Lots of Rescues - Taking Stock

[SAR-EMT40]

I absolutely am making it difficult, Keith. And, I greatly appreciate your input since you have a better read on it than I.

However, I still am taking the position (mind you, for argument's sake only) that this is incredibly ambiguous. Laws are made to be written, I believe, to clearly disseminate between right and wrong. If I am forced to pay for my negligence or reckliness, I want to know if my action would be deemed illegal (fine-able, whatever) before I go ahead and do it.

When I mentioned in my first post, I have been negligent quite often even in the most narrowest of scopes in today's definition. However, at the time, I never felt that way.

OK, let me guess. Your an engineer right Dug. I feel for you man, so am I. I truly understand where you are coming from. We like things in black and white. We are masters of the universe as long as we understand the laws that govern. Our very existence revolves around laws that are immutable anywhere in the universe. Unfortunately many things in life have areas of gray and this is one of those things. It is not possible or prudent to try to define this any better. Doing so will catch people you would not want to catch and let others go who should be held responsible.

Please note the kidding going on. You might not be an engineer, but it wouldn’t surprise me if you were. Besides, if everything operated by immutable laws what would lawyers do.

Keith

 

[dug]

OK, let me guess. Your an engineer right Dug. I feel for you man, so am I. I truly understand where you are coming from. We like things in black and white. We are masters of the universe as long as we understand the laws that govern. Our very existence revolves around laws that are immutable anywhere in the universe. Unfortunately many things in life have areas of gray and this is one of those things. It is not possible or prudent to try to define this any better. Doing so will catch people you would not want to catch and let others go who should be held responsible.

Please note the kidding going on. You might not be an engineer, but it wouldn’t surprise me if you were. Besides, if everything operated by immutable laws what would lawyers do.

Keith

BUSTED!!!!!

 

[Chip]

Ah, yes, but New Hampshire has one in place today, and is looking to strengthen in it. That is what has my curiosity piqued.

Maybe I missed something, if so - read my disclaimer . I thought they were changing the wording from reckless to negligent, not trying to define what that means.

"The proposed new language, which Abbott expects will become law this spring, would lower the threshold for the public to compel repayment. The bill changes the language of the law from "recklessly" to "negligently" prompting an emergency response. For those who don't pay, the bill would allow the state to suspend the person's driver's license and other state licenses.

The difference, he and others said, is that "reckless" implies someone who becomes aware of a substantial risk and consciously disregards that risk; a "negligent" person is someone who fails to become aware of the risk that a reasonable person should have been aware of."

That was taken from this 2/24 Boston.Com article.

 

[dug]

Maybe I missed something, if so - read my disclaimer . I thought they were changing the wording from reckless to negligent, not trying to define what that means.

"The proposed new language, which Abbott expects will become law this spring, would lower the threshold for the public to compel repayment. The bill changes the language of the law from "recklessly" to "negligently" prompting an emergency response. For those who don't pay, the bill would allow the state to suspend the person's driver's license and other state licenses.

The difference, he and others said, is that "reckless" implies someone who becomes aware of a substantial risk and consciously disregards that risk; a "negligent" person is someone who fails to become aware of the risk that a reasonable person should have been aware of."

That was taken from this 2/24 Boston.Com article.

But, same question can be posed, though. How is "risk" being defined?

 

[Amicus]

For what it's worth, I'll note that "negligence" - not specifically defined - is the general standard for determining private liability in our legal system - it applies unless a statute or regulation sets a higher or lower standard for some specific activity. So, I'm liable to you if you can persuade a judge or jury that I negligently allowed my pet rhino to obliterate your expensive Koi pond. (Actually, my owning a rhino might be "negligence per se," but let's not get technical.)

So, yes, "negligence" is a concept very familiar to lawyers.

 

[dug]

For what it's worth, I'll note that "negligence" - not specifically defined - is the general standard for determining private liability in our legal system - it applies unless a statute or regulation sets a higher or lower standard for some specific activity. So, I'm liable to you if you can persuade a judge or jury that I negligently allowed my pet rhino to obliterate your expensive Koi pond. (Actually, my owning a rhino might be "negligence per se," but let's not get technical.)

So, yes, "negligence" is a concept very familiar to lawyers.

Yes, but, private liability vs. breaking a public law would be/should be different. No?

 

[Amicus]

Yes, but, private liability vs. breaking a public law would be/should be different. No?

Definitely, in my view, if you're talking about fines or jail, and mere negligence would not result in those, at least as a general rule. Recouping expenses, on the other hand, looks more like the usual private liability scenario. (I'm not expressing a view on the proposed legislation, I should add, as my feelings about it are mixed.)

 

[dug]

Definitely, in my view, if you're talking about fines or jail, and mere negligence would not result in those, at least as a general rule. Recouping expenses, on the other hand, looks more like the usual private liability scenario. (I'm not expressing a view on the proposed legislation, I should add, as my feelings about it are mixed.)

Mine are as well. I have read a lot "fools" and "unexperienced" and hikers putting others at risk, they should pay, not having the right gear, etc. and I am really looking for thos that have a strong opinion to let them out.

 

[bikehikeskifish]

One possible opinion to let them off the hook is that the State of NH promotes hiking and back country recreation as a way to increase revenues for local businesses and through the resulting taxation, state coffers. Thus one could opine that rescues are a cost of doing that type of business.

Black's Law Dictionary defines recklessness in American law as "Conduct whereby the actor does not desire harmful consequence but...foresees the possibility and consciously takes the risk," or alternatively as "a state of mind in which a person does not care about the consequences of his or her actions." Black's Law dictionary 1053 (Bryan A. Garner ed., 8th ed. abr. 2005). In civil court, a wrongdoer who recklessly causes harm can often be held to the same liability as a person who intentionally does so.

and

The distinction between recklessness and criminal negligence lies in the presence or absence of foresight as to the prohibited consequences. Recklessness is usually described as a 'malfeasance' where the defendant knowingly exposes another to the risk of injury. The fault lies in being willing to run the risk. But criminal negligence is a 'misfeasance or 'nonfeasance' (see omission), where the fault lies in the failure to foresee and so allow otherwise avoidable dangers to manifest. In some cases this failure can rise to the level of willful blindness where the individual intentionally avoids adverting to the reality of a situation

I think the statement of interest here is the fault lies in the failure to foresee and so allow otherwise avoidable dangers to manifest.

If true, then failure to forsee the weather, or failure to prepare for weather would constitute negligence, and the rescued party would be liable for some costs. I could see, using this standard, that being unprepared for an overnight (bag, bivvy, etc.) might constitute negligence. This is of concern to me, of course, because it means I have to spend money to be in compliance... as would anyone tasting the state-promoted back country offering for the first time.

Tim

 

[dug]

One possible opinion to let them off the hook is that the State of NH promotes hiking and back country recreation as a way to increase revenues for local businesses and through the resulting taxation, state coffers. Thus one could opine that rescues are a cost of doing that type of business.



and



I think the statement of interest here is the fault lies in the failure to foresee and so allow otherwise avoidable dangers to manifest.

If true, then failure to forsee the weather, or failure to prepare for weather would constitute negligence, and the rescued party would be liable for some costs. I could see, using this standard, that being unprepared for an overnight (bag, bivvy, etc.) might constitute negligence. This is of concern to me, of course, because it means I have to spend money to be in compliance... as would anyone tasting the state-promoted back country offering for the first time.

Tim

Great points, Tim. Now, there are times when a bivvy is needed/recommended. There are times when a bivvy is not needed. Who determines when it is required/recommended/overkill? That is, and I believe will always be, open to interpretation.

 

[bikehikeskifish]

I do think the F&G still has to "prove" negligence to some court or arbiter -- and so unless they have a good case to go on, I doubt they'll bother with the cost of going forward. It would be much better for them, financially, if they made a strong request for a donation for every rescue they performed, and hope to get 10-20% to respond out of appreciation, if not guilt.

Tim

 

[Tom Rankin]

Tom -

According to my cousin, who lives in Saratoga Springs, is a long-time ADK hiker and attorney (Asst. AG), the reason snowshoes became a requirement was to placate skiers, who viewed the ADK, and particularly the AMR, as their own winter playground. Wasn't the trail to Marcy initially labeled the "Von Hovenburg Ski Trail"? According to my cousin, they didn't want hikers allowed at all, but allowing those with snowshoes was their fallback position.

Maybe someone with 40-50 years of ADK background (Pete Hickey?) can comment on whether my cousin's assessment is accurate.

Kevin

That may be true, but that does not mean that safety is not involved.

Also if you post-hole a trail, you not only make it difficult for skiers to use, you make it difficult for other hikers as well. A frozen post-hole can easily twist someone's ankle, creating a safety hazard for all.

FWIW, there are far fewer skiers in the ADKs these days than hikers.

 

[Kevin Rooney]

That may be true, but that does not mean that safety is not involved.

Also if you post-hole a trail, you not only make it difficult for skiers to use, you make it difficult for other hikers as well. A frozen post-hole can easily twist someone's ankle, creating a safety hazard for all.

FWIW, there are far fewer skiers in the ADKs these days than hikers.

Yes, agreed on all points. Just relaying my cousin's historical perspective.

 

[sardog1]

Definitely, in my view, if you're talking about fines or jail, and mere negligence would not result in those, at least as a general rule.

Negligent homicide is a crime in most jurisdictions. The most typical example is DWI that results in a death.

Owning a rhino would probably be an "extra-hazardous" activity, like using explosives or keeping another dangerous wild animal. This takes negligence out of the picture and puts you into "strict liability" for any resulting damages. Your rhino steps on a neighbor's koi, you pay, regardless of how well you kept it confined.

The courts will not have trouble resolving the alleged negligence of a defendant hiker. Courts have been doing negligence cases for more than a hundred years. White Mountains hikers are not that special, regardless of our opinions to the contrary.

 

[bikehikeskifish]

We aren't asking for special treatment. We're asking, quite simply, What is the legal standard of negligence we are required to pass or fail in order to be charged? and that question is not officially answered. I.e., do I need to go buy a winter bag, bivvy and new pack to carry it (or just buy the small one to carry my divorce papers )

I'll also point out that the negligence article from Wikipedia mentions the aforementioned "reasonable person" standard.

Tim

 

[sardog1]

Liability for negligence is derived from the common law, i.e., from the deciding of individual cases and following their precedents, not from any statute. There is nothing black and white about it, never has been, and people get surprised all the time when they're found negligent.

Bottom line is, if the proposed statutory change occurs, some hikers are going to make law for the rest of us. The trick will be in making sure you're an observer, not a participant in the process. If you dislike this prospect, now's the time to speak up. Not here ---- in Concord.

 

[Amicus]

Negligent homicide is a crime in most jurisdictions. The most typical example is DWI that results in a death.

Owning a rhino would probably be an "extra-hazardous" activity, like using explosives or keeping another dangerous wild animal. This takes negligence out of the picture and puts you into "strict liability" for any resulting damages. Your rhino steps on a neighbor's koi, you pay, regardless of how well you kept it confined.

I guess that's right about negligent homicide, although I think of DWI resulting in a death as recklessness. This is not an area of the law I'm well-versed in, but most crimes, at least, require "scienter" on the part of the perp - something close to intent - extreme recklessness or worse.

I think you're right about my rhino. "Negligence per se" = "strict liability" in my book. You're also right about our courts "defining" negligence through the accumulation of reported decisions, as they have been doing for centuries (going back to the roots of English common law, the basis for ours).

 

[bikehikeskifish]

It all comes down to the expert-on-winter-hiking witness A. Reasonable Person. At least that explains why there is no line in the sand... it hasn't been drawn yet.

It would appear, based on the rescues so far, that A. Reasonable Person would have at a minimum snowshoes, traction device, food + water, a change of dry clothes, and some additional layers in the form of down jacket or bivvy or winter bag...

Don't quote me... I am not A. Reasonable Person

Tim

 

[Paradox]

Perhaps we should reconsider the WMNF parking pass that some of us still purchase. Maybe this could somehow be made equivalent to the Hunting/Fishing licence and therefore entitle to the holder of such a parking pass to a "Get off ridge free" card.

 

[bikehikeskifish]

While I would not mind paying an additional fee to the state for the rescue / F&G services they provide, you can't mix the Federal and State govts. That's like mixing oil and water. Or maybe fertilizer and fuel oil.

I still like the idea of charging for parking in Franconia Notch... It's a popular place, the charge-for-parking model is commonplace, there is prior art in enforcement, and it targets the exact population you wish to target.

I had an additional thought this evening, which I did not post. We've all been discussing the negligence bit in the context of winter hiking. I'm sure that the jeans-sneakers-t-shirt wearers who get caught in the Presis in August in a rain storm and temperature drop are probably more likely to qualify as negligent than bivvy-less/bag-less winter hikers with extra/dry clothes, snowshoes, food+water and traction.

Tim