Jim Porter: Drowning in Tuolumne River — who’s responsible?
February 4, 2016
This is a column about liability for an unfortunate drowning in the Tuolumne River that occurred near the remnants of a partially removed dam.
Writing this piece reminds me of the movie DamNation, sponsored by Patagonia. It is a recent documentary about the history of dams in the United States, and to some degree the good they have done, but mostly the changes and damages caused to the environment, and the total senselessness of maintaining useless dams like those that no longer hold water due to siltation, yet prevent salmon from spawning. Or our own Martis Dam that to my knowledge never held water. DamNation is worth watching if that's your slant.
Drowning on the Tuolumne
On October 22, 2009, 56-year-old Keith Goddard, sadly, drowned in the Tuolumne River, allegedly after getting caught in the current over a breach in the remnant of former Dennett Dam. As a rafting enthusiast and would be river guide, the case caught my eye.
Porter the River Guide
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Full disclosure: our daughter Kelsey guides on the Rogue River, which I proudly explain to my friends as: "Yeah, I guide once in awhile on the Rogue – a river guide — pretty much." Roughly translated: I guided Kelsey as a child and now she is a river guide. Living my dream.
Back to the Tuolumne. As it turns out, Goddard drowned in the middle of the former Dennett Dam which was originally constructed by the City of Modesto in 1933.
The facts are somewhat complicated, in short Modesto maintained the dam until 1962 and made alterations and intended to repair or demolish the dam but due to a lack of funds, did neither — as the dam continued to deteriorate. The Department of Fish and Wildlife (DFW), formerly Fish and Game, made a mid-channel breach to facilitate fish passage at low flow; a fish ladder was installed but later washed away.
In April 2010, Goddard's family filed a government claim, then sued DFW claiming DFW was liable because the death was caused by "a dangerous condition of property owned by a public entity."
DFW countered that Goddard's death was caused by a natural condition of public property so the agency was immune, and made the case that while the State of California may have owned the bed of the Tuolumne, DFW was its own agency and not the owner of the dam remnants.
Natural Condition Immunity
Government Code Section 831.2 states: "Neither a public entity nor a public employee is liable for an injury caused by a natural condition of any unimproved public property, including but not limited to any natural condition of any lake, stream, bay, river or beach." The immunity holds up even if the public entity had knowledge of the dangerous condition. The laudable legislative purpose of the law is to keep public access available for recreational use.
DFW argued the remaining pieces of Dennett Dam duplicated a natural condition of the Tuolumne. The family argued the dam was man-made and artificial and in no way natural, in fact an unnatural "drowning machine."
The Court of Appeal ruled for DFW acknowledging that the current where Goddard drowned was created by a dam remnant, a human-altered condition, but it had existed for nearly 35 years and the dam duplicated natural conditions which could have been created by rocks. As such, it was a condition similar to that which occurs in nature, and therefore comes within the natural condition immunity provided by Section 831.2. Seems like a bit of a stretch, but the court seemingly wanted to discourage lawsuits and keep the Tuolumne open to the public.
DFW also claimed it did not own or control the dam remnant, and in fact it did not own the remnant, and while it may have installed a fish ladder, it had no control after the fish ladder was installed and had no control or authority to remove the dam remnant.
A tragic drowning but not the liability of the Department of Fish and Wildlife.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee, Tahoe City and Reno. Jim's practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, mediation and other transactional matters. He may be reached at firstname.lastname@example.org or http://www.portersimon.com.