October 2016 - Parks & Recreation - 51

drowned while fishing with her grandfather sued Virginia's
largest utility for $200 million, claiming its negligence led
to the tragedy. The family alleged Dominion Virginia Power
failed to warn visitors to the Lake Anna recreation area of
dangers associated with its use of the lake's water to cool a
nearby nuclear power plant. The 6-year-old girl was fishing
with her grandparents when she fell through a gap in the
fence surrounding the lake and drowned. The forceful current swept the girl under, preventing any rescue attempt.
On the day of the drowning, Dominion Virginia Power was
using water from the lake to cool steam at its nuclear facility.
The process involves condensing the steam into water and then
pumping it back into the lake. The family claimed this procedure caused water temperatures in the lake to vary greatly, leading to dangerous undercurrents.
The family alleged these dangerous undercurrents constituted an
ultra-hazardous activity in a public lake available for participation
in water-recreation sports. Moreover, the family alleged " the 4-foot
square gap between the fences at Lake Anna posed a safety threat
to visitors, especially to children. " Dominion claimed the commonwealth, through DGIF, was responsible for this " fisherman's
catwalk. "
Apparently, DGIF settled this case, rather than litigate the
claim. Since a settlement is not an admission of liability, despite popular opinion to the contrary, there is no legal precedent whatsoever set by this case.
Use or Lose RUS Defense
Under the Virginia state tort claims act, the liability of DGIF
as an agency of the commonwealth is limited to $100,000 per
incident. (See: www.vacode.org/8.01-52.) As owner of the
lake in control of the process, which created the allegedly dangerous currents, the potential liability exposure of Dominion
would not be limited. That being said, had this case been litigated, both DGIF and Dominion could have raised the Virginia RUS as a strong defense to any liability.
While certainly tragic, similar case law would suggest that
strong lake currents near a nuclear facility are neither " ultra-hazardous " as alleged or sufficiently egregious to constitute gross negligence. As defined by the Virginia Supreme
Court, gross negligence " shows an utter disregard of prudence amounting to complete neglect of the safety of another. " Accordingly, assuming DGIF and Dominion opened the
premises for public recreational use free of charge, no legal
duty was owed to guard, warn or make the premises reasonably safe for fishing under the Virginia RUS. Moreover, the
risk of drowning in a manmade or natural body of water
not designated for swimming is generally considered an open

and obvious risk to anyone old enough to be at-large, including the drowning risk posed by strong currents.
When litigated rather than settled, these claims can be
successfully defended when the applicable legal standard to
impose liability is " gross negligence or willful or malicious
failure to guard or warn against a dangerous condition, use,
structure or activity, " as in an applicable RUS. For example,
in the case of Clem v. United States, 601 F. Supp. 835 - Dist.
Court, ND Indiana 1985, the federal court found landowner
immunity under the Indiana RUS to a tragic drowning of a
father in Lake Michigan. In so doing, the court stated, " This
is a case where the human heart strings pull in one direction
and the law compels a contrary conclusion. " Clem was swim-

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October 2016 - Parks & Recreation

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