October 24, 2018

Florida’s Gun-Free Businesses May Soon Be Held Liable for Violence on Their Premises

“A new proposal would hold store owners responsible for the mayhem that results when they decide to ban guns on their premises.”<<<Read More>>>

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Kaine’s Gun Control Bill Is A Backdoor Ban On Private Sales

Kaine’s proposed law, entitled the “Responsible Transfer of Firearms Act,” places a criminal federal liability on anyone who transfers a firearm to an individual prohibited from possessing one by federal law, according to a fact sheet provided by Kaine’s office. Under current law, only federal firearms licensees (FFLs) are criminally liable if they sell a gun to a prohibited individual. Kaine’s law would extend that criminal liability to private individuals as well.

Source: Kaine’s Gun Control Bill Is A Backdoor Ban On Private Sales

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Have we cracked the nut of individual strict liability for gov’t bureaucrats involved in releasing dangerous animals in America?

It’s time to ask the question: Are wolves the chosen and specially selected de facto agents of the lawless bureaucrats? Shouldn’t the principle of strict liability apply to the individuals in their individual capacities for the negligent release of dangerous wild animals? Prof. Hamburger’s 2014 book “Is Administrative Law Unlawful?” sets out considerable legal research with court precedent and history questioning every aspect of bureaucratic overreach of the burgeoning Administrative State and also deals with holding individual bureaucrats in government liable. And don’t forget the deep pockets of the NGOs who are also instrumental in the release of dangerous wild animals. Also don’t forget the deep pockets of a lot of donors who have specific knowledge about wolf releases, going on hikes in the wilderness to see the wolves, verbally encouraging the wolf releases, an activity that many rightfully compare to criminality. Aiding, abetting and encouraging unlawful behavior, behavior they should have known was very risky toward innocent victims such as ranchers and their property, can have legal consequences.

http://www.cfact.org/2014/08/25/u-s-government-releases-predators-against-its-own-people/

Check out 3. in the link below summarizing Gerry Spence’s use of strict liability to make Kerr-McGee liable for the negligent release of a dangerous substance. How difficult could it be to apply strict liability for the classic purpose, that is, the intentional release of a dangerous wild animal……………….

http://online.wsj.com/news/articles/SB10001424052970203550604574360481932632724?mg=reno64-wsj&url=http%3A%2F%2Fonline.wsj.com%2Farticle%2FSB10001424052970203550604574360481932632724.html

Livy, sharing thoughts and opinion from a bunkhouse on the southern high plains of Texas.

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Law Suit: Company Was Negligent and Liable for Coyote Attack

coyotecemeteryFor awhile now I have reported on certain incidences of law suits against the government claiming they are liable when large predators attack people. Last month I put together an article highlighting some of the events that have occurred that have resulted in lawsuits being filed or the threat of such.

Perhaps the most prominent of all these stories happened in 2007 when Sam Ives, while camping with his parents in the Uinta National Forest. Ives was hauled from his tent in the middle of the night by a black bear [this was edited to correct an error stating the bear was a grizzly], dragged into the forest and was killed. See the details here.

As tragic as that story is of itself, perhaps the real tragedy came when officials did not alert this family that the campground had been closed due to the presence of this bear. The family has filed a lawsuit claiming that because of the circumstances, the employees of the government were negligent in doing their jobs.

There is a bit more to this than a mere claim of negligence. In a court appeal, Francis v. State of Utah, the Utah Supreme Court ruled that wildlife are not a “natural condition of the land.” What this essentially means is that most states have some kind of immunity clause or law that protects the governments from lawsuits of this kind. In Utah, that immunity clause happens to contain language dealing with “natural conditions of the land.” The immunity applies, according the Utah Supreme Court, on things that are considered “natural” and evidently grizzly bears and other wildlife are not considered “natural.” What is not clear is exactly why but the notion that wildlife is “managed” and/or “protected” probably has a lot to do with it.

If that be the case, then is their liability in existence when all wildlife is “managed” and “protected?”

The horrors for some people that have existed since the introduction of wolves into the Greater Yellowstone area, portions of Central Idaho, New Mexico and Arizona, have brought much debate about whether or not Government is liable for property damage, economic damage and personal injury or the dreaded revelation of a wolf attack resulting in the death of a human.

The Utah case may set a precedent in this regard. Simply that the Utah Supreme Court has determined that wildlife are not a “natural condition of the land,” is it stretching the truth at all to assume that human transplanted wildlife, i.e. vicious predators like wolves and grizzly bears, would qualify as an expansion of that liability?

In some cases for some people, it would seem this immunity issue and how it applies to wildlife, would be a good thing, but I’m not so sure it will for most. Take for example a woman in California who is suing the owners of cemetery plot because while she was visiting her mother’s grave, she was attacked by a coyote. She is claiming, “various severe and permanent injuries.” She claims the company was negligent and liable.

Is the company liable for a coyote attack? Not knowing all the laws governing a person’s right to protection, including the ability of the cemetery company to ensure coyotes won’t attack customers, it is difficult to understand where any liability might start in this case. What are all the extenuating circumstances leading up to the attack? If it were possible to bring suit against a private company for a wild animal attack, isn’t it just as plausible to claim that the government, whose responsibility it is to “manage” wildlife, is more responsible than the cemetery company? One would think so, but then we have to deal with these government immunity laws.

What a can of worms!

I am of the opinion that government immunity should not prevail when, in cases like Sam Ives, negligence appears to have played a role in the young man’s death. Outright negligence by any person or organization should never be protected. I have often wondered if the employees who knew Sam Ives and his family went into that campground after it had been closed and did nothing about it, would have acted and reacted differently if they knew they would be held liable?

It will be interesting to watch to see if this unfolds further and to see if it will have any impact on how wildlife is managed, species that are protected and further plans for introducing large predators into a landscape populated by humans.

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Habituated Large Wild Predators and Liability

bearinfeederHumans share living quarters with wildlife and as a result there are inherent risks we assume. Therefore, no one or entity is liable should a bear, wolf or mountain lion decide to attack a human while lounging in a hammock in their back yard……right?

One would think. BUT……..

This morning I was reading another article about “nuisance” bears. It seems all summer long that’s all I’ve read are stories about bears and humans crossing paths, and the idiot responses and comments by wildlife officials as well as law enforcement.

In Michigan there seems to be a problem in the Iron River areas with what is being described as “multiple reports of nuisance bears” and “habituated, showing no fear of humans.” It appears from comments and actions that the Michigan Department of Natural Resources (MDNR) thinks people are feeding the bears, whether intentionally or by utilizing irresponsible habits, like leaving out garbage, that feeds the bears unintentionally.

Is there a liability issue here? I’m not lawyer. I’m just a writer asking questions and providing readers with some interesting case histories to ponder.

Michigan, like most states, has some kind of immunity law they believe protects them for actions or responsibilities undertaken as a function of their governmental entity and duties. I did some brief research into that and what I found, I saw no direct mention into anything concerning wild animals. I believe what I also found was that there are no laws restricting the feeding of wildlife in a person’s backyard….or front yard for that matter. There are many guidelines for feeding and baiting game animals.

What if people were intentionally feeding bears or some other large predator, and private property gets damaged or worse, personal injury or death? What if someone was feeding deer and the neighbor next door contracted Lyme disease? Is there liability? Somewhere?

In 2009, Charles E. Vandergaw, was charged with illegal feeding of bears at his remote cabin in Alaska. His cabin was named, “Bear Haven” and Vandergaw was featured in an Animal Planet show about his close encounters of the Alaska wild bears kind. According to a Daily Record article dated May 20, 2009, Alaska wildlife officials, “consider feeding bears a danger to humans.” What Vandergaw was charged with was improperly feeding the bears through a bear baiting permit he had obtained through the Alaska fish and game.

In October of 2007, Tom Holman fed bears in his backyard. Holman was a professional photographer. He lured bears in for the purpose of taking photographs and selling them. When I first reported on this event in 2007, information available said that “Tom lives in an area of Idaho where many neighbors like to feed wildlife. It’s not like he is the only one.” Was he targeted because he was making money? Did this somehow make him more liable?

But there is a different twist to this story. A grizzly bear, an endangered species in Idaho by federal standards, regularly came to Holman’s feeder. It was determined by the government officials that the bear was “habituated”, and as a result had become a danger to other people. The bear was killed.

Officials wanted to bring charges against Holman, not for feeding wildlife, as there are no laws prohibiting it in Idaho, but for violation of the Endangered Species Act……causing the avoidable death of a protected species. I do not believe any charges in that regard were filed but we see the beginnings of liability here.

Recently in Utah, the State Supreme Court issued an interesting ruling as it may pertain to liability and responsibility of protecting people from dangerous wild animals. Over time, this ruling may have sweeping consequences on how states and the courts view liability and whether or not people will be allowed to feed, intentionally or not, wildlife in their back yards, or be held responsible.

In 2007, Sam Ives was camping with family at Uinta National Forest. During the night, a grizzly hauled Sam Ives out of his tent, into the forest and killed him. A sad and unfortunate event. However, earlier that same day, the same grizzly bear attacked another man at the very same campsite. The courts not only ruled that the state didn’t do enough to protect Sam Ives from grizzly bears, their interpretation of Utah’s immunity laws leaves us wondering if other states will begin interpreting immunity laws, as they pertain to wildlife, in a similar manner.

In Francis v. State of Utah, the Utah Supreme Court ruled that wildlife are not a “natural condition of the land”, meaning the state’s immunity in this area does not include wildlife.

The differences that I can see in the issues in Michigan as opposed to those in Utah is that the bear attack on Sam Ives occurred on public land and in a designated campsite. But one does have to ask to what degree of liability is the state assuming when, as in Michigan, officials are doing what they can to provide public safety and protect people from being harmed by habituated bears. They are assuming responsibility for the problem. Will that make them subject to lawsuits, especially if a court rules on immunity as was done in Utah? In addition, what amount of responsibility is then put on the person(s) that deliberately feed wildlife?

So, long as there are greed and lawyers, lawsuits will be forthcoming; the result being the implementation of more and more laws prohibiting the feeding of any wildlife, including birds. This may appear all well and good, but this action will do little for the results of too many bears or large predators and/or not enough natural food to go around.

Who becomes liable for that action?

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Fallout From Holding States Liable for Animal Attacks and Damages

Two days ago I wrote about how the state of Utah can be held liable for the death of an 11-year-old boy by a black bear, according to a ruling in the Utah Supreme Court. In that ruling the Supreme Court stated that bears are not part of the “natural condition” one expects to find in the forests and fields. In addition, the same ruling declared that the State of Utah established a “special relationship” with the family of the 11-year-old boy and campers in general because the state was carrying out several things in order to protect the campers from bears. However, the State of Utah can now be sued by the family and may be charged with negligence in carrying out their duties to keep campers safe.

I spoke of the precedent such a ruling may carry in that it raises the question as to how far the courts will go in holding states liable for attacks on humans by wild animals and the damages they can create. What I did not talk about in this article was the negative fallout that may result from this ruling.

There are at least two ways of looking at how states may choose to react to this ruling in Utah. The more obvious side would be to err on the side of caution, perhaps even to the extreme, and quickly move to shut down any and all campsites, for example, when any reports surface of the presence of bears or any other large predator. We may be seeing that now as one report out of Colorado today reveals that officials at the James M. Robb Colorado River State Park, have banned all campers from sleeping in tents because of a reported bear in the area. Officials are attempting to trap the bear and if not successful, the campground will be closed.

Another example, one that doesn’t involve large predators, comes to us from California, where three campgrounds have been closed because squirrels have been found to be carrying bubonic plague.

A less obvious repercussion of the Utah court ruling could begin to appear should states attempt to ensure they are not establishing a “special relationship” with tax payers. If you may recall, the Utah Supreme Court granted the family of Sam Ives, the boy attacked and killed by the bear, standing to sue the State of Utah holding them also responsible for the boy’s death. That ruling was based on two things: one, that a black bear was not a “natural condition”, or an object that gave the state immunity from liability, and two, that the state had established a “special relationship” with the family.

This “special relationship”, at least how I understood the majority opinion, resulted in the state taking on the responsibility to ensure the safety of the campers and that officials had taken several steps to warn other campers and had spent several hours attempting to locate the bear that attacked the boy. Does this mean the state will not be liable if they do not establish a “special relationship?” How would that change the landscape when it comes to campers, hikers, etc.?

And what is not talked about in relation to this Utah incident is what becomes of the liability issue when the states participate in the introduction, reintroduction of moving of dangerous wild animals?

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Are States Liable for “Dangerous” Wildlife?

The Utah Supreme Court has ruled in Francis v. State of Utah that wildlife are not a “natural condition on the land.” First, some brief history that led up to Francis v. State of Utah and then an explanation.

On June 16, 2007, one Jake Francom was camping with friends in Uinta National Forest when he was attacked by a black bear. He was not seriously injured. Consequently, officials from the Utah Division of Wildlife Resources (DWR) determined by employing established bear policy that the bear needed to be found and killed. Attempts to locate the bear failed immediately.

Officials did not close the campsite where Francom was attacked, nor did they put up signs. They intended to return the next morning and set up a trap. After a final inspection of the campsite, the two DWR employees drove away and on the way out met a car of campers coming in. They waived and made no attempt to stop or warn the campers.

In that car of campers was 11-year-old Sam Ives. Sam and family ended up camping at the same site where Francom had been attacked. The same bear returned to this campsite later that night, dragging Sam Ives from his tent and killing him. The family has successfully sued the Federal Government and are now in the process of suing the State of Utah. The latest ruling coming from the Utah Supreme Court.

At issue here is whether or not the State of Utah is immune from liability as was the ruling from a lower court. The Utah Supreme Court has overturned the lower ruling, essentially declaring that the family of Sam Ives can go ahead with suing the State of Utah. It will be up to a court to decide whether or not the State of Utah was negligent in the death of Sam Ives. My question becomes one of what precedent is being set in this ruling in Francis v. State of Utah.

The State of Utah claims it is immunized from liability due to Utah Governmental Immunity Act, Utah code section
63G-7-301(5)(c). The District Court ruled in favor of the State interpreting that the Immunity Act protected the State from liability in the Sam Ives’ death suit. The Utah Supreme Court has overturned that ruling.

According to the Immunity Act, the State of Utah claims immunity based upon the fact that they believe a wild black bear is a “natural condition on the land” or “any natural condition on publicly owned or controlled lands.” The Utah Supreme Court disagrees with that interpretation, stating in the majority opinion of Francis v. State of Utah, that wildlife is not a “natural condition on the land” and define this “natural condition on the land” as having to be “topographical”, i.e. rivers, mountains, landslides, etc. and not wildlife.

Does this ruling present a different playing field when it comes to liability to the governments over damages to property and attacks on humans? It may just do that, but in order for that to be considered here, I think one would have to look at the entire Supreme Court ruling on this issue because in the ruling it is taken as a whole as well.

Where it has been determined in Utah that wildlife is not a “natural condition” and doesn’t automatically immunize the State from liability, I think just as important is Part II of what the Supreme Court also overturned; whether or not the State had a “duty” to protect the family of Sam Ives or any other group or individual, such as campers.

While a blanket of liability to the State can’t be cast over every attack on a human by any wildlife species, consideration has to be given as to whether the state has a duty to perform that protection, according to the ruling in Francis v. State of Utah.

The Utah Supreme Court in this ruling determined that the Utah Division of Wildlife Resources had a duty to protect Sam Ives due to the establishment of a “special relationship.” The court used the following criteria in making that determination:

(1) by a statute intended to protect a specific class of persons of which the plaintiff is a member from a
particular type of harm; (2) when a government agent undertakes specific action to protect a person or property; (3) by governmental actions that reasonably induce detrimental reliance by a member of the public; and (4) under certain circumstances, when the agency has actual custody of the plaintiff or of a third person who causes harm to the plaintiff.

In layman’s terms, the question should be asked, if the state knowingly has a dangerous wild animal, i.e. a bear, a wolf or coyote, etc. and is making the effort to do what they can to protect the public, or ranchers, campers, hikers, and serious injury or death occurs, as with Sam Ives, can the state be sued? It appears to me that they can and rightly should be especially when a government agency knowingly and purposefully places dangerous wildlife where humans travel and a person gets injured or killed.

It will be interesting to see how this ruling will affect others in their decision of whether or not to sue the State of Utah for wildlife encounters and how this applies now and in the future with other states.

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Beaver, Bogs and Lawyers….And Stupidity

Remember the Maine couple who are being sued by their town because beavers, that built a dam that broke, destroyed part of a road? There’s a response to that news story[scroll down a little ways for the story] of a person who has lived next to the pond who claims the pond was stocked with beavers over 20 years ago, by an “agency”.

beaver

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