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Evert v. United States

United States District Court, D. Wyoming

October 23, 2012

Yolanda EVERT, individually and as the Qualified Wrongful Death Representative of Erwin Evert, deceased, Plaintiff,
UNITED STATES of America, Defendant.

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Mark Aronowitz, Emily Roberts Rankin, The Spence Law Firm, Jackson, WY, for Plaintiff.

C. Levi Martin, Nicholas Vassallo, U.S. Attorney's Office, Cheyenne, WY, for Defendant.



Plaintiff, Yolanda Evert, the appointed Wrongful Death Representative for her deceased husband, Erwin F. Evert, sues Defendant United States of America for the negligent or wrongful acts and omissions of government employees, which Plaintiff claims resulted in Mr. Evert inadvertently entering a bear trap site on June 17, 2010, leading to his fatal mauling by an adult male grizzly bear. Document (Doc.) No. 1. The United States argues for summary judgment under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), which provides for a limited waiver of sovereign immunity and requires the claim be for " circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." Id. The United States argues that a private person in its circumstances would be protected against liability under Wyoming's Recreational Use Act, Wyo. Stat. Ann. §§ 34-19-101 et seq. (WRUA), because a landowner, charging no fee for recreational use, owes no duty of care to keep the area safe for entry or recreational use by others, or to give any warning of a dangerous condition, use, structure or activity. Wyo. Stat. Ann. § 34-19-102.

This issue was the subject of an earlier motion to dismiss by the United States. Applying the standards for dismissal, this Court denied the motion on February 15, 2012, concluding Plaintiff's factual allegations from the Complaint contained the important elements of (1) actual knowledge by the government landowner of a danger that is, (2) sufficiently great to make it obvious to the government landowner that the specific risk and harm of a bear mauling would follow, and (3) not known to Evert, nor obvious to those entering the premises, nor inherent in the activity of walking down a forest trail. Doc. No. 18.

Now that additional facts have been developed through discovery, the United States is reasserting its argument for immunity on the basis that evidence of " willful or malicious" misconduct is entirely lacking and that Mr. Evert had knowledge of the danger. For the reasons that follow, the Court agrees with the United States and will grant summary judgment and dismiss Plaintiff's claims.


Mr. Evert, a local seasonal resident of the Kitty Creek area, was killed by an

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adult male grizzly bear (designated bear # 646) on June 17, 2010. The location of the fatality was a study site where bear # 646 was captured, immobilized, handled, and radio collared earlier that day by a 2-man field crew of the Interagency Grizzly Bear Study Team (IGBST) traveling on horses. The field crew left bear # 646 as he recovered, and removed the study site closure signs upon leaving. As the field crew returned to the trailhead, they encountered Plaintiff who asked if they had seen her husband who was hiking on foot and was overdue. The field crew leader rode up the trail looking for Mr. Evert, and ultimately found him dead due to a bear mauling at the study site where bear # 646 had been captured earlier that day. DNA from bear # 646 matched DNA from the bear hair recovered from Mr. Evert's body.

The IGBST is administered by the United States Geological Survey (USGS) and is comprised of an interdisciplinary group of personnel responsible for long-term monitoring and research efforts on grizzly bears in the Greater Yellowstone ecosystem. On May 27, 2010, an IGBST field crew consisting of federal employees, Chad Dickinson and Seth Thompson, began grizzly bear capture operations in the Kitty Creek drainage. At the bottom of the Kitty Creek drainage there are fourteen private cabins authorized under special use permits issued by Forest Service. Cabin access is available by way of Forest Service road 448 off U.S. 20. Near the last cabin up Kitty Creek, Road 448 is blocked by a locked gate and decommissioned. Kitty Creek Trail (Forest Service trail 756) continues up the drainage running parallel to the decommissioned road. In addition to the decommissioned road and the Kitty Creek Trail, the Kitty Creek drainage has multiple decommissioned spur roads that were formerly used for logging. All spurs have been closed, obliterated, and reseeded.

From May 27-June 17, Dickinson and Thompson placed three trap sites in the Kitty Creek drainage, which consisted of bait (game meat and rumen) in the vicinity of snares. Closure signs were placed at each site during trapping operations. Two different signs were used. The one used for Site # 3 [1] (where the mauling occurred) stated, " DANGER! BEAR TRAP IN THE AREA. THE AREA BEHIND THIS SIGN IS TEMPORARILY CLOSED. THE CLOSURE IS EFFECTIVE FROM 6-11-10 TO 6-20-10." [2] Five of these signs were placed along the access route to Site # 3. Doc. No. 47-4, p. 16, 48:2-7. Site # 2 [3] displayed the sign, " CLOSED. AREA BEHIND THIS SIGN IS CLOSED TO HUMAN TRAVEL-DANGEROUS BEAR."

No bears were captured from May 27 to June 16. On June 17, bear # 646 was captured at Study Site # 3 and an adult female grizzly bear was captured at Study Site # 2. Dickinson and Thompson immobilized bear # 646,[4] pulled the bear's tooth,

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tattoo-stamped its upper lip, tagged its ears, administered antibiotics, took samples and fitted the bear with a radio collar. Doc. No. 1, ¶¶ 44-45. The field crew then removed the snare equipment when bear # 646 was showing just limited signs of recovery, in order to check Site # 2, where the female bear was captured. Id. at ¶¶ 46-47. Upon leaving at approximately 12:30 p.m. to check Site # 2, the crew removed all warning/closure signs from Site # 3.

Mr. Evert and his wife purchased their cabin in the Kitty Creek drainage in 1971. They came to Wyoming yearly to botanize and hike. In fact, Mr. Evert was reported to be a strong hiker who hiked regularly up Kitty Creek as well as off-trail, including many of the old logging spurs and decommissioned roads. Since early 1990, " grizzly bears have moved into the North Fork and are so prevalent that the Forest Service has designated the area as ‘ grizzly bear country.’ " Doc. No. 40-2, p. 6. Plaintiff reported that it was " not ...

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