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8 Risk and the Calculus of Legal Liability in Dam Failures INTRODUCTION In analyzing the potential legal liability for dam failure, a distinction must be made between federal and nonfederal structures. While the water escaping through a break in a dam does not concern itself with whether the dam is privately or publicly owned, the doctrine of sovereign immunity results in a different matrix of legal principles applying to federal flood control projects than for private facilities. COMMON LAW AND SOVEREIGN IMMUNITY It was clear under common law that the government could not be held liable for mistakes and errors that caused injury to others. By way of illustra- tion, regardless of whether the government was negligent in designing, constructing, maintaining, or inspecting a facility, it would not be liable persuant to the doctrine of sovereign immunity. The doctrine, which origi- nally meant "The King can do no wrong," precluded litigation against the sovereign, i.e., governmental bodies. THE FEDERAL GOVERNMENT AND SOVEREIGN IMMUNITY To a greater or lesser degree, all jurisdictions have abrogated sovereign immunity. On the federal level, Congress enacted the Federal Torts Claims Act in 1946, 28 U.S.C. 2671 et seq., to impose liability in torts cases. 84

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Legal Liability in Dam Failures 85 However, there are several exceptions to the act. A major case illustrating the limits of liability is Dalehite v. United States, 346 U.S. IS (1953), which involved a major disaster at Texas City, Texas. Ammonia nitrate, intended for use as fertilizer in rebuilding Europe pursuant to the Marshall Plan after World War II, exploded, resulting in extensive loss of life and property damage. The Supreme Court held the Federal Torts Claims Act did not include causes of action for strict liability or intentional misconduct. Thus, Congress had waiver] sovereign immunity only for acts of negligence. The case has since been reaffirmed. Consequently, the only cause of action currently available to victims of a federal dam break is negligence. However, a separate statutory exception to the Act greatly limits relief in dam-break cases. This exemption was origi- nally enacted in 1928 as part of the flood control project for the Mississippi River, and has since been reenacted in broad public works bills. Section 702c, (33 U. S. C. 702), the current version, provides No liability of any kind shall attach to or rest upon the United States for any damages from or by flood waters at any place . . . The germinal case in interpreting 702c is National Manufacturing Co. v. United States, 210 F.2d 263 (8th Cir. 1954), where the Kansas River in l9S1 entered flood stage at Kansas City. Government officials allegedly released negligent information on the status of the river, which thereby precluded plaintiffs from transferring their movable property to safety. The 8th Circuit concluded from the statutory language that Congress intended to safeguard the United States against liability "in the broadest and most emphatic language." Liability is precluded "at any place" and of "any kind" (Id. at 270~. The basis of nonliability is public policy. Since the cost of flood control projects would be great, Congress did not want the inevitable flood damages to be part of the costs. Congress never intended to be an insurer of flood safety. In effect there has been a trade-off by Congress in that it has conditioned flood control appropriations upon freedom from liability: Heretofore the great contribution of the United States to the struggle that has contin- ued for generations and will long continue, to conquer floods, has been made on the basis of federal nonliability for flood damages. That has been the condition of the government's contribution (Id. at 275~. Thus, the purpose of 702c, and the judicial interpretation thereof, "was to place a limit on the amount of money Congress would spend in connection with flood control purposes." Graci v. United States, 456 F. 2d 20,25 (Sth Cir. 1971~. Since flood damage was sure to recur during the course of the exten- sive flood control construction program, Congress did not intend to burden its efforts by paying out damages. On the contrary, it refused to compensate

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86 SAFETY OF DAMS victims of every act of God disaster because of the enormous financial impli- cations. Guy F. Atkinson Co. v. Merritt, Chapman ~ Scott Corp., 126 F. Supp. 406,408-409 (N.D. Calif. 1954~. It should be noted that legislative history was of little help in construing the statute since the provision was not introduced until shortly before the final version of the Flood Control Act was passed. The only comment made with respect to the provision was by a congressman on the House floor, "to the effect that in engaging itself in flood control works, the government should not by itself be open to suits for flood damage." Graci v. United States, 301 F. Supp. 947, 953 n.8 (E.D. La. 1969~. The Federal Torts Claims Act die] not expressly include 702c among its provisions. However, the courts have held that 702c survived the enactment of the Federal Torts Claims Act because of the fundamental policy of 702c. See, e.g., NationalManufacturing Co. v. United States, supra, and Clark v. United States, 218 F.2d 446 (9th Cir. 1954). A long-settled public policy is not to be overridden by the general terms of a statute that does not show with certainty a legislative interest to depart from that policy. Another rule of statutory interpretation is also applicable here. When the legislature becomes aware of the judicial gloss placed on a statute, but fails to exact measures that would change this interpretation, then the legislative "inaction" is viewed in effect as a ratification and ap- proval of the prior judicial action. It should be noted that on several occa- sions, such as the Teton Dam Compensation Act, Public Law 94-400, 90 Stat.1211 (1976), Congress expressly had an opportunity to modify or repeal 702c, but failed to do so. Thus, 702c continues as a statement of national policy. Aetna Insurance Co. v. United States, 628 F.2d 1201 (9th Cir. 1980) Another reason exists for the broad interpretation given 702c by the courts. Government projects cannot insure against flood losses. Since the government cannot guarantee that its flood control works and that even under the best design, engineering, construction, operation, and mainte- nance conditions can prevent all flood losses, there should be limits imposed upon its liabilities. Once the basic policy is established, the parameters become clear. The protection extends to lands far away, as well as in close proximity to the dam. Viliarreal v. United States, 177 F. Supp. 879 (S.D. Tex. 1959) (farm was 65 miles from the river). It covers negligent construction or maintenance of flood works. Stoverv. United States, 332 F.2d 204 (9th Cir. 1964). It encom- passes the peripheral aspects of a flood control project, such as the relocation of railroad tracks. There is no protection against backwaters caused by floodwaters held in a project, such as a bridge embankment, which is an integral part of the project. McClaskey v. United States, 386 F.2d 807 (9th Cir. 1967). It avails plaintiff nothing to label the flow as "rapid runoff of surface waters" rather than "floodwaters," Florida East Coast By. Co. v.

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Legal Liability in Dam Failures 87 United States, Sl9 F.2d 1184 (Sth Cir. 1975), or to attribute the damage to seepage. Morici Corp. v. United States, 491 F. Supp.466 (E.D. Calif. 1980), affirmed on other grounds, 681 F.2d 645 (9th Cir.1982~ . Section 702c applies whether the dam is a U.S. Army Corps of Engineers project or a Bureau of Reclamation structure. See, e.g., McCZaskey v. United States, supra (Corps of Engineers); Sanborn v. United States, 453 F. Supp. 651 (E.D. Calif. 1977) (Bureau of Reciamation). The key to 702c is simply whether the dam was authorized in whole, or in part, as a flood control project. See, e. g., Graci v. United States, 456 F.2d 20 (5th Cir. 1971~. Cases have even held that no liability would attach on a floor] control project even when government negligence has caused or aggravated the loss. This holding was based on a fact pattern involving an act of God. See, e. g., Burieson v. United States, 627 F2d 119 (8th Cir. 1980~. On the other hand, there have been cases in which liability has been imposed on the government despite 702c. These situations involve drainage facilities incidental to other government installations, or government con- duct unrelated to congressional flood control acts or projects. One case imposed liability when negligence occurred in the construction of a naviga- tion aid project. The government contended 702c afforded an absolute im- munity from liability for floodwater damage regardless of whether or not government negligence was associated with a flood control project. The court rejected this contention, noting that 702c was enacted for the purpose of flood control projects. Grac? v. United States, 456 F.2d 20 (Sth Cir. 1971~. Liability was also found where, without warning, Air Force personnel at Ladd Air Force Base in Fairbanks, Alaska, dynamited an ice jam created by natural causes in the Chena River. Peterson v. United States, 367 F.2d 271 (9th Cir. 1966~. Similarly, when negligent maintenance of a stream and culverts caused flooding, liability was found because an airfield construc- tion project, and not a flood control project, was involved. Valley Cattle Co. v. United States, 258 F. Supp. 12 (D. Haw. 1966~. In conclusion, as one court has stated "It does not follow that the mere happening of a flood insulates the Government from all damage claims flowing from it." Mc CIaskey v. United States, 386 F.2d 807,808 n.1 (9th Cir. 1967~. THE RISKS OF NEGLIGENCE The existence of risk is an integral component of any determination of legal liability. For example, negligence, which is the most commonly uti- lized cause of action both in tort litigation and dam failures, is generally defined in terms of the failure to exercise the standard of care of a reasonable person under similar circumstances. This standard in turn is based on the reasonable foreseeability of the risk. Determining whether this standard is

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88 SAFETY OF DAMS met is generally based upon the risk that an accident will occur, the magni- tude of harm should the risk materialize, and the availability of alternatives. The classic formula was expressed by the distinguished jurist, Judge Learned Hand, in United States v. Carroll Towing Company, 159 F.2d 169 (2nd Cir. 1947) as follows. Possibly it serves to bring this notion into relief to state it in algebraic terms. If the probability be called P; the injury L; and the burden B; liability depends upon whether B is less than L multiplied by P. i.e. whether B is less than PL. It is important to emphasize that the ultimate question though is not foreseeability per se, but whether in light of that foreseeability, how a rea- sonable man would have acted taking into account the potential magnitude of harm, and the alternatives available. For example, if a specified flood were foreseeable, but highly improbable, should a dam engineer design the structures to handle that degree of flooding, or to a lesser standard? In this respect, if litigation ensued after a dam failure, both plaintiffs and defend- ants would introduce expert testimony on the standard of care to be expected under the circumstances. At that point the appropriate standard would be determined by the trier of fact, which is usually a jury. If there is a recognized professional standard] of care, then that standard will generally serve as the minimal legal duty. In this respect, if the Corps of Engineers' PMF spillway requirements are viewed as the appropriate stan- dard for high-hazard dams, then that standard would most likely control the legal outcome. Parenthetically, it should be noted that the question is not whether a similar event has occurred before, but the foreseeability of the risk that this particular mishap will occur. Even if a dam had not failed in the past under similar circumstances, liability may still exist if reasonable design, construc- tion, operation, inspection, or maintenance procedures could have pre- vented the dam failure. Because of the potential risks involved with a dam failure, the standard of care frequently imposed by courts is that one must use care commensurate with the undertaking, i.e., the duty of reasonable care is measured by the magnitude of the project. Obviously, the standard of care is a sliding one. While slight care might be required for a small stock-watering pond in an unpopulated, rural area, it would be grossly improper to use slight care in designing, constructing, or maintaining a large dam overlooking a major population area. For example, Minnesota has held that since the standard of care is in proportion to the risk of injury, the owner must build a dam to meet such extraordinary floods as may be reasonably anticipated. Willie v. Minnesota Power ~ Light Co., 250 N.W. 809 (Minn. 1933~. See also Herro v. Board of

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Legal Liability in Dam Failures 89 County Road Comma onersfor County of Chippe~va, 368 Mich. 263, 118 N.W. 2d 271 (1962) . If the risk is high enough, the practical results approach strict liability. As stated in the basic treatise in Tort law, [I]f the risk is an appreciable one, and the possible consequences are serious, the question is not one of mathematical probability alone. The odds may be a thousand to one that no train will arrive at the very moment that an automobile is crossing a railway track, but the risk of death is nevertheless sufficiently serious to require the driver to look for the train and the train to signal its approach.... As the gravity of the possible harm increases, the apparent likelihood of its reoccurrence need be correspondingly less to generate a duty of precaution. Negligence can apply to the design, construction, operation, or mainte- nance of a dam. It can also consist in the failure to inspect a dam, or negli- gence in the actual inspection of the facility. Negligence can, thus, consist of a failure to act or, if one has in fact acted, the failure to act in a reasonable manner. It is also important to note that the higher the level of expertise, or degree of training and expertise, the more one is held to a higher standard. For example, if an emergency life-saving operation must be performed on the side of the road, a general practitioner would not be held to the same level of care as a general surgeon under those circumstances. Thus, an expert design- ing, building, or operating a dam will be held to the same degree of care as other experts of the same background, training, education, and experience. The expert will also have a duty to stay current in the field. OPERATING DURING A FLOOD Another situation occurs when floodwaters pass through or over a dam, flooding out downstream residents. The general rule in this country is that the operator of a dam may permit floodwaters to pass over the dam in an amount equal to the inflow, but will be liable if any excess amount is dis- charged. The basic premise behind the rule is that a downstream plaintiff would have been damaged in any event by the flood, so he should not be allowed to recover damages simply because of the fortuitous fact that a dam was built, but did not have a sufficient capacity to capture the flood. It is, therefore, assumed that defendant's acts did not in fact cause plaintiffs' injuries since the damage would have occurred irrespective of the dam's existence. Such a result can occur when a storm is of such intensity, as were Hurricanes Connie and Diane in Connecticut in 1955, that plaintiff would have been washed away regardless of a dam's existence. There is no legal

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go SAFETY OF DAMS liability because there is no causation in fact. Krupa v. Farmington River Power Co., 147 Conn. 153, 157 A.2d 914 (1959~. Consequently, it seems relatively clear that there is no duty on the part of a dam owner to operate the dam as a floor] control mechanism for the benefit of lower riparian interests. Any cause of action must be based upon the negligent release of excessive water. The dam owner is essentially free to pass on the natural flow of the stream. See, e.g., Baldwin Processing Co. v. Georgia Power Co., 112 Ga. App. 92, 143 S.E. 2d 761 (1965), Crawford v. Cobbs ~ MitcheZ! Co., 253 P. 3 (Ore. 1927~. However, there is liability when a greater flow of water is released than is naturally flowing into the stream. This is especially true when "foreign" waters are being diverted into the reservoir. Smith v. East Bay Municipal Utility District, 265 p. 2d 610 (Cal. Ct. App. 19543. There is some authority though, based upon the general duty of foresee- ability of risk, that the operator of a dam has a duty to draw down a reservoir when heavy runoff is expected. See, e.g., Kunz v. Utah Pouter ~ Light Co., 526 8 Al 599 (9th Cir. 1975~. In this case the discharge did not exceed the natural flow of the stream. However, the operator had in the past skimmed the crest off of spring floocls, thereby inducing a reliance expectation on the part of downstream farmers, who converted their crops from those that would survive flooding to those that would be damaged by flooding. Similarly, in a case not involving a dam, Salt River Valley Water Users Association v. Giglio, 113, Ariz. 190, 549 P. 2d 162, 171 (1976), the court allowed recovery to homeowners who purchased homes in a floodplain. They successfully claimed that defendant's irrigation canal had inadequate spillways and, thus, caused flooding. There had been an unusual rainfall that approximated the 100-year flood. Liability was found even though the canal was not operated as a flood control device. Once the floodwaters entered the canal system, the association was under a duty to exercise reason- able care in disposing of that water. As an added caveat, even if the operator is legally free to pass on the natural flow, there may be a duty to warn the downstream occupants of the high volumes of water that will be released. See, e.g., Chrysler Corp. v. Dallas Power ~ Light Co., 552 S.W. 2d 742 (Text Ct. Civ. App 1975~. "ACTS OF GOD" AND PMF A commonly asserted defense in dam failure cases is that the failure was caused by an "act of God," i.e., an eventuality outside human contempla- tion, such as a catastrophic storm. The act of God defense generally entails the following requirements: unforeseeability by reasonable human intelli-

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Legal Liabilityin Dam Failures 91 gence and the absence of a human agency causing the alleged damage. Thus, if a similar storm had occurred before, or could be anticipated using modern techniques, or if the storm or damage were otherwise reasonably foresee- able, even if not probable, act of God will not serve as a defense. As explained in Curtis v. Dewey, 475 P.2d 808,810 (Idaho 1970), the "act of God" defense is based on the premise that Negligence cannot be predicated upon a failure to anticipate that which was so extraordinary and utterly unprecedented as to have eluded the foresight of a reason- able man. If, therefore, a person builds a dam or embankment on or beside a waterway sufficient to withstand the maximum flow of water which might be expected, and the structure is destroyed by a flow which would not have been anticipated by a reasonably prudent man, then the resulting flood would be consid- ered such an extraordinary flow of water as to amount to an "Act of God" and that person would not be negligent and not liable for damages caused by the flood. A modern case, citing from an earlier 1916 opinion, laid out these factors in analyzing an act of God defense: On passing upon what is or what is not an extraordinary flood or whether it should have been anticipated and provided against, the question to be decided is: "Consid- ering the rains of the past, the topographical and climatic conditions of the region and the nature of the drainage basin as to the perviousness of the soil, the presence or absence of trees or herbage which would tend to increase or prevent the rapid running off of the water, would or should a reasonably prudent man have foreseen the danger and provided against it?" Frank v. County of Mercer, 186 N.W.2d 439,443 (N. Dak.1971), quoting from Souses v. Northern Pac. By. Co., 157 N.W. 823, 824 (1946~. While the defense has been successfully asserted in some cases, see, e.g., Frank v. County of Mercer, supra, it has received at best, a mixed reaction by the courts in dam failure cases. A classic Colorado case illustrates the weakness of the act of God defense, and sheds some light on the current debate over the Corps of Engineers PMF requirements. In Barr v. Game, Fish ~ Parks Commission, 497 P. 2d 340 (solo. Ct. App. 1972), design plans called for a spillway capacity of 33,000 cubic feet per second (cfs). The spillway constructed was for 4,500 cfs. The probable maximum flood was 100,000 cfs, although the previously known high flow of water was 27,500 cfs. The peak of the flood that occurred was 158,000 cfs with an estimated 75,000-100,000 cfs passing over the top of the dam. Defendants claimed act of God. The court rejected this defense, hold- ing that the defendants were negligent in designing an inadequate spillway. Since the flow of water was reasonably foreseeable, there was no act of God.

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92 SAFETY OF DAMS The foreseeability of the risk (the probable maximum flood) was the key to liability. A similar result was reached in New Mexico, where the operator let sand and silt accumulate and failed to open a check gate. Little v. Price, 74 N. Mex. 626, 397 P.2d 15 (1964). The act of God defense thus generally fails if the event should reasonably have been anticipated in light of past knowledge. While the past is Prolog with respect to actually occurring events, foreseeability is based not only upon the historical past, but also what modern technology and science al- lows us to project into the future. THE RISKS OF COMPLYING WITH MINIMAL GOVERNMENT OR PROFESSIONAL STANDARDS It is also clear that compliance with a general accepted industry or profes- sional standard of care, or with government regulations, establishes only the minimum standard of care. Courts may assess a higher standard of care, utilizing the "reasonable man" standard and the foreseeability of risk as the criteria. Judicial~rejection of the governmental or professional standard does not occur as a routine matter, but it does occur often enough to transcend the unusual. It is fair to say that operators, who rely blindly upon a government or professional standard of care, are acting at great legal risk to themselves, when they know or should know that reasonable prudence requires higher care. A good example of where compliance with a government standard was inadequate to preclude legal liability is Gryc v. Dayton-Hudson Corp., 197 N.W. 2d 727 (Minn. 1980), where a 4-year-old girl received severe burns upon her upper body. She was wearing pajamas made of untreated cotton. The material did meet the federal standards of product flammability. The plaintiff established at trial that (1) the government standards were clearly inadequate at the time of the accident, (2) the apparel manufacturers were vigorously fighting any change in the government standards, (3) there were available commercially durable flame-retardant chemicals that would have significantly increased the safety of the product, and (4) the defendant was aware of those facts. Consequently, it was found that the defendant acted in reckless, wanton, and/or malicious disregard of the rights of others in mar- keting the fabric. The verdict of $750,000 compensatory damages and $1,000,000 punitive damages was therefore affirmed on appeal. THE RISKS INHERENT IN DESIGN TRADE-OFFS While in some sense there must always be a trade-off between absolute safety, performance (efficiency), and cost (economics), the practical reality

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Legal Liability in Dam Failures is that, in the eyes of a jury mesmerized by a skillful attorney, trade-off will always seem callous when balanced against the lives lost or severely injured as a result of that decision. This exercise of discretion on the part of the designer or operator may well appear to constitute a "reckless disregard" for the rights of the victim, since the injury was foreseeable. A good example is Dawson v. Chrysler Corp., 630 F.2d 950 (3rd Cir. 1980~. The plaintiff, a police officer, was rendered a quadriplegic when he lost control of his police car on a rain-slicked road and crashed into a tele- phone pole. The car struck the pole in a backward direction at a 45 angle on the left side of the vehicle. Point of impact was the left rear wheel well. The vehicle literally wrapped itself around the pole. The pole ripped through the body of the car and crushed the plaintiff between the seat and the "header" area of the roof. He claimed the vehicle was defective because it did not have a full, continuous steel frame extending through the door panels and a cross member running through the floor board between the posts located between the front and rear door of the vehicle. The plaintiff alleged that with such a design the car would have bounced off the pole with little injury to himself, who incidentally was not using his seat belt. The plaintiff successfully recovered a verdict of $2,064,863.19 in spite of Chrysler's evidence that the vehicle met all federal requirements and that the plaintiffs design theory would create a greater risk of injury in most auto accidents. The Chrysler design in question absorbed the impact of most crashes (like an accorclian) and decreased the rate of deceleration on the occupants of the vehicle. In addition, the plaintiffs design would add be- tween 200 and 300 pounds to the weight of the vehicle and about $300 to the price of the vehicle. Yet the plaintiff won. The reason is obvious. It has to do with the risks of defendant going to trial with a severely injured victim for whom the jury understandably feels sympathy. 93 THE RISKS OF STRICT LIABILITY The major alternative theory to negligence is strict liability. If such a theory is used, we realistically do not concern ourselves with the degree of care used by the defendant or how otherwise reasonable his conduct was. Strict liability essentially imposes liability as a risk of doing business. Strict liability is derived from the old English case of Rylands v. Fletcher, L. R. 3 Eng. IR. App. Cas 330 (1868), where defendants constructed a reservoir on adjacent land in Lancashire with the owner's permission. Aban- doned mine shafts underlaid the area, which is similar to the Scranton, Pennsylvania, region of the United States. Upon partial filling by defend- ants, the shafts gave way under pressure, causing water to flow into defend- ants' workings, and thence into plaintiffs', destroying them in the process.

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94 SAFETY OF DAMS The court ruled for plaintiffs, holding that when one brings onto his land, and collects and keeps there anything likely to do mischief if it escapes, and it is a nonnatural use of the land, he must keep it at his peril. If not, he is prima facie answerable for all the damages that are the natural consequences of its escape. As developed by the British courts, the rule is that the defendant is liable when he damages another by a thing or activity unduly dangerous and inappropriate to the place where it is maintained, in the light of the charac- ter of the place and its surroundings. Rylands v. Fletcher initially met a lukewarm reception in the United States but has now become generally accepted. Critical in the early rejection of Rylands v. Fletcher was that the doctrine would have hindered an ex- panding civilization and industrialization. However, social values have changed over the past century. Today we have a fault system of liability, which is partially based upon the entrepreneurial risk of doing business. We also place more emphasis on victim compensation today and less on the economic needs of the defendant. The concept of strict liability has been extended widely to activities con- sidered abnormally dangerous or ultrahazardous. The basis of strict liability for ultrahazardous activities is the risk of harm and the potential magnitude of that harm should the risk be realized. In such a situation, liability does not depend upon such factors as intent, recklessness, knowledge, negligence, moral blameworthiness, or any other degree of culpability. Nor does it de- pend on the degree of care the defendant exercised. Rather, liability is based simply on the risks involved. While strict liability for ultra hazardous activities has become widely accepted in the states, its application to dam failures has been more limited. There are not many relevant cases; most are older and several are baser] on policy considerations. For example, Rylands v. Fletcher was rejected by Texas in a famous case involving the escape of salt water from ponds con- structed to handle the runoff from of} wells. It was technologically impos- sible to produce of} without drawing up salt water. Under the circumstances, the Texas Supreme Court clid not want to hinder the oil industry. Turner v. Big Lake Oil Co., 128 Tex. 155, 96 S.,W. 2d 221 (1936~. A slight majority of states reject strict liability in dam failures, including a relatively recent 1972 New Hampshire opinion. Moulton v. Groveland Pa- per Co., 289 A.2d 68 (N.H. 1972~. Several older California decisions also reject strict liability in dam failures. Guy F. Atkinson Co. v. Merritt, Chap- man ~ Scott Corp., 123 F. Supp. 720 (N.D. Calif. 1954~; Sutliffv. Sweetwa- ter Water Co., 182 Calif. 34, 186 P. 766 (1920~. In light of more recent California cases in other areas of the law, reliance on these older cases to limit liability is highly questionable. More recent Massachusetts and Florida opinions accept the doctrine. See

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Legal Liability in Dam Failures 95 Clark-Aiken Co. v. Cromwe[Z-Wright Co., 367 Mass. 70, 323 N.E. 2d 876 (1975) and Cities Service Co. v. State of Florida, 312 So. 2d 799, 801 Fla. App. (1975~. The Florida case involved the breach of a phosphate settling pond, causing one billion gallons of phosphate slime to escape, "killing countless numbers of fish and inflicting other damages." The court adopted Rylands v. Fletcher, setting out policy grounds that are widely applicable today: In early days it was important to encourage persons to use their land by whatever means were available for the purpose of commercial and industrial development. In a frontier society there was little likelihood that a dangerous use of land could cause damage to one's neighbor. Today our life has become more complex. Many areas are over crowded, and even the nonnegligent use of one's land can cause extensive damages to a neighbor's property. Though there are still many hazardous activities which are socially desirable, it now seems reasonable that they pay their own way. It is too much to ask an innocent neighbor to bear the burden thrust upon him as a consequent of an abnormal use of the land next door. The doctrine of Rylands v. Fletcher should be applied in Florida. The Restatement of Torts essentially adopts Rylands v. Fletcher in impos- ing liability for ultrahazardous activities, which necessarily involve a risk of serious harm to others, which cannot be eliminated by the exercise of utmost care, and are not a matter of common usage. Factors to be considered include the high degree of risk, the potential gravity of harm should the risk materialize, the exercise of reasonable care, whether or not the activity is one of common usage, the appropriateness of the activity to the locality, ant] its value to the community. A reading of the cases indicates that the major factor is the nature and extent of the risk. This analysis, particularly the emphasis on risk, proved critical in the Massachusetts case of CIark-Aiken Co. v. CromweZI-Wright Co., 367 Mass 70,323 N.E.2d 876 (197S), which adopted strict liability in dam failure cases. Strict liability has also been imposed in situations where the defendant has constructed a dam, or part of a dam such as flash boarcls, expecting it to give way in a flood. In such a case, the potential risk of downstream flooding is so great that liability is imposed. It should be noted today that the operator under such circumstances could be considered "reckless" in his actions and, thus, potentially subject to punitive damages. Occasionally a state will have a statute that imposes strict liability in dam failures. See Colo. Rev. Stat. Section 37-87-104, which provides, "The owner of a reservoir shall be liable for all damages arising from leakage or overflow of the waters therefrom or floods caused by the breaking of the embankments of such reservoir." New Hampshire has a statute that makes it unlawful to have a "dam in disrepair." N.H. Rev. Stat. Ann. Section 482.42.

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96 SAFETY OF DAMS Violation of the statute gives rise to civil liability. Moulton v. Groveland Paper Co., supra. In this situation, the legal cause of action is technically negligence and not strict liability. CONCLUSION One added comment should be made here. It should be emphasized that tort law in general, whether the theory is negligence or strict liability, is moving in the direction of victim compensation. Consequently, as in Daw- son v. Chrysler Corp. discussed above, most courts strain to invoke liability, particularly when personal injury or death is involved. The odds are sub- stantial that regardless of the theory cited, the result will be a finding of liability in the case of a dam failure involving loss of life.