Another lawsuit over drowning in low head dam.
Posted: August 30, 2011 Filed under: Rivers and Waterways 5 CommentsYou sometimes think there is some force that draws canoes or canoeists to low head dams. More so when you canoe at night without a PFD!
The mother of the deceased is suing the Town of Rocky Mount, Virginia for $5.3 million and $350,000 in punitive damages. The lawsuit is based on the fact the town new the dam was dangerous and did not fix it.
If you remember several previous articles on land owner liability, the liability of the landowner to a trespasser is minimal. (See Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability and Land Owner of cycling track not liable for those dangers you can see.) In this case, the plaintiff will have to overcome the issue of being a trespasser and whether the town is protected by any premises liability.
Don’t get me wrong, low head dams need to be removed. They are death traps. At the same time, I’ve reported on two fatalities now by canoeists canoeing at night. (See Lawsuit over low head dam drowning against city of Topeka Kansas). This fatality the deceased was without a life preserver (PFD). If you paddle at night you better have a skill set and equipment far above “let’s rent a boat for a few hours.” I’ve paddled all over the world, many times at night, once in the Amazon jungle. However I always knew about the risks, the course, and except for boa’s in the trees and Cayman’s in the water, I knew what was ahead of me.
Lawsuits don’t change the world. The dam in question here has already been fixed to alleviate some of the dangers. The lawsuit is not going to change anything. The dam is in place to support the city water supply. What is the lawsuit going to do?
So
Work with the ACA and/or the AWA to remove or fix low head dams. Don’t go paddling unless you know where you are going. Don’t go hear a low head dam.
See Dead Woman’s Estate Sues Rocky Mount
What do you think? Leave a comment.
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Recreation Law 
There are more than a dozen different Federal definitions of “navigable.” How ever the main one is the use of a river for commercial purposes that is not impeded. So under Federal law a low head dam with no lock or spillway is not navigable.
As I said, it varies by state, by federal definition of what you are trying to do. Meaning the definition for navigable under the admiralty damages section is different from the definition of navigable for the EPA, which is different from the US Coast Guard, etc.
Then most states have a definition of navigable or have labeled some rivers navigable. Here is the citation for the Colorado Supreme Court Decision that upheld a criminal trespass charge against a boater for getting on shore. The People of the State of Colorado v. Emmert,
198 Colo. 137; 597 P.2d 1025; 1979 Colo. LEXIS 814; 6 A.L.R.4th 1016, (Colo 1979). Here is the summary of the case. “The court affirmed, holding that defendants did not have a constitutional right to float and fish on a nonnavigable natural stream as it flowed through, across, and within the boundaries of privately owned property without first obtaining the consent of the property owner.”
One of the biggest ways to understand this is in the East in most states the state owns the water. In the West, individuals own the water. In Colorado, we even have water courts.
I wish the law out here was similar to KY’s. Each state is different. And the East Coast, Midwest and Western states have very different definitions of water.
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If the river has a low head dam than it is not navigable. Also, state law varies considerably on whether a river is public. As an example here in CO the river is public but you cannot touch any shore line or the river bottom. If you do you trespass. Many states you cross land without permission to access the river you are trespassing also.
I was just writing what the article stated.
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Actually that’s not the case, at least in KY. The elkhorn creek has a lowhead dam that requires portage and its considered navigable. They also just ruled that you can use private land if needed for navigation of the river (ie, if you need to portage then its legal to trespass in the process of your portage).
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1.
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You mentioned the deceased was tresspassing. I thought any river that was considered navigable was more or less “public domain”? Wouldn’t he be within his legal rights to paddle the river (even though he was obviously not terribly bright, with no PFD and no river beta and going it alone.. oh and doing it all at night!)
I wish more people would sue over these weirs/LHDs. They are usually placed their for the benefit of a nearby company of some kind and so are imho damaging a public resource for a private company, and even when its being done for some other reason they could still be built to much safer. Some smart cities are now tearing them down and replacing them with features that not only do the same job and are safer but also end up becoming WW “parks” and add value to the river/community rather than acting like a death penalty for foolish people or a harsh punishment for a boaters mistake.
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