Francis v. State
| Decision Date | 28 October 2013 |
| Docket Number | No. 20111027.,20111027. |
| Citation | 321 P.3d 1089 |
| Parties | Kevan FRANCIS and Rebecca Ives, individually, the natural parents of S.I., deceased, Plaintiffs and Appellants, v. STATE of Utah, UTAH DIVISION OF WILDLIFE RESOURCES, and John Does I–X, Defendants and Appellees. |
| Court | Utah Supreme Court |
OPINION TEXT STARTS HERE
Allen K. Young, Tyler S. Young, Provo, Jonah Orlofsky, Chicago, for appellants.
John E. Swallow, Att'y Gen., Peggy E. Stone, Asst. Att'y Gen., Salt Lake City, for appellees.
INTRODUCTION
¶ 1 This case is making its second appearance before this court. Plaintiffs are the parents of a young boy, Sam Ives,1 who was killed by a bear while camping with his family, the Mulveys,2 in American Fork Canyon. They sued the State of Utah, alleging that the State negligently failed to warn the Mulveys of the dangerous condition created by the bear. The district court initially dismissed the plaintiffs' claims under the permit exception to the Utah Governmental Immunity Act (Immunity Act) and the plaintiffs appealed.3 We reversed and held that the permit exception was inapplicable to the facts of this case.
¶ 2 On remand, the State raised two alternative arguments. First, the State argued that it owed no duty to the Mulveys. Second, the State argued that even if it did owe a duty, the natural condition exception to the Immunity Act precluded liability. After the district court dismissed the case a second time, the plaintiffs appealed and now raise three arguments. First, they assert that, under the law of the case doctrine, our refusal to entertain the State's alternative arguments in Francis I prevented the State from arguing those theories on remand. Second, they argue that the State did owe the Mulveys a duty of care. Finally, they contend that the natural condition exception to the Immunity Act does not apply.
¶ 3 The State counters that it was not barred from presenting its alternative arguments on remand. It reasons that we refused to consider those arguments in Francis I only because they had not been raised below and that our opinion actually contemplated that the State would be able to present its alternative arguments to the district court on remand. Second, the State argues that it owed no duty to the Mulveys because no special relationship existed. Finally, the State argues that because a bear is a natural condition, the State is immunized from liability under the natural condition exception to the Immunity Act.
¶ 4 We reverse the district court's grant of summary judgment in favor of the State. First, we hold that the State was entitled to present its alternative arguments on remand. Therefore, the issues of whether the State owed the Mulveys a duty and whether the natural condition exception applies are properly before this court. We further hold that (1) the State owed the Mulveys a duty because it undertook specific action to protect them as the next group to use the campsite, and (2) the natural condition exception does not immunize the State from liability because a bear is not a “natural condition on publicly owned or controlled lands.” 4
¶ 5 For purposes of the State's motion for summary judgment and this appeal, “the parties d[o] not dispute the relevant facts, most of which [a]re taken from the related trial against the Federal government.” 5
¶ 6 On June 16, 2007, Jake Francom camped with his friends at an unimproved, dispersed campsite in the Uintah National Forest (Campsite). Unlike the improved Timpooneke Campground 1.2 miles away, the Campsite did not have water, a bathroom, or any other maintained facilities. It consisted of a ring of rocks for a fire, a flat area for tents, and room for a car to pull off the road. Despite the lack of improvements, it was a frequently used campsite, one of only a few on the dead-end Timpooneke Road. The only public access to the Campsite was through the Timpooneke Campground.
¶ 7 The U.S. Forest Service (NFS) was responsible for managing Timpooneke Campground, the Campsite, and Timpooneke Road. Pursuant to a Memorandum of Understanding between NFS and the Utah Division of Wildlife Resources (DWR), NFS “[r]ecognize[d DWR] as the agency with the authority, jurisdiction, and responsibility to manage, control, and regulate ... wildlife populations on NFS lands.”
¶ 8 At approximately 5:30 a.m. on the morning of June 17, 2007, while Mr. Francom and his friends slept in their tents, a black bear raided their coolers. The bear then struck Mr. Francom's head with its paw, and when Mr. Francom attempted to sit up, the bear pushed him back down. When Mr. Francom yelled to his friends, the group exited their tents and scared the bear away with pistol shots. Mr. Francom described the bear as a large, cinnamon-colored black bear. Such black bears are native to Utah.
¶ 9 Mr. Francom reported the bear attack to Utah County Dispatch at 9:25 a.m. that morning. The dispatcher told Mr. Francom that she would notify NFS but that Mr. Francom needed to call the Utah Highway Patrol, who would in turn notify DWR. Mr. Francom did so, and DWR was notified.
¶ 10 DWR's decision to track and destroy the bear was based on its internal policy entitled “Handling Black Bear Incidents” (Bear Policy). The Bear Policy is based on the premise that “[b]lack bear management in Utah attempts to balance the interest of wildlife, pubic use and public safety.” DWR has a three-level classification system for nuisance bears. The highest classification, Level III, is for bears that have shown no fear of humans, have displayed aggressive behavior toward humans, and are deemed a threat to public safety. “Corrective action in these situations requires that the offending bear be destroyed.” At approximately 10:00 a.m. on June 17, 2007, DWR classified the bear that attacked Mr. Francom as a Level III bear.
¶ 11 On the afternoon of the attack, two DWR agents, Dennis Southerland and Luke Osborn, responded to the incident and pursued the bear with dogs. They initiated the search at the Campsite and tracked the bear for approximately four to five hours, with no success. They ended the search at approximately 5:00 p.m. on June 17, 2007, but planned to return to the Campsite and set a trap the next morning. The DWR agents focused on the Campsite because the bear had found food there and would likely return if attracted. And they knew humans or food could act as an attractant for the bear. Therefore, just before leaving the area at approximately 5:00 p.m., they checked the Campsite to make sure it was unoccupied and clean of any attractants.
¶ 12 It is undisputed that DWR made no effort to warn anyone who might arrive at the Campsite after 5:00 p.m., nor did DWR warn the camp host at the nearby Timpooneke Campground. The NFS District Ranger for the area testified that a warning about the dangerous bear could have been placed on the gate at the head of Timpooneke Road, the gate could have been closed, or the Campsite could have been closed. But the DWR agents explained that no such precautions were taken because it was already 5:00 p.m. on a Sunday, and they did not expect anyone to use the Campsite that evening.
¶ 13 As the DWR agents left the Campsite and traveled down the canyon on Timpooneke Road, they passed the Mulveys, who were traveling in the opposite direction. The DWR agents did not stop the Mulveys or warn them of the earlier attack but merely waved as they passed. The Mulveys “would not have camped in or anywhere near the area” and would have returned home had they known of the earlier attack.
¶ 14 After passing the DWR agents, the Mulveys proceeded down Timpooneke Road, set up at the Campsite, and cooked dinner. After dinner, they cleaned up the Campsite, put their coolers and garbage in their car, and went to bed in a single tent. Not all of the food made it into the car, however, and Sam brought a granola bar and a can of soda into the tent that evening. After the family had gone to sleep, a bear entered the Campsite, pulled Sam from the tent, and killed him. The bear was the same bear that had attacked Mr. Francom earlier that day.
¶ 15 Plaintiffs filed suit against the State, alleging that DWR's negligence led to the bear attack that caused Sam's death. After filing an answer and amended answer, the State filed a motion for judgment on the pleadings. 6 In its motion, as in its answer and amended answer, the State argued, among other things, that the permit exception to the Immunity Act, Utah Code section 63G–7–301(5)(c),7 barred the plaintiffs' claims. On appeal, we reversed, holding that the Immunity Act's permit exception had “no bearing” on the plaintiffs' claims.8
¶ 16 We declined to address two alternative arguments presented by the State in Francis I: (1) that the State owed no duty of care to the Mulveys and (2) that the natural condition exception, section 63G–7–301(5)(k) of the Utah Code, immunized the State from liability.9 We “reject[ed] the State's two alternate arguments because they were not argued below and [were] not apparent on the record.” 10
¶ 17 On remand in the district court, the State filed a motion for summary judgment, raising the two alternative arguments that we declined to address in Francis I. The plaintiffs filed a motion to strike, arguing that these two legal theories were barred by the law of the case doctrine. The district court denied the plaintiffs' motion and allowed them to respond to the State's motion for summary judgment. Following oral argument, the district court granted the State's motion for summary judgment on both duty and immunity grounds and dismissed the plaintiffs' case. Plaintiffs timely appealed.
¶ 18 We have jurisdiction pursuant to section 78A–3–102(3)(j) of the Utah Code. We affirm the district court's denial of plaintiffs' motion to strike but reverse its grant of summary judgment for the State.
¶ 19 ...
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