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Family of boy killed by bear supported by Utah Supreme Court ruling

By Emiley Morgan | Posted - Jul 19th, 2013 @ 11:05pm

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PROVO — The state's high court ruled Friday that the state had a duty to the family of a 11-year-old boy who was killed by a bear in 2007.

The decision from the Utah Supreme Court reversed a prior ruling by 4th District Judge David Mortensen, who sided with the state of Utah and the Utah Division of Wildlife Resources, which claimed the state had immunity because a bear was a "'natural condition' on the land."

But Chief Justice Matthew Durrant, joined by two other justices, found the opposite, stating "the natural condition exception does not immunize the State from liability because a bear is not a 'natural condition on publicly owned or controlled lands.'"

Durrant said it was an issue of statutory interpretation.

"In our view, one would not ordinarily refer to a bear, or wildlife generally, as a 'condition' on the land," he wrote. "The more ordinary meaning of a 'condition on the land' seems to connote features that have a much closer tie to the land itself, such as rivers, lakes, or trees. These conditions are more directly a part of and persist 'on the land,' whereas a bear is much more transitory in nature."

Samuel Ives died June 17, 2007, after a black bear ripped him from the tent he was sharing with his family in American Fork Canyon. The bear had terrorized the same campsite earlier that day and had been classified as a Level 3 nuisance, which, per state policy, requires that state officials locate and kill the bear.

After an unsuccessful search for the animal, the campsite was left unattended and empty, without any notice of the earlier attack to warn prospective campers. That night, the bear slashed through Samuel's tent and pulled him out of his sleeping bag. The child's body was later discovered nearly 400 yards away. The bear was located and killed the next day.

Samuel's family sued the state of Utah and the Division of Wildlife Resources for wrongful death, arguing that the state's failure to take action to close the campground and warn the family of the dangers was an act of negligence for which they should be held liable.

So although DWR could not specifically identify the Mulveys when its agents swept the campsite, it nevertheless had reason to believe that the Mulveys could use the campsite and could therefore be at risk.

–Matthew Durrant, Chief Justice

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. But Mortensen sided with the state and said the bears are "native to Utah and exist in nature" and qualify as a natural condition.

Durrant wrote, though, that the state had a duty to the family once it took specific action at the campsite after the first reported bear attack. The bear was not only a threat to the public generally, but specifically to anyone who might occupy the campsite where the earlier attack had occurred.

Ives' family were "'reasonably identifiable' as the next group to use the campsite," Durrant wrote, because DWR officials waved to them as they drove away from the campsite and the family drove up. The officials had swept the campsite to make sure it was unoccupied but failed to notify the family headed toward the site in any way.

"So although DWR could not specifically identify (the family) when its agents swept the campsite, it nevertheless had reason to believe that (the family) could use the campsite and could therefore be at risk," Durrant wrote.

Justice Jill Parrish wrote a dissenting opinion, in which she was joined by Justice Thomas Lee, finding that a bear and other "indigenous wildlife" is, in fact, a natural condition of Utah's public lands and the government was immune under the natural condition exception. This opinion made the question of duty irrelevant, Parrish wrote.

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Assistant attorney general Peggy Stone said the state is disappointed that the majority didn't side with Parrish's opinion. She said the Legislature will have to determine whether the court's finding that wildlife is not a natural condition was what they intended.

"That's exactly what it comes down to, to what the Legislature meant by (natural condition)," Stone said. "Two (justices) said wildlife was included and three said it wasn't."

She said the high court's determination that wildlife are not a natural condition exception could have implications in the future. In this specific case, though, it simply means that Ives' family can pursue their lawsuit against the state.

"It was a tragedy and everyone feels horrible that Sam Ives lost his life and there's sympathy there," Stone said. "That's why immunity cases are hard, because somebody suffered a real loss and the question is, 'How much is the state liable for that?' Those are always tough questions."

The boy's family was previously awarded a $1.95 million judgment from U.S. District Court Judge Dale Kimball, who found 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.

Kimball said the 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 his tent.

The family's attorney, Tyler Young, said Friday that both he and his clients are "quite pleased" with the Utah Supreme Court ruling and will pursue a jury trial in 4th District Court.


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