NH Hikesafe Card in NH House study committee

Let the moderators move this to a better thread, but:

In today's Union Leader section B1 is a report on Search and Rescue funding. A committee of the NH House of Representatives studying HB256 will report that the idea to charge all rescued parties has been dropped. Instead, what they call a Hikesafe card will be offered (if the bill becomes law). The card will cost $25 for individuals and $35 for families. The benefit to the buyer will be that they will not be charged for their rescue even if they are deemed to have acted negligently. The card apparently does not cover them if they are deemed to have acted recklessly, so that part of current law stays the same as it is now. Persons buying other types of licenses whence $1 already goes to the Fish and Game SAR fund will continue to be rescued without charge the same as now. The article did not say whether the Hikesafe card is to be a one-time purchase like life insurance, there when needed, or whether the card is good for only one year.
My personal hope is that the card is good until needed, because the hikers get no other service from Fish and Game, and the money sits in the SAR fund (in an interest-bearing account) until needed.

I went looking for this story and the front page of theunionleader.com had this story: Some stranded hikers rescued by NH Fish & Game not so thankful after the bill which defined "negligent"... first time I've seen it spelled out:

"A negligent hiker is defined as somebody who takes an unjustifiable risk that constitutes a gross deviation of what we would consider a reasonable person would do," Garabedian said.

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I don't see the article referenced in section B1 online, however. What's the incentive to buy the card, if all rescue fees (saving reckless) are waived? And how do I cover my family if I purchase an annual fishing license already?

This related story (Rescued hiker, climber grateful to state, volunteer searchers) says:

Although the state can charge negligent hikers for reasonable rescue costs, those would be waived if the rescued person had purchased the card, much like an insurance plan.

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which suggests you can be billed if negligent without the card.


Tim

Creag Nan Drochaid said:

The benefit to the buyer will be that they will not be charged for their rescue even if they are deemed to have acted negligently. The card apparently does not cover them if they are deemed to have acted recklessly, so that part of current law stays the same as it is now.

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Not seeing the article either but I'm a bit confused by this statement.. The buyer will not be charged if negligent but will if reckless? Do they define the difference?

Sounds like they are finally on the right track. The tricky part will be defining "reckless" vs. "negligent".

Even the quotes from the U.L. article seem to muddy that difference:

"A negligent hiker is defined as somebody who takes an unjustifiable risk that constitutes a gross deviation of what we would consider a reasonable person would do," Garabedian said.

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So a negligent hiker is someone who...acts recklessly?

I believe the following general paragraphs apply:

http://nhrsa.org/law/626-2-general-requirements-of-culpability

...
(c) “Recklessly.” A person acts recklessly with respect to a material element of an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the circumstances known to him, its disregard constitutes a gross deviation from the conduct that a law-abiding person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of having voluntarily engaged in intoxication or hypnosis also acts recklessly with respect thereto.
(d) “Negligently.” A person acts negligently with respect to a material element of an offense when he fails to become aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that his failure to become aware of it constitutes a gross deviation from the conduct that a reasonable person would observe in the situation.

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Tim

Stash said:

Not seeing the article either but I'm a bit confused by this statement.. The buyer will not be charged if negligent but will if reckless? Do they define the difference?

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There's a huge difference. Reckless conduct is a criminal offense--misdemeanor or felony, depending on the severity--which means, obviously, that you have to be convicted by a jury. Here's the definition:

The New Hampshire Reckless Conduct statute states: "A person is guilty of Reckless Conduct if he recklessly engages in conduct which places or may place another in danger of serious bodily injury."

In order to convict on a charge of Reckless Conduct, the State must prove (beyond a reasonable doubt) and the jury must conclude that you acted recklessly. The term "Recklessly" is defined by statute. Acting recklessly means that you were 'aware of and consciously disregarded a substantial and unjustifiable risk that serious bodily injury would (or could) result from the conduct.' (Source)

NH Law

That's why it was a big deal when they changed the law to allow charging people for negligence, which is determined not by a jury, but by an individual employee of the State.

Sounds like they need to get their quotes to the press to line up with the legalese. What Garabedian said doesn't exactly jive with the definitions.

He said "A negligent hiker is defined as somebody who takes an unjustifiable risk"

The definition: "A person acts negligently with respect to a material element of an offense when he fails to become aware of a substantial and unjustifiable risk"

One of those two articles I cited above refers to "Little Stack Mountain" so the editorial staff and/or writers aren't exactly stretching their fact-checking budget. I.e., it may not be F&G to blame for the incorrect quoting.

Tim

My take:

Negligent:
Injury on North Tripyramid because you were unaware that the slabs were wet. In this case, this is a commonly travelled path, and all of the warnings about this trail are well known. However, suitability of doing this hike is at the discretion of the hiker. If I get there and conditions aren't correct, yet I push on... I would consider that negligence. You know the risk, you take it, you get injured.

Reckless:
Those two looney tunes who tried to free climb the winter route up Huntington in the middle of the summer (you remember... the guy who did the face plant into a boulder after sliding 80 ft?). This is a situation where: 1) The route they chose was not a standard nor acceptable approach, 2) it wasn't negligence that caused the injury, but rather, choosing to do something stupid to be a dare-devil.

iagreewithjamie said:

My take:

Negligent:
Injury on North Tripyramid because you were unaware that the slabs were wet. In this case, this is a commonly travelled path, and all of the warnings about this trail are well known. However, suitability of doing this hike is at the discretion of the hiker. If I get there and conditions aren't correct, yet I push on... I would consider that negligence. You know the risk, you take it, you get injured.

Reckless:
Those two looney tunes who tried to free climb the winter route up Huntington in the middle of the summer (you remember... the guy who did the face plant into a boulder after sliding 80 ft?). This is a situation where: 1) The route they chose was not a standard nor acceptable approach, 2) it wasn't negligence that caused the injury, but rather, choosing to do something stupid to be a dare-devil.

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What if, for example, they went up via the west side of the peak, maybe up Jewell Trail, and had no intention of going down into Huntington's. they wanted to walk down the Auto Road. They were not aware of the trail specifics, only that it's on a map and headed straight to Pinkham Notch. They got half-way stuck, and couldn't go up or down...eventually going down...way down, and very fast. Smashing their face in.

Negligent or Reckless?

The big problem with the reckless/negligent thing is that it's hard to factor in the experience level of the person. There's lots of people who scramble and climb off route in Huntingtons - what is "acceptable"?
It's no big deal for an expert skier to ski the woods, where it would be suicidal for a beginning skier. The terrain is the same, but a far bigger risk for the newbie. Who is the "reasonable person"?

Again, let me remind you guys, that being charged of Reckless Conduct is a *criminal* offense and requires putting someone else's life in danger as a result of your reckless action(s). That's a pretty high bar, which is why NH starting changed the law several years ago to allow for the fining of negligent behavior.

The problem with negligence is that it's based on an individual's perception. Scott Mason was cited as being negligent, because he continued on with a sprained ankle and left the trail. Some people like to bushwhack, sometimes even alone. Other people, unfamiliar or uncomfortable with hiking solo or hiking off-trail, might consider that behavior foolish. Should Steve Smith be charged with negligence if he were to sprain an ankle bushwhacking and need help? Some people like to free solo climb. Others think that's suicidal. Should Alex Honnold be charged with negligence if he were to fall and hurt himself? Some people play injured, continuing to hike or backcountry ski despite an injury. For example, some people never repair a torn ACL, but continue to hike & ski. If their knee were to buckle years later and cause an injury while hiking, would that be negligent?

bikehikeskifish said:

c) “Recklessly.” A person acts recklessly with respect to a material element of an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.

(d) “Negligently.” A person acts negligently with respect to a material element of an offense when he fails to become aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct.

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The only difference I can find in these definiations is whether the person is AWARE of the risk.

Do I get to say I wasn't aware of the risk or does someone else decide that?

TEO said:

The problem with negligence is that it's based on an individual's perception. Scott Mason was cited as being negligent, because he continued on with a sprained ankle and left the trail.

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Scott Mason was found negligent after the fact. For those unaware, Scott is an eagle scout from Halifax. He severely sprained his ankle while hiking Mt Washington in April. He managed to build a rock shelter and start a fire with hand sanitizer. He was rescued after three days in the wilderness. When I first read this story, my first reaction was "Good for him. He survived!"

However, the reason he was found negligent was because, while properly equipped, he was not experienced enough to do the route he had chosen. Particularly, the route required the use of crampons and ice axe. Scott had both, but had never used either. It was my understand that SAR determined that since his level of experience and training was not appropriate for the climb he chose, he was negligent.

This is one reason why I did the winter wilderness workshop and wilderness first aid. I've only needed to use my ice axe once, and have only used my crampons when practicing with them. So if this had happened to me, I wonder if I would've been considered negligent given that I've been trained to use the tools in my pack... or if they'd find another reason to find my negligent.

To deviate a little bit, I'm going to use this post as a reminder to folks to ALWAYS be prepared to spend the night in the woods, even if you're going out on a day hike. You never know when an ankle sprain will turn your hike into a backpacking adventure.

I lugged an ice axe around for years before deciding it was the most useless piece of equipment I carried (followed not far behind snow shoes on most hikes). Does that make me negligent becuase I never used it? The Mason kid didn't need an ice axe...why was his not using it applicable?

So, for a day hike, are you advocating I bring a sleeping bag and tent all the time?

dug said:

So, for a day hike, are you advocating I bring a sleeping bag and tent all the time?

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In winter and shoulder seasons, I always bring a sleeping bag and pad.
I'm confident in my ability to build a shelter, so I don't bring a tent... but having a cold-weather sleeping bag (IMO) is an essential piece of safety gear in the winter.

I found this link on the NH F&G website regarding Scott Mason. It reads in part "...The New Hampshire Office of the Attorney General and the New Hampshire Fish and Game Department have decided not to pursue reimbursement of costs for the extensive search and rescue operation on Mount Washington in April 2009 for then-17-year-old hiker Scott Mason of Halifax, Mass." (emphasis mine)

iagreewithjamie said:

In winter and shoulder seasons, I always bring a sleeping bag and pad.
I'm confident in my ability to build a shelter, so I don't bring a tent... but having a cold-weather sleeping bag (IMO) is an essential piece of safety gear in the winter.

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I always have a pad, but never bring a sleeping bag on day trips. Maybe that'll make me reckless some day.

iagreewithjamie said:

However, the reason he was found negligent was because, while properly equipped, he was not experienced enough to do the route he had chosen. Particularly, the route required the use of crampons and ice axe. Scott had both, but had never used either. It was my understand that SAR determined that since his level of experience and training was not appropriate for the climb he chose, he was negligent.

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I have never heard this version of the story. Which part of the route "requires crampons and an ice axe" in late April?

Mason was missing for three days after leaving the Appalachian Mountain Club's Pinkham Notch Visitor Center alone, intending to complete a 17-mile hike in one day. According to his account, he spent several days in the Great Gulf Wilderness attempting a shortcut of his planned route after spraining his ankle during the morning of his first day out. Conditions in the White Mountains became increasingly treacherous over the course of the search; rain and rapid snowmelt made many small streams impassable, requiring search teams to use rope traverses to cross raging waters.

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Incidentally, what F&G calls a "shortcut of his planned route" was actually the bailout route provided to him by someone at the desk at Pinkham, who evidently was unaware of the spring snowmelt conditions in the Great Gulf.

For reference: Old Scott Mason Thread Here : $25,000 fine assessed for teen hiker

Tim Seaver said:

I have never heard this version of the story. Which part of the route "requires crampons and an ice axe" in late April?

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I read this story in Backpacker: http://www.backpacker.com/eagle_scout_fine_rescue/blogs/daily_dirt/1177
The facts from the article are that he has crampons and axe, but no experience using them. The implication is that those two facts are related to SAR choosing to fine him.