Volpe v. City of Lexington

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.

v. 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.

BACKGROUND

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.

FACTS

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

1
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.
2
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.

2
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, 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.”

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 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

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

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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

3
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.

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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 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.

Defense witnesses testified that they also visited

Jordan’s Point on April 23, 2006, but would not swim because

6
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.

DISCUSSION

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

Charles. 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

7
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

explained:

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

(1942).

An invitee has the right to assume that premises are

reasonably safe “unless a dangerous condition is open and

obvious.” 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

8
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). We explained:

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
swim.

Id. 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.

Id.

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

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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. The

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

unavoidably be.” 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

resort. It found that the evidence was that the river was

“ ‘up’ or ‘swollen,’ even ‘high,’ ” when decedent entered the

water. 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

river. Specifically, the increased current above the manmade

dam and the hydraulic created below were not always visible to

10
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

difficult.

Therefore, the circuit court erred in holding as a matter

of law that the dam presented an open and obvious danger. 4 See

Washabaugh 187 Va. at 773, 48 S.E.2d at 279. This factually

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

jury).

B. GROSS NEGLIGENCE

4
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.”

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 We now turn to the issue of the circuit court striking

the Volpes’ evidence of the City’s gross negligence. We

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
plaintiff.

TB Venture, LLC v. Arlington County, 280 Va. 558, 562-63, 701

S.E.2d 791, 793 (2010) (internal citations and quotation marks

omitted).

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).

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 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. Applying the

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.” Director

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

conditions. 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. We hold

that there was credible evidence to support a jury finding of

13
gross negligence. 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. As

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. TB Venture, 280 Va. at 562-63, 701

S.E.2d at 793. We also view the evidence in the light most

favorable to the Volpes. See id.

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.” Infant C.

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

14
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

below.

Accordingly, the circuit court properly granted the

City’s motion to strike the evidence for the claim of willful

and wanton negligence. 5

CONCLUSION

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,
and remanded.

5
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.

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