Board of Sup'rs of Fairfax County v. Lake Services, Inc., 921892

• Decision Date: 25 February 1994
• Docket Number: No. 921892,921892
• Parties: BOARD OF SUPERVISORS OF FAIRFAX COUNTY, Virginia v. LAKE SERVICES, INCORPORATED. Record
• Court: Virginia Supreme Court

Page 600

440 S.E.2d 600

247 Va. 293

BOARD OF SUPERVISORS OF FAIRFAX COUNTY, Virginia v. LAKE SERVICES, INCORPORATED.

Record No. 921892.

Supreme Court of Virginia.

Feb. 25, 1994.

James V. McGettrick, Asst. County Atty. (David P. Bobzien, County Atty., on briefs), for appellant.

Francis J. Prior, Jr., Fairfax (Siciliano, Ellis, Dyer & Boccarosse, on brief), for appellee.

Present: All the Justices.

KEENAN, Justice.

The sole issue in this appeal is whether the Board of Supervisors of Fairfax County (the Board) is required to produce expert testimony establishing a standard of care in a negligence action for damages that occurred in the course of a dredging operation.

Because the trial court sustained a motion to strike the Board's evidence, we view the evidence in the light most favorable to the Board. Brill v. Safeway Stores, Inc., 227 Va. 246, 247, 315 S.E.2d 214, 215 (1984). The Board filed an amended motion for judgment against Lake Services, Incorporated, seeking recovery for damage to an underwater sanitary sewer pipe. The damage allegedly resulted from Lake Services' negligence in operating a barge during a dredging project. Lake Services had contracted with the Reston Home Owners' Association (RHOA) to dredge portions of Lake Thoreau, a private, artificial lake, which was owned by RHOA on the date of the accident.

The evidence shows that this type of dredging work entails the use of a floating construction crane, which removes material from a lake bed and deposits it on a barge. A boat then pushes the loaded barge to a staging area for unloading.

Larry Butler, one of RHOA's managers, testified that, in early July 1987, he gave Gary Jackson, Lake Services' foreman on the project, a map showing the location of the County's sewer line in the West Cove area of Lake Thoreau. The map noted that the pipe was "5.5' down."

Butler explained to Jackson that the notation "5.5' down" meant that the sewer pipe was submerged 5.5 feet below "normal pool elevation." Butler further explained that the term "normal pool elevation" referred to the elevation of the lake surface when it was full of water. Finally, Butler informed Jackson that Lake Thoreau's pool elevation was approximately four inches below normal at that time.

Lake Services conducted dredging operations in Lake Thoreau in July and August, 1987. It dredged in the West Cove area on two separate occasions, from July 13 to July 15, 1987, and from August 12 to August 20, 1987. Roger Lee White, a boat captain for Lake Services, was working in the West Cove area during these time periods. He was responsible for piloting the boat that propelled the barges between the dredging sites and the staging area.

Although White could not recall the exact date of an incident involving one of Lake Services' barges, he testified that it occurred about three days before Fairfax County employees began repair work on the sewer pipe lying across West Cove. The record shows that this repair work began on August 21, 1987. White testified that, at the time of the incident, he was piloting a boat that was pushing a loaded "hopper" barge out of West Cove.

A barge of this type is constructed of heavy gauge steel and has an open center compartment into which the dredged material is loaded. A loaded hopper barge has a depth below surface water level of as much as five to five and a half feet. This depth measurement is commonly referred to as its "draft."

White stated that he used his boat to push the hopper barge forward rapidly, in order to gain enough momentum to clear a sand bar located just outside the entrance to West Cove. During this maneuver, the barge struck a submerged object with sufficient force that the barge's movement was momentarily halted. The barge then broke free and White's boat pushed it out of West Cove. White reported the incident to Jackson, who instructed White "to keep [his] mouth shut." White later observed that the sewer pipe repair work was performed at the same location where the barge had struck the submerged object.

Jackson testified that the depth of the water to the bottom of Lake Thoreau, as well as the depth of any underwater objects, could be measured by "probing" the area. This activity involves the use of a rigid plastic pipe, 12 to 13 feet long, marked at one-foot intervals, which is lowered vertically into the water until it strikes either an object or the lake bed.

Jackson stated that he probed the lake bottom in the West Cove area on July 13, 1987, and found an old road that crossed the entire cove approximately four feet below water level. When asked whether he informed the other employees of this fact, Jackson replied, "Well, I don't recall the conversation."

Jackson also testified that one of his daily reports contained a notation that the barges crossing West Cove needed "to be lightened." Jackson stated that he sent his daily reports to Lake Services' office on a weekly basis. However, Jackson did not state whether the boat pilots or barge workers received any of the information contained in these reports. Further, the record is silent regarding whether, after July 13, 1987, Jackson or any other Lake Services employee probed the West Cove area to determine either the depth of the lake bed or the location of the County's sewer pipe.

In the days immediately after Lake Services' barge struck the submerged object, a very significant increase...