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Judge awards $1.9 million to family of boy killed by bear
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Sumi Wada
(DetroitTigerFan) - F

Locale: Ann Arbor
Re: Now the next problem: what is appropriate action? on 05/11/2011 07:30:14 MDT Print View

My feeling has always been that, first, we don't stress and enforce the "don't feed the wildlife" rule enough. We take our toddlers to the local park to feed the ducks; we actually BUY packets of food to feed the seals/sealions/rays at Seaworld... and it just goes from there. We were in Yosemite last summer and I was the b*tch who kept telling other visitors' kids NOT to feed the deer. I was just at Lake Mead kayaking and were adopted by a pair of Mallards who followed me around for two days; they obviously knew that bright orange kayaks meant food.

Everytime we go up north (Michigan), we're warned about black bear activity in the area. Yeah, we go through the motions of securing our food but, in the front country campgrounds, it's pretty sloppy. The rangers warn that people violating food storage rules will be fined but I've never actually seen that happen. I'm sure we've been in violation at times. It's not like I frisk the kids for contraband candy bars before they get into their tent. After all, it's just black bears and not grizzlies, right...? (Yes, being facetious.)

As sad as it is, I think this case and the ensuing lawsuit has done a lot to make people aware that these things *can* happen. I see it following a similar pattern as the "school bullying" issue. Years ago, the focus was on the victim, who were seen as being 'whimps' that needed a backbone (remember the movie 'Back to the Future'?) But after some highly publicized cases of tragic suicides, the focus is more on simply making bullying unacceptible; you bully someone, you're gone, period. I do agree that it would be a shame if the focus ends up being on what the forest service did or didn't do. I think the effort would be better spent punishing people who're violating food practices. Unfortunately, sometimes it requires significant pain before people bother to do the right thing.

Edited by DetroitTigerFan on 05/11/2011 07:32:27 MDT.

Ben Crocker
(alexdrewreed) - M

Locale: Kentucky
Lawsuit on 05/11/2011 08:59:12 MDT Print View

I read virtually every jury verdict in my state and can tell you that 99.9% do not come to this kind of result. But no one outside the legal system notices them. One unusual result out of thousands does not make a broken system. Do you stop sleeping in the backcountry because of a story of one person being killed by lightning? Of course not. Likewise its not fair to label our court system as being full of frivolous lawsuits because of one bad result.

I also wonder why no one ever complains about the lawsuits where someone is injured or killed by someone's fault and there is a verdict for the defense. The Chamber of Commerce and insurance industry never mention these.

Anyone involved in the system will tell you frivolous lawsuits are not a problem. Surveys of sitting and retired judges confirm that frivolous lawsuits are very rare. Its a political talking point, not reality. There is just too big of a financial disincentive for plaintiff lawyers to file frivolous lawsuits. Truth is, there are just way more gray areas than most people like to admit. Lawsuits are about real life and real life is mostly gray areas.

Terry Trimble
(socal-nomad) - F

Locale: North San Diego county
Judge awards $1.9 million to family of boy killed by bear on 05/11/2011 09:59:36 MDT Print View

It interesting you named bullies and bears in this thread.
It is just proof that their is always someone or something bigger than you that will take it away from you in are human life.

The animal world also has bullies also it called the food chain in order to survive.

Then we are bullies to animals encroaching on their natural environment by building towns,campgrounds and their natural instinct is to go after what ever is the easiest food source to get that day to survive in their human modified environment.

So no mater what we do Bullying will always be around it old as the the world in order to survive .
I am speaking from experience bullies thought I was easy prey and they found out the hard way they made a mistake that I was really a badger in sheep clothes.
Terry

Edited by socal-nomad on 05/11/2011 10:05:38 MDT.

Scott Pulver
(Scottp77) - F
Re: Re: Re: Re: Personal resposibility is what it breaks down to.. on 05/11/2011 16:11:15 MDT Print View

SP - Fact - It is not the forest services job to warn about possible dangers, their job is to regulate usage of public lands. Not defend you from the wild in wilderness.

>>>I believe you're wrong here and this is, from my understanding, the crux of the case. I think I remember reading that an earlier suit was dismissed by the court because it didn't specifically point out the burden of responsibility on the part of the forest service. The forest service regulations do specify a procedure to be followed by their employees in these types of situations which would certainly make it their "job". The employee in question was dismissed from her job for failing to perform the prescribed procedure.




SP - Having procedures while performing a service does not equal responsibility.

My local fire department has a service where they inspect child car seats. Performing that service does not make them responsible for the safety of my child in an accident.




If the forest service is responsible to notify all land users of known dangers, where does it end?

If they get a storm warning for an area and fail to notify all users of the area, do they become liable?

If there is a risk of avalanche and they fail to post signs at the possible avalanche sites, do they become liable?

Let's say I am driving down a more dangerous section of mountain road, there are road signs on many curves that warn me of the danger, but on one of the curves there is no signage and I drive of the road, is the forest service liable?




The DWR was actively looking for this bear in the days before the attack, the idea that the forest service had no knowledge of the bear before the incident with Mr. Francom is absurd. The forest service definitely knew about the bear beforehand, but taking on procedure of trying to actively warn of dangers such as this would set precedent for their responsibility. It's a no win situation.


And I know if I was trying to forget a painful incident in my life, years of litigation is not the route that I would take to achieve that goal.

Lyan Jordan
(redmonk)

Locale: Greater Yellowstone Ecosystem
Judge awards $1.9 million to family of boy killed by bear on 05/11/2011 16:44:02 MDT Print View

Tax cuts that reduce our parks to skeleton crews will have consequences. Those procedures were probably written years ago, when they had a budget and staff.

Jason Torres
(burytherails) - F

Locale: Texas
backcountry on 05/11/2011 18:17:16 MDT Print View

Someone commented how this ruling is not the norm. I believe there is good reasoning behind this.

I am not positive as I do not live in the area but I would guess that whether or not bears frequent the location in question, there must be some kind of bear warnings posted. Does anyone know if this is the case?

Whether they be on the website or in literature given at the ranger station, they most likely are there. If you are inexperienced in camping in the woods and the dangers of the area, it is your responsibility to research the risk involved before you head straight to your campsite.

Because a site is not designated "backcountry", does not make the site immune to bear traffic. The wild is often two steps from the highway. Once you leave the safety of your car and step into the wilderness there are risks.

If the area had been blocked off and secured so no bears could present a problem to campers, was advertised as such, and a bear attack still occured - then I could find fault in the park. This is not the case.

This is quite an interesting post. I value all sides of the arguement and all opinions equally.

Scott Pulver
(Scottp77) - F
Re: backcountry on 05/11/2011 18:53:44 MDT Print View

>>>I am not positive as I do not live in the area but I would guess that whether or not bears frequent the location in question, there must be some kind of bear warnings posted. Does anyone know if this is the case?



There is bear activity warnings at all trail head boards and improved campgrounds. Along with ranger stations, and the fee station to enter the canyon.

Really all of Utah is black bear country, but like mountain lions people don't often see them, so out of site out of mind.

Keegan Williams
(keego73) - F
Re: Re: Thoughts.. on 05/11/2011 21:11:08 MDT Print View

""It's got fangs."

A black bear has canine teeth. A venomous rattlesnake has fangs."

Rattlesnakes and vicious rabbits...

Sumi Wada
(DetroitTigerFan) - F

Locale: Ann Arbor
Re: Re: Re: Re: Re: Personal resposibility is what it breaks down to.. on 05/11/2011 21:28:23 MDT Print View

@Scott -- I'm curious, did you read the court decision? I'm guessing not, based on the statements you're making. Nobody is talking about storms or avalanches or anything else other than this particular bear and this particular campsite. By their own regulations, the officer was supposed to report the earlier incident (she was called at home.) Her supervisor testified that, had she informed the FS as required, they would have taken steps to warn and/or close the site. She didn't and, as a result, the family camped there and their child was killed. And your statement about DWR and the forest service's knowledge about the bear contradicts the findings.

But, hey, maybe you know better. In which case, you should probably offer to be a witness for the appeal.

Scott Pulver
(Scottp77) - F
Re: Re: Re: Re: Re: Re: Personal resposibility is what it breaks down to.. on 05/11/2011 22:19:25 MDT Print View

>>>@Scott -- I'm curious, did you read the court decision? I'm guessing not, based on the statements you're making. Nobody is talking about storms or avalanches or anything else other than this particular bear and this particular campsite. By their own regulations, the officer was supposed to report the earlier incident (she was called at home.) Her supervisor testified that, had she informed the FS as required, they would have taken steps to warn and/or close the site. She didn't and, as a result, the family camped there and their child was killed. And your statement about DWR and the forest service's knowledge about the bear contradicts the findings.

But, hey, maybe you know better. In which case, you should probably offer to be a witness for the appeal.





SP - Do you really believe that the DWR hunting for a problem bear in the days before this incident, really went unnoticed by the forest service? Of course they new about it before hand.

The boys parents failed to follow safe procedure while camping in bear country. They are responsible for the death of their child.

Edited by Scottp77 on 05/11/2011 22:20:06 MDT.

David W.
(Davidpcvsamoa) - MLife

Locale: East Bay, CA
Soulless, godless, rampaging killing machines? on 05/11/2011 22:51:02 MDT Print View

Killing Machines

Watch out for black bears on the prowl, rather than a mother cubs?

Edited by Davidpcvsamoa on 05/11/2011 22:51:54 MDT.

billy goat
(billygoat) - F

Locale: West.
Contact the US Forest Service. on 05/11/2011 23:33:15 MDT Print View

http://www.youtube.com/watch?v=PYkWWnZm6-w

http://www.youtube.com/watch?v=6gGG9JGTtZQ

Edited by billygoat on 05/11/2011 23:34:15 MDT.

Ben Crocker
(alexdrewreed) - M

Locale: Kentucky
Award on 05/12/2011 08:00:52 MDT Print View

As is often the case, the more you hear about the facts of a case, the more in line the results seem. It does sound like they probably had a duty and failed in this duty. This attack was certainly a foreseeable outcome. If they had a duty to do this and the attack was a foreseeable consequence, then they are liable. I might argue with the percentage of apportionment, but maybe not if I had all the facts.

By the way, this discussion sounds amazingly similar to a class discussion in torts class in first year of law school. If this case gets a published appellate opinion, it will probably be a favorite of law school professors.

Christopher Mills
(Hiker816) - MLife

Locale: Denver
Re: Judge awards $1.9 million to family of boy killed by bear on 05/12/2011 09:58:10 MDT Print View

Apologies to anyone who isn't a law nerd for the following.

The Judge in this case found the Forest Service negligent, meaning Forest Service employees breached some duty they owed to the Plaintiffs. So what is that duty? Is it the duty that everyone owes to everyone else to use reasonable care? If that were the case, it would mean that you, another hiker who just happened to hear of the earlier bear activity, had a duty to inform the authorities about it. While I think, in that case, you certainly should inform them, I don't think the duty extends far enough that you could or should be held liable to the tune of $2 million if you don't.

The next option for the source of the duty is arising as part of Forest Service employees' duties arising by virtue of them being employees. If it is the Forest Service's job to keep recreational outdoors users safe from the outdoors, then there would be such a duty. But I think the Forest Service's job is more to protect outdoor resources from people.

The final source of the duty, and the one on which I think the Court probably settled, is the regulations that one Forest Service employee breached by failing to notify her superiors of the prior bear activity on her day off. That makes this a negligence per se case. To state a case for negligence per se, the Plaintffs would have had to show that they fall within the class of people the regulations are intended to protect. If the regulations requiring a response to reports of bear activity are intended to protect outdoor recreationalists, I can see why the Court ruled the way it did. And maybe that really is the intent of the regulations. On the other hand, maybe the regulations are intended to prevent harmful wildlife vs. person encounters for the purpose of protecting the wildlife. If this is the case, and I think there is at least a plausible argument that it is, the Plaintiffs' can't assert a negligence per se claim (though maybe the bear could have, supposing it were a person and could have standing).

Having said that, I'll add the caveat that, while I have read the decision in this case, I have not read the cases cited within it, or the regulations or their history.

Jason Torres
(burytherails) - F

Locale: Texas
Amen.. on 05/12/2011 10:18:50 MDT Print View

+1000 to Christopher

Thank you for the insight. I could not agree more.

The parks (imho) are established to protect nature from us and not the other way around. This is why you can go to the zoo..cringe.

Ben Crocker
(alexdrewreed) - M

Locale: Kentucky
Award on 05/12/2011 12:27:28 MDT Print View

Based upon the nature of our regulations, I think its safe to assume that the regulation at issue is designed to protect people, not the bears. Bears are not endangered and we like to protect our own species typically. I would agree it looks like they are being held liable because of their own regulations.

Kevin Cody
(codycolor2) - F

Locale: Los Padres NF
Re: Re: Double Tragedy on 05/16/2011 13:03:49 MDT Print View

"Truly unfortunate but I believe we all assume the risk of these things when we enter the wild."

I was going to post something along these lines. Doesn't it make sense to come to the wilderness with some knowledge especially when you have your children with you? It's called a WILDerness for a reason because its WILD.