Volpe v. City of Lexington.
| Citation | 281 Va. 630,708 S.E.2d 824 |
| Decision Date | 21 April 2011 |
| Docket Number | Record No. 092583. |
| Court | Virginia Supreme Court |
| Parties | S. Charles VOLPE, co–administrator of the Estate of Charles Oliver Volpe, et al.v.CITY OF LEXINGTON. |
281 Va. 630
708 S.E.2d 824
S. Charles VOLPE, co–administrator of the Estate of Charles Oliver Volpe, et al.
v.
CITY OF LEXINGTON.
Record No. 092583.
Supreme Court of Virginia.
April 21, 2011.
[708 S.E.2d 825]
Mark D. Obenshain (Richard C. Armstrong; Andrew S. Baugher; Lenhart Obenshain, on briefs), Harrisonburg, for appellants.John W. Zunka (Alvaro Inigo; Zunka, Milnor & Carter, on brief), Charlottesville, for appellee.Virginia Trial Lawyers Association (Andrea J. Geiger; Marks & Harrison, on brief), Richmond, amicus curiae in support of appellants.Present: KINSER, C.J., LEMONS, MILLETTE, and MIMS, JJ., and LACY and KOONTZ, S.JJ.OPINION BY Justice WILLIAM C. MIMS.
[281 Va. 633] The primary issue in this appeal is whether the City of Lexington, which owned and operated a riverside park that included a low-head dam, owed a duty to warn its invitees of the dangers posed by the dam. We also consider whether the circuit court properly struck claims of gross negligence and willful and wanton negligence.
On April 23, 2006, Charles O. Volpe (“Charles”) drowned in the Maury River below a low-head dam during a visit to a riverside park owned and operated by the City of Lexington, Virginia (“the City”). His parents, S. Charles Volpe and Kim A. Volpe (“the Volpes”), qualified as administrators of his estate and filed suit against the City seeking damages for gross negligence, willful and wanton negligence, and public nuisance. The matter proceeded to trial by jury, at the conclusion of which the circuit court struck the ordinary negligence claims and refused to instruct the jury on public nuisance.1 The jury was unable to reach a verdict on the gross negligence claim, and the circuit court granted a renewed motion to strike that claim, finding that the danger posed by the dam was open and obvious and therefore the City had no duty to warn Charles. We awarded the Volpes this appeal.
In 1940, the City acquired the low-head dam, which traverses the Maury River in the City at a bend in the river known as Jordan's Point.2 The dam originally was constructed to raise the level of the river, forming a millpond, so water could be channeled into a millrace and used to power a mill. By the 1990s, the mill had ceased operating but the dam and the millpond remained.
The Jordan's Point dam is described as “low-head” because water cascades over, rather than through, it. As the water level rises, more water flows over the top of the dam and the velocity of the flow increases. However, the surface of the millpond remains calm and the heightened currents are not apparent to common observation. The pooled water may not appear higher than normal even when the volume of water flowing over the dam is several times greater than the normal rate.
When the water flow is high, it generates a dangerous condition on the downhill side of the dam called a hydraulic. The greater the flow of water over the dam, the more powerful the hydraulic. When a person is pulled into a powerful hydraulic, he may not be able to escape. The presence of such a potentially deadly hydraulic may not be apparent to common observation.
The hydraulic created by a low-head dam is unusually dangerous because it is uniform and spans the entire river. By contrast,
[708 S.E.2d 826]
naturally occurring hydraulics, often formed by boulders, are limited in size and uneven in shape. Consequently they usually will “kick [a person] to the left or right.”
In January 1997, City officials formed a committee to plan a public park at the City-owned riverfront at Jordan's Point. At the initial committee meeting, participants offered a variety of suggestions regarding the proposed park, including “regained public access to the water.” City officials planning the park viewed it as “a place where people should be able to swim.”
In 1998 the City hired an architecture firm to create a master plan for the park. According to notes from its September 2, 1998 meeting, the committee and the park's architect were “concerned about safety from the beginning, but we want swimming.” The master plan, dated August 23, 1999, set forth as a purpose of the park: “To provide a place for the citizens to access the River.” The plan proposed using [281 Va. 635] an existing tire dock, located 85 feet upstream from the dam, as the flatwater canoe launch. Part of the City's plan was to encourage and provide an opportunity for people to swim in the millpond. The City envisioned swimmers accessing the water from the tire dock and a grassy bank between the tire dock and the dam.
Thereafter, the committee met in October 1999. The minutes reflect that Andrew P. Wolfe, representing the Maury River Traditional Small Craft Association, questioned the location of the canoe launch due to concern of flooding. Committee member Carlton Abbott “acknowledged that the currently shown boat launch location is not ideal given the dam's proximity and crosscurrents.” The minutes state that Abbott “also mentioned that techniques are available such as a cable with drop straps to prevent boating accidents at dams.” 3
In 2001 the City submitted a grant application for the proposed park to the Virginia Department of Transportation (“VDOT”). The application stated that the “Safety Impact,” in part, would be that “[s]afe flatwater and whitewater canoe launches will be established using [previous] pavement and other stream bank stabilization measures.” City Manager T. Jon Ellestad testified that moving the canoe launch away from the dam was a justification for the grant. The City received $462,000 in grants from VDOT to create the Jordan's Point Park and implement the safety features proposed in the grant application. However, the City did not move the canoe launch from the tire dock. Likewise, prior to Charles' death the City did not take any safety precautions with respect to swimming in the river.
As planned, swimmers visiting the park accessed the millpond from the canoe launch. On most days, with very little water flowing over the top of the dam, the millpond was a placid pool with little detectable current. Swimmers climbed onto the dam without difficulty, and some jumped from the dam into the river below the dam.
On the day he died, Charles visited the park with his friend Bryc Talley (“Bryc”). Charles and Bryc planned to swim to the dam, climb onto it, and jump into the water below, as they previously had done many times without incident. Bryc testified that the river appeared “like it did on any other day. The water was pretty smooth and flat.” Bryc jumped into the millpond from the grassy bank between the tire dock and the dam. He swam over to the tire dock [281 Va. 636] and got out. Then Charles entered the river from the grassy bank, and Bryc jumped in behind him. The two swam toward the center of the dam, and the water “seemed pretty much how it did on any other day.”
According to Bryc, “it wasn't until we got right up next to it that you could tell a significant difference in the current.” The current “was just instant how it picked up.” It swept Charles, and then Bryc, over the dam. Bryc found himself spinning in a hydraulic which he had never experienced, but managed to escape to shore. Charles did not escape the hydraulic. Police recovered his body more than 22 hours later at the base of the dam.
[708 S.E.2d 827]
Defense witnesses testified that they also visited Jordan's Point on April 23, 2006, but would not swim because the river appeared dangerous. They testified that it had rained for several days and the river was “high,” “turned up,” “really white and brown,” “muddy,” and “obviously dangerous.” From the park, they saw the water pour over the dam faster than usual. Emily J. Heizer testified that she entered the river at the tire dock, but got out immediately because she felt a powerful current. She stated: “the edge of the dam was all white, with the water rolling back, I guess, hitting it, all white.” She testified that the sound of water rushing over the dam was amplified, and that the conditions on that day were the worst she had seen.
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