By Pat Murphy
The Daily Record Newswire
Can anyone really be blamed when a bear drags off and kills a child during a family camping trip? Isn’t it just one of those tragic twists of fate?
The parents of eleven-year-old Samuel Ives believe that Utah officials are ultimately responsible for the bear attack that killed their son. Thanks to a decision by the state supreme court last week, the mom and dad will have a chance to prove their case at trial.
Samuel was killed during a camping trip in American Fork Canyon, Utah. The canyon is located in Uinta National Forest, which is owned by the federal government and run by the U.S. Forest Service.
In the early evening of June 17, 2007 -- Father’s Day -- the Ives family decided to camp at an unimproved campsite a mile above the Timpanooke Recreation Area. Samuel bedded down for the night in a multi-room tent with his mother, Rebecca Ives, his stepfather, Tim Mulvey, and his six-year-old brother, Jack
Sometime between 9:00 and midnight, a black bear ripped a hole in the tent, grabbed Samuel’s sleeping bag, and dragged the boy away. Samuel’s body was found about 300 yards from the campsite two hours later.
Bear hunters the next day tracked the animal down and killed it.
What initially appeared to be an unfortunate twist of fate began to seem more like an avoidable accident when Samuel’s parents learned that the there had been a bear attack at the same campsite earlier that day.
Around 5:30 that morning, a black bear entered the campsite and raided the coolers of Jake Francom. The bear then bumped the still-sleeping Francom when he was in his tent and ripped the tent open. The startled camper and his friends managed to scare the bear away.
Francom immediately reported the attack to the Utah Division of Wildlife Resources. The department declared the bear a “Level III nuisance” and sent agents to track down and destroy the animal. The agents failed to find the bear and suspended the hunt for the day — just before the Ives family arrived at the campsite.
Even though the bear in the Francom attack was still at large, state agents failed to post notices warning of the threat and failed to request that the U.S. Forest Service close the campsite.
These failures by state agents led Rebecca Ives and Samuel’s biological father, Kevan Francis, to conclude that the state of Utah was liable for the death of their son.
In responding to the negligence lawsuit filed by Samuel’s parents, the state contended it was immune under the “permit” exception to Utah’s governmental immunity statute.
The permit exception preserves the state’s immunity if the injury results from the failure of state agents to issue, deny, suspend or revoke a permit, license, or similar authorization.
The state argued that the permit exception applied in Samuel Ives’ case because his death arose out of, or in connection with the state’s alleged negligence in failing to request the U.S. Forest Service to issue an order closing the campsite where the bear attack occurred.
A week ago, the Utah Supreme Court rejected this argument and overturned the dismissal of the wrongful death suit brought by Samuel’s parents.
The court reached this conclusion based on the simple fact that the bear attack occurred on land controlled by the federal government rather than the state of Utah.
The court explained that it is “undisputed that the federal government was the only entity that had the authority to issue, deny, suspend, or revoke any permit, license, certificate, approval, order, or similar authorization related to the campground at issue and was the only entity that could order the closure of the campground, even temporarily. Thus, the State did not perform any act that falls within the scope of the permit exception.” (Francis v. Utah)
