Not in my wildest imagination did I ever think that as a lawyer I would be applying a negligence standard to hikers and hiking. No way. But New Hampshire has done exactly this. [SNOB ALERT!] If you hike in the State of Confusion that prides itself on being free or dying you are no longer permitted to almost die if you are negligent - at least not without getting the bill from Search and Rescue. [SAR]
Older Americans wanting to hike in the outdoors should stay as far away from New Hampshire as they can get. You see New Hampshire law, RSA 206:26-bb(2011) makes hikers acting in a merely negligent manner legally liable for the cost of a rescue operation. [DOUBLE SNOB ALERT!] A fifty-nine year old hiker was recently tagged with a $9,000 Search and Rescue bill from the New Hampshire Fish & Game Department after they had to do what they were hired to do. [SAR]
“But society rescues people all the time–Auto accident victims, home fire victims, mumbling homeless people, war refugees, plane crashes, hunters, illegal immigrants, single mothers, old folks, the jobless, drunk local bubbahs – and at far greater cost than wilderness hiker rescues. Many of those lamentable situations are the result of life decisions every bit as poor and irresponsible as the most careless hiker, but few thinking people would dispute the value of providing these safety nets.” Backpacker Magazine
At first I thought I must have misread Justia’s legal summary [see below], because I found it hard to believe being merely negligent would be grounds to sue a hiker for SAR. But after re-reading the case I found that Mr. Bacon was found liable to re-pay the New Hampshire Fish And Game Department $9,186.38 for 'the reasonable costs' of rescuing him. I thought, are they serious? To add insult to injury the costs of the action along with interest on that amount were then taxed onto the nine grand. [TRIPLE SNOB ALERT!]
New Hampshire Fish and Game Department v. Edward Bacon, No. 2014-158, Supreme Court of New Hampshire (April 30, 2015) I uploaded this decision to our website and you may read the opinion by following this link.
ARE THEY JUST SUE-HAPPY OUTDOOR SNOBBY TYPES?
You might wonder what precipitated this lawsuit by the fish and game department. Let’s first look at the hiker. Mr. Bacon was 59-years-old Michigonian who on September 16, 2012 began a five-day solo hiking trip in the White Mountains of NeverNeverLand. His plan was to hike several mountains with summits of just over 5,000 feet of elevation. (Five thousand feet of elevation is not very high. Denver’s elevation is 5,280 feet or 1,609 meters. Base camp at Mt. Everest is 17,500 feet and the summit of Kilimanjaro is over 19,000 feet.) Previous to this hike Mr. Bacon had, according to the decision, undergone four hip surgeries, had an artificial hip that had dislocated on five previous occasions and was taking undisclosed prescription medications. He had a “bad back”; but who at 59 doesn’t. His previous training was poorly described in the decision which makes it impossible to tell whether his training for these low peaks was reasonable making what he was attempting as doable. It makes me wonder if the ALJ even knew what training would be sufficient to hike this range. The decision appears to insinuate that training in a city park in Michigan with 250 foot elevation hills and some gravel trails is insufficient for hiking on “rocky and steep” terrain. If that is true no one except those living in Colorado, New Hampshire, California, Washington, Oregon and maybe the Appalachian States should ever be qualified to climb a mountain in New Hampshire. The decision doesn’t discuss how many miles his training runs were, whether during training he wore a pack or weight-vest and the length of time of his training runs. The number of months he trained is not discussed nor whether he engaged in weight training or ever used an incline trainer. The decision says nothing about whether any orthopedic surgeon ever advised against hiking or hiking in the mountains. Perhaps these facts were unimportant to a hearing officer but they are very important to determine whether his training would make his behavior rise to the level of negligence. (Hint-hint, the New Hampshire Supreme Court may have gotten it wrong. Someone should be asking for rehearing and reconsideration.)
The Weather Was So Bad it Blew the Conservation Officer To The Ground
A conservation officer with the Department testified the winds were among the worse he had ever experienced in that part of the Franconia Ridge Trail and had repeatedly blown him to the ground. (Snob Alert! If you are not trying to just blame the hiker how does this make him negligent in any way?) The decision seems to make fun of the hiker for not anticipating the wind speeds. The decision fails to discuss the wind speeds at the trail head when the hiker started out. (A real hiker would want to know this fact.)
Here is how the decision described the events that caused the hiker to be injured: “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.”
According to the Department What Did Bacon Do Wrong?
It appears the Department was displeased with preparations the hiker had made for this excursion and after second guessing his planning decided to charge him for the Department’s rescue costs. They seem also displeased with his choice of how to climb the ledge, although they offered no alternative routes. A choice that proves to be incorrect is not negligence.
Was The Nine Grand Reasonable?
The court thought so, but I have to wonder why it takes thirty-five volunteers and fifteen Department personnel to retrieve one hiker with a broken hip from a trail from an elevation of less than 5,000 feet in New Hampshire? This isn’t Everest. I did notice there is nothing in the decision about the elevation of the hiker’s location and how high up from the trailhead he was when injured. It appears he was on the trail. Was the trail marked? There is little in the decision about the trail leading up to the waist-high rock ledge. These facts would seem to be important in analyzing the issue of “negligence”. And how does one come up with over $9,000 in costs when the record reflects most of the rescue team was made up of volunteers, which by definition means they aren’t being paid. And the rest of the department personnel were already on the Department’s payroll. Frankly, how hard was it to rescue the hiker? Is this simply walking up a trail with a stretcher or calling in a helicopter? I paid for a helicopter rescue in Nepal from Pangboche to Lukla for $3,000; (The Tibetian horse was less than $150.) and that was during the War with the Maoists requiring our guide to requisition a chopper from the Nepalese Army. Why does it cost those in New Hampshire $9,000 to walk with a stretcher up a 5,000 peak?
A Mere Hiker’s Negligence Standard Is Ridiculous
Politically the decision to sue the older hiker is either tourism hari-kari or a way to force everyone to buy search and rescue insurance. The weakness of the decision to sue the hiker has much to do with equating a bad plan with being negligent. No hiker can anticipate actual conditions because so much of hiking is about facing the unknown and dealing with the unpredictable. Isn’t that why people go hiking or engage in mountaineering? Don’t people engage in outdoor activity to find out what they are made of and to experience the unknown?
Why would anyone want to hike in New Hampshire under a mere negligence standard?
It makes me wonder if next the New Hampshire Highway Patrol will charge the at-fault party for accidents on I-95. If the reasoning of the Fish & Game Department finds a footing with the New Hampshire Legislature it could easily be applied to the costs associated with interstate highway accidents. Because after all it is far more negligent to be texting while driving than it is to misread the weather while planning a hike.
The Hiker’ Bottom Line
It appears from this decision that anyone over fifty and anyone of any age with any significant medical condition will not want to hike in New Hampshire without SAR Insurance for fear of needing to be rescued. Heed the warning because any assumption you make that proves to be wrong will be considered negligent on the hiker’s part leading to a lawsuit. And those without insurance who need SAR will hesitate to send out an SOS for fear of being tagged with the bill. I wonder if it is cheaper to retrieve a dead body than one still breathing. There is insurance for bringing your dead body home; I know because I own a policy.
The Ultimate Legal Advice for Negligent Hikers in New Hampshire - Our Top 25 Top Tips for Not Getting Sued!
- If you need to be rescued say as little to your rescuers as humanly possible because they will use it against you to prove you were negligent.
- Tell your rescuers nothing beyond how you feel and what hurts.
- When in the hospital and on pain meds don’t let the Department interview you.
- Disclose nothing to the Department about what you planned, how you trained or about assumptions you made.
- Do not discuss what you expected for weather.
- Do not disclose the actual weather conditions.
- Do not discuss that you encountered other hikers.
- Do not show your rescuers or the Department any photographs you took.
- Do not admit or deny the equipment you are carrying is your own.
- Never, ever discuss pre-existing medical conditions with SAR or the Department; wait for the hospital personnel.
- Never disclose your age or date of birth.
- Be careful about disclosing prescription medications you are on.
- Buy the rescue insurance from the American Alpine Club or Backpacker
- Buy Insurance Protection For Sports Done Vertically, Adventure Sports Insurance
- Call a lawyer right after you call SAR!
- While waiting for SAR to arrive lock everything in your pack and then conveniently forget the combination.
- Lock your phone and then forget the code.
- While waiting for SAR to arrive burn all your notes and journal entries!
- Drag yourself around to obscure your footprints and hide your trail.
- Consider staying home to read or watch WILD.
- When SAR arrives blame it all on Cheryl Strayed and Reece Witherspoon!
- If you get sued after hiking in NH cross-claim against the producers of Wild and the Weather Channel.
- Consider adding a new-fake identification card to your hiking supplies.
- Leave your driver's license at home.
- And last but not least, stay out of New Hampshire.
ARTICLES OF INTEREST
- Paying for Wilderness Search and Rescue: Private Cost, or Public Obligation? Backpacker Magazine
- Perilous rescues, at a price, N.H. seeks to recoup costs from 'negligent' adventurers, By David Abel
- John’s Snob Guide to Hiking Aesthetics
- Hiker Snobs – Google Group, Gag!
Justia’s Case Summary:
Defendant Edward Bacon appealed a circuit court order that found 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, and that he, thus, was responsible to the Department for the reasonable costs associated with the search and rescue. 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, 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. Defendant also had a “bad back” and was taking a variety of medications for multiple ailments. During the hike, 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, a Conservation Officer 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. The Officer testified that when he found defendant his left leg was flexed and internally rotated, the very position that defendant’s orthopedic surgeon had warned him to avoid due to his hip replacement. Approximately fifteen Department personnel and thirty-five volunteers participated in defendant’s rescue. The trial court found for the Department “for all of the reasons cited in the plaintiff’s closing memorandum,” and awarded the Department $9,334.86 in damages. Defendant filed a motion to reconsider, to which the Department objected. The court denied 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.” After review, the Supreme Court found no reversible error and affirmed.