December 2009 - Parks & Recreation - 27

law rev iew
By James C. Kozlowski, J.D., Ph.D.

Fatal Bear Attacks
Test Immunity Laws

n general, a landowner can not be held liable for open and obvi-

ous natural hazards on the premises, including indigenous wild animals
not controlled or possessed by the landowner. In addition, as illustrated by the
case of Estate of Hilston v. State of Montana described herein, a public landowner
may also be immune from liability for dangerous conditions on the land, including grizzly bears, under an applicable state recreational use statute. On the other
hand, as illustrated by another case involving a fatal bear attack, Francis v. United
States, the federal government may not be immune for a failure to warn campers
in the vicinity of a known and immediate threat from a wild animal.

Recreational Use Statute
In the case of Estate of Hilston v. State of Montana, 2007 MT 124; 337 Mont. 302; 160 P.3d 507
(5/30/2007), Timothy Hilston was killed when he
was attacked by grizzly bears while field dressing
an elk he had shot while hunting in the BlackfootClearwater Wildlife Management Area. In response
to plaintiff's claim alleging negligent management of
grizzly bears on public land, the State argued that
it was " entitled to judgment as a matter of law under
the Recreational Use Immunity Act " which provided as follows:

shutterstock

A person who uses property, including property owned or leased by a public entity, for recreational purposes, with or without permission,
does so without any assurance from the landowner that the property is safe for any purpose if the person does not give a valuable
consideration to the landowner in exchange for
the recreational use of the property. The landowner owes the person no duty of care 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. Section 70-16-302(1), MCA

As noted by the state supreme court, the

purpose of the Act " is to grant a landowner relief
from liability to persons gratuitously entering land
for recreation purposes. " Moreover, the court found
that " Hunting " is expressly included within the definition of " recreational purposes. " Section 70-16301, MCA. Accordingly, the court concluded that Mr.
Hilston was using state-owned land for recreational
purposes, and that his use of the property was gratuitous, i.e., free of charge. Further, the court noted
that there is no allegation of willful or wanton misconduct by the State.
As characterized by the state supreme court, the
specific issue was whether the state recreational use
statute provided immunity for an attack by an indigenous wild animal on the property. In this particular instance, the trial court had determined that wild
animals are a " condition of the property " for which
a landowner owes no duty of care under the state
recreational use statute.
The state supreme court agreed that " 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. " As a result, the state supreme court concluded that " the State of Montana owed no duty to protect Mr. Hilston from the grizzly bear attack that led
to his unfortunate death. " The state supreme court,

www.NRPA .ORG

DECEMBER 2009

Parks & Recreation 25

December 2009 - Parks & Recreation

Table of Contents for the Digital Edition of December 2009 - Parks & Recreation