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