Daily Development for Friday, November 12, 2004
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

LANDOWNER LIABILITY; DAMS; NEGLIGENT MAINTENANCE: As a matter of law, a dam owner does not have a duty to protect downstream landowners from overflow in egregious weather circumstances, such as Hurricane Gloria, where damage is suffered when the overflow water passes through a natural watercourse.  The sole responsibility of the dam owner is to insure that the dam will not fail structurally, and to avoid artificially rechannelling or accelerating the water.

Shamnoski v. PG Energy, 2004 WL 2186556, (Pa. 2004).

Property owners who owned residential real property along the banks of a waterway brought suit against the owner of upstream water supply dams, alleging that negligent design, maintenance and operation of the dams resulted in their losses when their property was washed away or damaged by flood waters following Hurricane Gloria.  The theory of negligence pursued by the Plaintiff homeowners was that the defendant dam owner was obliged by both statute and administrative regulation to design, maintain and operate the dams so as to cabin and safely pass on the rain and floodwaters which accompany a storm of the magnitude of Hurricane Gloria.
The defendant argued in response that the duty of dam safety owed to the plaintiffs was confined to ensuring that the dams did not fail as a structural matter, and because the dams successfully passed the increased volume of water without failing structurally, no liability could arise.

Both the trial and appellate court concluded that although the defendant’s dams did not fail structurally, the defendant violated a duty to construct, maintain, and operate the dams in a fashion that would have protected the downstream homeowners from these floodwaters, and that the homeowners losses were the proximate result of this breach of duty.  The trial court further found that the defendant had a duty to design and maintain the dams with greater spillway capacities, to “draw down” the level of water in its reservoirs in anticipation of the hurricane, and to warn downstream homeowners of the danger they faced from floodwaters as the storm intensified.

The defendant argued on appeal that the safety requirements imposed by statute and regulations pertained solely to the structural stability of the dam, and did not impose any greater collateral duty in negligence beyond what might be expected under common law.  The defendant noted that under well-settled Pennsylvania common law, the owner of upstream land is not a guarantor against damage caused by surface water run-off through a natural course to downstream land.  Rather, the upstream landowner is only liable for such water run-off if he has diverted the water from its natural channel by artificial means, or unreasonably or unnecessarily increased the quantity of water or changed the quality of water discharged downstream.  The defendant further noted that other jurisdictions take precisely this approach to the question of the duty of dam owners, recognizing that the only obligation is not to worsen conditions downstream beyond what would have occurred in the absence of the!

The Supreme Court of Pennsylvania accepted the defendant’s arguments and overturned the decision of both the trial and appellate courts, holding that the evidence presented was insufficient as a matter of law to prove that the dam owner was negligent.  The Court reasoned that the statute and regulations governing dam safety did not impose a general duty of flood control upon dam owners for the purpose of protecting downstream homeowners.

The Court held that the only duty the defendant owed to downstream homeowners
and to the public generally was to design, maintain and operate its dams in a fashion that ensured that their structural integrity would be maintained safely even in a storm of the rare intensity of Hurricane Gloria.  It was undisputed that the defendant’s dams did not fail:  they did not burst or leak, and indeed, to the extent that the dams were below capacity at the time the storm was raging, those dams acted unintentionally as flood control facilities and thereby protected downstream homeowners from a certain amount of the floodwaters.  Because the dams did not fail, and the damages which the plaintiffs sustained were a result of the natural effect of the storm, the Court held that the defendant did not breach any legal duty

Comment 1: This was a “100 year” storm, dumping six inches of rain in a 12 hour period.  In fact, the dams protected the plaintiffs against some of the water that would have impacted downstream properties had the dams not existed, and did not accelerate or redirect the flow that did arise.  The court concluded that the damage was done by Hurricane Gloria, and not by the dams.  Hard to sue a hurricane!!

Comment 2: In a nutshell, the plaintiffs contended, and the lower courts agreed, that any dam must be viewed as a flood control dam, and must be built and operated so as to protect against flood.  There certainly was language in the statutes and regulations dealing with dams that  suggested this result, but the high court’s interpretation of this language was that it had to be read “in context,” and did not require a dam built for the purpose of water storage to meet any standard other than to avoid adding to the problems of flooding.

A concurring judge agreed, but concluded that the dam owners own operating plans, adopted pursuant to state regulation, required that it warn downstream landowners.  Even this opinion,  however, was simply a concurrence, and agreed as a matter of law that the defendants were not liable, perhaps the real damages allegedly were caused not be failure to warn, but by failure to contain the waters by improving spillways and lowering the water level in anticipation of the storm.

Comment 3: Note that Pennsylvania appears to follow a surface water theory that permits landowners to pass water on in a natural watercourse so long as there is no artificial diversion or increase.  We used to have handy names for various theories - “natural flow,” “common enemy,” “reasonable rights.”  But individual state courts have so customized the basic theories with extra duties of “reasonableness” here and there that it is difficult to make any general categorizations any more.

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