Arguments made over Utah liability in bear attack

SALT LAKE CITY — The Utah Supreme Court will decide whether a bear who killed a Pleasant Grove boy was a "natural condition" of the wild or a danger that wildlife officials should have killed or at least warned campers about.

Samuel Ives, 11, was killed June 17, 2007, when he was pulled from his tent in American Fork Canyon and attacked by a black bear. The bear had terrorized the same campsite earlier that day and had been classified as a Level 3 nuisance, which mandated 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.

Ives' 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 Ives' family of the dangers was an act of negligence for which they should be held liable.

The case was dismissed in 4th District Court, citing governmental immunity.

Jonah Orlofsky, attorney for the boy's family, said the area where his clients were that night was frequented by campers and was an obvious campsite, complete with a fire pit and an area cleared for tents.

He said that while the state wasn't required to protect the surrounding areas, the lawsuit alleges negligence at the campsite because that was the exact area where the bear had earlier ripped open a tent with campers inside. Campers in that incident were able to chase the bear away.

Orlofsky compared the case to another where the state set up a fence to protect children from a river that ran alongside a playground. Although the river had long been there and was a "natural condition," when the state decided to fence the area, it took responsibility. When a child later found a hole in the fence and drowned in the river, the state was held accountable.

He argued that the state had a specific policy to protect citizens against dangerous black bears, and once it implemented that policy, it had an obligation to citizens.

Peggy Stone, the assistant attorney general who argued on behalf of the state and the DWR, said that the state has an "internal policy" — not a law — that encourages it to protect citizens from aggressive bears. She argued that the bear was a "natural condition" that exempted the state from liability.

But Judge Gregory Orme of the Utah Court of Appeals, who sat in on the hearing for retiring Supreme Court Justice Michael Wilkins, referred back to the case involving the fence by the river. Once the decision was made to implement the bear-related policy, he asked whether there was a governmental obligation to "do it right" and follow through.

An opinion will be issued in the case in the coming months.

e-mail: emorgan@desnews.com