Kin of Bear Attack Victim Seek $2M for Failure to Warn

The parents of an 11-year-old boy who was fatally mauled at a Utah campground by a black bear have sued state and federal wildlife officials for failing to warn them that the same bear had terrorized other campers earlier the same day.

Agents of the Utah Division of Wildlife Resources (DWR) knew of the earlier incident and tried to find the bear so they could destroy it. After eluding its pursuers, the animal returned that night and ripped Samuel Ives from a tent pitched in the same location of a campground in American Fork Canyon that it had visited the night before.

Ives' parents filed two wrongful-death lawsuits last week, alleging officials are liable for not posting warning signs about the bear or “attempting to notify potential users of the campground of the imminent danger” presented by it. The suits, which seek at least $2.1 million in damages, name both the DWR and the U.S. Forest Service as defendants.

Officials had declared the bear a Level III nuisance animal, meaning they considered it a “threat to human safety.” But according to the complaint against the Forest Service,

The [Ives] family pitched their tent ... with no knowledge or warning of the bear incident and decisions made by the agents of the USDA Forest Service about the Level III bear that had occurred that very morning.

Government officials are generally immune from liability for the exercise of “discretionary functions” and the state of Utah has already indicated it is entitled to that defense because its bear policy is discretionary. “It's all written in 'shoulds' and 'mays,'” Assistant Attorney General Martin Bushman told the Provo Daily Herald newspaper.

But the Ives family might still have a case if they can show that the bear's original act of aggression gave rise to a duty to at least post warning signs. Referring to the few cases that have considered liability for wild animal attacks, the Alaska Supreme Court said they

appear to agree that if a landowner knows that a wild animal is creating a dangerous situation on his property, he has a duty either to remove the danger or to warn the people who may be threatened by the danger. Carlson v. State of Alaska, 598 P.2d 969 (1979).

Samuel Ives’ death is the only recorded fatality caused by a black bear in Utah history. At about 5:30 a.m. on June 17, 2007, the bear rummaged through food coolers at the campground and ripped open the tent of camper Jake Francom before being chased away by Francom and his friends.

The campers reported the attack on their way out of the canyon and officers, acting on the decision to classify the bear as Level III, spent four to six hours looking for it. The Ives family say they arrived and pitched their tent “[s]hortly after the agents abandoned the campground.”

The agents “failed to remove any attractants, or assure that campers with food (attractants) were kept from coming into the campground,” they allege.

A DWR spokesman has said officers didn't think the rogue bear -- which was later found and killed -- would come back. “We've never in the history of the Division of Wildlife Resources, after we've aggressively pursued a bear like that, had a bear return to a campground. It just doesn't happen,” Dean Mitchell told ABC 4 News in Salt Lake City.

In 1997, a Utah judge found no duty to warn campers before a bear attack in a U.S. Forest Service campground since the terrain was inhospitable to bears. Gadd v. U.S., 971 F. Supp. 502.

But the Ives' case may be distinguishable because of the prior attack on Francom in the same location. And in Claypool v. U.S., 98 F. Supp. 702 (1951), a California judge found that the government had a duty to warn in the case of a Yellowstone National Park camper who was injured by a grizzly bear a few days after a bear raided the same campsite.

By Matthew Heller
4/6/08