Judge awards $1.9 million to family of boy killed by bear

Killing Machines

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

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

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.

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.

+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.

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.

"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.