Tort/Negligence – Dam Failure – 2015 Flood – Strict Liability – Act of God

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Greenberg Investment Partnership, L.P. v. Cary’s Lake Homeowners Association (Lawyers Weekly No. 002-093-16, 13 pp.) (J. Michelle Childs, J.) 3:15-cv-05096; D.S.C.

Holding: The complaint grounds its negligence claim in defendant’s “failure to properly construct, maintain, monitor, operate and/or otherwise safely manage its dam in a reasonable manner,” and the complaint alleges that the “release of contained water was not due to a breach of the dam because of the height of the water but rather due to the failed and eroded construction of the body of the dam itself, as well as a lack of maintenance needed to protect its integrity.” The complaint adequately states a claim of negligence arising out the flooding of plaintiff’s business when defendant’s dam broke after unprecedented rainfall in October 2015.

Defendant’s motion to dismiss is denied.

Defendant cites a South Carolina Department of Health and Environmental Control report indicating that the dam was in compliance with state regulations. At best, this may make less probable plaintiff’s claim that defendant’s negligence caused flooding that damaged plaintiff’s property. But the report does not preclude the negligence claim from being plausible on its face.

In support of its strict liability claim, plaintiff alleges that defendant’s “abnormally dangerous manmade dams … were improperly constructed, maintained, monitored, operated and/or otherwise managed in an unreasonable manner.”

Although it appears that neither the South Carolina Legislature nor the South Carolina Supreme Court has declared that one engaged in constructing, maintaining, or managing a dam is strictly liable for damages caused by those activities, the designation of an activity as abnormally dangerous nonetheless is decided on a case-by-case basis. Moreover, authorities are split regarding whether the judge or the jury should make the decision. Thus, because neither the South Carolina Supreme Court nor the South Carolina Legislature has directly outlined the parameters of an abnormally dangerous activity, this court declines to grant defendant’s motion to dismiss on the grounds that its activities definitively do not qualify as abnormally dangerous.

Finally, even assuming that the October 2015 rainfall was sufficiently momentous for the “act of God” defense to apply here, it has yet to be determined whether any negligence on defendant’s part was a contributing cause to the injuries plaintiff alleges.

Motion denied.