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Judge upholds 3 of 4 counts in Front Royal negligence suit

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A chain-link fence and sign were installed to keep people away from the Riverton Dam in Front Royal after 9-year-old Ryan Warner of Bunker Hill, W.Va., drowned. Warner fell into a deep hole at the north end of the dam after slipping on some rocks. Rich Cooley/Daily file


By Joe Beck -- jbeck@nvdaily.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.




12 Comments



Wow!! So how is this hole in the budget going to be filled. Insurance? Hold on town employees, your insurance rates just went through the roof!

Had this have been your own child would you still hold the same opinion? To lose a child is horrendous! To lose a child due to negligence is unfathomable! This accident didn't have to happen....it shouldn't have happened! My heart breaks for this family's loss.

Certainly not siding either way here, I remember when this happened and it was such a sad day. And please keep in mind when I ask this question I honestly am asking for an answer, not trying to make a point, but were the no swimming signs up when this happened? Anything to indicate the area was dangerous for swimmers?

There were no signs up but they sure did make sure they put signs up after we lost my nephew.

As a surviving parent, I'm more familiar than I care to be w/this sort of pain and loss and empathize. However I'm compelled to ask; where were the parents/legal guardian(s), or supervision resposibile for this child, especially in such a trecherous place? Are they being held accountable in this most unfortunate accident as well? The logic the judge is using says to me yes.

This is a unfortunate accident which I do feel sorry for the family but there needs to be a realization that accidents happen. I hold the parents accountable for allowing the children to go play near the damn. You dont need a thousand signs saying its dangerous because anyone with common sense knows that. Same thing with the gates now on Morgan Ford rd low water bridge. Someone decided to take a chance, not exercise common sense judgement and ended up paying.

The girl that was killed at the low water bridge was not from here. The gates were put up to prevent people coming around the sharp turns that are locted on both entances of the bridge. I'll have to admit it was nothing I even thought about because I was raised here and know how the bridge is but now looking back gates should have been put up a long time ago for people who do not know the area. Also I remember she was driving at night making it even harder to see the water rushing over the bridge.

Regardless of what was done or what wasn't done, the end result is still the same, a beautiful life was taken away and a child was taken away from his parents. As a parent I can not even imagine and don't want to imagine what his parents are going through. Whether the signs were or weren't up, whether people agree or disagree with the care takers decision to let the children play in that area, whether the town or whoever is held accountable, there is still a life lost. I feel like there were several unfortunate events that led to this horrific incident lack of signs, poor decision making....but as anyone who's been in a bad situation like this knows, it only takes a second....it can happen to anyone at anytime....so maybe we shouldn't be so quick to judge and point fingers, because God forbid it happen to any of you!

Regardless of what was done or what wasn't done, the end result is still the same, a beautiful life was taken away and a child was taken away from his parents. As a parent I can not even imagine and don't want to imagine what his parents are going through. Whether the signs were or weren't up, whether people agree or disagree with the care takers decision to let the children play in that area, whether the town or whoever is held accountable, there is still a life lost. I feel like there were several unfortunate events that led to this horrific incident lack of signs, poor decision making....but as anyone who's been in a bad situation like this knows, it only takes a second....it can happen to anyone at anytime....so maybe we shouldn't be so quick to judge and point fingers, because God forbid it happen to any of you!

I know, I agree with cold.

It's a tragedy but... come on... you need a sign to know that your kid shouldn't play by a dam?

Tstar, I was not in any way insuating that this was not a extreme tragedy. I would be livid if this were my own. The point is that I remember reading a few years ago where the town had the opportunity to take the dam down but decided against it in favor of some potential future use. If I'm not mistaken, that would be the same moment in which the town fully accepted all the hazards associated with the dam because all of the problems would have been made perfectly clear at that time. Several signs being put up in the area just doesn't cut it when you own a hazard of this size. It's like not putting handrailing on the Hoover Dam but instead installing a sign that reads "be careful, you might fall". It's just human nature to tempt fate. Now, if this suit is successful, I would assume the town's insurance would pay. Claims of this magnitute will inherently cause a rate hike which is passed to the consumer (the town residents and employees). So in making a "good decision" to keep a dangerous relic of the past the town gets a black eye, unreasonable monies will be spent and most importantly another life has been lost. There are no winners here. The dam is now gone and no amount of money will bring back those lives lost or erase the images for the rescuers who had to retrieve the bodies and return them to their families.

But... but it was so purdy!

Not.

Next they will want to keep the Afton Inn and the crazy old dude yelling at cars and ogling 12-year-old girls on the corner of Chester and Main because they both are historical Front Royal artifacts.



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