concurring.
I agree with the Majority that the standard applicable to the instant matter is the reasonable person standard rather than negligence per se. As articulated, the statute is not drafted so that a reasonable person can discern what conduct is prohibited. Next, I agree that PG Energy (Appellant) had no duty to draw down the water in the reservoirs prior to the onslaught from Hurricane Gloria. This was not a flood-control dam, but a water supply reservoir and there is no support for an argument that every dam owner has a duty to institute flood control measures in times of heavy precipitation. Finally, I also agree that the Dam Safety and Encroachments Act, Act of November 26, 1978, P.L. 1375, as amended, 32 P.S. §§ 693.1 to 693.27, is focused primarily on mechanisms for maintaining the integrity of the dam. Of course, by maintain*681ing the integrity of the dam, the downstream watershed is protected from the flooding waters contained within the dam, but not additional waters. I write separately because, I believe that Appellant assumed a duty to warn when it drafted and adopted its “Emergency Warning System and Operation Plans, Spring Brook Intake” in 1982, and that it should have implemented this plan on September 27,1985.
Initially, I am troubled by the fact that the potential for a dam hazard is being assessed after the conclusion of the event rather than before or during the event. The Majority Opinion, the Department of Environmental Protection (DEP), and Appellant all stress that the dams did not fail, did not burst or leak, and held back the floodwaters to the maximum of their capacities. This post-event perspective is not the appropriate timeframe in which to assess whether an Emergency Action Plan (EAP) should be implemented. Implementation of the EAP should have focused on the contents of the plan and whether a reasonable person would have deemed conditions existing to call for its implementation. Although a hurricane is not a per se hazard, it can pose a dam safety hazard if the storm has force and intensity. I believe that Hurricane Gloria, with its torrential rains and flooding, had the potential to threaten dam stability and that, regardless of an after-the-fact assessment that says nothing happened, it is the potential threat that triggers the implementation of the Emergency Action Plan. In the instant matter, I believe that a potential threat existed.
Even the Majority acknowledges the importance of adequate spillway design, particularly where the spillways are marginal or meet only the minimum specifications. The Majority inexplicably recognizes the danger to a dam when flooding conditions exist, only to conclude that because nothing happened, implementation of the EAP was unnecessary. The Majority states:
[T]he primary safety purpose of a spillway is to protect the integrity of the dam structure. If the volume and speed of water entering a reservoir were to exceed the capacity of the spillway to modulate the volume of water in the *682reservoir, and then to a point where the dam itself exceeded its capacity, there is a risk of overtopping and concomitant erosion, leakage, or bursting. If a dam leaks or bursts due to negligent design, maintenance or operation, the resulting direct damage to downstream homeowners is not due to an Act of God, but to the sudden release of that which man determined to artificially store and concentrate.
(Op. at 676-79, 858 A.2d at 604-05.) The Majority continues that, “In short, the primary danger which a greater spillway capacity guards against during the course of a storm is the failure of the dam—which is the single most catastrophic event at issue, and the event with which the Army Corps was concerned.” (Op. at 678-79, 858 A.2d at 605.) I believe that Hurricane Gloria presented just this potential scenario in at least the early hours of the storm and that Appellant should have activated its plan and warned downstream residents that flooding was possible.
A review of the provisions of the EAP for Spring Brook demonstrates that the EAP should have been implemented. Specifically, the EAP ties a dam hazard emergency to the level of the water passing through the spillway. The initial action in the event of heavy precipitation is the dispatch of the caretaker to observe and report on reservoir levels. The EAP indicates that dam surveillance will be maintained on a twenty-four-hour basis until a company officer declares that the event has concluded. Appellant never monitored the spillway discharge at the specified locations and, without continuous .surveillance, Appellant was without information as to the safety and stability of the dam. The EAP states that a moderate danger of dam failure occurs when the spillway discharge is at 50% of capacity or rapidly approaching 50%. It notes that, “at 50% of spillway capacity, the reservoir level' is at 6.8 feet over the spillway crest or 3.7 feet below the top of the dam.” (Reproduced Record (R.R.) at 865a.) At this point, the plan calls for assessment of the risk of dam failure by Appellant’s employees and preparations for possible evacuation of the downstream watershed.
*683The next category of dam hazard is titled “Increasing Danger.” Increasing danger exists at 75% of spillway capacity, with the forecast for continued heavy rainfall. At 75% of spillway capacity, the reservoir level is at 8.3 feet above the spillway crest or 1.7 feet below the top of the dam. At this point, evacuation procedures are implemented. The actual passage reads:
In the event the spillway discharge has reached 75% of capacity and weather information indicates that heavy rainfall will continue and/or surveillance at the site or at upstream reservoirs indicates a potential hazard other than overtopping, evacuation procedures shall be implemented.
This passage can be read two other ways:
In the event the spillway discharge has reached 75% of capacity and weather information indicates that heavy rainfall will continue ... evacuation procedures shall be implemented.
OR
In the event ... surveillance at the site or at upstream reservoirs indicates a potential hazard other than overtopping, evacuation procedures shall be implemented.
(R.R. at 869a). It is not disputed that the spillway discharge reached at least 75% of capacity, if not 100%, while there was still heavy rain. Although there is no recognized duty to warn in Pennsylvania, I have concluded that a duty to warn was voluntarily assumed in this case, even though not statutorily imposed, when PG Energy drafted its EAP. Appellant, when it specified a series of alerts based on the level of spillway discharge, was the one entity in the best position to know how much rainfall and what circumstances would result in downstream flooding. .However, because I do not believe that the failure to warn was the proximate cause of Appellees’ property loss,' I agree with the Majority that Appellant was not liable for the damage to the property of Appellees. The extent of the flooding was so great from the torrential downpours that warnings given by Appellant would not have averted the damage suffered by Appellees.
*684The occurrence of a major storm event will cause a dam to overtop because, due to the limitations of its spillway, the level of the water within the impound area will rise at a rate greater than the dam’s capacity to pass that water over that spillway. Further, the corresponding pressure of a colossal volume of water threatens the very stability of the dam. We forever remember that the unique risks posed by dam structures, in combination with torrential rains, produced the devastating failure of an earthen dam on South Fork Creek outside of Johnstown, Pennsylvania on May 31, 1889. The resulting torrent swept away more than two thousand lives. Although the area had often flooded, the dam had always held. While we have designed many of our modern methods to ensure that there is no repeat performance of this tragedy, this goal is entirely dependent on the quality of construction, frequency of inspections, promptness of repair, and the presence and proper implementation of emergency action plans. Failure of any one of these poses an unnecessary and unacceptable risk to a downstream watershed. Therefore, I believe that Appellant, pursuant to the specific provisions of the Emergency Action Plan that it drafted, assumed a duty to warn those downstream when water levels triggered the actions mandated by that plan.