Restitutionary recovery: the appropriate standard of care for emergency rescue reimbursement by hikers.

AuthorDeBlois, Jonathan R.

'"When someone calls and says, "Hey, I'm stuck on the side of Mount Washington," and they 're not prepared to do anything except call for help, I personally would rather leave them to die.'" (1)


    During the fiscal year ending in June 2009, there were 131 emergency rescues in New Hampshire at a total cost of about $175,000. (2) Traditionally, in New Hampshire and elsewhere in the united States, the cost of these rescues would be borne by the government. (3) The reasoning behind not charging individuals for rescue services was based on common-law principles such as the free-public-services doctrine, as well as general public policy. (4) Recently, however, states have been trending toward enacting legislation requiring reimbursement for the cost of being rescued. (5) Most of these statutes target hikers, allowing the state to recover from the rescuee, or the rescuee's guardian or estate. (6) As of March 2012, eight states have enacted such laws. (7)

    The states that have enacted rescue-reimbursement laws have done so primarily to combat budgetary constraints and deter reckless behavior. (8) The statutes are further justified because hikers represent the vast majority of individuals requiring rescue. (9) Some states therefore argue that hikers should bear the brunt of costs associated with these undertakings. (10) Moreover, the increase in hiker rescues is due, in part, to the popularity of the sport, and in part to the growing use of global positioning systems (GPS) and cell phones. (11) This increased reliance on technology causes hikers to become complacent, thus often requiring rescue when an otherwise prepared hiker would not. (12)

    Although enacted for similar purposes, the legal standards to which hikers are held before incurring liability vary from state to state. (13) The spectrum ranges from negligence to strict liability. (14) The determination of which standard to apply seems loosely based on the perceived severity of each state's problem and its interpretation of existing common-law principles. (15)

    Of all the states that allow hikers and outdoor enthusiasts to be billed for their rescue, New Hampshire has done so most frequently. (16) Together with Oregon, which caps recovery at $500 per person, New Hampshire has established a negligence standard, requiring individuals to use "reasonable care" when hiking--the lowest of the standards. (17) The "reasonable care" requirement is consistent with New Hampshire's long history of imposing individual liability for rescue and emergency services via statute. (18) The choice of such a low standard allows the state to more easily recover from hikers who require rescue. (19)

    In 1999, the New Hampshire legislature directly addressed the issue of hiker liability for rescue costs, by requiring hikers to adhere to a standard of recklessness. (20) A recent legislative amendment, however, has sparked controversy by lowering the standard to negligence and designating the Fish and Game Department as the governmental body that determines whether to seek reimbursement. (21) This change has made it easier for the Fish and Game Department to bill rescuees who now need only act negligently, not recklessly. (22) Many believe that this recent decrease in the standard of care is unjustified, dangerous, and inconsistent with traditional legal principles. (23) The issue is further complicated because no court to date has addressed whether outdoor enthusiasts should be held personally liable for the cost of their rescues, not to mention the appropriate standard to which they should be held. (24)

    This Note will explore whether hikers should be held liable for the cost of their rescue against the backdrop of the current New Hampshire standard of negligence. (25) Part II.A discusses the origin and traditional application of rescue reimbursement, focusing on the common-law principle of rescue liability and its evolution. (26) Part II.B covers the early history of state attempts to recover the cost of rescues, followed by the history of the New Hampshire approach and efforts of other states. (27) Part III analyzes New Hampshire's current standard of liability and explores the benefits and drawbacks of the negligence standard. (28) This Note argues that in light of the state's history and general common law, the negligence standard is the most appropriate standard to impose upon hikers requiring rescue. (29)


    1. Origin and Traditional Application of Rescue Reimbursement

      1. Bars to Government Recovery of Rescue Costs

        At common law, there were a number of potential bars to the recovery--by either the government or an individual--of costs for providing emergency services. (30) Either the free-public-services doctrine or the pure-economic-loss doctrine traditionally prevented the government from recovering. (31) The free-public-services doctrine states that public expenditures made during performance of a governmental function are not recoverable by the government. (32) The pure-economic-loss doctrine overlaps with the free-public-services doctrine in part, while also barring recovery from private individuals. (33) The doctrine provides that direct, incidental, or consequential pecuniary losses are not compensable unless the party has suffered other nonpecuniary injury. (34) Furthermore, individual rescuers are exposed to substantial liability for their actions and are otherwise barred through common-law tort or contract defenses. (35)

        Although examples of policies similar to the free-public-services doctrine can be analogized to as far back as the 1800s, the free-public-services doctrine as we see it today is not deeply rooted in the common law. (36) Today's free-public-services doctrine did not generally appear until the 1970s. (37) Although prior to the 1970s there were cases denying recovery to government entities for emergency services costs, the general bar to government recovery was established in Wisconsin in 1974. (38) Prior to 1974, some courts denied recovery on an ad hoc basis to various reimbursement attempts by the government in areas such as claims against criminals for their capture, medical costs for injured soldiers, and fire-suppression costs. (39) Post-1974, however, courts routinely and broadly began denying recovery to public entities for expenditures and services. (40)

        Although similar to the free-public-services doctrine, the pure-economic-loss doctrine's existence as a common-law rule is not in doubt. (41) The rule is designed to restrain litigation that would otherwise accompany unlimited liability for negligence. (42) It has most recently been used to dismiss cases of negligence against the gun industry. (43) Courts use the doctrine to dismiss claims when technical application of the law would allow a case to proceed, thereby opening defendants to unacceptably vast liability. (44) For example, in City of Cincinnati v. Beretta, (45) the Supreme Court of Ohio--facing the possibility of unlimited product liability related to emergency services for gun victims--used the doctrine to dismiss an otherwise valid claim. (46) The court reasoned that although the plaintiff's complaint withstood the standard for notice pleading, the appellant was "precluded from bringing its statutory product liability claims" because, under the state's product liability statute, "a claimant ... cannot recover economic damages alone." (47)

        Most importantly, when applying either the pure-economic-loss doctrine or the free-public-services doctrine, the courts find ways around traditional obstacles to rescue reimbursement when fairness factors weigh in favor of recovery. (48) For example, the pure-economic-loss doctrine does not apply when the loss is suffered by an individual whom the defendant knows, or has reason to know, is likely to sustain injury. (49) Additionally, judges routinely grant recovery for economic loss when they can reasonably relate the economic damage to physical injury or property damage. (50)

      2. Common-Law Recovery for Rescue

        Aside from the established doctrinal bars to rescue recovery, early common law did not look favorably on recovery for rescue costs. (51) Traditional contract law barred recovery by the rescuer under the "officious intermeddler" and gift-of-services principles. (52) Recovery under tort law was often prevented either because no duty was owed to the rescuer or because the rescuer assumed the risk of the rescue. (53) Theories such as the "firefighter's rule" embodied the general rule of nonrecovery under tort law. (54) These principles combined to "create[] a 'no-win' situation for a plaintiff rescuer seeking restitution." (55)

        However, the traditional strict principles were difficult to justify, and exceptions began to evolve. (56) Under tort law, the principle of danger-invites-rescue was established. (57) It allows for a rescuer to recover for injuries and costs sustained during a rescue when the rescue is necessitated by the negligence of any party. (58) By applying the danger-invites-rescue rule to situations where negligence is a contributing factor to rescue, much of the harshness of traditional tort doctrine is mitigated. (59)

        Additionally, the presumption that rescuers with no duty to aid intended to charge for services arose under a restitution theory. (60) This presumption allows certain professional rescuers, like doctors, to render services without worrying about not being compensated due to the rescuee's inability to consent. (61) The court essentially finds an implied-in-law contract between the rescuee and rescuer. (62)

        Similarly, in certain nonprofessional situations, rescuers may recover under a theory of unjust enrichment. (63) This is analogous to the implied-in-law contract found between professional rescuers and rescuees, because the court imposes a quasi-contract on the parties in both instances. (64) However, it differs in that recovery under an unjust-enrichment theory only requires the plaintiff...

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