Federal Judge Awards $1.95 Million to Family of Boy Killed by Bear

Submitted by Bob Jacobson on Wed, 05/18/2011 - 10:12

 

Federal Judge Awards $1.95 Million to Family of Boy Killed by Bear
 
Earlier this month Aaron Falk, writing for the Salt Lake Tribune, reported that a federal judge had awarded $1.95 million dollars to the family of a boy who had been killed as a result of a bear attack in 2007.
The family had been camping in American Fork Canyon on the evening of June 17, 2007. Earlier in the day a camper had reported the sighting of a bear to the Utah Highway Patrol and the Forest Service. The Highway Patrol reported the information to the Division of Wildlife Resources who began a search for the bear with the intension of killing it. The Forest Service employee who spoke to the camper did not take any further action and did not report the sighting to anyone else. Another Forest Service employee who answered the family’s questions about camping fees testified at trial that he would have warned the family had he known about the bear sighting. The boy was killed that night with his body being found about 400 feet from the tent. The bear was found and killed the next day.
 
Notice a Key Factor in Forest Service Defense
 
The Forest Service attorneys relied upon the defense that the government agency was immune from litigation and that it would be impossible to prove that any action taken by the agency would have changed the outcome of the bear attack. They further argued that the agency did not need to warn of the black bear threat because there had never been a fatal attack by a black bear before in Utah. The judge nevertheless found that the agency had a duty to warn of the danger and was negligent in failing to do so. It is possible that the government could appeal the decision.
 
Comparative Fault Limits Award
 
The judge also indicated that the family could have been entitled to as much as $3 million dollars. However, the judge ruled that the Forest Service’s liability was only 65%. The judge also found the Division of Wildlife Resources to be partially at fault for not alerting the Forest Service of its search for the bear it deemed necessary to kill, and partially to the family for having food in the campground. A granola bar wrapper and open can of Coke Zero were inside the tent.
 
Some Other Considerations
 
One might be hard pressed to see how a judge could find a duty to warn in a situation so remote and unpredictable as a bear attack, especially when there had never been a fatality involving a black bear attack in the state of Utah. One can also ask what the reaction of the family would have been had they been warned of the presence of a bear in the area. I would suggest that it may be much easier for a court to find the existence of a duty and its breach when one also looks at the magnitude of the harm done. In this tragic case, a young boy’s life was taken. Had the attack not been fatal, perhaps the likelihood of finding a duty owed would have been less. It is also of interest to note that the judge did not hold the family completely free of contributing to the loss since he found the family partially responsible for having food in the campground. Actual knowledge of a danger in the area by the Forest Service coupled with a fatality makes a pretty good combination for the finding of a duty to warn.
 
Bob Jacobson practices personal injury law in Boise, ID