Family Sues National Forest Service Over Fatal Bear Attack

As a general matter, wild animals are not the basis for tort liability absent possession and control by a third party. However, the family of Sam Ives, 11, are suing the U.S. Forest Service after the boy was killed by a bear in 2007 in a the Timpanooke Recreation Area in Utah.

On June 17, 2007, a bear sliced through the boy’s tent, pulled him out and killed him. The Forest Service later caught and killed the bear.

The family alleges that the rangers had failed to warn of a rogue bear that attacked a group of campers earlier. They also argue that the campground should have been closed until the bear was located. It is a tough case to make given the general immunity given the Forest Service in such cases as well as assumption of the risk associated with camping around wildlife.

The government is allowed to argue that this is a discretionary function and an exception to the waive of immunity under 28 U.S.C. § 1346(b). That exception bars lawsuits “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” Id. § 2680(a).

The government can also argue that it has no duty in such cases to the plaintiffs. Courts generally view “a duty to all is a duty to none.” Presumably, the family here is saying that such a duty arose with the knowledge of the rampaging bear in the area.

Notably, however, U.S. District Judge Dale Kimball rejected a government motion to dismiss and held that immunity would not apply if the government knew that the bear was in the area and failed to warn. That was a major loss for the Forest Service. The family is also litigating a wrongful death claim in state court. Again, the family was able to overcome an obstacle to trial when the Utah Supreme Court ruled that they could sue for a failure to warn about the bear. The Utah Attorney General also argued that the lawsuit was barred under state law.

They still have a tough row to hoe. In Gadd v. United States, the court stated facts similar to those in this case:

Briefly, the facts are as follows. On June 23, 1992, plaintiffs were camping at the United States Forest Service’s Flintlock Campground 1, situated within Wasatch County, Utah. Around midnight a black bear broke into a pickup truck camper shell in which plaintiff Krystal Gadd was sleeping and dragged her away. Krystal was rescued by her grandfather, plaintiff George Gadd, who confronted [**2] the bear and eventually drove it off. Krystal suffered serious wounds requiring hospitalization and surgery. Plaintiff George Gadd was not physically injured during the encounter, but seeks damages for emotional distress. Plaintiffs in their complaint set forth six separate claims for relief alleging their injuries were due to the negligence of the United States and the State of Utah. As summarized by plaintiffs, their complaint “in essence, alleges that the attack was caused by numerous negligent acts/or omissions regarding the operation, management, control and supervision of the Strawberry Recreation Area and the wildlife contained therein.”

In addition to finding that the discretionary function exception applied, the court ruled:

Prior to the bear attack, plaintiffs were undistinguishable members of the public. The State does not own the Flintlock Campground and did not make any representations of safety or protection to plaintiffs. Similarly, the State did not deprive plaintiffs of their [**26] normal opportunities for self-protection. Thus, the court concludes that no special relationship existed between the State and plaintiffs. The court also agrees with the State that, because the State had no knowledge or control of the bear when it entered Flintlock Campground and attacked Krystal, it could not have reasonably identified plaintiffs as likely to be harmed any more than the general public. Thus, under the public duty doctrine the State owed plaintiffs no duty of care.

Finally, even if the State had a duty to plaintiffs, the duty was breached only if there was some danger regarding bears to report and the DWR failed to communicate it to the Forest Service or to warn plaintiffs. The court, however, agrees with the State that the facts, as discussed previously in the context of the United States’ motion to dismiss, do not support a conclusion that the DWR knew of any danger to plaintiffs from bears with respect to the Flintlock Campground.

The Ives family has already done better than most in getting this case to trial. It will be interesting to watch as the case unfolds on the trial and appellate levels.

Source: Salt Lake Tribune found on Reddit.

Jonathan Turley

16 thoughts on “Family Sues National Forest Service Over Fatal Bear Attack”

  1. Just what is a “rogue” bear? The very idea is somewhat absurd, as it necessarily constrains all other bears into a set of “non rogue” bears, as if they are not dangerous.

    ALL wild bears have the potential to kill humans, especially grizzly, brown, and polar bears. They are, in case anyone missed the memo, bloody dangerous.

    Re this specific case – there is no definitive proof that the bear involved in the fatal attack was indeed the same bear that attacked another group of campers a few days before. There could be, IMHO, little expectation that a nonfatal attack on one set of campers would engender a fatal attack on a different group on a different day. Fatal attacks are extremely rare, non fatal attacks occur much more frequently. Hence, no expectation of a fatal attack.

    Once the fatal attack did occur, however, the Park Service immediately did its duty, and killed the bear responsible.

    The article on the attack goes on to list attacks on humans by black bears, for heaven’s sake. If there should be any reasonable expectation here, it is that if you go camping where there are bears, and all there is between you and multi-hundred pound carnivore is a piece of fabric, you should reasonably expect that you have just put yourself in a dangerous situation.

    What does seems actionable to me, on the other hand, are regulations in certain National parks in Canada (and U.S. ?) that you are allowed to camp, but not allowed to have firearms. Where grizzlies live! Which is why I will *never* go camping in Banff!

  2. Who knows what, if anything, was in the tent with the kid. The reality is that you can be educated and follow all of the precautions, and if the douche before you dumped bacon grease in the firepit, you’re at risk. I have been in heavy grizzly territory (never in established campgrounds) many, many times and have luckily never had any sort of problem – but then we don’t sleep with anything in the tent but us, and hang everything else in a bear bag. There are also sad situations like the fairly recent rampage a grizzly and her cubs went on in Montana, and although I have never heard a follow-up, the rumor was that a photographer had been baiting them for weeks for photos. If something like that is true, I think the human should be charged with manslaughter at the very least. Instead, the bears get killed or doomed to live their lives in zoo. While I feel sorry for the family, I do not feel it is the Park Service’s fault. No one takes responsibilty for their own actions anymore. i.e the kid that dumped hot nachos on his face and now his parents are suing Disneyworld. Jeebus.

  3. I camped in many National Parks and Forests during the 60’s and 70’s. In my experience you were always warned about bears, told of recent bear attacks if any and cautioned as to the precautions to take. As AY says if you camp in the woods you need to be careful and you reasonably do assume the risks and dangers. I always wore a big hunting knife on my belt and had my big axe in hand. That and my hand axe were kept very sharp and had good weight. For hiking I carried the hand axe on my belt, with my knife and carried my trusty walking stick. I saw some bears but they never came close to me. Now that I think of it though and with age, I realize that in bear country a person should have a good rifle, one with a lot of stopping power. I don’t think that a bear attack could have been easily repelled with the weaponry I carried then.

  4. rafflaw,

    As a person that still loves to tent camp….especially in northern Wisconsin, UP and upper lower peninsula of Michigan these are risks associated with camping. It is not like warnings at sea….

  5. Tomdarch,
    I worked with a guy several years ago whose sister was killed by a grizzly bear. That bear killed them while on a hiking trail with no food issues. I never asked if the grizzly was a female and if she had cubs nearby that might cause such an attack.

  6. Camping in areas where they might be bears is wildly different than in non-bear areas, and YOU, the camper, are responsible for asking where those areas are and responding appropriately. A bear ripping into a tent and dragging a human off is amazingly rare under any circumstances. A bear attacking a human, when those humans are taking reasonable precautions, as far as I know, almost never happens.

    Did this kid go into the tent with a lot of food residue on him? Was there food in the tent with him? Were there toiletries or other items in the tent that attract bears? Did they eat and store their food/toiletries a safe distance from the tents? Did the family even ever ask/inquire if they were camping in an area that might have bears?

    Every year tens or hundreds of thousands of people in North America camp in areas with bears and never even see one bear. Being attacked by a bear in your tent means that you either did something you shouldn’t to attract the bear, or, essentially, you were struck by lighting. Either way, you can’t blame the Forest Service (or BLM or the National/State parks).

  7. Without getting into political personalities, what exactly constitutes a “rogue” bear, as opposed to a non rogue, large, predatory, territorial, king of the forest type bear that is known to eat its own young.

  8. This is an interesting, but sad case. I would tend to allow the family to collect from the government if they can prove that the Forest Service failed to warn campers of a rogue bear in the area. Especially if it had already attacked campers nearby.
    that was one scary movie. Wasn’t that the one where Glenn Close’s character made stew or cooked the daughter’s pet rabbit??

  9. eniobob,

    Well that certainly explains that whole Michael Douglas/Glenn Close thing when he had a honey like Anne Archer at home.

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