Trail Runners Rescued from Mt Lafayette

[jfb]

So, if proven negligent you pay for rescue UNLESS you do have a hunting/fishing/snowmobile license/Hike Safe Card. You always pay if you are reckless regardless of whatever you purchased. Yes?

I think I once read that if you are reckless and don't survive, there will be no bill. I also think these hikers might be a good example of reckless.

 

[bikehikeskifish]

If you read the NH RSA carefully, it defines (in another statute) what is considered reckless. I imagine any reasonable lawyer (and I Am Not A Lawyer) could argue succesfully. Comments from F&G do not equate to legal opinions but again IANAL.

I don't worry too much about it because I feel I can defend my preparedness and I am not really interested in being out in "full conditions" anyway. I have been known to bushwhack (solo) in winter - that is possibly the only caveat.

Tim

 

[Mike P.]

Gross Negligence is different than negligence. You mean we don't wear the same clothes for our winter solstice hike that we do on the summer solstice???? (That might be gross negligence)

 

[skiguy]

Gross Negligence is different than negligence. You mean we don't wear the same clothes for our winter solstice hike that we do on the summer solstice???? (That might be gross negligence)

AYAL..Are you a Lawyer?Please explain your use of the word “Gross” in context to the above discussion.

 

[Mike P.]

AYAL..Are you a Lawyer?Please explain your use of the word “Gross” in context to the above discussion.

From Legal dictionary: https://legal-dictionary.thefreedic...,injury or harm to persons, property, or both.

Gross Negligence
An indifference to, and a blatant violation of, a legal duty with respect to the rights of others.

Gross negligence is a conscious and voluntary disregard of the need to use reasonable care, which is likely to cause foreseeable grave injury or harm to persons, property, or both. It is conduct that is extreme when compared with ordinary Negligence, which is a mere failure to exercise reasonable care. Ordinary negligence and gross negligence differ in degree of inattention, while both differ from willful and wanton conduct, which is conduct that is reasonably considered to cause injury. This distinction is important, since contributory negligence—a lack of care by the plaintiff that combines with the defendant's conduct to cause the plaintiff's injury and completely bar his or her action—is not a defense to willful and wanton conduct but is a defense to gross negligence. In addition, a finding of willful and wanton misconduct usually supports a recovery of Punitive Damages, whereas gross negligence does not.

To answer the AYAL, no, however I had a career in which I read my fair share of suits and briefs.

In this case, will a jury ever see this case? (likely no) With wearing sneakers in winter, 12 VFTT'ers or trail runners would not call this gross since we know that some trail runners go out in bad weather and are prepared or on bad days do runs with less exposure. Twelve people who think hiking in winter is reckless, they would see it deifferntly.

 

[peakbagger]

Few of these cases seem to make it to court. I think the Boy Scout on Mt Washington who got billed for helicopter time was one case. In the vast majority of cases the rescued make a donation.

 

[Mike P.]

Few of these cases seem to make it to court. I think the Boy Scout on Mt Washington who got billed for helicopter time was one case. In the vast majority of cases the rescued make a donation.

If I remember correctly that eventually was settled also. Likely for a non-disclosed amount.

That was a very sunny, extra warm day I remember it well as I went ti Bear with my daughter for her first time on Bear and I wore a tank top in April because it was so warm. I ended up with a bad sunburn as normally when I wore tank tops, the trees had leaves on them but they don't in April. Our Eagle Scout learned water melts and fills streams quicker on those days and when he tweaked his ankle, he should have turned back. Considering he didn't need a rescue to stay alive, it would have been tough to prove he was grossly negligent, just negligent. (He likely didn't have a safe hike card or NH fishing or hunting license being a MA resident.

Mom and dad called for a rescue when he was overdue, which is why you provide people at home your itinerary. His original plan of a northern traverse and descending the AT back to PNVC was pretty ambitious and seemingly with rotting snow before treeline in late April. Many of us hike less, or go to CT, MA, etc in April because of it.

 

[skiguy]

From Legal dictionary: https://legal-dictionary.thefreedic...,injury or harm to persons, property, or both.

Gross Negligence
An indifference to, and a blatant violation of, a legal duty with respect to the rights of others.

Gross negligence is a conscious and voluntary disregard of the need to use reasonable care, which is likely to cause foreseeable grave injury or harm to persons, property, or both. It is conduct that is extreme when compared with ordinary Negligence, which is a mere failure to exercise reasonable care. Ordinary negligence and gross negligence differ in degree of inattention, while both differ from willful and wanton conduct, which is conduct that is reasonably considered to cause injury. This distinction is important, since contributory negligence—a lack of care by the plaintiff that combines with the defendant's conduct to cause the plaintiff's injury and completely bar his or her action—is not a defense to willful and wanton conduct but is a defense to gross negligence. In addition, a finding of willful and wanton misconduct usually supports a recovery of Punitive Damages, whereas gross negligence does not.

To answer the AYAL, no, however I had a career in which I read my fair share of suits and briefs.

In this case, will a jury ever see this case? (likely no) With wearing sneakers in winter, 12 VFTT'ers or trail runners would not call this gross since we know that some trail runners go out in bad weather and are prepared or on bad days do runs with less exposure. Twelve people who think hiking in winter is reckless, they would see it deifferntly.

Thank you for that clarification. So I guess the question is does the Hike Safe Card cover all realms of negligence?

 

[DayTrip]

Thank you for that clarification. So I guess the question is does the Hike Safe Card cover all realms of negligence?

I would take "gross negligence" to be synonymous with "reckless", although I don't know how that works in terms of lawyers and the legal world. But it feels like the same thing to me.

 

[skiguy]

I would take "gross negligence" to be synonymous with "reckless", although I don't know how that works in terms of lawyers and the legal world. But it feels like the same thing to me.

https://www.upcounsel.com/degrees-of-negligence

 

[DayTrip]

https://www.upcounsel.com/degrees-of-negligence

Based on this, I'm not really sure what would be considered "reckless" from a hiking rescue perspective. What would you be doing with the specific intent of injuring someone else? A rescuer may well get harmed during the course of a rescue but a specific intent to harm? That would seem like an impossibly high standard for the state to prove.

 

[Mike P.]

Based on this, I'm not really sure what would be considered "reckless" from a hiking rescue perspective. What would you be doing with the specific intent of injuring someone else? A rescuer may well get harmed during the course of a rescue but a specific intent to harm? That would seem like an impossibly high standard for the state to prove.

It would depend on who's listening.

Are these guys negligent? probably. had they been nude except for the sneakers, my jab at winter solstice hiking? That might push it up.

If you are familiar with the Derek Tinkham, Jeremy Haas rescue/recovery, maybe especially if Tinkham's comments to rescuer's are read back in court. I don't remember what they were exactly but I'm thinking he said something like, maybe we should have brought mittens. I do remember that the SAR people who heard it was upset and it rubbed them wrong, no real comment on how his partner who died in weather that sounded possibly worst than what Kate tried to hike through.

Proving anything in a court of law depends on jury selection and lawyer competency. We all know some people who think winter hiking is crazy, in sneakers crazier, solo, you have a death wish. In many cases these terms are used against businesses, states, employers to get by waivers. We think normally that Workers' Comp is all an employee is entitled to if hurt at work. In the example in skuguys' URL, that would allow you to sue your employer in most states. (Comp is a state system) In NH, the ski area waiver has held up well. If they allowed you to ski down a green trail that last month had an avalanche or landslide and now had a cliff in it, that waiver would likely fail. The baseball waiver used to hold up as did the hockey one, recent injuries as we know has caused parks and rinks to put up netting and we barely notice.

Sometimes with the right jury and traumatic injuries, they will find a way. Traffic around construction zones are very stringent.(Because accidents have happened) How many cones, how far in front of areas how long the area will be closed, some past it in case a driver is going the wrong way, etc. We've all been by run of the mill work zones, a few cones and some jersey barriers where workers many be on the road. When they were rebuilding the bridge over a river with a large drop (was it the Black in VT near exit 4 or 5) you certainly need more barriers to prevent cars from going through the zone to their likely deaths.

These definitions are likely due to when someone's egregious behavior caused an injury and they tried to hide behind a waiver. (OUAT, kids cleaned machines that were running because turning them off cost money and kids were easily replaceable, we're talking Industrial Revolution)

 

[DayTrip]

But none of these things demonstrates "this type of negligence is defined by a high likelihood that significant harm will come to ANOTHER person" (emphasis added). You can engage in whatever kind of crazy nonsense you want yourself but that would only meet the standard of gross negligence as defined by that legal standard skiguy posted. Reckless is endangering another person.

So if the Hike Safe card definition of reckless is the same as the legal definition cited of reckless it would seem to me that it would be impossible to prove in pretty much any hiking scenario. The Hike Safe version of reckless sounds more to me like the definition of gross negligence in the legal definition cited, which I think is far more likely to be established in a hiking scenario. The inconsistency of the language leaves much open to interpretation.

 

[Mike P.]

One could argue that the idea of a bad weather rescue on it's own may cause significant injury to others. In general, the SAR crew does not bring it up, they consider it giving back and part of the job/volunteer. Those footing the cost though don't.

We seem to invent hiking scenarios, once you would not have gone without a guide, then it was without layers of wool clothing in the winter and a group. Then it was duos and solo. Historically, no one from even the 50's would have envisioned trail running the highest peaks in winter. (This is likely going on in CO, CA and higher peaks than our local ones also) There likely are a few people winter hiking with their infants in kid carriers, too. Insert a 9-15 month child into this case and what happens to the facts? (We stayed to winter rail trails and little to no elevation trips in CT)

if you risk your own life or that of your partner, (Tinkham and Haas) and a rescue is sent out on your behalf, are you liable for them coming to get you. In Tinkham/Haas they did not go that night and it was still brutal the next day. Members of the SAR team that went up to recover Haas had to turn back due to exposure, had they required hospitalization or worse, could Tinkham today be tried for their costs? If Albert Dow's death happened today would that had stayed the same as it did back then? (is climbing even covered under the Hike Safe Programs?)

To date, no one has tried rolling down Tukerman's in a just a barrel during extreme avalanche danger. (yet, more Red Bull, more beer )

So, if I was a lawyer representing the State, I don't want Day Trip in my jury pool. Actually I don't want any VFTTer in it, I want people who think hiking is dumb and winter hiking is crazy. They try to write the law for any possible thing happening. They change it when they did not foresee something happening.

People can be illogical or as Grace Slick said, "When logic and proportion have fallen sloppy dead..." They need someone to foot the bill.

The person who has a card and calls for a rescue under ridiculous conditions and then keeps telling rescuers you had to come get me, I have the get out of jail free card and is a real horse's a$$ about the whole thing may be more likely to have F&G use it. *you would think they would be grateful, but somewhere there is a winter hiking "Karen" who won't be.

Not sure there is a hiking equivalent, however in the ADK a few late winters ago, a boater went out on a day when the lake was only partially open. He got caught up in the ice, I imagine it was moving, and he called and was rescued. the following week, he called again for the same thing, same lake, he was going back for his boat. On my winter Madison trip, I left my hat at home and bought one the night before that was too small. In 40 MPH I lost it as it blew into Madison Gulf, had I gone off trail and not found it and required a rescue and then went back the following weekend to look for it again...... (I had a balaclava, it didn't fit well, I let it go & we did not need rescuing)

 

[bikehikeskifish]

http://www.gencourt.state.nh.us/rsa/html/xviii/206/206-26-bb.htm


206:26-bb
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.


Section 153-A:24
153-A:24 Responsibility for Public Agency Response Services. –
I. A person shall be liable for response expenses if, in the judgment of the court, such person:
(a) Negligently operates a motor vehicle, boat, off highway recreational vehicle, or aircraft while
under the influence of an alcoholic beverage or controlled drug and thereby proximately causes any
incident resulting in a public agency response;
(b) Takes another person or persons hostage or threatens to harm himself or another person, thereby
proximately causing any incident resulting in an appropriate public agency response; or
(c) Recklessly or intentionally creates a situation requiring an emergency response.
II. A person's liability under this subdivision for response expenses shall not exceed $10,000 for any
single public agency response incident.


Hope this provides some clarity,
Tim

 

[DayTrip]

http://www.gencourt.state.nh.us/rsa/html/xviii/206/206-26-bb.htm


206:26-bb
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.


Section 153-A:24
153-A:24 Responsibility for Public Agency Response Services. –
I. A person shall be liable for response expenses if, in the judgment of the court, such person:
(a) Negligently operates a motor vehicle, boat, off highway recreational vehicle, or aircraft while
under the influence of an alcoholic beverage or controlled drug and thereby proximately causes any
incident resulting in a public agency response;
(b) Takes another person or persons hostage or threatens to harm himself or another person, thereby
proximately causing any incident resulting in an appropriate public agency response; or
(c) Recklessly or intentionally creates a situation requiring an emergency response.
II. A person's liability under this subdivision for response expenses shall not exceed $10,000 for any
single public agency response incident.


Hope this provides some clarity,
Tim

That does clarify a lot except for that ambiguously defined word "reckless" in the various paragraphs. And why Mike would buy a hat without trying it on is still a bit murky for me.

 

[jniehof]

That does clarify a lot except for that ambiguously defined word "reckless" in the various paragraphs

In practice the operational definition of "recklessness" emerges from case law and it's whatever you can convince a jury. The law is, frankly, a whole lot less black-and-white, clear-cut than people would like: it's not just the written language but all the case law "in the same tradition", including outside of the state and even the country. In very very broad terms, usually negligence is a failure to act when you have a duty to--so the focus might be on what someone failed to put in their pack. Recklessness usually hangs on taking an action without regard for negative outcomes that are foreseeable--so the focus might be on the decision to go out on that day at all. All of this is defined in terms of what A Reasonable Person would do or not do. Gross negligence is usually a form of negligence where ARP would find the failure completely obvious and extreme.

All of the above is guaranteed to be 100% wrong and worth exactly what you'd expect from a physicist talking law, except that there is no one place you can point to with a simple, clear, and legally binding definition. Part of paying a lawyer is that they'll find the relevant definitions that make you look good.

 

[DayTrip]

In practice the operational definition of "recklessness" emerges from case law and it's whatever you can convince a jury. The law is, frankly, a whole lot less black-and-white, clear-cut than people would like: it's not just the written language but all the case law "in the same tradition", including outside of the state and even the country. In very very broad terms, usually negligence is a failure to act when you have a duty to--so the focus might be on what someone failed to put in their pack. Recklessness usually hangs on taking an action without regard for negative outcomes that are foreseeable--so the focus might be on the decision to go out on that day at all. All of this is defined in terms of what A Reasonable Person would do or not do. Gross negligence is usually a form of negligence where ARP would find the failure completely obvious and extreme.

All of the above is guaranteed to be 100% wrong and worth exactly what you'd expect from a physicist talking law, except that there is no one place you can point to with a simple, clear, and legally binding definition. Part of paying a lawyer is that they'll find the relevant definitions that make you look good.

Yah I get that and I'm just splitting hairs the way we all do here when analyzing something. I was just struck by the definitions skiguy found which had mention of bringing harm to "other people", not just the individual in question. Even the most ridiculous of hikers needing rescue set out with the intent of harming others I would think. And I'm not sure what the context was of his excerpt and the wording of "neglignce" in some documents sounds a lot like "reckless" in others and vice versa.

I've always found the "reasonable person" criteria to make the most sense because at least in my mind it relates to the type of activity, i.e. many people think climbing mountains is crazy but many hikers do it. So in a rescue, I imagine the State assessing what "a reasonable hiker" would do/have done in that situation in defining what would be negligence/gross negligence/recklessness. In Winter, I think a reasonable person would think it is OK to go climb a mountain but they would find it negligent/grossly negligent/reckless to do it in the dark when it's -28 deg and you're wearing flip flops and you're favorite board shorts.

 

[nartreb]

You guys have been doing very well so far - you'd all get "A"s in a 1L classroom. But here DayTrip makes a classic mistake: "at least in my mind..." Many, many people have an idea of what the law *should* be or how it could be interpreted in a way that makes the most sense to them, but that usually has nothing to do with how a a judge will understand the law. (I've seen this many times with business people filing their own taxes. "Oh, the new boat is a business expense if (insert wishful thinking here), right?" Nope. You better believe the IRS has very specific rules about what's a business expense and what's not, and can convincingly tie their rules back to underlying legislation.)

Specifically (though this is not legal advice, I haven't researched it lately, and there's always a a chance you could be the one who first convinces a judge to see it your way), there's no reason to think that any "reasonable person" standard would be interpreted as if it were a "reasonable hiker" standard.

 

[Mike P.]

That does clarify a lot except for that ambiguously defined word "reckless" in the various paragraphs. And why Mike would buy a hat without trying it on is still a bit murky for me.

Sigh....

So I left all hats at home and was up in North Conway the night before. Much like the skier who leaves gloves at home and has to buy them at the slope, beggars can't be choosy. It was the biggest hat they had in stock. (it might have been the biggest in stock that wasn't really expensive and I didn't need a high end hat having three hats at home)

Oddly, now I rarely wear hats for gear. Poly-pro hat, Poly balaclava, old school wind-bloc balaclava is what goes in the pack on any trip.