We saw a notice at church yesterday reminding the kids that it was time to start signing up for summer camp, now only a scant month away. We remember camp fondly – dirt, mosquitoes, busy days leaving us hungry enough to eat a bear. If we could find a bear.
Of course, finding a bear might have been a tall order in the wilds of eastern Ohio several decades ago. There are a lot more roaming the woods these days. But even if we had found an ursus americanus, locating our prey would have only been half the task. It is a profound truth of life that sometimes you eat the bear, and sometimes the bear eats you. You might ask poor Tim Hilston (although your question will have to wait until the next life) …
Mr. Hilston understood the bipolar nature of life, or maybe just the literal truth of the expression. Back about the turn of the century (this century), Mr. Hilston was field-dressing an elk carcass when he became a carcass himself at the hands — the paws, maybe — of a couple of grizzly bears.
Kind of a gory way to go … but the story doesn’t end there. After all, this is America. Nothing happens anymore, even in the wild, without someone being blamed for it, and this was no exception. The late Mr. Hilston’s estate promptly sued the State of Montana for letting the bears kill poor Mr. Hilston. The State defended under the Montana Recreational Use Act, saying that wild and hungry bears were a “condition of the land” for which it was not responsible. Mr. Hilston’s survivors argued that the State’s allegedly lousy bear management was a problem having nothing to do with the land.
The Court said ferae naturae — judges love to use Latin words, these meaning “wild animals” — were as much a condition of the land as a tree or a rock or a stump. Mr. Hilston’s tragic demise was not the State’s fault.
Estate of Hilston ex rel. Hilston v. State, 337 Mont. 302, 160 P.3d 507 (S.Ct. Mont., 2007). Mr. Hilston was hunting elk in the Blackfoot-Clearwater Wildlife Management Area “BCW”). Mr. Hilston shot an elk, and while he was field dressing the carcass, he was attacked and killed by grizzly bears. State and federal wildlife investigators captured the two grizzly bears responsible for the attack, a 12-year-old female and one cub, and killed them.
The BCW is located in the Blackfoot Valley about 45 miles east of Missoula on state and private land, and is open to public access free of charge. Mr. Hilston’s estate sued the State of Montana for negligent grizzly management. The State filed a motion for summary judgment, and the trial court held it was entitled to judgment as a matter of law under the Recreational Use Immunity Act. Hilston appealed.
Held: Grizzly bears are a “condition of the property” under the Recreational Use Immunity Act (§70-16-302, MCA). Hilston contended that the Act applied only to defects in property, and that that grizzly bear management in the BCW is not a “condition of the property” for which the Act grants immunity. The Court disagreed.
The Act provides that a landowner otherwise qualified under the terms of the Recreational Use Immunity Act owes no duty of care to a user “with respect to the condition of the property, except that the landowner is liable to the person for any injury to person or property for an act or omission that constitutes willful or wanton misconduct …” In this case, there was no dispute that the late Mr. Hilston was using state-owned land for recreational purposes, that his use of the property was gratuitous, and the alleged mismanagement by the State was not willful or wanton. The only question was whether the statute provides immunity for an attack by an indigenous wild animal on the property, and, derivatively, whether wild animals are a “condition of the property” for which a landowner owes no duty of care.
The rule of law is a landowner cannot be held liable for the acts of indigenous wild animals occurring on his or her property unless the landowner has actually reduced the wild animals to possession or control, or introduced a non-indigenous animal into the area. Grizzly bears are wild animals existing upon the property, and, as such, are a “condition of the property” for purposes of Montana’s Recreational Use Immunity Act.
Thus, the State of Montana owed no duty to protect Mr. Hilston from the grizzly bear attack that led to his unfortunate death, and the District Court correctly granted summary judgment for the State.
– Tom Root