By Joe Beck -- email@example.com
FRONT ROYAL -- The town has lost a legal challenge to three of the four counts filed against it in an $8 million lawsuit stemming from the drowning death of a 9-year-old boy at the Riverton Dam in June 2010.
Circuit Judge Dennis W. Hupp issued a written decision Nov. 28 in which he refused to reject three of the four complaints that town attorneys had sought to have tossed out of court.
Jason Warner and Johnna Welch, the father and mother of Ryan Warner, filed the suit in March.
Their complaint accuses Front Royal officials of negligence and failing to remove the dam, which constituted a public nuisance.
The parents' complaint argues the town knew of the dangers the dam posed to recreational users of the North Fork of the Shenandoah, where it stood for more than 100 years, but failed "to warn and protect recreational users from the hazards of the dam."
"At the time of Ryan Warner's death, the dam served no purpose other than to create a hazard to recreational users of the river," the complaint states.
The town, replying through its former attorney, Thomas R. Robinett, and John W. Zunka of Charlottesville, argued that state law does not provide Warner and Welch with a cause of action on the three counts of negligence and one count of public nuisance in their complaint.
"Rivers in the Commonwealth of Virginia present an open and obvious danger and create no special duties upon the landowner" to safeguard those who enter them, the town stated in court documents.
Ryan Warner, of Bunker Hill, W.Va., died June 29, 2010, when he slipped on some rocks and was sucked into a deep hole at the north end of the dam. The boy, who was two other boys, ages 10 and 11, had been playing on the west side of the dam at the time of the accident. Sheriff Daniel McEathron said Warner had come to the boat landing to fish with his grandfather and the two other boys, both family members.
The complaint states "he was sucked under water and pinned to the bottom of the dam as a result of the hydraulic force created by a hole at the base of dam."
Hupp ruled that on two of three counts of negligence, the town "relies heavily" on another court's opinion that found "natural, open and obvious" dangers threaten anyone entering a body of water.
"The whirlpool effect created by a hole in the dam, as alleged in the present case, is not necessarily one of those obvious dangers," Hupp said.
For the same reason, Hupp said, the count accusing the town of failure to remove a public nuisance should not be dismissed.
Citing another case from Virginia, Hupp said the ruling "makes it clear that a dam's impact on a stream's water flow is not one of those 'natural' dangers inherent to bodies of water" described elsewhere in state law.
Ryan Warner's death was the second drowning at the Riverton Dam within three months in 2010. Mark D. Grand, 51, of Linden, died in a kayaking accident in early April.
The dam, which was scheduled to be demolished before Warner's drowning, came down in early November following a vote by the Town Council to accelerate the timetable of its destruction.