In the 2000 article, the National Park Service's OWCP chart for 1997 was cited as showing 32 fatal injuries costing $591,750, along with 305 lost-time injuries at $10.84 million and 2,148 no-lost-time injuries costing $4.3 million. (Apparently most of the rangers who were killed on the job – 11 percent from slip-and-fall claims that would include rescues – were single, as the then “spouse” weekly benefit was around $1,500.) Thus we taxpayers also were slipped this $15.7 million bill that year, along with other rescue costs.

A current look on the Internet, googling National Park Ranger injuries, shows a variety of new fatalities since 1997 in many of the mountainous western parks. While statistically climbers now are better prepared, equipped, and safer, not a year goes by without a number of mountainside rescues becoming necessary. Add to the national park scene all those non-park peaks, like Mt. Hood (which is in a National Forest, under the U.S. Department of Agriculture, not the Department of Interior), and the statistics show a lot of expenses for search and rescue. Then add the costs of open-water rescues by the Coast Guard and other military services, as witnessed in the docudrama movie, The Perfect Storm, and the real cost to the public becomes clearer.

Fools and Their Money

Boating, hiking, mountain climbing, and skiing are not the sports of the poor. It takes lots of money to buy a boat or the equipment to face a mountain cliff or a wilderness trail, and I'd be the last to say, “Don't do it!” I envy those who are able to enjoy these sports. But if the participants can afford the cost of the boat or the equipment (Having visited an L.L. Bean discount store in Maine this summer, I know what hiking boots cost!), then they also should have to pay for the cost of their rescue when they voluntarily place themselves at risk.

The government has considered this. Public Law 106-486 was signed into law by President Clinton on Nov. 9, 1999, requiring the National Park Service to complete a study of search-and-rescue costs associated with Denali within two years. It addressed the recovery of rescue costs on Mt. McKinley, requiring climbers to show proof of medical insurance before they receive a permit to climb, and charging for a climbing permit. The final results probably were lost, as I could find nothing further about what Congress or the DOI did about the bill, although a number of rescue-related agencies did provide input to the study. Surprisingly, many of those agencies and volunteer groups recommended against higher charges for permits. (Denali Park had been charging $150 per climber in 1994; increases were recommended.)

In 1994, the Mountain Rescue Association had adopted a policy on cost recovery that stated, “no one should ever be made to feel they must delay in notifying the proper authorities of a search or rescue incident out of fear of possible charges…. The expert volunteer teams of the MRA are proud to be able to provide search and rescue at NO cost and have NO plans to charge in the future.” (The emphasis was theirs.)

The American Alpine Club at the same time said it was “opposed to the imposition of any 'management' fee that is discriminatory and out of proportion to the total costs incurred by the National Park Service” for search and rescue. The AAC suggested that such fees could “create a legal 'duty to rescue' on the part of the National Park Service.”

Rescue and the Law

In the re-written chapter on tort law in Casualty Insurance Claims, 4th, Vol. 1 ?9:8 (Thomson-West Group, Sept. 2006) this writer discussed the rescue doctrine as applicable in defense of a liability claim. The doctrine is “a bar of the assumption of risk defense…. Courts have held that a person injured during a reasonable attempt to rescue another person has not assumed the risk, as that other person had negligently placed him or herself in the dangerous situation requiring rescue. In one Michigan case (Hughes v. Polk, 199 N.W.2d 224 [1972]), the appellate court held that one who goes to the rescue of a person who is in imminent danger of a serious peril, caused by the negligence of that other person, is not contributorily negligent so long as the rescue attempt was not made recklessly or rashly. The courts in many jurisdictions have held similarly, although other courts have held that the rescue doctrine cannot be used to excuse alleged negligence.

“Many jurisdictions apply comparative negligence in response to the assumption of risk doctrine where the injured party sustained the injury while attempting to rescue another whose negligence led to the endangerment requiring aid. As Supreme Court Justice Cardozo once commented in a rescue case, 'danger invites rescue.' (Wagner v. Int'l. Ry. Co., 133 N.E.437 [1921]). The doctrine is often enacted into code, such as California's Civil Code ?1714, holding that a rescuer can recover damages from a negligent victim. The doctrine has been found to apply in situations where the rescuer was injured while responding to a situation in which the party being rescued had negligently placed himself in danger.” (Sears v. Morrison, 76 Cal App.4th 577, 90 Cal. Rptr.2d 528 [1999].)

Adjusting a Rescue Claim

It is not, therefore, beyond the realm of probability that liability claims may result from rescuers who are injured in a rescue attempt. These claims or lawsuits would appear to be covered by the typical homeowners' forms, section II, unless specifically excluded by some special endorsement. Of course, there is the “expected or intended” injury exclusion; someone climbing a mountain in the winter might well “expect” the need to be rescued, and might also “expect” that a rescuer could be injured.

An adjuster receiving such a claim would need to respond, but also would need to research the tort law of the applicable jurisdiction to see whether the rescue doctrine would bar the assumption of risk defense to the rescuer's claim. It is less clear that requiring a climber to pay a fee for a permit, part of which might cover potential cost of rescue expenses, would create the “duty to rescue,” as the AAC suggests. Many of those costs deal with aircraft. Undoubtedly some court will address these questions some day.

In the 2000 article it was pointed out that the homeowners' forms, while they might apply to claims from rescuers killed or injured – if such injuries were not deemed to have been “expected” – would probably not cover any of the other costs of being rescued, such as the lost wages of local or federal law enforcement personnel, rangers, or volunteer rescuers, helicopter or similar expenses, as those would not be deemed to be either “bodily injury” or “property damage” under a liability form. The article suggested, therefore, that for those who do desire to undertake dangerous activities such as mountain climbing or open water boating, endorsements be made available by insurers to cover the expenses related to rescue. Otherwise, those costs are passed along to all of us via taxes.

Your writer confesses that the highest “mountain” he ever climbed was “Old Agony” at Ft. Knox, Ky., during Army basic training. But he loves mountains and our national parks, and has been in most of them, including Denali, Yosemite, North Cascades, Olympic, Glacier, Teton, and Rocky Mountain, and has seen Mt. Hood on many occasions. While he has no desire to climb them, he can understand the lure that such an adventure creates. But he does resent that millions of tax dollars are being spent to rescue foolish people who take on these ventures and then have to have volunteers or government rangers and law enforcement personnel risk their lives trying to rescue them. Good underwriting would indicate that there is a viable market here for a new insurance or surety product, and thus perhaps some more interesting claim work for those of us in the adjusting business.

Ken Brownlee, CPCU, is a former adjuster and risk manager, based in Atlanta, Ga. He now authors and edits claim-adjusting textbooks.