As summer approaches, people are getting excited to fish, swim, and boat on Virginia’s waterways. What people don’t always consider is what happens if someone gets hurt or drowns in a river, quarry, or lake. In general, every landowner has a duty to warn people on their property with permission about hazards that are not easily seen, or in the words of the Supreme Court of Virginia, “open and obvious.” [1] The law governing bodies of water has some surprising twists on this duty.
Natural vs. Manmade Hazards:
The Supreme Court of Virginia has made it clear that users of natural waterways should be aware of naturally occurring hazards in bodies of water. In the words of the Court, a landowner owes no duty to warn of the natural, “ordinarily encountered” hazards found in a body of water.[2] Things like submerged logs, rocks, or steep drop-offs are hazards frequently present in waterways, and the Court has held that swimmers, boaters, and fishermen cannot recover against a landowner for injuries or death occurring as a result of these naturally occurring underwater hazards.
The result changes when there is a manmade hazard lurking in a body of water. In this instance, a landowner does owe a duty to warn users of any hidden manmade hazard.[3]
Snapshot of the Maury River in Lexington, VA (MarmadukePercy / CC BY-SA)
Volpe v. City of Lexington
The case that made this clear involved a low-head dam located on the Maury River in Lexington. Charles Volpe drowned after being pulled over a low-head dam in a swimming spot on the Maury maintained by the City of Lexington. A low head dam is a dam that goes all the way across a river and is designed so water flows over the top of the dam, rather than around it or through a hole in the dam. Generally, low head dams are not very high, often just a few feet, and are designed to create a pool of water behind the dam for irrigation or to create a flow for a waterwheel. Many of these dams were constructed a century or more ago, but are still in existence today.
The low-head dam on the Maury River looked quite innocent. Upstream the dam created a placid pool of water, and a lovely stream of water flowed over the dam and created some deep pools on the downstream side. Swimmers would sometimes jump from the dam into these pools.
However, the harmless appearance of the dam on the Maury was quite deceptive. Low head dams like the one on the Maury are often called drowning machines.[4] These dams create a circular motion in the water. When the water flow is strong, as it was on the Maury when Charles Volpe drowned, it flows over the dam with force. The water crosses over the top of the dam and then falls to the bottom on the downstream side where it strikes the bottom and is deflected back up towards the dam. This forms a continuous circle of water, called a hydraulic, from which even the strongest swimmers, like Charles Volpe, often cannot escape. People trapped in the hydraulic are circulated up and down until they drown.
Charles Volpe’s parents filed suit alleging that the City of Lexington had a duty to warn of the dangers or otherwise make the low head dam less dangerous and that the City was negligent for not doing so. The City of Lexington argued that the dangers of a low-head dam are no different than other underwater hazards of which a landowner has no duty to warn. The Supreme Court disagreed. It found that this was a hidden hazard unlike hazards that are ordinarily found in bodies of water, and the City had a duty to warn swimmers of this hazard.
While the parents won in the courts, the tragic lesson of the case remains: be careful near low head dams. There are many such dams in Virginia.[5]
Indeed, be very cautious when boating or swimming in any unfamiliar waterway. Do not dive head-on into the water. Do not wade into shallow water if you are not a good swimmer. Be careful of drop-offs, sunken logs, and rocks. Check with the locals or review charts to determine if there are any low head dams on the route and, if encountered, portage around them or stay well clear of them. One of the dangers of low head dams is that from the upstream side they can appear only as a flat line on the horizon and thus are not easily spotted. Look also for the concrete abutments on the side of the river that most low head dams have.
Generally, stay away from low head dams if swimming or boating, especially in high water conditions. As discussed above, many people have drowned in the hydraulics on the downstream side of such dams, and they are deceivingly dangerous.
About the Author: Richard Armstrong handles personal injury cases, including drownings and other tragic accidents. He works in Charlottesville Virginia with Allen & Allen. Mr. Armstrong helps car accident victims and other injured persons in Charlottesville and the surrounding counties recover damages from their injuries. He was co-counsel on the Volpe case.
[1] People entering a property without permission are generally considered trespassers and generally have no rights to sue regarding injuries on the property.
[2] Washabaugh v. Northern Virginia Construction Co., 187 Va. 767, 773 (1948).
[3] Volpe v. City of Lexington, 281 Va. 630 (2011).
[4] For more information, see “Dangerous Dams” by Michael Robinson, Ph.D., P.E.; Robert Houghtalen, Ph.D., P.E., at http://www.ricka-flatwater.org/dams.htm. See also “Lowhead Dams” at the Virginia Department of Game and Inland Fisheries website, at http://www.dgif.virginia.gov/boating/education/lowhead-dams.asp.
[5] Bosher’s Dam, in Richmond, is such a low head dam and many people have drowned there despite numerous warning signs posted near the dam. Further along the James River, just in the Richmond area, are several more low head dams or structures causing hydraulics: Williams Dam, including the “Z” Dam; Grant’s Dam; the pipeline shelves, and Belle Isle Dams.
