New Hampshire Fish & Game Department v. Bacon
116 A.3d 1060
N.H.2015Background
- Edward Bacon, a 59-year-old with prior hip surgeries and a history of hip dislocations, undertook a solo multi-day hike in the White Mountains and encountered stormy weather forecast and high winds.
- While hiking the Franconia Ridge Trail, Bacon slipped on gravel, lost equipment, and later attempted to traverse a waist-high rock ledge; he fell and dislocated his artificial hip, rendering him immobile.
- New Hampshire Fish and Game Department (the Department) mounted a search and rescue involving ~15 Department personnel and ~35 volunteers; Bacon was rescued and treated in hospital.
- The Department billed Bacon under RSA 206:26-bb for the reasonable costs of the search and rescue; the trial court (bench) awarded $9,334.86 (court later clarified $9,186.38 plus costs and interest) after finding Bacon acted negligently.
- Bacon appealed, arguing (1) the wrong negligence standard was applied, (2) insufficient evidence of negligence, and (3) the damages award was improper because it included costs the Department would have incurred regardless.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper legal standard under RSA 206:26-bb | The statute imposes the common-law negligence standard; liability when conduct is not that of a reasonable person | Court erred by applying "ordinary negligence" rather than a different civil standard (unspecified) | Court: statute adopts common-law negligence (how a reasonable person would act); no error in applying negligence standard |
| Sufficiency of evidence that Bacon acted negligently | Bacon’s medical history, prior dislocations, inadequate terrain-specific training, ignoring weather forecast, and jumping a ledge despite risk made his injury foreseeable and negligent | Bacon was prepared, physically capable, had equipment and planning; gave a different account of the fall and weather | Court: factual findings supported; reasonable factfinder could conclude Bacon was negligent and his injury foreseeable |
| Damages: recoverable costs under RSA 206:26-bb | Department sought reasonable costs including overtime, mileage, benefits, and diversion of on-duty personnel | Bacon claimed award was a windfall because some officers were on duty and paid regardless | Court: award based on itemized mission report was reasonable; statute allows recovery of reasonable costs including overtime and costs from diversion; award upheld |
Key Cases Cited
- Appeal of Local Gov’t Ctr., 165 N.H. 790 (2014) (rules of statutory interpretation; courts construe statute language as written)
- Marquay v. Eno, 139 N.H. 708 (1995) (statutory cause of action may permit recovery even when common-law duty is absent)
- Gelinas v. Metropolitan Prop. & Liability Ins. Co., 131 N.H. 154 (1988) (definition of negligence as conduct of a reasonable person under the circumstances)
- Cook v. Sullivan, 149 N.H. 774 (2003) (appellate deference to trial court on credibility and factual findings)
- Estate of Joshua T. v. State, 150 N.H. 405 (2003) (proximate cause requirement: conduct must cause or contribute to harm)
- Gallentine v. Geis, 145 N.H. 701 (2001) (review of damage awards: consider evidence favorably to prevailing party; require indication of reasonableness)