Justia.com Opinion Summary:Download as PDF
In April, 2006, Charles Volpe drowned in the Maury River below a low-head dam during a visit to a park owned by the Appellant City of Lexington. His parents S. Charles and Kim Volpe (Appellees) brought suit against the City seeking damages for gross negligence, willful and wanton negligence and public nuisance. The matter proceeded to a jury trial; in the end, the court struck the ordinary negligence claims and refused to instruct the jury on public nuisance. 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 the danger posed by the dam was open and obvious and therefore the City owed no duty to warn Charles. The record reflected that while many people swam in the waters created by the dam without incident, there was a deadly, hidden hydraulic created by an unusually strong current that the City knew existed. On appeal, the Supreme Court agreed that the "natural, ordinarily encountered dangers" of the river were open and obvious to Charles, the hidden hydraulic was not. The Court held that the City had a duty to warn Charles of the hidden dangers, and that the lower court erred by striking the Volpes' claims of gross negligence against the City, and remanded the matter for further proceedings. The Court affirmed the lower court's judgment striking the claim of willful and wanton negligence.
Receive FREE Daily Opinion Summaries by Email
Present: Kinser, C.J., Lemons, Millette, and Mims, JJ., and
Lacy and Koontz, S.JJ.
S. CHARLES VOLPE, CO-ADMINISTRATOR OF
THE ESTATE OF CHARLES OLIVER VOLPE, ET AL.
Record No. 092583
OPINION BY JUSTICE WILLIAM C. MIMS
April 21, 2011
CITY OF LEXINGTON
FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY
Michael S. Irvine, Judge
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
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
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
It appears from the record that the trial court’s
refusal to instruct on nuisance was based on the Volpes’
failure to submit jury instructions. The circuit court did
not reach the merits of the nuisance claim.
At the time of Charles’ death, City officials did not
realize that the City owned the dam, which was part of a
larger acquisition of riverside property.
appear higher than normal even when the volume of water
flowing over the dam is several times greater than the normal
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
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
The hydraulic created by a low-head dam is unusually
dangerous because it is uniform and spans the entire river.
By contrast, 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
In January 1997, City officials formed a committee to
plan a public park at the City-owned riverfront at Jordan’s
At the initial committee meeting, participants offered
a variety of suggestions regarding the proposed park,
including “regained public access to the water.”
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 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
The City envisioned swimmers accessing the water
from the tire dock and a grassy bank between the tire dock and
Thereafter, the committee met in October 1999.
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
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
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.
In 2004, City Manager T. Jon Ellestad approached the
owner of the property across the river from the city park
about running a safety cable from the park to his property.
The City never installed a safety cable.
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.
testified that the river appeared “like it did on any other
The water was pretty smooth and flat.”
Bryc jumped into
the millpond from the grassy bank between the tire dock and
He swam over to the tire dock and got out.
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
According to Bryc, “it wasn’t until we got right up next
to it that you could tell a significant difference in the
The current “was just instant how it picked up.”
It swept Charles, and then Bryc, over the dam.
himself spinning in a hydraulic which he had never
experienced, but managed to escape to shore.
escape the hydraulic.
Charles did not
Police recovered his body more than 22
hours later at the base of the dam.
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
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,
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.
A. DUTY TO WARN
The Volpes first assign error to the trial court’s ruling
that the City, as a matter of law, did not have a duty to warn
We review the trial court’s ruling de novo, as
“[t]he issue whether a legal duty in tort exists is a pure
question of law.”
Kellermann v. McDonough, 278 Va. 478, 487,
684 S.E.2d 786, 790 (2009).
It is undisputed that Charles had the status of an
invitee, as the park and the millpond were “thrown open to the
public and [Charles] enter[ed] pursuant to the purposes for
which [the park was] open.”
City of Richmond v. Grizzard, 205
Va. 298, 302, 136 S.E.2d 827, 830 (1964).
In Virginia, a
landowner owes an invitee “the duty of using ordinary care to
maintain its premises in a reasonably safe condition and to
warn . . . of any hidden dangers.”
Amos v. NationsBank, N.A.,
256 Va. 344, 346, 504 S.E.2d 365, 366 (1998).
In Blacka v.
James, 205 Va. 646, 649, 139 S.E.2d 47, 50 (1964), we
the owner of a swimming pool or lake to which the
general public is invited for a consideration
must exercise ordinary care for the safety of his
patrons. He must make reasonable provisions to
guard against those accidents which common
knowledge and experience teach are likely to
befall those engaged in swimming and other
aquatic sports for which he has provided
facilities, but the owner is not an insurer of
the safety of his patrons.
See also Knight v. Moore, 179 Va. 139, 146, 18 S.E.2d 266, 269
An invitee has the right to assume that premises are
reasonably safe “unless a dangerous condition is open and
Roll ‘R’ Way Rinks, Inc. v. Smith, 218 Va. 321,
327, 237 S.E.2d 157, 161 (1977); see also Fobbs v. Webb Bldg.
Ltd., 232 Va. 227, 229, 349 S.E.2d 355, 357 (1986) (“owner has
no duty to warn its invitee of an unsafe condition which is
open and obvious to a reasonable person exercising ordinary
care for his own safety”); Knight, 179 Va. at 146, 18 S.E.2d
at 269 (“such notice is not required where the dangerous
condition is open and obvious, and is patent to a reasonable
person exercising ordinary care for his own safety”).
This Court has held that the danger of drowning in an
excavated quarry was “natural, open, and obvious,” despite a
sheer, manmade drop-off from a shelf of knee-deep water.
Washabaugh v. Northern Virginia Construction Co., 187 Va. 767,
773, 48 S.E.2d 276, 279 (1948).
While tragic accidents of the nature disclosed
are always possible, they are not any more likely
to happen in this artificial pond than in a
natural stream of water. Such danger is natural,
open, and obvious, and is ordinarily encountered
in most places where children gather to wade or
Under Washabaugh, riparian landowners in Virginia do not,
in the absence of consideration, owe a duty to warn of the
natural, “ordinarily encountered” hazards of a body of water.
While we agree with the City that the natural,
“ordinarily encountered” dangers of the Maury River at
Jordan’s Point were as a matter of law open and obvious to
Charles, we do not agree that a deadly, hidden hydraulic
created by the unusually strong current at the low-head dam
was open and obvious as a matter of law.
A case from our neighboring jurisdiction of West Virginia
is instructive on the matter.
In White v. Kanawha City Co.,
34 S.E.2d 17 (W. Va. 1945), the Supreme Court of West Virginia
reviewed the drowning of a twelve-year-old child in a pool of
water created by a dam.
Id. at 18.
The court observed that
“the mere existence of an unguarded [body] of water . . . does
not of itself render the owner liable for the death of a child
drowned therein,” but “if some feature or element of the
instrumentality or premises operates as a hidden danger or
trap, liability may arise against the owner.”
Id. at 19.
court held that the plaintiff failed to allege facts “which
would indicate that the pool or dam in question was more
dangerous than an ordinary pool or dam would inherently and
Id. at 19-20.
In Perkins v. Byrnes, 269 S.W.2d 52 (Mo. 1954), the
Supreme Court of Missouri reviewed a drowning that occurred in
a hydraulic at the base of a mill dam within a waterfront
It found that the evidence was that the river was
“ ‘up’ or ‘swollen,’ even ‘high,’ ” when decedent entered the
Id. at 54.
It held that the question of the resort’s
negligence was for the jury, as “a swollen river with a hidden
or deceptive undercurrent is a circumstance upon which
reasonable minds could differ.”
Id. at 55.
The record in this case shows that the hydraulic at
Jordan’s Point was unlike any naturally occurring feature of a
Specifically, the increased current above the manmade
dam and the hydraulic created below were not always visible to
a swimmer and were not always present.
Unlike a natural
hydraulic, the hydraulic in which Charles drowned spanned the
river in a straight line, making escape exceptionally
Therefore, the circuit court erred in holding as a matter
of law that the dam presented an open and obvious danger. 4
Washabaugh 187 Va. at 773, 48 S.E.2d at 279.
specific determination was an issue for the jury.
See Hoar v.
Great Eastern Resort Management, Inc., 256 Va. 374, 386, 506
S.E.2d 777, 784-85 (1998) (conflict in testimony as to whether
a steep drop-off at edge of ski slope was an open and obvious
condition “presented a typical issue for jury determination”);
Fultz v. Delhaize America, Inc., 278 Va. 84, 89, 677 S.E.2d
272, 274-75 (2009) (where reasonable minds could differ,
question as to whether defect is open and obvious was for the
B. GROSS NEGLIGENCE
The question of whether the dam presented an open and
obvious danger initially was presented to the jury, prior to
the court granting the renewed motion to strike when the jury
could not reach a verdict regarding the gross negligence
claim. Instruction 11, agreed to by the parties, stated, in
part: “An occupant of premises does not guarantee an invitee’s
safety, but has the duty . . . to warn an invitee of any
unsafe condition about which the occupant knows, or should
know, unless the unsafe condition is open and obvious to a
person using care for his own safety.”
We now turn to the issue of the circuit court striking
the Volpes’ evidence of the City’s gross negligence.
recently have explained the applicable standard of review:
When ruling on a motion to strike a plaintiff’s
evidence, a trial court is required to accept as
true all evidence favorable to a plaintiff and
any reasonable inferences that may be drawn from
such evidence. The trial court is not to judge
the weight and credibility of the evidence, and
may not reject any inference from the evidence
favorable to the plaintiff unless it would defy
logic and common sense. On appeal, when this
Court reviews a trial court’s decision to strike
a plaintiff’s evidence, we likewise view the
evidence in the light most favorable to the
TB Venture, LLC v. Arlington County, 280 Va. 558, 562-63, 701
S.E.2d 791, 793 (2010) (internal citations and quotation marks
In Chapman v. City of Virginia Beach, 252 Va. 186, 475
S.E.2d 798 (1996), we defined gross negligence as:
the utter disregard of prudence amounting to
complete neglect of the safety of another. It is
a heedless and palpable violation of legal duty
respecting the rights of others which amounts to
the absence of slight diligence, or the want of
even scant care. Several acts of negligence which
separately may not amount to gross negligence,
when combined may have a cumulative effect
showing a form of reckless or total disregard for
another’s safety. Deliberate conduct is important
evidence on the question of gross negligence.
Whether gross negligence has been established is
usually a matter of fact to be decided by a jury.
Id. at 190, 475 S.E.2d at 800-01 (internal citations and
quotation marks omitted).
The Volpes argue that the circuit court erred in finding
their evidence insufficient for a jury to find that the City
had acted in a grossly negligent manner.
standard as set forth in Chapman, and viewing the evidence in
the light most favorable to the Volpes, we agree.
City Manager Ellestad testified that he knew the river
could be particularly dangerous in certain conditions because
of the proximity of the low-head dam and could be hazardous
even when the millpond appeared “relatively normal.”
of Public Works David Woody testified that he was aware of the
existence of the hydraulic during the planning of the park,
and he knew that the accelerating currents at the top of the
dam and the hydraulic below were present only in certain
He also knew that in certain conditions, the
hydraulic would be deadly.
It is undisputed that despite the
City’s knowledge of these dangers, prior to Charles’ death the
City did not take any safety precautions for its invitees
swimming in the river.
On these facts, we find that “reasonable persons could
differ upon whether the cumulative effect of these
circumstances constitutes a form of recklessness or a total
disregard of all precautions, an absence of diligence, or lack
of even slight care.”
Id. at 191, 475 S.E.2d at 801.
that there was credible evidence to support a jury finding of
The trial court erred in striking the
Volpes’ evidence when the jury failed to return a verdict.
C. WILLFUL AND WANTON NEGLIGENCE
The Volpes next assign error to the circuit court
striking their claim for willful and wanton negligence.
set forth above, in deciding whether the Volpes established a
prima facie showing of willful and wanton negligence, the
circuit court was “required to accept as true all evidence
favorable” to the Volpes.
S.E.2d at 793.
TB Venture, 280 Va. at 562-63, 701
We also view the evidence in the light most
favorable to the Volpes.
The tort of willful and wanton negligence has been
characterized as “a spirit of mischief, criminal indifference,
or conscious disregard for the rights of others.”
v. Boy Scouts of America, Inc., 239 Va. 572, 581, 391 S.E.2d
322, 327 (1990).
In Infant C., we explained:
The hallmark of this species of tortious conduct
is the defendant’s consciousness of his act, his
awareness of the dangers or probable
consequences, and his reckless decision to
proceed notwithstanding that awareness. Because
such consciousness and awareness are
prerequisites, the use of the term “negligence,”
in defining the tort, is a misnomer.
Id. at 581-82, 391 S.E.2d at 327.
Here, taking the evidence in the light most favorable to
the Volpes, we accept that the City knew that the dam could
present dangers in certain conditions.
The evidence, however,
did not establish that City officials acted with a spirit of
mischief, criminal indifference, or conscious disregard for
the rights of swimmers.
In fact, the evidence did not
establish that the City, prior to Charles’ death, even knew
that swimmers climbed on the dam and jumped into the water
Accordingly, the circuit court properly granted the
City’s motion to strike the evidence for the claim of willful
and wanton negligence. 5
For the reasons stated above, we will reverse the
judgment of the circuit court holding that the City had no
duty to warn and striking the Volpes claim of gross
negligence, affirm the circuit court’s judgment striking the
Volpes’ claim of willful and wanton negligence, and remand the
case for further proceedings consistent with this opinion.
Affirmed in part,
reversed in part,
Because the circuit court did not reach the nuisance
claim on the merits, we need not address that assignment of
error, and that cause of action will be available to the
Volpes on retrial.