What must you do to make sure the policy covers you.

You also must know what you bought. Does the policy cover the activities that your company is doing? If in the summer you teach fishing at a pond and once in a while in the winter people ice skate on the same pond, you are more than a fishing guide and you better have coverage for ice skating.

What do you think? Leave a comment.

Who am I

Jim Moss

I’m an attorney specializing in the legal issues of the Outdoor Recreation Industry

I represent Manufactures, Outfitters, Guides, Reps, College & University’s, Camps, Youth Programs, Adventure Programs and Businesses

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

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

By Recreation Law Rec-law@recreation-law.com

James H. Moss

Lawsuit continues against Avalanche airbag manufacturer for failure to deploy

Posted: December 24, 2021 | Author: Recreation Law | Filed under: Avalanche, Colorado | Tags: airbag, avalanche, Backcountry Access, K2, Lawsuit, San Juan Search & Rescue, SAR, Search and Rescue, Silverton Avalanche School | Leave a comment

https://rec-law.us/3GWSMFQ

State: Colorado

The good news is the lawsuit against the San Juan Search and Rescue, the Silverton Avalanche School and the school’s guide; Zachary Lovell have been dismissed.

Never Sue Search & Rescue!

They are just volunteers trying to save your dumb A$$

In that initial lawsuit, the airbag manufacturer Backcountry Access, a subsidiary of K2 was also sued.

The lawsuit argued the school, guide and pack-maker “created substantial and unreasonable risks of serious injury and death to participants” in the safety class.

The lawsuit is attempting to tie the failure of the airbag to deploy to a recall of the product.

The U.S. Consumer Products Safety Commission reported the recall of 8,200 Float 18 packs on Nov. 26, 2013, with a warning that the trigger assembly can fail “resulting in the air bag not deploying, posing a risk of death and injury in the event of an avalanche.”

Why Is This Interesting?

This will be watched, for several reasons.

Product liability lawsuits are nasty & don’t change anything.
Avalanches kill. If you are in the backcountry in the wintertime, there is not much you can do about that, except get lucky.
Backcountry skiing is growing and when a sport grows so do the lawsuits.

@RecreationLaw #RecLaw #RecreationLaw #OutdoorRecreationLaw #OutdoorLaw #OutdoorIndustry @JjasonBlevins @ColoradoSun #Fatality #Lawsuit #InherentRisk #SkiAreaLaw #Avalanche @FriendsofCAIC @COAvalancheInfo

Who am I

Jim Moss

I’m an attorney specializing in the legal issues of the Outdoor Recreation Industry

I represent Manufactures, Outfitters, Guides, Reps, College & University’s, Camps, Youth Programs, Adventure Programs and Businesses

What do you think? Leave a comment below.

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

If you are interested in having me, write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

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.

RECCO® EXPANDS ITS REACH BY EQUIPPING NEW SUMMER PRODUCTS WITH RECCO® TECHNOLOGY

Posted: June 21, 2018 | Author: Recreation Law | Filed under: Uncategorized | Tags: Recco, SAR, Search & Rescue, Search and Rescue | Leave a comment

RECCO® EXPANDS ITS REACH BY EQUIPPING NEW SUMMER PRODUCTS WITH RECCO® TECHNOLOGY

The global RECCO® network is growing as top outdoor brands unveil new summer products featuring RECCO® technology at the OutDoor Show in Friedrichshafen on June 17-20.

Stockholm, Sweden–June 16, 2018–The worldwide RECCO® network is expanding as more and more brands announce new products for summer 2019 that adopt RECCO® rescue technology. Leading outdoor brands will be unveiling their latest outdoor equipment featuring RECCO® reflectors at the midsummer OutDoor Show in Friedrichshafen, Germany on June 17-20.

Based on technology to aid in avalanche rescue efforts, RECCO® is actively expanding its offering to summer-oriented activities such as mountain biking, hiking, trail running, paragliding, and alpinism.

The RECCO® Helicopter Detector enables rescuers to search and scan large areas from the air to locate missing persons equipped with RECCO® reflectors. The RECCO® Helicopter Detector was announced in 2015 and has been undergoing extensive development and implementation at heli bases in Switzerland, Italy, Sweden, and Norway. The technology is now in active service in Zermatt and the Valais region in Switzerland–as well as in the Dolomites and the Aosta Valley regions in Italy–with plans to expand to new regions.

“Each year we spend considerable resources on rescue missions looking for missing people. The RECCO® Helicopter Detector will be useful for those missions. For us, lost hikers, mushroom pickers, etcetera, in lower forest areas are a frequent problem,” -Adriano Favre, President of the rescue organization Soccorso Alpino Valdostano in Aosta Valley

Product highlights to be unveiled featuring RECCO® reflectors include the Haglöfs Grym Evo Jacket, a tough, technical, and environmentally friendly three-layer shell jacket. Mountain bikers will look forward to the POC TECTAL RACE SPIN, a helmet for enduro racing featuring a lightweight design. The Tatonka Kings Peak RECCO is a lightweight touring rucksack designed for backpacking and hiking. Paragliders will rejoice over the Skywalk CULT4 and RANGE X-ALPS2 harnesses, designed for performance and comfort in the air.

“At Haglöfs, we integrate RECCO® reflectors into our finest products that are designed for people who walk longer and climb higher because being exhausted can challenge our focus and increase the risk of being exposed to danger. RECCO® technology simplifies the work for the rescuers in the case of an accident, and at Haglöfs we care about the safety of our customers. When we find a technology that really works, the choice is easy.” -Robert Olsson, Senior Designer at Haglöfs.

In addition to this wide range of upcoming outdoor products, leading brands such as Ortovox, Grivel, Ferrino, Montura, Bergans, Beal, Boeri, Frauenschuh are also integrating RECCO® technology into their upcoming product lines.

Virus-free. www.avast.com

I understand the emotions and concerns, but this law would create a nightmare for Search & Rescue, Fire & Law Enforcement.

Posted: February 7, 2018 | Author: Recreation Law | Filed under: Uncategorized | Tags: 911, Duty to Rescue, SAR, Search and Rescue | Leave a comment

If my adventures don’t include some type of “potentially life-threatening distress” I’m not having fun. SAR and EMS would follow me around just to cut down on phone calls.

A man died this summer when his “friends” allowed him to drown and disappeared. See Forrest Fenn treasure hunter Eric Ashby missing after rafting accident. Basically, a photographer saw the man in distress and did not report the issue. The friends of the man in his raft did not report him missing for ten days. His body was eventually found.

I’ve worked that section of the Arkansas River for fifteen years as a raft guide. That photographer on the bank, if the one identified in the article, sees hundreds of people in distress every day. They get pulled out of the river and continue rafting. A large percentage of the people are guides.

The photographer is looking upstream; the rescues occur downstream. The photographer is doing his job. On top of that, there is no cell phone coverage where the photographer is.

So, a group of the deceased friends are attempting to make a law requiring you to call 911 if you see someone “potentially life-threatening distress” you would have a duty to report it. See Eric’s Law: Friends of missing man seek legislation.

First off, your definition of life-threatening distress, my definition and the little old lady down the block are vastly different. People in my neighborhood send out emergency notices if they see a snake on the sidewalk. For them that is life threatening. (You should read my response to those posts……..)

In those situation’s Search and Rescue (SAR), Fire, Ambulances and law enforcement would be constantly chasing bad complaints.

The last thing I need is someone not understanding what I am doing calling in someone to yell at me for doing it because I’m stressing the idiot watching me.

I understand how frustrating it must be to lose a friend and believe someone saw them at a time when they could have been saved. Even so, it could have been saved is as nebulous as it gets, and it can only get worse. So there are a lot of flaws in this entire idea.

It has been long established in the law that there is no duty to rescue. Consequently, there is no duty to call 911. I still remember reading about that issue in law school. As an Eagle Scout and former EMT, that sort of bothered me. However, reading the case law, it made a lot of sense. As I’ve “grown” in this area of the law, I not only understand it more, I support it.

There is a duty to rescue if you are the person who put the person in peril. So a commercial raft guide has a duty to rescue people in his boat. A non-commercial guide may have a duty to rescue if he intentionally knocked someone out of his boat.

There are also some duties to rescue in some states. Spouses may have a duty to rescue the other spouse; Parents should rescue their children; common carriers have a duty to rescue their passengers,

There are several states that have an implied duty to rescue because they have created Good Samaritan laws for the people who call 911.

However, overall there is no requirement to call 911. Nor other than an isolated incident every decade, is there a need for such a law. 911 is inundated with calls as it is and rarely is a rescue required.

And the other issue underlying this entire discussion. Searching for Treasure!

And as far as searching for treasure; There are people wanting to stop that too! What idiots. Let me die having fun, doing the thing I want to do. If I don’t have the training and experience to get myself, home, that is my problem; Not the person who created the treasure hunt.

The western hemisphere was discovered because of treasure hunters. The US was founded based on looking for treasure. It is the very nature of our existence.

Quit allowing people to tell you to have fun, requiring you to have fun only their way and trying to get you arrested when you do have fun.

Pay attention to your state legislatures this year, if you want to continue in the outdoor recreation industry without the burdens, others would like to place on you.

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

Movie/Fund Raising Event for Alpine Rescue Team and Rocky Mountain Rescue Group

Posted: October 22, 2015 | Author: Recreation Law | Filed under: Uncategorized | Tags: Alpine Rescue Team, Rocky Mountain Rescue, SAR, Search & Rescue, Search and Rescue, The Grand Rescue | Leave a comment

The Grand Rescue (A movie night!) Oct. 23

The Alpine Rescue Team will be hosting the screening of the documentary movie, THE GRAND RESCUE on October 23, 2015 at 6:30 pm at the American Mountaineering Center in Golden, CO. Proceeds from this event will go towards the “Colorado Mountain Rescue History Center” project. Get your tickets before they run out here.

In 2011, members of the Alpine Rescue Team and the Rocky Mountain Rescue Group traveled to Jackson, Wyoming to assist Swirl Productions in the filming of the documentary about the 1967 rescue on the Grand Teton. Both Alpine Rescue Team and Rocky Mountain Rescue Group supplied 1960’s vintage equipment and assisted as technical advisers in the rigging and use of the historic rescue gear.

Colorado Mountain Rescue History Center
(Learn more!)

To learn more about the COLORADO MOUNTAIN RESCUE HISTORY CENTER we ask that you visit our website. As of today, 80% of the funding has been committed and pledged by the Alpine Rescue Team, foundations such as the Gates Family Foundation, the Boettcher Foundation, the Colorado Trust, the El Pomar Foundation, numerous Colorado SAR Teams and from private Individuals.

The CMRHC will be home to the history of Mountain Rescue in the State of Colorado. It will house and protect the documents and artifacts collected from around the state from the Mountain Rescue Teams that have provided mountain search and rescue services over the past 60 years. It will also serve as the instrument in which mountain safety education programs will be available to the public.

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If you throw a throwbag incorrectly (yes there is now a right way and wrong way) that can be used to sue you. It used to be the correct way was the swimmer got the rope; incorrect way swimmer missed the rope.

Posted: April 16, 2014 | Author: Recreation Law | Filed under: Paddlesports | Tags: American Society of Testing & Material, ASTM, Guide, Paddlesports, Personal Flotation Device, Raft guide, Rescuer, Search and Rescue, Swiftwater rescue, Throw bag, Throw Rope, Throwbag, Water Rescue, Water Rescuer, Whitewater Guide | 1 Comment

Yo! Raft guides, ever been sued? New ASTM standard will now make that possible!

Well meaning, hardworking volunteers have no idea how they are helping to create lawsuits but here is the perfect example.

ASTM F1730 – 96(2014)

Standard Guide for Throwing a Water Rescue Throwbag

Active Standard ASTM F1730 | Developed by Subcommittee: F32.02

Book of Standards Volume:13.02

Here is how this standard is explained.

Significance and Use

3.1 This guide establishes a recommended procedure for a throwing rescue to ensure the safety of all water rescuers who may be involved in rescue techniques at a water rescue emergency.

3.2 This water rescue technique can be utilized from land, boat, or any stable platform.

3.3 All persons who are identified as water rescuers shall meet the requirements of this guide.

3.4 This guide is intended to assist government agencies, state, local, and regional organizations; fire departments; rescue teams and others who are responsible for establishing a minimum performance for personnel who respond to water emergencies.

3.5 The procedure outlined in the document may vary with the number and type of victims, and water conditions.

1. Scope

1.1 This guide covers the recommended procedures for throwing a water rescue throwbag.

1.2 This guide is one in a series of water rescue techniques for the water rescuer.

1.3 This standard does not purport to address all of the safety concerns, if any, associated with its use. It is the responsibility of the user of this standard to establish appropriate safety and health practices and determine the applicability of regulatory limitations prior to use.

Does this apply to raft guides? I would say yes.

Is a raft guide a “water rescuer” who may be involved in rescue techniques at a water rescue emergency.” If so you have to meet the requirements of this guide.

Do you know the name of a group of people who meet this definition? “…others who are responsible for establishing a minimum performance for personnel….” They are called a jury.

Let’s see how this is a messed up idea.

You were a high school quarterback with a good arm. You can throw a throwbag just like a football with great accuracy.

You are right-handed and standing on shore next to a rock wall. There is not room to throw the throwbag underhanded.

You are on a 12’ raft in the Royal Gorge on the Arkansas River. Does the definition of 3.2, which describes a boat as stable apply to you? Since your boat is not stable should you knot use your throwbag? Are you allowed to throw any way you can, if you are not stable?

Seriously, why is someone writing these things? Can’t they see how broadly this is written and how much damage it will do?

Look, someone is in the river it doesn’t matter if you are throwing the bag backwards, blindfolded standing on one leg in a pink tutu. If you get the rope to the swimmer, that was the correct way!!!

What do you think? Leave a comment.

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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

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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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Recreation Law

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

Interesting CA case on sheriff’s failure to start SAR & run SAR

Arista v. Cnty. of Riverside (Cal. App. 2021)

This is a confusing case concerning whether or not a person is an intendent contractor or employee, has the right to sue the employer and whether the insurance company for the employer must provide coverage because of the confusion

Lawsuit continues against Avalanche airbag manufacturer for failure to deploy

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

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

RECCO® EXPANDS ITS REACH BY EQUIPPING NEW SUMMER PRODUCTS WITH RECCO® TECHNOLOGY

I understand the emotions and concerns, but this law would create a nightmare for Search & Rescue, Fire & Law Enforcement.

Movie/Fund Raising Event for Alpine Rescue Team and Rocky Mountain Rescue Group

The Grand Rescue (A movie night!) Oct. 23

If you throw a throwbag incorrectly (yes there is now a right way and wrong way) that can be used to sue you. It used to be the correct way was the swimmer got the rope; incorrect way swimmer missed the rope.

ASTM F1730 – 96(2014)

Standard Guide for Throwing a Water Rescue Throwbag

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

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

35 Years of Outdoor Retailer

Recognized as the Go to Lawyer by the Outdoor Recreation Industry

If you want to book an appointment?

Outdoor Recreation Risk Management, Insurance & Law

My New Book: Boating the Grand Canyon: A “How To” for Private Boaters

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The Grand Rescue (A movie night!) Oct. 23

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ASTM F1730 – 96(2014)

Standard Guide for Throwing a Water Rescue Throwbag

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35 Years of Outdoor Retailer

Recognized as the Go to Lawyer by the Outdoor Recreation Industry

If you want to book an appointment?

Outdoor Recreation Risk Management, Insurance & Law

My New Book: Boating the Grand Canyon: A “How To” for Private Boaters

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James H. Moss, J.D.

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