Dam Operator Not Liable for Downstream Flooding

Shamnoski v. PG Energy, 858 A.2d 589 (Pa. 2004).

Stephanie Showalter

In 1985, flooding caused by storms associated with Hurricane Gloria severely damaged property in Luzerne County, Pennsylvania. Three homeowners affected by the flooding filed suit against PG Energy, the owner and operator of water supply dams in the watershed, seeking compensation for damages they claimed were caused by negligent dam design, maintenance, and operation. The Pennsylvania Supreme Court determined that PG Energy was not negligent.

Background
In one day in September 1985, Hurricane Gloria deposited more than six inches of rain over the Springbrook Creek watershed, a steep mountain waterway in Luzerne County near Scranton, Pennsylvania. The plaintiffs lived in close proximity to Springbrook Creek, approximately one-half to three-quarters of a mile downstream and their homes were destroyed by floodwaters from the creek.
PG Energy owned and operated four water supply dams upstream from the plaintiffs’ property. These dams, built between 1893 and 1925, were designed to create water supply reservoirs for the collection of drinking water, not to control flooding. During Hurricane Gloria, the reservoirs filled to capacity and overflowed. The dams themselves, however, did not fail.

Plaintiffs filed suit against PG Energy claiming dams must “be designed, maintained and operated so as to cabin and safely pass on the rain and floodwaters which accompany a storm of the magnitude of Hurricane Gloria,”1 regardless of the dam’s purpose. PG Energy argued that a dam operator’s duty was limited to ensuring that its dam does not fail as a structural matter. Both the trial court and the Superior Court concluded that although PG Energy’s dams did not fail, PG Energy “violated a duty to construct, maintain and operate them in a fashion that would have protected the downstream homeowners from these floodwaters, and that the homeowners’ losses were the proximate result of that breach of duty.”2
PG Energy appealed. The Supreme Court accepted the case to examine “what legal duty a water supply reservoir/dam owner has to undertake with respect to its dams in order to protect downstream property owners against floodwaters caused in the aftermath of a storm of the magnitude of Hurricane Gloria.”3

Negligence Per Se
On appeal to the Superior Court, PG Energy was found liable for damages resulting from the overflow of the dam because it failed to warn downstream communities of the dangers posed by the hurricane. The court relied on negligence per se to reach this conclusion. Negligence per se is a form of negligence that results from the violation of a statute.4 The Superior Court ruled that PG Energy violated the Pennsylvania Dam Safety Act which imposes a legal duty on dam owners to “monitor, operate and maintain the facility in a safe condition” and notify appropriate authorities in downstream communities “of any condition which threatens the safety of the facility, and take all necessary actions to protect life and property . . .”5 In the opinion of the Superior Court judges, the term “safety” referred to the security of downstream communities and therefore operators have a duty to warn even if the dam is structurally sound. PG Energy was therefore negligent because it violated the Dam Safety Act by failing to warn.

The Supreme Court disagreed and held that the Superior Court improperly invoked negligence per se. Generally, negligence per se is appropriate only when the statute at issue is sufficiently specific to leave little doubt that a person violating it deviatesfrom a reasonable person standard. For example, motor vehicle statutes establishing maximum speed limits can be the basis for negligence per se because they impose strict standards. Statutes, however, requiring drivers to maintain reasonable speeds cannot support a finding of negligence per se because the “reasonableness” of a driver’s actions will depend on the circumstances.

The court stated that the Dam Safety Act does not mandate particular actions for dam owners and therefore lacks the required specificity. The act simply requires operators to maintain the dam in a “safe condition” and take “necessary actions.” The Supreme Court ruled that § 693.13 does not support a finding of negligence per se as it “sets forth a general standard of conduct . . . express[ing] the familiar and flexible reasonable man standard.”6

Traditional Negligence
In order for PG Energy to be liable for the damage to plaintiffs’ property, the company must have breached a recognized legal duty of care owed to the plaintiffs and its breach of that duty must have caused the plaintiffs’ injuries. The Supreme Court held that § 693.13 does not impose a general duty of flood control for the protection of downstream homeowners, but rather imposes a duty on owners “to monitor, operate, and maintain the facility in a safe condition.”7 “The Act may fairly be said to impose a duty upon dam owners to protect the public from foreseeable harms that would result from the failure of the facility - irrespective of what might occasion the danger of failure.”8 PG Energy’s dams did not fail. In fact, the dams provided a modicum of protection to downstream homeowners during the storm because the reservoirs were not filled to capacity prior to the storm, and therefore actually provided some flood control.

Conclusion
Despite the tragedy suffered by the plaintiffs due to the hurricane, the court refused to hold PG Energy responsible for the plaintiffs’ damages because its dams remained structurally sound during the storm. The lower court judgments in favor of the plaintiffs were reversed and a judgment in favor of PG Energy was entered.

Endnotes
1. Shamnoski v. PG Energy, 858 A.2d 589, 592 (Pa. 2004).
2. Id. at 593.
3. Id. at 591.
4. Black’s Law Dictionary, 1035 (6th Ed. 1990).
5. 32 Pa. Cons. Stat. § 693.13.
6. Shamnoski, 858 A.2d at 602.
7. Id. at 603 (emphasis in original).
8. Id. at 604.