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Evert v. United States

United States Court of Appeals, Tenth Circuit

September 30, 2013

YOLANDA EVERT, individually and as the qualified wrongful death representative of Erwin Evert, deceased, Plaintiff-Appellant,

D.C. No. 2:11-CV-00339-NDF D. Wyo.

Before HARTZ, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL, Circuit Judge.


Harris L Hartz Circuit Judge

Yolanda Evert brought this action against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 ("FTCA"), after her husband Erwin Evert was fatally mauled by a grizzly bear in the Shoshone National Forest. The district court granted summary judgment in favor of the United States, reasoning that the Wyoming Recreational Use Act, Wyo. Stat. §§ 34-19-101 to 107 ("WRUA"), barred her claims. On appeal Ms. Evert contends that the district court erred in finding that the WRUA applied under the circumstances of her case. She further argues that even if the WRUA applies, the government's conduct falls within an exception to the WRUA's limitation of liability that applies when a land owner has engaged in a "willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity[.]" Id. § 34-19-105(a)(i). Because the district court correctly determined that the WRUA applied, and because Ms. Evert has failed to demonstrate a genuine issue of fact concerning whether the United States willfully or maliciously failed to guard or warn Mr. Evert, we affirm the grant of summary judgment.


The Interagency Grizzly Bear Study Team (IGBST) is a study team composed of members from a number of state and federal agencies charged with monitoring grizzly bears in the Greater Yellowstone ecosystem. On May 27, 2010, IGBST researchers Chad Dickinson and Seth Thompson began grizzly-bear-trapping operations in the Kitty Creek drainage area in the Shoshone National Forest. They established three trap sites within the drainage. These sites were located on or adjacent to decommissioned spur roads formerly used for logging. Site #3, at which Mr. Evert was fatally mauled, was created on June 12, 2010.

Near the bottom of the Kitty Creek drainage are private cabins authorized under Forest Service permits, including the cabin owned by Mr. and Ms. Evert, who had lived there seasonally for 40 years. Mr. Evert was a botanist who enjoyed hiking throughout the Yellowstone ecosystem. He and his wife hiked the trails and decommissioned roads in the Kitty Creek drainage.

Although most roads in the area were closed, obliterated, and reseeded in 1999 to provide grizzly-bear habitat, the Forest Service maintains a trail in the Kitty Creek drainage, trail #756, known as the "Kitty Creek Trail." Trail #756 runs on top of a decommissioned road for approximately one tenth of a mile before it diverges from the road and then runs parallel to it.

To reach trap Site #3 from the cabin area, one could take two routes: (1) travel approximately one mile on Forest Service trail #756, then turn west on a decommissioned spur, walk up a steep hill, and travel for another half-mile; or (2) travel on the parallel decommissioned road for nine-tenths of a mile and then turn onto the same decommissioned spur. The decommissioned spur contained impediments to hiking, including "dirt berms, trees growing up, and deadfall." Aplt. App., Vol. I, tab 11 at 81.

To warn the public of grizzly-bear-trapping operations in the Kitty Creek drainage during May and June 2010, the IGBST researchers placed signs in the vicinity of each trap site. They placed five signs near Site #3, three of them along the decommissioned spur. These signs read: "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." The IGBST researchers made no other specific effort to notify Kitty Creek residents of the trapping operation, even though a Forest Service employee had recommended that they inform residents of their trapping activities.

As of June 16, there were three snares set at Site #3. The IGBST researchers used bait to lure bears to the trap sites. Being caught in a snare trap is a traumatic event that can cause a grizzly bear to become severely stressed and to react aggressively.

On the morning of June 17, having finished their work at Kitty Creek, the IGBST researchers traveled to the trap sites on horseback, planning to dismantle the sites before they returned home. As they approached Site #3, they heard and then saw grizzly bear #646 caught in the snare trap. Bear #646 was later found to be an adult male grizzly bear weighing 425 pounds. As they came closer, the bear charged them, tried to get away, and bit on the snare cable.

Mr. Dickinson immobilized bear #646 with three separate doses of an anaesthetic, Telazol. The last dose was administered before 10:00 a.m. The IGBST then removed a tooth from the bear, tattooed its lips, tagged both ears, and collared the bear. The bear first showed signs of recovery from the anesthetic at about 10:50 a.m. When the two researchers left Site #3 at 12:30 p.m., bear #646 had held its head up but had only partially recovered from the anesthetic and was still at the site. Before they left, the researchers removed the snares, cleaned up the bait, and removed signs warning hikers of the bear trap.

At approximately 12:45 p.m., Mr. Evert left his cabin for a hike in Kitty Creek. He approached Site #3 and was fatally mauled by bear #646. Mr. Dickinson later found his body approximately 21 yards from where bear #646 had been left to recover from anesthetic.

Ms. Evert subsequently filed her complaint for wrongful death as the personal representative of Mr. Evert's estate. The United States moved to dismiss Ms. Evert's complaint under the WRUA, arguing that Mr. Evert was present in the Shoshone National Forest for a "recreational purpose, " and that he had not been charged a fee to engage in hiking activities in the Forest. In denying the motion to dismiss, the district court rejected Ms. Evert's arguments that the WRUA did not apply, but ruled that she had demonstrated a sufficient issue concerning whether her case fell within an exception to the WRUA, based on the government's "willful or malicious failure to guard or warn" Mr. Evert, to survive a motion to dismiss.

After further discovery, the government moved for summary judgment, again arguing that the WRUA immunized it from liability and that the "willful or malicious" exception did not apply. The district court agreed with the government that the WRUA exception was inapplicable, and granted it summary judgment on this basis.


We review the district court's order of summary judgment de novo, applying the same standard that the district court should apply. See Helm v. Kansas, 656 F.3d 1277, 1284 (10th Cir. 2011). Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In conducting the analysis, we "view[ ] all facts [and evidence] in the light most favorable ...

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