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The family of an 11-year-old Pleasant Grove boy killed in a 2007 bear attack can sue the state for not warning them that a bear had ravaged the campsite earlier in the day.
The Utah Supreme Court unanimously ruled Tuesday that the state cannot claim immunity from lawsuits in the death of Sam Ives. The Supreme Court overturned 4th District Judge Gary Stott's 2009 ruling that found the state was immune from being sued for permitting his family to camp in American Fork Canyon.
"We hold that the district court erred when it ruled that the state was immune from suit under the [Government Immunity Act's] permit exception," the court wrote.
The court found the campground where the attack took place was on U.S. Forest Service land, and the Forest Service, not the state, was responsible for issuing camping permits and closing the campground as needed. However, the act requires an agency to have the authority to make such decisions in order to claim immunity. Therefore, the state could not claim immunity for its failure to warn the Ives family about the bear.
The decision sends the case back to 4th District Court, said Alan K. Young, the family's attorney. Meanwhile, the family also is pursuing a $2 million negligence suit against the U.S. Forest Service in federal court.
But a state attorney said the Utah court did not rule on the state's other immunity defenses that the state cannot be held liable for how bears act in nature, nor does the state have a duty to protect individuals from dangerous wildlife.
"We would have liked to have had those two questions addressed," said Assistant Attorney General Peggy Stone, chief of the attorney general's appeals section.
The court did not rule on those issues because they were not brought up at the district court level.
Tim Mulvey, Sam's stepfather, said the family was expecting the high court to reinstate the lawsuit, which seeks $550,000 from the state.
"I'm just glad we're moving on with this," Mulvey said Thursday. Mulvey; his wife, Rebecca Ives; and Kevan Frances, Sam's natural father, are plaintiffs in the lawsuit.
Sam was camping with his mother, stepfather and half-brother in a campground above the Timpanooke Recreation Area on June 17, 2007, when a bear sliced through his tent, pulled him out and mauled him to death. Earlier that day, the bear had attacked another group of campers, and authorities were unsuccessful in finding the bear.
The family argues that the Forest Service and the state's Division of Wildlife Resources had a duty to warn the family that there was a dangerous bear in the area and that it had attacked the site at which they camped. They also argue the campground should have been closed until the bear was killed.
In the earlier attack, the black bear raided coolers and tore open a tent, but the campers escaped unharmed.
The bear was hunted and killed after Sam's attack.
Stone, the assistant attorney general, said the state's position is that it only has a duty to protect the public from being attacked by dangerous wildlife. But that duty does not mean the state can be held responsible for individuals who are attacked by bears or other vicious wildlife.
She compared it to suing a police officer because a home was broken into when the officer's duty is to maintain public safety in general.
Stone said the state also will argue that it cannot be held liable for the natural acts of bears in their own environment.
In federal court last year, government lawyers tried to get the suit thrown out on grounds that there was no legal requirement to post notices of bear activity at the campground or to close it.
But U.S. District Judge Dale Kimball ruled that Forest Service officials knew there was a dangerous bear in the area, negating their claims for immunity.