2014-0158, New Hampshire Fish and Game Department v. Edward Bacon

We affirm. Department for the reasonable costs associated with the search and rescue. Department (Department), and that he, thus, was responsibl e to the search and rescue effort by the plaintiff, the New Hampshire Fish and Game bb (2011) (amended 2014) by acting negligently while hiking, so as to require a Court (Boyle, J.), following a bench trial, finding that he violated RSA 206:26 - LYNN, J. The defendant, Edward Bacon, appeals an order of the Circuit

orally), for the defendant. Seufert, Davis & Hunt, PLLC, of Franklin (Brad C. Davis on the brief and

general, on the brie f and orally), for the State. Joseph A. Foster, attorney general (Philip B. Bradley, assistant attorney

No. 2014 - 158 6 Circuit C ourt - Concord District Division th

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

rescue, the defendant explained that he had misread the weather report: he Lieutenant James Kneeland visited the defe ndant in the hospital after his September 18 and into the early morning hours of September 19. When participated in the defendant’s rescue during the afternoon and evening of Approximately fifteen Department personnel and thirty - five volunteers

orthopedic surgeon had warned him to avoid due to his hip replacement. leg was flexed and internally rotated, the very position that the defendant’s Lincoln M ountains. Morse testified t ha t when he found the defendant his left eventually located the defendant on the tr a i l between Little Haystack and dislocated his hip and needed assistance. He responded immediately and hip. Approximately one hour later, Morse received an alert that a hiker had jump backward up onto the ledge and, in the process, fell and dislocated his that he needed to traverse in order to continue on the trail. He attempted to A t around 1:00 p.m., the defendant encountered a waist - high rock ledge

with their hoods over thei r heads. hikers he encountered on the trail, both of whom were wearing full rain gear down a r avine. At noon time, the defendant took a photo graph of two other grav el, slid down the trail, hit his pack on a rock, and lost his tent which fell him to the ground. Sometime that morning, the defendant slipped on loose experienced in that part of the Franconia Ridge Trail and had repeatedly blown defendant, testified that the winds were among the worst he had ever Morse, a Conservation Officer with the Dep artment who helped rescue the cover “on its own accord came off and flew away in the wind.” Sergeant Brad few hours after he departed the campsite. A bit later, the defendant’s pack been forecast for the morning the defendant began the hike, and rain beg an a overnight accommodations to hikers. Days in advance, s tormy weather had Lafayette M ountains; he planned to end at the Greenleaf Hut, which provides begin a planned hike to the summits of L iberty, Little Haystack, Lincoln, and On September 18, the defendant left the Liber ty Springs campsite to

various locations. which the rescuers eventually located the defenda nt, are rocky and steep in Franconia Ridge Trail between Liberty and Little Haystack M ountain s, on which had p. 2 250 - foot hills and some “gravelly” spots. The conditions on the In preparation for his hike, t he defendant trained in a city park in Michigan, had a “bad back” and was taking a variety of medications for multiple ailments. dislocated on five occasions, twice during the prior year. The defendant also undergon e four hip surgeries since 2005, and had an artificial hip that had feet. At the time of the hike, the defendant was fifty - nine years old, had durin g which he planned to hike several mountains with summits over 5, 000 2012, the defendant began a five - day solo hiking trip in the White Mountains, The following facts are established by the record. On September 16,

“Statutory interpretation is a question of law, which we review de novo.” To resolve this issue we must engage in statutory interpretation.

“ordinary negligence.” although he fails to art iculate how this st andard differs from the standard of instead have applied “the full and complete” civil standard of negligence, characterizes this sta ndard as “incorrect,” and asserts that the court should negligence standard to determine his liability under RSA 206:26 - bb. He The defendant first argues that the court erred by applying the ordinary

rescue him. We address each argument in turn. expenses that the D epartment would have incurred regardless of its effort to was improper under RSA 206:26 - bb becaus e the award included recovery for rescue by the Department. T hird, he argues that the court’s damages award finding that his actions while hiking were negligent, thus necessitating his Second, he argues that there was insufficient evidence to support the cou rt’s standard which, he asserts, is not the standard mandated by RSA 206:26 - bb. the trial court erred by judging his conduct under an ordinary negligence The defendant raises three arguments on appeal. First, he argues that

appeal followed. reasonable person that surpasses the [negligence] standard required.” This that “[t] he actions of the defendant were a gross deviation from those of a the Department objected. The court denied the defendant’s motion, stating $9, p. 3 334.86 in damages. The defendant filed a motion to reconsider, to which cited in the plaintiff’s closing memorandum,” and awarded the Department parties. Thereafter, t he court found for the Department “for all of the reasons At the close of the trial, the court accepted closing m emoranda from both

maintaining his left leg to avoid flexion and internal rotation. had jumped backward over a rock ledge and swung his legs up while perfect ly wh en he dislocated his hip he had not fallen, as he told Kneeland, but instead did not encounter any significant rain or wind. Additionally, he testified that of the hike because he did not have his reading glasses with him, and that he instance, he testified that he was unaware of the weather conditions on the day T he defendant testified to a different version of events at trial. For

his artificial hip when he fell. left leg while attempting to jump backward up onto a rock ledge and dislocated mph and heavy rain. T he defendant also told Kneeland that he had caught his heavy rain, instead of the ac tual forecast of p. 3 30 - p. 4 40 mph winds increasing to 70 thought the forecast called for 30 - 40 mph winds with gusts up to 70 mph and 4

trial court’s order stated that it found for the Department “for all of the reasons Department. In particular, the defendant takes issue with the fact that the which to find that he act ed negligently, resulting in his need for rescue by the The defendant next argues that there was insufficient evidence upon

under RSA 206:26 - bb. the common law standard of negligence to evaluate the defendant’s conduct circumstances. Accordingly, we hold that the trial court did not err in using defendant must have hiked in a manner that wa s reasonable under all of the (1988). Thus, in order to avoid liability for search and rescue costs, the See Gelinas v. Metropolitan Prop. & Liability Ins. Co., 131 N.H. 15 p. 4 4, 161 a reasonable person would be expected to act under the same circumsta nces. of care the commo n law standard of negligence, which we have defined as how implied by the legislature.”). Also plain is that the statute imposes as the duty directly under [a] statute if a statutory cause of ac tion is either expressed or or not a common law duty exists, . . . a plaintiff may maintain an action such an operation. See Marquay v. Eno, 139 N.H. 708, 714 (1995) (“W hether search and rescue op eration for a person whose negligent conduct required action in favor of the Department to recover the costs it incur s in conducting a RSA 206:26 - bb. This statute plainly is intended to create a statutory cause of

legal action . . . . refuse to pay t he costs . . . the department may pursue payment by determined by the executive director. If any person shall fail or 30 days after the receipt of the bill, or by some other date for such costs. Payment shall be made to the department within response. The exec utive director shall bill the responsible person cost of the department’s expenses for such search and rescue department shall be liable to the department for the reasonable negligently in requiring a search and rescue response by the I. [A] ny person determined by the department to have acted

response statute. It provides, in pertinent part: We have not previously had occasion to construe the search and rescue

and avoid an absurd or unjust result.” Id. Id. “We cons true all parts of a statute together to effectuate its overall purpose might have said or add language that the legislature did not see fit to include.” intent from the statute as written and will not consider what the legislature according to its plain and ordinary meaning.” Id. “We interpret legislative to the language of the statute itself, and, if possible, construe that langu age expressed in the words of the statute considered as a whole.” Id. “We first look interpretation, we are the final arbiter of the intent of the legislature as Appeal of Local Gov’t Ctr., 16 p. 5 5 N.H. 790, 80 p. 4 4 (2014). “In m atters of statutory 5

injury was foreseeable and directly caused his need to be rescued by the foreseeable, we agree with the trial court’s conclusions that the def endant’s T o the extent that the defe ndant argues that his injury was not

his artificial hip and experience with hip dislocation. he chose to jump backward over a rock ledge he was unable to pass, despi te advance and that he encountered high winds and rain early into his hike; and continued his hike despite the fact that bad weather ha d been forecast days in challenging terrain he would experience in the White Mountains; he had hike; he had trained in a city park that did not remotely resemble the artificial hip that had dislo cated five times, twice within the year prior to his conclusion: the defendant had undergone multiple hip surgeries; he had an memorandum and based upon the evidence, support the trial court’s the same circumstances. The following facts, recited b y the Department in its defendant did not act as a reasonably prudent hiker would have act e d under hike. T he trial court concluded to the contrary when it found that the physically capable, had proper equipment, and had adequately planned his he did not act negligently because he was prepared for the conditions, would have acted under the same circumstances. The defendant argues that stated, a person violates RSA 206:26 - bb by not acting as a reasonable person trial court’s determination that the defendant acte d negligently. As previously We next consider whether there was sufficient evidence to support the

the evidence. argument that the Department’s closing memorandum was not supported by trial and the Department’s closing memorandum, we reject the defendant’s supported by t he evidence. Having reviewed both the evidence presented at closing memorandum, which he claims relied upon findings that were also not are not supported by the evidence because the court adopted the Department’s We first consider the defendant ’s argument that the trial court’s finding s

determining the weight to be given evidence.” Id. conflicts in the testimony, measuring the credibility of witnesses, and Id. “Thus, we defer to the trial court ’ s judgment on such issues as resolving reached the same decision as the trial court based upon the same evidence.” differently than the trial court, but whether a reasonable person could have witnesses.” Id. “Our standard of review is not whether we would rule whole or in part, whatever evidence was presented, including that of the expert 780 (2003). “It is within the province of the trial court to accept or reject, in evidentia ry support or are legally erroneous. Cook v. Sullivan, 149 N.H. 774, We will uphold the trial court ’ s findings and rulings unless they lack

We disagree. memorandum — which facts, he claims, are not supported by the evidence. court improperly adopted as its findings the facts recited in the Department’s cited in the plaintiff’s closing memora ndum.” He asserts that, in so doing, the p. 6 6

states that the Department is to receive the “reasonable costs” associated with were unable to perform their other assigned duties. The statute specificall y fact that, by being diverted to the rescue operation, Department employees who would not have worked in the absence of the rescue, but it also ignores the argument fail to take into account the overtime paid to Department employees been paid r egardless of their participation in his rescue. Not only does this the Department because certain officers were on duty and thus would have We reject the defend ant’s argument that this sum provides a windfall to

as required by RSA 20 p. 6 6:26 - bb. damages award represented the “reasonable costs” associated with the rescue, the light most favorable to the Department, indicates that the trial court’s by stipulation as a full exhibit. This detailed, itemized report, when viewed in a document entitled “Search and Rescue Mission Report,” which was admitted and included overtime, m ileage, and benefits. These figures were contained in the Department’s costs for the fifteen personnel who participated in the rescue, costs and interest. At trial, Kneeland testified that this amount represented The trial court awarded $9, 186.38 in damages to the Department, plus

search and rescue response.” (Emphasis added.) department for the reasonable cost of the department’s expenses for such search and rescue response by the department shall be liable to the person det ermined by the department to have acted negligently in requiring a the award of damages was reasonable.” Id. RSA 20 p. 6 6:26 - bb states that “any damages.” Id. (quotation omitted). “We do, however, require an indication that omitted). “The law does not require ‘absolute certainty’ for recovery of decision of the fact - finder unless it is clearly erroneous.” Id. (quotation (2001) (quotation and brackets omitted). “Furthermore, we will not disturb the most favorable to the prevailing party.” Gallentine v. Geis, 145 N.H. 701, 703 “In reviewing damage awards, we will consider the evidence in the light

the Department. We disagree. rescue operation. In essence, he claims that the damages provide a windfall to officers who would have been paid regardless of their participation in the improper because it included wages and m ileage for on - duty Department Finally, the defendant argues that the court’s damages award was

ruling. erroneous. See Cook, 149 N.H. at p. 7 780. Accordingly, we uphold the trial court’s defendant acted negligentl y does not lack evidentia ry suppo rt and is not legally foregoing reasons w e conclude that the trial court’s determination that the defendant’s conduct caused or contributed to cause the harm”). For the (stating that to establish proximate cause a plaintiff must show “that the Department. See Estate of Joshua T. v. State, 150 N.H. 405, 4 08 (2003) 7

DALIANIS, C.J.