Wednesday, October 12, 2011

Utah State Judge David Mortensen Dismisses Suit Against State Stemming From Fatal Bear Attack On Samuel Ives In June 2007

Since Alaska is bear country, this Utah story is of interest to us as well, since it might provided a precedence for a similar case here in the future. On October 7th, 2011, Utah 4th District Judge Dale Mortensen dismissed a wrongful death lawsuit filed by the parents of 12-year-old Samuel Ives, who was killed by a bear while camping four years ago at the family’s campsite set up a mile from the Timpooneke Campground, located within the Timpanogos mountain area. The Utah media did not report on this until today.

Reasoning: Judge Mortensen cited three specific findings in his decision:

-- There is no specific duty owed to the plaintiffs, and further, even if there were a duty, the state is immunized from suit under the natural condition exception in the Utah Governmental Immunity Act.

-- A bear is a natural condition on the land and thus even assuming the state has duty, the state is immunized from suit.

-- Under state law, the state is immune when a plaintiff’s injury arises out of, in connection with, or results from any natural condition on publicly owned or controlled lands.

KSL news video embedded below (after the jump):



Judge dismisses bear attack lawsuit, says state is not liable | ksl.com


This decision has no impact upon a ruling by U.S. District Judge Dale Kimball in May 2011 awarding the family $1.95 million in damages from the Forest Service. In that ruling, Judge Kimball determined that the Forest Service — which owns the land where the boy was killed — held 65 percent of the responsibility for the boy's death and had breached its duty to the public, while state Division of Wildlife Resources carried 25 percent of the responsibility and the boy's family 10 percent, because a granola bar wrapper and soda can were found in the tent. According to a comment posted by Yetee to the KSL news story, another reason the family won the federal suit was because the person in charge of the incident did not respond appropriately and was fired for it, and by firing this employee, the Forest Service implicitly admitted fault (there was a rogue bear in the area that they knew about) and that the campground should have been closed.

History: On June 17th, 2007, while camped near the Timpooneke Campground, Samuel Ives was killed when he was dragged out of his family's multi-room tent and mauled by a massive black bear. His body was found about 400 yards away. The bear had attacked a man 12 hours earlier at the same campsite where Sam, his mother, his brother, and his stepfather were staying. Forest officials looked for the bear for several hours, but gave up before finding it, and failed to warn others. Ives' family insisted they would never have camped where they did if they'd been warned that a bear attacked a tent at the same spot the night before, and decided to sue. Their federal suit was successful, and the family expressed surprise that the federal government actually defended themselves.

At the same time, the Ives family sued the state of Utah and the Division of Wildlife Resources for wrongful death. The case was dismissed in 4th District Court in 2008, leading to an appeal to the Utah Supreme Court, which ruled that the family had grounds to pursue the lawsuit. And Judge Mortensen's October 7th decision is the final outcome.

Reaction: Public comments posted to both the Tribune and KSL indicate most people support Judge Mortensen's decision. They accept the fact that when you camp out in the wild, you can assume that there will be wildlife present. Moose and bears not only are commonly encountered in Anchorage's parkland, but even show up on our city's streets. It's too bad the Ives' family decided to try to transform their son's corpse into a check; this underscores the need for additional tort reform so that such suits can be summarily dismissed more readily.

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