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June 2011    Download the Entire Issue (PDF) Available to the Public Vol. 37, No. 6   RSS Feed for Undercurrent Issues
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Bit by a Barracuda? Donít Blame the Government

from the June, 2011 issue of Undercurrent   Subscribe Now

Should the government warn you not to dangle your feet in the open ocean if you're in a national park or national monument? The family of 12-year old Sergio Perez thought so.

In 2004, Perez was bitten on the foot by a barracuda while sitting on the beach of the Buck Island Reef National Monument in St. Croix, his feet dangling in the water. His third and fourth toes were nearly severed, requiring surgery and months of post-op care. His family brought suit in federal court, seeking monetary damages.

Suing a U.S. government agency means you must first file a claim with the government, and if the government rejects or fails to respond to your claim, then you may file suit, in most cases under the Federal Tort Claims Act, meaning you litigate in federal court.

Perez's lawyers claimed the park personnel were negligent in not warning him that barracudas might attack those sitting on shore, and in not staffing the area with a park ranger to give those warnings and render emergency aid if an attack occurred. Yet defense evidence showed no similar attack had ever occurred in the park area. The only prior incident even remotely similar had occurred years earlier when a boat captain's foot was bitten after he threw the remains of a tuna can into the water and then dangled his feet into the gurry-laden water.

The federal District Court judge rejected Perez's claim that government employees in fact knew that barracuda attacks posed a substantial threat to bathers, because the evidence before the judge showed no prior similar incidents. This was a key decision, because if the employees knew of a substantial danger, then they were required to warn of it.

Barracuda, of course, are in the ocean nearly everywhere. It seems quite a stretch to us to sue the U.S. government because they nipped someone's toes.

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