*1 A.2d 589 Shamnoski, Wife, Dorothy His Stephen A. SHAMNOSKI Stephen Individually Natural Guardians and as Parents and Shamnoski, Anthony Shamnoski, D. G. Shamnoski William J. Children, Shamnoski, Appellees Their and Ellen M. v. ENERGY, a OF SOUTHERN DIVISION PG Formerly COMPANY, as known UNION Energy, Inc., Appellant, PG v. Pennsylvania, Department Commonwealth Environmental Resources. Wife, Individually Rubel, Adele His Richard Rubel and Rubel of Richard as and Natural Parents Guardians Rubel, Children, Appellees Karra Their v. Company, Energy, a Division Union PG of Southern Inc., Energy, Appellant Formerly Known as PG v. Pennsylvania, Department Commonwealth of Environmental Resources. Scranton, McDonald, Street, Main Lorraine 701 South County, PA, Appellees Lackawanna
v. Company, Energy, a Division of Union PG Southern Inc., Energy, Appellant Formerly Known PG v. Pennsylvania, Department Commonwealth Environmental Resources. Pennsylvania. Supreme Court of Argued April 2002. Sept. Decided *4 Moses, Barre, Scranton, P. Wilkes Specht, Thomas A. John Craven, Jeffery Sunday, H. Wilkes Philadelphia, W. Charles Co., Barre, appel- for Div. of Southern Union Energy, PG lant. Barton, Mather, Mary Louise for Harrisburg,
Richard P. Protection, amicus curiae. appellant Dept, Environmental Klein, Nase, Harrisburg, Velma D. Jonathan P. Michael Co., Redmond, Hershey, ap- for PA-American Water Arlene curiae. pellant amicus al., Falvello, Richard Sugarloaf, for Shamnoski et
Conrad A. McDonald, Rubel, L. appellees. and Rubel his wife Adele NIGRO, C.J, CASTILLE, ZAPPALA, CAPPY, Before: EAKIN, NEWMAN, JJ. SAYLOR THE COURT OPINION OF Justice CASTILLE. flooding action in
This arose the wake of negligence County, which resulted when Springbrook Creek Luzerne into that dropped Hurricane six inches rain area Gloria over early in the twenty-four period ending in less than a hour three home Appellees afternoon of 1985. are September owners, parcel whom of residential separate each of owned Springbrook the banks of Creek property along real damaged floodwa away severely was washed Gloria’s owned, operated Appellant Energy ters. PG maintained permitted supply four dams attendant reservoirs watershed, upstream all of which Creek were Springbrook that the appellees’ properties.1 Appellees negli claimed gent design, operation maintenance and the reservoirs/dams losses, in the in the courts prevailed caused their action accepted this Court primary below. The issue which Pennsylvania- subsequently acquired by were dams/reservoirs appeal, party not a but Company, American Water which is appellant. support which has filed a brief as Amicus Curiae *5 owner supply a water legal duty what review is reservoir/dam to protect its dams order respect has to undertake floodwaters caused against owners property of Hurricane magnitude a storm of the of the aftermath was not negligent find that appellant we Gloria. Because and enter law, below of we reverse the determinations matter appellant.2 in favor of judgment appellant’s of res- geographical
As elevations respective reveal, is a fairly steep Creek Springbrook ervoirs/dams is at an Lake waterway: Maple mountain Reservoir/Dam level; 1617 feet above sea approximately elevation 1440 feet of eleva- approximately is at Watres Reservoir/Dam 1166 feet tion; approximately is at the Nesbitt Reservoir/Dam at elevation; Springbrook and the Intake Reservoir/Dam Maple distance from 915 feet of elevation. The approximately Ap- 5.3 miles. approximately Intake is Springbrook Lake another, at proximity in close one pellees’ properties were feet, and one-half three- approximately an elevation Springbrook Intake. of mile downstream quarters trial, such as wheth disputed factual issues were Certain is, actually “overtopped”—that dams any er dams was such the volume floodwater whether via the gradually excess water discharge were unable spilled to a where the water over the spillways,3 point dams’ (which at significantly higher dams are elevations themselves of rainfall these than what amount were spillways)—and via to be deemed pass spillway dams to be able to required facts, salient howev purposes. safe for their intended Other er, such as the fact these dams were disputed, were reservoirs, not as supply to create water designed primarily compensatory Appellant also raises issues related to the calculation given delay damages, will our damages and which we not reach disposition controlling liability issue. safely conveys design spillway "[a] 3. A is defined as device endangering safety integrity.” a dam without or 25 Pa.Code flood of height height dam spillway § is built at a below 105.1. allowing pass the reservoir to on excess rain or and functions runoff, against protecting overload and thus natural structure), (in maintaining while failure the sense of breach of capacity. optimum water dams; flood control and that the dams did not fail aas. matter—i.e., leaks, burst, structural they did not spring away, they wash held back the rain and rushing floodwa addition, ters the maximum of their storage capacities.4 *6 that, dispute there is no of because certain the reservoirs were hit, capacity not filled to when Hurricane Gloria the dams actually prevented some of rain Gloria’s and flash floodwaters passing Thus, from all. the floodwater that away washed was appellees’ homes attributable to Hurricane Gloria, and not to the water already pooled appellant’s ¡ upstream reservoirs when the storm hit. of theory negligence pursued appellant below was that was both obliged by by statute and regulation administrative to do than its more ensure that dams did not fail structurally. that, Appellees claimed in addition creating reservoirs of drinking welfare, water essential public health and required dams were to be designed, maintained operated so as to cabin safely pass on the rain and floodwaters which a accompany storm magnitude Hurricane Gloria. Specifically, appellees alleged that appel- lant had a duty design and maintain dams with greater spillway capacities; that was appellant to “draw down” obliged storm; the level of water in anticipation reservoirs and that this storm posed a “dam hazard emergency,” as that is by regulation, term defined obliged appellant to warn downstream homeowners of the danger they faced from flood- waters as the storm intensified. The was defense that the duty dam safety by appellant owed confined ensur-. ing and, the dams did not fail as a structural matter because these dams successfully passed the increased volume failing water without structurally, liability no can arise. below, The courts employing while divergent legal theories of significant design The evidence below revealed that there are functional differences between storage flood control dams and water typically dams. A flood control dam is maintained little or no ability protect water in the reservoir so as to maximize the lower contrast, heavy potential flooding. elevations rains and from supply usually capacity reservoir is maintained as close to normal height) (spillway provides, protect against as nature so periods as to drought. negligence each liability, although appellant’s concluded fail, construct, appellant dams did violated a maintain and fashion operate them that would have the downstream protected homeowners these floodwa- ters, and that proximate homeowners’ losses were the result of that of duty. breach
Procedurally, question before this is the Court rulings lower courts’ motion propriety upon appellant’s n.o.v.”). judgment notwithstanding for verdict (“judgment judge, That verdict was rendered the trial who sat as the (cid:127) factfinder in this Our equity scope action. of review with respect to is judgment appropriate whether n.o.v. plenary, any as with v. questions review of law. A-Best Phillips Co., (1995). 1167, 1170 Products 542 Pa. 665 A.2d standard of proper review an court appellate when examining lower court’s refusal to grant judg *7 whether, ment n.o.v. is reading when light the record in the most favorable the verdict winner and granting that therefrom, party every favorable inference was suffi there competent cient evidence to sustain the verdict. Wenrick v. 1, 4, Schloemann-Siemag 523 Aktiengesellschaft, Pa. 564 (1989). 1244, A.2d 1246 Questions of and con credibility flicts in the evidence are for trial court to resolve and the reviewing reweigh court should not the evidence. Com monwealth, Bureau Dep’t Transp., Safety v. of Traffic Korchak, 52, 57, 1360, 1362(1984). 506 Pa. 483 A.2d Miller, (1996). Adamski v. 545 Pa. 681 A.2d 173 A review the record and judge’s the trial findings written of fact following: reveals the Appellant’s were reservoirs/dams of earthen embankment construction and were erected be- tween 1893 and 1925. The primary purpose of dams was supply to collect and water for drinking public consumption. 1970s, In Army Engineers late Corps U.S. Inspection administered a “National Dam Program” re- sponse Dam Inspection conjunction federal Act. that program, consulting engineers prepared re- inspection ports July each four dams between or is no in the suggestion reports, of 1980. There April record, sought that the uncover inspections in the
elsewhere stan- law existing Pennsylvania violations of federal and/or of water the construction and maintenance concerning dards Rather, purpose the stated supply reservoirs/dams. dams “consti- was to if the inspections reports determine property.” reports a hazard to human life or tute[d] dams were concluded that Nesbitt Springbrook condition, “fair” dam was in condition while the Watres “good” Maple was in condition. “poor” and the Lake dam Maple capacity Dam “unsafe” its spillway Lake was rated because inadequate” pass only percent could “seriously (“PMF”) overtopping Flood without Maximum Probable provisions Code Pennsylvania the dam. The Administrative concerning safety define the PMF as: most severe may expected
The flood that condi- meteorologic hydrologic combination of critical an area. The PMF reasonably possible tions that are (PMP) as maximum probable precipitation derived from the on the of data from the National determined basis obtained (NOAA). and Atmospheric Administration Oceanographic Maple § 105.1.5The Lake further noted report 25 Pa.Code that, “fail,” it if the would increase “significantly dam should downstream.” tailwater and cause loss life Watres and Nesbitt dams likewise spillways they too “seriously inadequate” to be because were deemed of the PMF without pass overtopping could one-half and, fail, dams should dams there would be respective *8 spillways Springbrook risk of loss of downstream. The on life better, as being merely “inadequate,” fared somewhat deemed percent could about 53 of the PMF before that they pass “high overtopped. would be All four dams were classified as hazard.”6 Engineers Although reports Army Corps to the did not advert the to PMF, Pennsylvania Code definition of the Code definition is consis- the usage testimony trial. reports reflected in the and in the tent the regard- “high designation any findings
6. The hazard” was unrelated to ing their adequacy spillways, rather was a function of the but how respecting various made recommendations reports dam and to increase condition of each improve physical that, in re- evidence Appellant produced capacity. spillway repair maintenance reports, performed to the sponse capaci- effectively spillway increased dams which work on the or or spillways the dams reengineer it did not ty, albeit addition, at the effort. major reconstruction undertake struck, were Hurricane Gloria time when reservoirs/dams then-Pennsylvania regulation by subject inspection (“DER”); the dams of Environmental Resources Department that, fact DER. trial court found as by permitted were Engi- reports Army Corps to the the time between September arrival Hurricane Gloria neers increase, modify substantially improve, did not appellant any of the facilities. change spillway capacity 27, 1985, rapidly passed Gloria September Hurricane On in Lackawanna and Creek watershed through Springbrook Counties, (by rain dumping substantially more Luzerne three) than National by factor of two to had been forecast (“NWS”). expert introduced testi- Appellees Weather Service heavy was so as to rainfall the hurricane mony (50%) PMF, in turn should which fifty percent exceed point on the dams. This spillway capacities exceeded the have Appellees’ expert engineer, at trial. sharply disputed Green, storm” “100-year the terms PMF and James used rainfall, then calculated the interchangeably discussing the County rainfall as a 100-year figure Luzerne storm/flood Springbrook rainfall in the Creek mere 5.98 inches. Since the inches, 6.5 from Hurricane Gloria exceeded Green watershed spillways obviously inadequate were concluded that, opined pursuant the storm. Green further handle engineering community,” dams must be “standards flood, 100-year frequency irrespective designed handle or flood control. they designed supply are for water whether dams also that one or more of opined Green designation upstream populated mere location from a area. This law, Pennsylvania regulatory approach under consistent with the endanger designates high hazard a dam which is "so located as § populated its failure.” 25 Pa.Code 105.1. areas *9 “definitely overtopped” or “flooded” and that inadequacy system of the dam to handle this storm was the cause of the However, destroyed appellees’ flood which did homes. Green recognize that dams structurally none failed and that (Watres Nesbitt) two were drawn reservoirs/dams thus, capacity down to well below when storm began; system actually protected the downstream homeowners from a amount of significant floodwater which would have naturally downstream in passed the absence the dams. Green’s testimony equating 100-year the PMF and the frequency is difficult to square Pennsyl- with the storm/flood Code, vania which includes distinct definitions for con- those cepts. The Code definition of PMF what upon focuses plausible amounts to theoretical but worst case scenario involving the “most severe combination of critical meteorologic hydrologic conditions that reasonably possible are in an § area.” 25 105.1. But Pa.Code the Code defines 100-year frequency differently: “100-year flood frequency flood—The flood magnitude expected to be equaled exceeded on the in 100 it average years; may once also expressed as the having flood 1.0% of being equaled chance or exceeded in a given year.” Id.
Appellant’s meteorological Forbes, expert, Gregory testified PMF '100-year precipitation figures flood/storm using Forbes, are calculated different methods. According to inches;. thus, PMF for County Luzerne is 23.87 pass PMF, half spillways/dams would have be able to accommodate over inches of rain in a period. 24-hour testimony Forbes’ by appellant’s corroborated engineer- ing expert, addition, Gordon In Warren. the engineering for reports prepared Army Corps Engineers recognized PMF figures the 23 inch-plus range these dams. Since inches, the rainfall from only Hurricane Gloria was 6.5 far less PMF, than half of evidence suggested dams functionally adequate were to pass discharged the water addition, formula, Gloria. with this consistently defense witnesses testified that not overtop. the dams did distinction PMF 100-year frequen between the and the academic, cy flood is not nor merely necessarily *10 credibility collapses matter which into trial the court’s factual is findings. pertinent Pennsylvania The distinction the under (1) (“class”) according Code classifies dams to size (2) hazard in potential event of an or operational the structural 105.91,7 (“category”), § failure see 25 Pa.Code the result ing joint classification then governing determines the “flood criteria, § criteria.” Id. 105.98. That design design flood in turn, speaks in distinguish terms which specifically between 100-year the PMF and a flood: frequency Design § 105.98. criteria. flood (a) discharge both, capacity storage capacity, The or or capable safely accommodating shall be of recommended the design flood for size and potential the hazard classification by (relating § the dam as of determined 105.91 to elassifi- reservoirs). of design cation dams and flood is intend- represent largest ed the flood that in need be considered project. range the evaluation of given design a When a indicated, magnitude flood is closely the that most relates potential to the size and Design hazard shall be selected. following flood criteria shall in be indicated the table: Size and Hazard Potential Design Flood Classification A-l, A-2, B-l PMF ¡k A-3, B-2, C-l PMF to PMF B-3, year C-2 100 to PMF year C-3 year 50 frequency 100 Thus, a C-l class such Intake, dam as Springbrook for must be example, designed from accommodate one-half to PMF, the full which is precisely the standard adverted to 7. A A dam impoundment storage Class is one which either an has area 50,000 feet, or more height: acre or is 100 or more feet dam B dam impoundment storage Class is one which either has an area of 1,000 50,000 height; acre or is 40 to feet 100 feet in dam and a Class impoundment storage C dam is one which an up either has area of feet, acre equal 1000 or is to or height. less than 40 feet 25 § Category A potential Pa.Code 105.91. 1 dam is one where loss of life potential from failure is substantial economic loss is and/or excessive; Category potential dam is one where the loss of life is potential "few” “appreciable;” Category economic loss is and/or expected dam is one potential where no loss life is and the economic loss minimal. Id. is for Army Engineers Corps reports prepared hazard equal slightly dams of less Larger
that dam.8 accommodating however, capable must potential, PMF, a lower hazard classification while dams with entire 100-year floods only need accommodate measured PMF, 100-year year- flood or the 50 frequency to -Jé escalating regulato risk plain It is frequency flood. flood number frequency ry 100-year framework that substantially than PMF. lower one-half regulatory struc- disregarded trial court apparently evidence, specific as it made a as well as ture dropped by of rain Hurricane Gloria that the 6.5 inches finding finding no specific PMF. The court made exceeded 1/2 any of the dams concerning disputed point of whether overtopped. *11 of the reser- only concerning evidence status came from John day on of the hurricane
voirs/dams for the Powell, a caretaker employed whom appellant job taking daily spillway Part of Powell’s included reservoirs. 27, 1985, Powell worked September measurements. On took spillway 6 a.m. to 2:30 which time he p.m., during spillway lower dams. Powell’s last measurements at the three a.m.; next day measurement that occurred before following not spillway taken until the measurements were interim, at in the Appellees’ were flooded morning. homes also p.m. September 27th. It was approximately 3:00-3:30 that, did not deem there to be undisputed appellant because emergency its emergency, dam hazard it did activate warning issue to local authorities plan any action and/or dam fail- potential owners property concerning downstream them, to attempt nor did facing appellant hazard ure/flood in anticipation draw down the water level the reservoirs the storm. that, it findings trial court issued concluded and subse-
although primary purpose “the for construction supply was to collect and quent operation” of these dams below, testimony appeared undisputed appellant's to be In the that % required pass PMF were to between to PMF. dams had an obli purpose, [appellant] water, their “[rjegardless maintain the [reservoirs/dams] and design, operate gation De located below----” flooding properties to avoid so as ¶¶ 5-6, court further Fact), 37-38. The (Findings of Nisi cree (1) and maintain duty “operate had appellant found that fashion,” provid which included in a safe its reservoirs/dams (2) and general public warn spillways; adequate ing associated may that hazards “any appellees (3) reservoirs/dams;” by applicable abide of their operation and Safety Dam under the provisions statutory regulatory (the Safety “Dam seq. 693.1 et Act, § 32 P.S. Encroachments (4) its “Act”); and maintain reser “operate Act” or the of downstream property” as to protect so voirs/dams ¶¶ Law), 13-14, (Conclusions 3-6. Nisi individuals. Decree oper failed to negligently appellant concluded that The court in accordance with the terms maintain its facilities ate and that Act, regulations; and administrative permits, its flooding legal cause proximate this failure was the ¶¶ Id. at court deter 7-11. The appellees’ properties. legal theory of was “liable ... on the appellant mined appellees appellees for harm suffered negligence” and personal real compensation their were entitled ¶¶ Id. 12-14.9 losses. property final decree appealed the appellant In an filed after opinion conclu- Court, legal trial court reiterated Superior to maintain its had a appellant sions reservoirs/dams steps protect necessary and to take in a safe condition of a storm from the floodwaters property owners *12 maintaining This included as Hurricane Gloria. such of stored water drawing down the level spillways, adequate warning property owners “heavy precipitation,” anticipation reservoirs/dams, and by is “threatened” property whose action for dam emergency plan an following developing at 6. trial court stated Slip op. emergencies. hazard found that Hurricane reasonably [sic] “should have appellant Court, damages by Superior Following delay remand an initial aggregate damages appellees in the ultimately awarded trial court $696,781.58, damages. including delay Gloria and consequent inadequate hydraulic capacity of Springbrook an [Intake] constitute imminent threat to life property and found that a dam hazard emergency exist- Further, ed.” Id. at 7-8. “[b]y allowing spillways on their inadequate, [sic] become not by drawing reservoirs/dams reservoirs/dams, down the supplies [its] instituting following emergency plan, [its] action [appellant] breached legal duty.” [its] Id. at 9. This duty, breach of court, according the trial was a “substantial factual cause” flooding Springbrook appellees’ Creek and attendant losses. Id.
Appellant appealed and Superior Court ultimately af judgment firmed the below.10 question On the of appellant’s duty, panel noted that appellant’s dams are reservoirs/ regulated by Dam Safety Act—specifically, Section 693.13. reads, That Section in pertinent part, as follows: § 693.13. Duties of Owners (a) dam, The owner of any water obstruction or encroach- ment shall legal have the duty to: (1) monitor, operate and maintain facility in a safe condition in regulations, accordance terms and permits, conditions of approved operating plans and orders department pursuant act; issued to this .
[*] [*] [*] (3) immediately notify the department responsible au- thorities any communities of condition which threatens safety the facility, and take all necessary actions to protect life and property, including action any required under an emergency plan or department order issued pursuant to this act. ... (a)(3). 693.13(a)(1), §
32 P.S. panel construed the trial court’s factual determinations as including finding that ap- Superior initially rejected 10. The appellant's Court appeal publish in a opinion, except delay ed damages, for the issue of which it remanded to the trial court for initial Energy, resolution. Shamnoski v. PG 765 A.2d remand, (Pa.Super.2000). Following Superior Court issued a 7, 2001, memorandum affirming decision on March the final decree below.
667 had violated Section 693.13 and its pellant accompanying regulations “by maintain failing failing adequate spillways, dams, failing to draw down the water levels its to follow its emergency plan, failing action to warn individuals and was municipalities property whose at risk of 765 flooding.” A.2d at 302. panel The concluded that these findings were supported by the record.
However, question duty, on the panel’s approach was very different that of the trial court. sua panel The sponte determined that violation of Section 693.13 found by the trial court per “constituted Id. In negligence se.” rendering interpretation Safety Act, the Dam the panel rejected the decision of of Appeals the U.S. Court for the Valley Third Circuit in Beaver v. Power Co. Eng’g National & Co., (3rd Cir.1989). Contracting F.2d In panel’s view, a se per approach was find it appropriate “because we simpler to regard the Act as the absolute standard of conduct dam owners governing rather than to ignore the statute and abstract, create a parallel, person’ ‘reasonable standard.” 765 A.2d at 303. per its se
Applying approach, the panel deemed it immateri- al that appellant’s were permitted facilities and that dams its breach, fail;” rather, “did not leak or the material fact was that the dams panel “overflowed.” The agreed also with the trial court that appellant should have responded Hurricane by declaring Gloria a “dam activating hazard emergency,” emergency plan, action warning downstream homeowners. panel rejected appellant’s argument “safety” concerns addressed Act and regula- the accompanying tory have to structure do with “the structural integrity panel’s view, dam.” the safety referred to in the Act. security residents; was the therefore, appel- duty lant “had a to warn people dangers downstream the posed by Gloria,” Hurricane if danger even totally prospect unrelated of a structural dam failure. The panel also concluded that appellant had “a down draw its water levels” regulation because the relevant such requires action of a event dam hazard Id. emergency. at 303-04. rejected argument— appellant’s causation panel next *14 the
i.e., that here was argument damages the the sole cause alia, since, in total dropped by the hurricane inter water proceeded have dams more floodwater would absence in its this left more devastation down watershed and even finding that rejected argument, this The panel wake. (the hurricane) and Act both an of God evidence showed with the comply virtue of failure to negligence by Safety Act. Id. 304. Dam below, as it that appellant argues, this did appeal,
On by Safety Dam Act relate safety requirements imposed any greater not stability impose to structural and do solely beyond might expected what negligence collateral term argues common law. further Appellant under as in the adminis- emergency” governing “dam hazard defined directly regulations emergency trative likewise connects “dam stability of the dam. Code indeed defines “a which the hazard in such terms: condition emergency” finds reasonably owner of the dam Department, permittee or or or threat to life above property constitutes an imminent dam, arising a from the condition below whether conditions, extraordinary or natural appurtenant and works affecting safety stability dam, but including, and flood, Pa. to, jam.” earthquake, not limited fire and ice (emphasis supplied). Appellant § submits Code 105.135 it not or statutory regulatory duty does owe unpre- mitigate by caused prevent flooding homeowners hurricanes, such as rainstorms phenomena dictable natural melts, supply since its dams permitted and snow are not as control and flood reservoirs. reservoirs expansive duty imposed argues further that the Appellant “radical and unac- courts below amounts upon owners of water liability” standard absolute ceptable “[rjeservoir duty, owners reservoirs. Under new supply hold when will be held liable their facilities operators even fast, failure, single drop add no structural experience and, fact, waters, Nature’s reduce the downstream flood Appellant, Appellant flow of waters.” Brief for those principle the bedrock courts overlooked that the lower submits if the harmful only negligent that conduct is law negligence pre- reasonably foreseen could have been consequences Here, appellant of reasonable care. by the exercise vented submits, severity were unforesee- path Hurricane Gloria’s able, upon based the NWS unexpected unpredictable forecasts. that, Act Safety Dam although the argues also
Appellant to the guidance relating particular certainly provides specific dams, from the Act should be arising duties posed by hazards liability conformity principles -with common law viewed that, under Appellant notes involving jurisprudence.” “water law, land is not a upper the owner of Pennsylvania well-settled *15 surface water run-off damage by caused guarantor against land; rather, upstream to lower a natural course through if has only for such run-off he landowner is liable water means, by its natural channel artificial the water from diverted quantity of unreasonably unnecessarily or or increased discharged down- changed quality or the water Ford, 20-21, Lucas v. 363 Pa. 69 citing Id. stream. (1949); Twp., Pa.Super. 114 LaForm v. Bethlehem 346 A.2d Estates, (1985); Piekarski v. Club Overlook 499 A.2d (1980). Inc., 162, 421 Appellant A.2d 1198 Pa.Super. jurisdictions precisely ap- notes that other take further owners, duty recognizing to of the of dam proach question is not to worsen conditions down- only obligation that what would in the absence of the beyond stream have occurred cases). (collecting 19-21 n. 5 Appellant, dam. Brief for & obviously under- principle submits the same Appellant Safety accompanying regulations, the Dam Act and its girds dam failures: events they “punish protect against since or unreasonably quantity quality which would increase the or a dam falling upon passing through natural water Brief, judice, land.” In the case sub Reply owner’s concentrate, did not argues, appellant reservoirs/dams naturally produced or force of the waters channel increase the Gloria; those contrary, appellant argues, Hurricane to the protected appellees by preventing reservoirs some of the hurricane’s water downstream. passing from
Appellees appellant irrespective counter is liable fact that its dams not fail structurally. Appellees did take an owe, expansive view the duties that dam-owners as a matter law, that, to downstream homeowners. Appellees argue from a design standpoint, there is no difference between water and flood control supply dams: each must be reservoirs/dams Thus, engineered protect so as to downstream landowners. if a integrity, even dam retains its structural as these dams did, a dam is liable in if negligence owner the dam is not hold, hold, if it not designed does in fact waters and/or might accompany which a storm of the of Hurri- magnitude Appellees argue cane Gloria. further that the harm that these dams could by failing cause stem the flow of the waters from a storm such as Hurricane Gloria was foreseeable be- engineering cause the reports provided Army Corps Engineers highlighted the inadequacy spillway capaci- ties, yet appellant remedy failed those deficiencies. also
Appellees Superior Court’s adopt view “safety” ensure under the Dam Act. Safety Appellees Act, look to the general safety definition of in the that, provides otherwise, unless the context clearly indicates “safety” “[s]ecurity means the risk or of signifi- threat life, health, injury cant loss or property and the environ- here, property ment.” Since loss occurred would have flooded, if occurred the dams had not overtopped appellees *16 argue, Thus, the dams were “unsafe.” from appellees’ per- a spective, dam is “unsafe” and “fails” it whenever fails to protect downstream homeowners from flooding.
This Court also has of the benefit an amicus brief in filed of support appellant by Pennsylvania of Envi Department (DEP), DER, ronmental agency Protection the successor to agency that administers Safety the Dam Act.11DEP argues Superior interpretation Court’s of Act is to in contrary the manner which DEP has administered it. Appellant joined but, DEP as an additional defendant at trial at the trial, completion granted. of DEP's motion for nonsuit was DEP advises that did not as spillways, deem Corps Engineer reports, modified in response Army seriously inadequate they since could over of discharge lk PMF. adequate Because the were to handle this spillways (which PMF) storm says produced only DEP 28% of posed physical safety because the storm no threat reservoirs, dams and DEP that no argues “dam hazard emer- arose, therefore, warn, gency”- had no appellant duty much less a to draw duty down the water which is stored the reservoirs for the public. recognizes benefit of the DEP that a natural condition such as a hurricane a represent could dam; but if it emergency, only affected the stability a a per hurricane is not se dam that a emergency. The fact storm, “flood is emergency” posed by notes, a DEP does not equate to a “dam hazard emergency.” a public DEP’s supply view which is reservoir/dam safe, were, structurally these dams is not in violation Moreover, Act. DEP takes issue with the notion of a supply draw-down water reservoir advance of a storm. notes, Such a requirement impractical, DEP because it reservoir, days takes to draw down a severity course and of storms and hurricanes unpredictable, are and an unneces- sary may drawdown itself public cause a safety hazard—an insufficient supply.
Preliminarily,
disagree
we note that we
Superior
Court’s sua sponte holding that
693.13
violations
Section
the Act
proof
negligence
should be deemed
per se. Assum
ing that such a
se
per
negligence holding is
warranted
an
case,
appropriate
logically,
the statute
issue would have
be so specific as to
question
leave little
that a
person
entity
found in
of it
violation
deviated from
reasonable standard
care. As the Third Circuit noted in Beaver Valley Power Co.
v.
Co.,
National Engineering & Contracting
For a legislative enactment to be considered as “fixing standard for all members of community, it is deviate,” negligence to the act must first of all “provide! ] that under particular certain shall or circumstances acts
672 Keeton, Keeton, Dobbs, R. D. D.
shall done....” W. § at 220 Owen, Law Torts 36 Prosser & Keeton of (1984).
Id. at of what provide very statements Many general statutes deviation, quite while others are or compliance constitutes example a useful provides The Motor Vehicle Code specific. the Motor Vehicle Code distinction. of Section motor very general requirement operators contains the prudent” speed: at a “reasonable and vehicles drive is than speed greater shall drive a vehicle at person No having and under the conditions prudent reasonable and nor existing, actual and hazards then regard potential his permit bring will the driver speed greater at a than ahead. stop to a within the assured clear distance vehicle at a every person shall drive foregoing, Consistent with crossing and speed approaching safe and when appropriate or when grade crossing, approach- an railroad intersection curve, crest, a hill approaching ing going around when roadway or traveling upon any winding when narrow or special respect pedestrians when hazards exist with by conditions. highway other traffic or reason weather pru- § 75 Pa.C.S. 3361. What constitutes reasonable essentially sets unspecified; is the statute speed dent since standard, man would be forth a traditional reasonable this se finding negligence per upon to base a impracticable Code, however, sets provision. very next section of the every specific limits on vehicle speed forth the numeric Id. obey must or be fault. Pennsylvania driver deemed absolutes; is room § 3362. there no speaks Section Exceeding man standard. flexibility for the the reasonable is, definition, designated limit unreasonable. statutory A of the Dam Act Safety violation Section 693.13 In per negligence. not an for a se appropriate finding basis not, did regard, persuasive, Superior find Court we where Valley. analysis of the Third Circuit in Beaver case, that end constructing bridge the defendant was *18 in cofferdams, temporary structures used which are built piers around under the area bridge-building “dewater” working platform. displace- The and for use as construction in water level the cofferdams caused the ment of water dam to hydroelectric rise. power company’s upstream plaintiff electricity when water power company generated Because the in the pool the dam fell to a lower upper pool from an above pool in itself, water level the lower artificially higher thereby two reduc- pools, distance between the decreased the generated. plaintiff power amount of The ing power bridge the builder company therefore sued in dam’s of a decrease for losses sustained the result produce electricity. capacity bridge first that the owner power company argued
The it had built and maintained the per se because negligent invalid, in permit with an and therefore expired, cofferdams Third Safety 693.13 of Dam Act. The violation Section Circuit, in and thus sitting diversity which was was tasked on anticipate might questions how this Court rule Pennsylvania presented, rejected argument, finding law licensing requirements usually do not create permit F.2d at 1221-22. liability. power se rules of civil 883 per se should be found company negligence per next claimed 693.13(a)(1) (3) bridge owner violated Sections because Act, in this case. The precise sections involved that this would find unlikely Third deemed Court Circuit per would provisions support finding negligence that these lack in specificity required: se due to the the conduct in any do not standards of care provisions These create negligence general. sense than the law of specific more is con- legislative those enactments whose violation Unlike se, v. per compare to constitute Miller negligence sidered (1982) (violation Hurst, 448 A.2d Pa.Super. requiring dog kept negli- of law to be leash constitutes se), acts that per they particular do not describe gence or should not exhortations to general should be done. maintain in a “safe” condition and to take facility action to at most tell the “necessary” protect property to act as permit person They holder the reasonable would. do not as to a provide guidance legislative judgment that the failure to conduct engage negligence; certain constitutes rather, they questions question raise much like the particular whether conduct negligent: should be considered person whether a has maintained a dam in a condi- “safe” tion and whether a took action. person “necessary” Accord- ingly, Pennsylvania we do not think the Supreme Court provisions adoption would deem these suitable for as a per negligence. se standard of
We concur with the Third Circuit’s conclusion that these 693.13 provisions sufficiently specific Section are not such *19 that a violation should be to give finding deemed rise of negligence per se. that it Notwithstanding might “simpler” be did, Superior conclude otherwise as Court the fact remains that 693.13 general Section sets forth a standard of conduct which simply requires application the tried and true of law to fact. As Third correctly recognized, Circuit the statute essentially expresses familiar and flexible reasonable man and, such, standard as it does not support per se negligence shortcut. remaining and more difficult is question whether the (which
trial court operate did not on an assumption per of se negligence) properly found that appellant was negligent by applying standard, a traditional person reasonable in of light the duties imposed dam owners under Dam Safety Act the common law. We hold that the evidence here was and/or insufficient as a matter of law prove that appellant negligent.
“A cause of action in negligence requires allegations that establish of a legally the breach recognized duty or obligation that is causally damages connected to suffered complainant.” v. Sharpe 90, St. Luke’s 573 Pa. Hosp., 821 1215, (2003). that, A.2d This Court has noted “[t]he in primary any negligence element cause of action is that the duty defendant owes a of care to plaintiff.” Althaus ex Cohen, (2000). Althaus v. 562 Pa. 756 A.2d rel. traditional The Althaus Court further summarized the consid public involved assessment of policy any erations of a duty existence care follows: care, determining “In of a it must duty the existence be amounts to no concept duty remembered more than ‘the sum total of those policy considerations the law to say particular led that the is entitled to plaintiff To protection’ give the harm suffered.... it any greater mystique unduly hamper system juris- would our prudence adjusting changing times. The late Dean expressed Prosser this view as follows: sands, These are and no shifting fit foundation. is There if says law, court there is a duty; like the Constitution, Duty only is what we make it. is a word with which our we state conclusion that there is or is not to be it liability; necessarily begs question. the essential we find a duty, When breach and damage, everything has been said. The word serves a purpose useful directing attention obligation imposed upon the defen- dant, events; rather than the causal sequence beyond serves none. the decision or not whether there a duty, many factors hand of interplay: history, justice, our ideas of morals and the convenience of admin- rule, istration of our social as to ideas where the *20 loss should fall. In the end the court will decide whether is a duty there on the basis of the mores the communi- ‘always ty, keeping in mind fact that we endeavor to make a rule each case that practical will and in be keeping with general of mankind.’ understanding [Prosser, Revisited, 1, 52 Palsgraf Mich. L. Rev. 14-15 (1953).]” 1168-69,
756 at Burd, A.2d quoting Sinn v. 486 Pa. 404 (1979) (citation A.2d omitted). and footnote from Sinn Sharpe, Accord A.2d question of whether a is a duty legal exists “assigned one the first instance to the trial subject court and- to plenary appellate review.” Id. DEP, do not 693.13 and the
Like we view Section duty of flood imposing general accompanying regulations down upon protecting dam for the purpose control owners all dams control Although it is true that stream homeowners. not to if the dam is filled flooding by the reservoir created hits, that that the a storm fact does not mean capacity when to duty has facility assumed owner a water reservoir of downstream owners property de insurer become facto forces unrelat of floodwaters against generated the course and statutory to dam. The integrity ed the structural safety and framework at issue is directed to the regulatory themselves—which, in man-made facilities integrity of these turn, harm to extraordinary do not cause they ensures That structural failure. through downstream homeowners legislation apparent plain is the is such purpose monitor, duty-bound operate Dam are language. owners facility in 32 P.S. maintain the a safe condition. and 691.13(a)(1) and duty notify § Their (emphasis supplied). property” all actions to necessary protect to “take life is into a condition arises “which likewise tied situations where 693.13(a)(3) (em safety facility.” § of the Id. threatens the “dam hazard definition of phasis supplied). regulatory condi emergency” equally explicit: although triggering is (“condition may tion to the dam of the dam be external ... conditions extraordinary works or natural appurtenant to, flood, fire and ice including, earthquake, but limited safety jam”), “affect[s] it must be one which thereby stability (emphasis sup § of the dam.” 25 105.135 Pa.Code plied). duty
Both
view
Superior
appellee
Court
i.e.,
is not
primary
“safety”
outwardly-oriented:
dam,
safety
assure
structural
of the
but rather
Indeed,
safety
property
owners.
ensure
that,
extraordinarily
went so
far as to find
Superior Court
is
owners
“Appellant’s duty
property
warn downstream
life, health,
triggered by any
property
event which threatens
environment,
integrity
of whether
regardless
or the
forwarding
their dams matter between facilities de- understandably distinguishes structure upon prospective size and volume their pending their danger public, obligation to the and modulates the level For riskier the dam is the event accordingly. example, the failure, greater regulatory requirement regarding is the testimony It both from below and as spillways. is obvious dispute power the General 12. We do not it is within the owners, Assembly given require more of dam the inherent flood But, purpose required to serve. that is not control that dams could be statutory requires current structure and we will not read into what the it a which does not there exist. *22 matter of common that primary safety purpose a sense the of a is to the of If spillway protect integrity the dam structure. of speed entering the volume and water a reservoir to were of capacity spillway exceed the the to modulate the volume of reservoir, water in the and then to a point where the dam risk of capacity, overtopping itself exceeded there a and erosion, concomitant leakage, bursting. or If a dam or leaks bursts to or negligent design, operation, due maintenance the resulting damage direct to downstream is not homeowners due God, of to an Act but the sudden release of that which man to artificially By determined store and concentrate. undertak- change natural ing pooling dispersal along the the waterway, necessarily the dam’s owner a duty assumes re- But, of specting integrity the the dam. the not owner does thereby all undertake insure downstream homeowners of against prospect having nothing the floods to do with the dam, integrity legislation of the not him oblige the does do so.
Appellees’ own of theory liability highlights impracticali- the of ty they the multifaceted duties would have courts the impose upon Appellees owners. make much of fact the that engineering reports provided Army to the of Corps Engineers highlighted deficiency capacity of the dams to spillways disperse these floodwaters from most however, storm. probable Appellant aptly rejoins, severe that if larger spillways greater discharge capacity passed had did, more into the watershed than danger these short, appellees would have increased. primary dan- greater which a ger spillway capacity guards against during storm is the course a failure of the dam—which is the issue, single catastrophic most event at and the event with But, Army Corps which the was at concerned. least an fail, here, a not instance where dam does as was the case greater spillway capacity discharge would presented have greater flooding danger downstream homeowners. that appellant owed to downstream homeowners and to public generally was to maintain design, operate its dams in a fashion that that ensured their structural integrity safely would be maintained even in a storm of the (if rare) It predictable intensity Hurricane Gloria. undisputed did not they dams fail: did not and, indeed, burst leak to the extent two of the capacity reservoirs were well below the time storm was (in a raging period region when the had been in midst of drought), those acted flood con- unintentionally reservoirs trol thereby protected facilities and downstream homeowners (cid:127) from a certain amount Gloria’s waters. Because dams fail, damages appellees did and the sustained were a storm, result natural effect did not appellant duty to any legal appellees. breach *23 damages that not appellees suffered resulted a through
from rush of water released the breach or failure of dam, but from the natural of a effect storm of this magni watershed, inundating tude this sort of downhill severe where landowners had unwittingly tragically built their homes in the natural floodplain the watershed. note that our We understanding appellees, to both under the law, statute and common comports under traditional approach respective rights duties of landowners when water run-off is at issue.' As this Court half noted over a century ago, summarizing what already was well-settled law: upper
The owner of right land has the to have surface waters or land flowing over his discharged through a natural another, water course onto the land but may he not cut an artificial channel to divert that ... water. He may make proper profitable use of his though land even such use may change result some quality quantity or flowing water ... lower land. If change is use, not in relation to the any unreasonable loss resulting the owner of the lower land is damnum absque injuria. ... connection, In that upper may lay owner artificial drains in his provided they land do not divert the from its water natural or unnecessary course cause injury to the lower owner. ...
From rules it is only those clear that where water is diverted its natural or channel where it is unreason- has the changed quantity quality or or
ably unnecessarily a legal injury. lower received owner (citations (1949) Ford, v. 363 Pa. A.2d Lucas omitted). inun- judice, floodwaters that In the sub case or were not concentrat- appellees’ properties dated .channeled into the watershed. appellant dumped and diverted by ed back from Hurricane dams held The waters came Gloria. The capacities maximum of their those floodwaters only produced natural flow of excess watercourse down the natural proceeded through storm which damage appellees’ properties. and caused the tragedy lost of the sudden and severe sight We have of this extreme which has result appellees befallen however, for that tragedy, Responsibility weather event. dams whose neither lawfully assigned appellant, cannot Accord- damage nor suffered. appellees failed caused judgment is reversed and entered ingly, judgment below in favor appellant. did not in the participate
Former Justice ZAPPALA Chief case. decision concurring opinion.
Justice NEWMAN flies concurring. Justice NEWMAN *24 Majority applicable I the that the standard agree with is standard rather person the instant matter the reasonable articulated, As statute is not per than se. the negligence so can what conduct person drafted that reasonable discern Next, had I that PG prohibited. agree Energy (Appellant) is to the duty prior no to draw down the water in the reservoirs This was a flood-control onslaught from Hurricane Gloria. dam, for support but reservoir and is no supply a water there duty dam has a institute argument every an that owner Final- heavy precipitation. flood control measures times of Act, Safety I also that Dam and Encroachments ly, agree the amended, 1978, 1375, P.L. 32 P.S. Act November 693.27, §§ 693.1 focused on mechanisms primarily is course, by maintain- integrity of the dam. Of maintaining the is dam, watershed of the integrity ing the dam, within the contained flooding waters from the protected because, I separately I write additional waters. but not it drafted to warn when assumed Appellant that believe System Operation and Warning “Emergency its adopted and that it should have Plans, Brook Intake” Spring 27,1985. September plan implemented for a potential fact that the I am troubled Initially, of the event the conclusion is assessed after being hazard dam Opin- Majority The during or the event. than before rather (DEP), and Environmental Protection ion, Department fail, did not burst or dams did not all that the stress Appellant to the maximum their floodwaters leak, and held back the appropriate is not the post-event perspective This capacities. Action Emergency an to assess whether timeframe (EAP) Implementation implemented. should be Plan plan of the on the contents have focused EAP should conditions would have deemed person whether reasonable a hurricane Although implementation. for its to call existing if hazard hazard, safety it a dam pose can not a se per Hurricane I that intensity. believe has force and storm had flooding, potential Gloria, rains torrential that, of an after-the- regardless stability to threaten potential is the says nothing happened, that fact assessment Emergency implementation triggers threat matter, a potential I instant believe Action Plan. threat existed. of ade- importance Majority acknowledges
Even the are spillways where the design, particularly spillway quate Ma- specifications. minimum only marginal meet a dam when danger to recognizes the jority inexplicably nothing exist, to conclude that because only conditions flooding unnecessary. EAP was implementation happened, Majority states: is to spillway protect of a safety purpose primary
[T]he speed the volume and structure. If of the dam integrity capacity to exceed the entering a reservoir were *25 water in the the volume of spillway to modulate reservoir, point then to a where the dam itself capacity, exceeded overtopping there is a risk of erosion, leakage, concomitant bursting. If a dam leaks or bursts due to negligent design, maintenance or operation, the resulting damage direct to downstream home- God, owners is not due to an Act of but to the sudden of that release which man determined artificially store and concentrate. 676-79, 604-05.) at
(Op. 858 A.2d at The Majority continues that, short, “In the primary danger greater which a spillway capacity guards against during the course of a storm is the failure of the dam—which is the most single catastrophic issue, event at and the event with which Army Corps 678-79, 605.) concerned.” at (Op. 858 A.2d at I believe that Hurricane presented just Gloria this potential scenario in at least early hours of the storm and that Appellant should have activated its plan and warned downstream residents that flooding was possible.
A review of provisions EAP Brook Spring demonstrates that the EAP should have implemented. been Specifically, EAP ties a dam hazard emergency level of the passing through spillway. The initial action in of heavy the event precipitation is the dispatch caretaker to report observe and on reservoir levels. EAP indicates that dam surveillance will be maintained on a twen- ty-four-hour basis until a company officer declares that the has event concluded. Appellant never spillway monitored the discharge at and, locations specified without continuous .surveillance, Appellant was without information as to the safety and stability of the dam. EAP states that a danger moderate of dam failure occurs when the spillway discharge is at of capacity 50% or rapidly approaching 50%. that, It notes “at 50% of spillway capacity, the reservoir level' is at 6.8 feet over the spillway crest or 3.7 feet below top (R.R.) 865a.) of the dam.” (Reproduced Record At this point, the plan calls for assessment of risk of dam failure by Appellant’s employees preparations for possible evacu- ation of the downstream watershed. *26 of category next dam hazard is titled “Increasing
Danger.” Increasing danger exists at 75% of spillway capaci- ty, the forecast continued heavy rainfall. At 75% of spillway capacity, the 8.3 reservoir level is at feet above or 1.7 spillway crest feet At top below the dam. this procedures evacuation point, implemented. are actual passage reads:
In the the spillway event has 75% of discharge reached capacity heavy and weather information that rain- indicates fall will continue at up- surveillance at the site or and/or stream a potential reservoirs indicates hazard other than evacuation overtopping, procedures shall be implemented. This can passage two read other ways: In the event the has spillway discharge 75% of reached capacity and weather information heavy indicates that rain- fall will ... continue procedures imple- evacuation shall be mented.
OR In the ... event surveillance at site or at upstream reservoirs indicates a potential hazard other than overtop- ping, procedures evacuation shall be implemented.
(R.R. 869a). at It is disputed not that the spillway discharge 100%, reached at least 75% of if capacity, not while there was still heavy rain. Although recognized there is no duty to warn Pennsylvania, I have concluded that a warn was case, voluntarily assumed though even not statutorily imposed, PG when Energy Appellant, drafted its EAP. when it a specified series alerts based on the of spillway level discharge, was the one entity the best to know position how much rainfall and what circumstances would result in down- stream .However, flooding. because I do believe that the failure to was warn proximate of Appellees’ cause property loss,' I agree Majority with the that Appellant was not liable for the damage property of Appellees. The extent of so flooding great from the downpours torrential that warnings given by Appellant would not have averted the damage by Appellees. suffered will cause major storm event
The occurrence of because, limitations level spillway, to the due overtop will a rate area rise impound within the capacity to water over pass than the dam’s greater Further, colossal corresponding pressure spillway. stability the dam. We very volume of water threatens the dam struc- posed by that the risks unique forever remember rains, dev- tures, produced the in combination with torrential Fork dam on South Creek astating failure of an earthen Johnstown, May 1889. The Pennsylvania outside thousand lives. more than two resulting swept away torrent *27 flooded, always dam had held. area had often Although the of methods many our modern designed have While we tragedy, of this performance that there is no repeat ensure construction, goal entirely dependent quality repair, pres- and the inspections, promptness frequency action emergency plans. proper implementation ence unac- unnecessary and poses an any Failure of one these Therefore, I be- risk to a downstream watershed. ceptable specific provisions Appellant, pursuant lieve that drafted, Action Plan that assumed Emergency ac- triggered water levels warn those downstream when by plan. tions mandated
Supreme Pennsylvania. Court of Sept.
ORDER PER CURIAM. NOW, having there day September,
AND this 28th his verified Alamgir filed with this Court Mohamed been