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Negligence at Root of Fatal Bear Attack on Boy

(CN) - The U.S. Forest Service must pay nearly $2 million to the family of an 11-year-old Utah boy mauled to death by a black bear, a federal judge ruled.

Hours before the bear dragged Sam Ives from his family's tent on Father's Day 2007, it had attacked campers at the same site, and neither the U.S. Forest Service nor the Division of Wildlife Resources warned other campers.

U.S. District Judge Dale Kimball describes the harrowing story of the nighttime attack in a series of findings-of-fact signed Tuesday.

Calling the case "heart-wrenching," Kimball plainly states that Ives would still be alive but for the Forest Service's negligence.

"Plaintiffs have proved by a preponderance of the evidence that defendant's breaches were a cause of Sam Ives' death and the plaintiffs' damages," Kimball wrote.

On the evening of June 17, 2007, Father's Day, the Mulvey family - Sam Ives and his mother, brother and stepfather, Tim Mulvey - set up camp at a developed site in the Uintah National Forest's popular American Fork Canyon, in the Wasatch Mountains just south of Salt Lake City.

The family did not know that about 12 hours earlier, at the same spot, a camper had been attacked by an aggressive black bear that showed none of the natural fear of humans common in a healthy wild animal.

In the early-morning attack, the bear ransacked the site where a group of friends had set up camp. After slashing one of the tent, the bear struck Jake Francom at least twice on the head while he slept and shredded his pillow. The bear retreated only after Francom and his friends shot at it with pistols and threw rocks, according to the ruling.

Francom reported the bear attack to Utah County Dispatch, which contacted off-duty U.S. Forest Service law enforcement officer Carolyn Gosse at home. Francom also called the highway patrol and Utah Department of Wildlife Resources.

Gosse told the dispatcher that she would inform Forest Service officials about the attack, but she also mentioned that she was off-duty and would not be able to find someone to watch her kids.

"Ms. Gosse failed to contact anyone or take any action of any kind in response to the reported bear attack on Mr. Francom," the ruling states. "Consequently, no one else employed by the Forest Service knew about the incident, and, as a result, no action was taken by defendant to warn potential campers about the bear attack."

In the meantime, two state wildlife agents unsuccessfully hunted for the bear with dogs for about five hours. The agents wrapped up the search at about 5 p.m., not long before the Mulvey family arrived at the campsite.

Nobody told the camp host, or anyone else in charge of warning campers about nuisance or dangerous animals, about the attack on Francom, according to the ruling.

After setting up camp and eating dinner, the Mulvey family went to bed in a single tent. During the night, "Mr. Mulvey had heard Sam say something about a neighborhood friend, and Mr. Mulvey thought Sam was talking in his sleep," according to the ruling. "Then he heard Sam yell, 'help me.' Mr. Mulvey immediately ran out of the tent. In the darkness, he did not see or hear Sam. He soon saw that the tent had been slashed open, and Sam was not in the tent. Ms. Ives, in the meantime, had joined her husband, but Sam was no where to be seen."

State wildlife agents eventually found Sam's body about 400 yards from the campsite. He had been dragged from the tent and killed by the same bear that had attacked the other campers the day before, the ruling states.

Sam's biological parents sued the Forest Service under the Federal Tort Claims Act, claiming that the agency's negligence caused their son's death. They argued that Forest Service employees knew that the bear was around and dangerous but failed to warn campers.

The agency argued that it was immune from suit, or, alternatively, that the killing was the fault of the state and the Mulvey family. They government claimed that Sam had taken a cola and granola bar with him to bed that had attracted the bear.

Judge Kimball sided mostly with the family after a five-day bench trial in February, finding the Forest Service 65 percent responsible for the Sam's death.

"When not unduly burdensome, the Forest Service has an obligation to warn visitors to National Forest Service lands of known incidences in the immediate area of aggressive bear behavior toward humans that constitute a threat to public safety," Kimball wrote. "Specifically, Ms. Gosse had a duty to follow up with the Francom attack by contacting her supervisor and others in the Forest Service who could address the problem if she was unable to respond, to confirm that the camp host at the nearest campground knew the details of the Francom attack, to make sure that potential campers in the area were warned about the attack, and to contact someone in the Forest Service who could make a determination about whether to close either the Francom campsite or Timpooneke Road 056."

The judge found that the Forest Service was not immune from suit under the Federal Tort Claims Act because its failure to warn campers about the previous attack "did not involve considerations of public policy."

Kimball found that the state wildlife agency was 25 percent at fault for Sam's death, as its agents "had a duty to communicate its designation of the bear as a [dangerous] bear, the fact that the search for the bear was unsuccessful, and that the DWR [Department of Wildlife Resources] intended to return the following morning to set a trap for the bear at that campsite."

But he also found that the family was 10 percent at fault for the death.

"While it is certainly possible that the granola bar and the can of Coke Zero played no role in Sam's tragic death, the court, under a preponderance of the evidence standard, cannot so rule," Kimball wrote.

Kimball awarded the family $3 million in damages, 65 percent of which comes out to $1.9 million.

The family has a separate action pending against the Utah Division of Wildlife Resources in the Third District Court for the state of Utah.

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