Volpe v. City of Lexington
708 S.E.2d 824
Va.2011Background
- Charles O. Volpe drowned on April 23, 2006 in the Maury River below a City-owned low-head dam at Jordan's Point Park; Volpe's parents sued the City for damages.
- Plaintiffs asserted claims of gross negligence, willful and wanton negligence, and public nuisance; circuit court struck ordinary negligence and refused nuisance instruction; jury could not reach verdict on gross negligence and the court struck that claim on renewal.
- Dam’s hydraulic condition is not uniformly visible; a dangerous, hidden hydraulic can arise from high flows over the low-head dam.
- City had long planned a riverfront park with swimming access; master plan favored access to water but safety measures were debated and funding obtained, yet no safety cable or relocation of canoe launch was implemented.
- Before Charles' death the City did not implement safety precautions for swimmers despite knowledge that the dam posed risks in certain conditions; later, evidence showed some City officials recognized dangers but no warnings were provided.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty to warn invitees about dam danger | Volpe asserts City owed duty to warn of hidden hydraulic danger. | City argues dangers were open and obvious; no duty to warn. | Duty to warn not barred as a matter of law; fact question for jury. |
| Open and obvious danger standard for water hazards | Hydraulic danger at the dam was not always visible or obvious. | Natural river hazards are open and obvious; dam feature not uniquely dangerous. | Dam hydraulic danger not open and obvious as a matter of law; jury question. |
| Gross negligence | City knew dam could be dangerous and failed to take safety precautions; cumulative recklessness shown. | No evidence of reckless disregard; standard should not support gross negligence. | Reasonable jurors could find gross negligence; circuit court erred in striking the claim. |
| Willful and wanton negligence | City consciously disregarded known dangers to swimmers. | No conscious disregard; City did not know swimmers used the dam; absence of intent. | Circuit court properly struck willful and wanton claim. |
| Nuisance claim | Public nuisance theory remained viable. | Nuisance not reached on merits; not essential to decision here. | Nuisance remanded for retrial if pursued; not decided on merits. |
Key Cases Cited
- Washabaugh v. Northern Virginia Construction Co., 187 Va. 767 (1948) (natural, open, obvious dangers typically not nuisances)
- Roll 'R' Way Rinks, Inc. v. Smith, 218 Va. 321 (195? (contextual)) (open and obvious danger rule for invitees)
- Fobbs v. Webb Bldg. Ltd. P'ship, 232 Va. 227 (1986) (no duty to warn of open and obvious hazards)
- Knight v. Moore, 179 Va. 139 (1942) (open and obvious hazards statute of care)
- Amos v. NationsBank, N.A., 256 Va. 344 (1998) (duty to warn and maintain premises for invitees)
- Chapman v. City of Virginia Beach, 252 Va. 186 (1996) (gross negligence defined; jury questions on recklessness)
- Infant C. v. Boy Scouts of America, Inc., 239 Va. 572 (1990) (willful and wanton negligence characterized by conscious disregard)
- TB Venture, LLC v. Arlington County, 280 Va. 558 (2010) (standard for reviewing motions to strike plaintiff evidence)