State workers who unsuccessfully searched for a black bear after it attacked campers had a duty to protect an 11-year-old boy who was fatally mauled later that day, attorneys for the child's family argued before the Utah Supreme Court Thursday.
"They took specific action to protect people from one campsite," said the family's attorney, Jonah Orlofsky. "Their neglect was, they didn't think someone else would come after 5 p.m."
Sam Ives was asleep on the night of Father's Day 2007 when the bear sliced through his tent, pulled him out and killed him. His family contends that Division of Wildlife Services workers who waved to them as they arrived at the site that evening should have warned them.
But state attorney Peggy Stone contended the workers didn't have that duty because the Timpooneke Recreation Area in American Fork Canyon is on federal land.
"The facts of this case are sad, but there is no liability on the state's part," Stone said.
The justices grilled her on that point.
"There was affirmative action directed toward a very specific category of people," said Justice Thomas Lee. "Doesn't that create a duty?"
Stone agreed the state would likely be responsible if, for example, they had put the bear in a faulty cage, allowing it to escape and maul the boy. She argued the search for the bear wasn't the same as a cage, but not all the justices seemed convinced.
"Bears are known to return to sites where they have found food," said Justice Christine Durham. "That's why [the workers] swept out the site."
Stone argued the state isn't expected to protect the general public from every possible threat. The bear, she argued, is part of the "natural condition" of the woods, a risk that people take on when they go camping.
The family disagreed. Orlofsky argued that unlike a mountain, a tree, or even an avalanche, a bear doesn't arise from a topographic feature of the land, and so doesn't fit the natural condition category.
The justices weren't so sure.
"If a mass of snow that falls is a natural condition of the land, how can a bear not be?" Lee said.
"All I can say is, wildlife is a different category. It gets down to that common sense," Orlofsky said.
Justices took the case under advisement. No date was immediately set for a decision.
Thursday marked the second time before the high court for Sam's family. The justices sided with them once in 2010, overturning a lower court decision to dismiss the case based on governmental immunity. But the case was dismissed again last year when a lower court judge ruled the state didn't have a specific duty to Sam's family and were also exempt because the bear is a natural condition of the land.
Meanwhile, the family also sued the federal government, and last year won a nearly $2 million judgment. They are seeking $550,000 from the state, the maximum that can legally be awarded.
Sam's mother, Rebecca Ives, sat in the front row of the Utah Supreme Court chambers Thursday, quietly crying through most of the hearing.
"It's extremely hard to have to relive that and hear that, because they're talking about your little boy," she said. "None of them were there for the horror."
Sam and his family mother, stepfather and half-brother arrived at the campsite about 5:30 p.m. that night in June 2007. They found an empty campsite, not knowing it had been abandoned by another group of campers earlier in the day after a bear attack. No one in the earlier group was hurt. When they couldn't find the bear, DWS workers cleaned out the campsite and left, intending to set a trap next day, according to court documents. The bear was found the day after Sam's death and killed.