Safety of Dams Flood and Earthquake Criteria (1985) / Chapter Skim
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Risk and the Calculus of Legal Liability in Dam Failures
Risk and the Calculus of Legal Liability in Dam Failures
Pages 84-96
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From page 84... ...
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.
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From page 85... ...
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.
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From page 86... ...
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.
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From page 87... ...
These situations involve drainage facilities incidental to other government installations, or government conduct unrelated to congressional flood control acts or projects. One case imposed liability when negligence occurred in the construction of a navigation aid project.
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From page 88... ...
Even if a dam had not failed in the past under similar circumstances, liability may still exist if reasonable design, construction, operation, inspection, or maintenance procedures could have prevented 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.
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From page 89... ...
. If the risk is high enough, the practical results approach strict liability.
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From page 90... ...
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.
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From page 91... ...
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.
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From page 92... ...
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 allows 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 professional standard of care, or with government regulations, establishes only the minimum standard of care.
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From page 93... ...
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.
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From page 94... ...
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.
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From page 95... ...
Occasionally a state will have a statute that imposes strict liability in dam failures.
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From page 96... ...
Groveland Paper Co., supra. In this situation, the legal cause of action is technically negligence and not strict liability.
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