OPINION BY Justice WILLIAM C. MIMS.
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.
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.
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.
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 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,
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."
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 Abbott "also mentioned that techniques are available such as a cable with drop straps to prevent boating accidents at dams."
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 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.
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 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:
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. P'ship, 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 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:
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 Perkins v. Byrnes, 364 Mo. 849, 269 S.W.2d 52 (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 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.
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:
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:
Id. at 190, 475 S.E.2d at 800-01 (internal citations and quotation marks omitted).
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 gross negligence. The trial court erred in striking the Volpes' evidence when the jury failed to return a verdict.
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:
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 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.
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
Affirmed in part, reversed in part, and remanded.