East Lexington's Dam

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Should the East Lexington low-head dam be removed within 5 years?

Yes
27
68%
No
13
33%
 
Total votes: 40

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Crux
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This is not that complicated to me.

Postby Crux » 2011 Apr 24 15:57

I can not go over this in detail for I really am not that interested in doing so, but you will have to concede that it had rained a bunch the day before, the river was up and swollen. Deceptive though the calm above the dam may have seemed, the danger was real, and the body of young Volpe was not recovered right away due to the high volume of water...

This is the way it was I think you will agree.

Additionally, even when this river is down, one might get swept over the dam, or might jump off and break their neck, or tumble under the spilling water long enough to drown. Risks are taken, accidents happen. Those that play with fire....

crux
crux identifies with American Principles. Personal Liberty, Respect and Limited government.
He is a classic liberal, a libertarian at heart, and a conservative in the classical sense...

Dukecati

Re: East Lexington's Dam

Postby Dukecati » 2011 Apr 25 10:20

There are park steps installed by the city welcoming swimmers into the hazard. It was like saying, "Swim here!" Sure you can drown in a bathtub but bathtubs don't have low-head dams over which water creates a suction or vortex on the down-river side. That is where the city is culpable. No warnings, no buoys, no nothing.

And rescuers thought the boy had been washed downstream, why they had searchers out downstream and a helicopter looking for him. No one knew to look for him at the base of the dam because they didn't know about the suction there. It was only after they couldn't locate him downstream that they brought up a boat with a cadaver-sniffing dog and finally located his body. The water volume is always extreme at the base of a low-head dam.

The city is at fault—Period. Especially since it knew of the potential danger and did nothing about it. Zip. Zero. Nada.

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Crux
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Those that play with fire...

Postby Crux » 2011 Apr 25 10:45

...are going to get burned. (maybe...this is why they PLAY!)

Dukecati wrote: The water volume is always extreme at the base of a low-head dam.

The city is at fault—Period. Especially since it knew of the potential danger and did nothing about it. Zip. Zero. Nada.


YES on the first, NO on the second... Like I said, risks are self evident to people. The Volpes, and others who are both Parents, and risk takers, were AWARE of the risks. Vortex aside, and signs aside, too many take too many risks...

..."against better judgement".

crux
crux identifies with American Principles. Personal Liberty, Respect and Limited government.
He is a classic liberal, a libertarian at heart, and a conservative in the classical sense...

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fangz1956
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Re: East Lexington's Dam

Postby fangz1956 » 2011 Apr 25 11:07

Crux,

For once, I have to agree with you here. Swimming, as well as many other "sports", are at the participant's own risk. This case is proof positive that we have become a woefully and overly litigious society. Why accept personal responsibility when you can sue a third party and make them pay for your failures as a parent, a citizen, and a human?

I will pose this question to those who are so in favor of Volpe's contention that the city is at fault here. if you allow your child to participate as a player on the high school football team, and the child is permanently injured (as in paralyzed) as a result of his participation, are you going to sue the school, the County, the VHSL, the coach, and the parents of other players as being at fault? What if said child drops dead of a heart attack during football practice?

I'm with Crux........those who play with fire are bound to get burned. The responsibility lies with the individual (and in the case of minors, the parents).

:tongue3:
Ever looked at someone and thought "the wheel is turning but the hamster is dead"?

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Crux
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Let's see here...

Postby Crux » 2011 Apr 25 11:40

Crux has body surfed in the ocean and on SEVERAL occasions been tumbled and had his head bounced on the bottom and his breath he held til he couldn't hold it any longer...only to survive. Crux has climbed up inside an abandoned drive in movie theater to the skinny top to hang out with friends, against the law and better judgment, SURELY. Crux has driven TOO fast at times, knowingly, when he was a younger man. He even wrecked his car a couple times. Crux has jumped some SICK ramps on his bike. Crux has walked across frozen lakes, and had cracks form under his feet. Crux could tell you many other stories of risk and misadventure... No doubt you have your own. If Volpe had survived, he would have had another to add to his list, against all advice, common sense, perhaps even his parents wishes. We all pay the piper one way or another Duke.
crux identifies with American Principles. Personal Liberty, Respect and Limited government.
He is a classic liberal, a libertarian at heart, and a conservative in the classical sense...

Truckie

Re: East Lexington's Dam

Postby Truckie » 2011 Apr 25 19:47

Dukecati wrote:And rescuers thought the boy had been washed downstream, why they had searchers out downstream and a helicopter looking for him. No one knew to look for him at the base of the dam because they didn't know about the suction there. It was only after they couldn't locate him downstream that they brought up a boat with a cadaver-sniffing dog and finally located his body. The water volume is always extreme at the base of a low-head dam.

Without bearing on this discussion but, simply for the sake of fact, the quoted account is not accurate.

The first arriving EMS units knew of the dangers of a low-head, and were not equipped to handle such a technical rescue. Additional resources were immediately summoned. First-arriving resources were limited, thus a quick look down-stream with the hopes that the victim had been washed out. This tactic was all that could be done at this point in the incident.

Lexington's first arriving fire company had a specialized camera used for confined space rescue etc. This camera was immediately deployed at the base of the dam. In fact, the Deputy Chief reported that he was confident that he had seen the victim on the camera screen. The view could not be duplicated secondary to the turbulence and murk of the water, and consequently the final position of the victim. Firefighters immediately deployed equipment in that area but, were unable to retrieve the victim.

As additional resources arrived, investigation of the dam and down-stream coincided. Arrival of the cadaver dog and boat was a very late resource. Anticipation of a rescue was lost long before arrival of the dog and handler. The fire department had initiated a recovery operation by then.

The dog and handler were directed to the spot where the Deputy Chief had been sure he'd seen the victim pass the camera's lens. Sadly, it was in that spot that the dog alerted to young Volpe. The Chief and camera had been correct. The way Volpe was positioned was fetal and tucked into a void in the dam; the turbulence had him pinned. There was no way to top-side rescue/recover Volpe; the operation had to be executed from below.

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Wise One
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Re: East Lexington's Dam

Postby Wise One » 2011 Apr 27 14:30

fangz1956 wrote:Crux, For once, I have to agree ... Swimming ... are at the participant's own risk. ... Why accept personal responsibility when you can ... make them pay for your failures as a parent ...?"
This appears to be sensible but there is a concept recognized by most, and also in law, that responsibility is sometimes shared. In those cases the law must decide what the equitable sharing is.

fangz1956 wrote: ... if you allow your child to participate as a player on the high school football team, and the child is permanently injured (as in paralyzed) as a result of his participation, are you going to sue the school? What if said child drops dead of a heart attack...?
You imply that the best and only answer is "no." But it depends.
Suppose the coach sent the player back into the game ten minutes after being knocked down forcefully, leaving him dazed and unable to stand without assistance, and his teammates heard him replying with nonsense answers to the coach's simple questions? Suppose that the regular school protocol calls for a doctor's examination and medical clearance to play, and the yet the coach failed to require one of the player who had a fatal heart attack?

Adolescents believe themselves to be immortal, able to meet all challenges of injury and medical condition, and are amazingly positive and willing to push on. That's why our institutions are obliged under the law to overrule and temper the judgment of adolescents, from sports, to drivers licenses, to drinking, etc.

fangz1956 wrote:I'm with Crux........those who play with fire are bound to get burned. The responsibility lies with the individual ...
This argument is similar to the ones made against all controls that we apply to guns. It rests on the assumption that all risks are indistinguishable and equal. It assumes that it is impossible to judge some risks to be so high as to require action, while other risks can be treated lightly.

The case of this particular low head dam with a design that generates object-trapping vortices is distinguishably different and clearly more hazardous than other dams. And yet its owner/operator treats it as if it were the same as all others. One can debate which steps are most appropriate to deal with that disproportionate risk but to me it is obvious that something out of the ordinary is required.

I'd have the city knock the thing down myself, as much for the environmental benefits as for improving safety.

:coffee:
"If your only tool is a hammer, every problem looks like Donald Trump."

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Amy Probenski
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Re: East Lexington's Dam

Postby Amy Probenski » 2011 Oct 03 15:33

This is really interesting. I see something to both sides of this argument and it's a little peculiar to see this forum pop up in a court case. So watch what you say, you may be tilting the scales of justice, hah!
News-Gazette, on September 28, 2011. wrote:Volpe Family Seeks New Court

Judge Michael Irvine has called for a hearing on a motion for a change of venue from the plaintiffs in a $9 million lawsuit filed against the city of Lexington.

Attorney Mark Obenshain filed the motion for the change in venue to move the trial out of Rockbridge County Circuit Court on behalf of the family of Charles O. Volpe.

After hearing arguments on the motion last week, Irvine considered the issue before sending a written response to Obenshain and attorney John Zunka representing the city, on Monday. In his letter, Irvine states that at last week’s court appearance that “no evidence was presented indicating that a pervasive bias or prejudice against the plaintiffs exists throughout the community.”

However, Irvine goes on to say that he will grant a hearing on the motion to hear further evidence if both parties so desire. Following that hearing, Irvine said he will reconsider the motion and make a ruling at that time.

Charles O. Volpe drowned in April 2006 after being swept over a low-head dam on the Maury River at Jordans Point Park, a city-owned recreation area. Although the Maury is a public river, the dam is owned by the city of Lexington. In 2009, Volpe’s father, S. Charles Volpe; his mother, Kim Volpe; and brother, Derek Volpe, sued the city for $9 million, claiming gross negligence and willful and wanton misconduct. The Volpe family is seeking compensation for damages, including sorrow and mental anguish caused by the drowning death.

In 2009, Irwin ruled in favor of the city after a jury was unable to reach a unanimous verdict in the week-long trial.

The Volpe family appealed the lower court’s decision to the Virginia Supreme Court. The high court sent the case back to circuit court, saying the ruling on the case must come from a jury.

During his arguments last week for a change in venue, Obenshain declared extensive media coverage and the resulting strong public opinion on the case, particularly about S. Charles Volpe, necessitate a move out of Rockbridge in order to seat an impartial jury. Calling the court’s attention to the print media coverage and to exchanges made on Internet forums at the time of the 2007 trial and to “one media outlet’s recent front page article with a banner headline” on the current court motion, Obenshain concluded that “it’s a little bit like having twins. Once you have twins, it’s more likely to have twins again.”

In other words, Obenshain maintained, holding the trial again in Rockbridge County Circuit Court would result in second mistrial.

Obenshain also argued that the city would use Volpe and his criminal problems as “exhibit one” to influence the outcome in a second trial held in Rockbridge County. “A man makes his own history,” Obenshain proclaimed and went on to argue that Volpe’s criminal difficulties would be used to punish the other beneficiaries in the case.

Finally, Obenshain said, to go to the expense of setting a trial date in Rockbridge, subpoenaing witnesses and attempting to go the through process of seating a jury only to find that the effort is unsuccessful will be expensive and time-consuming, both for the plaintiffs and the defendants in the case.

Zunka first addressed the issue of the court of public opinion as expressed on Internet chat forums, specifically the Rockbridge Forum, prior to the first trial. Zunka said there had been 221 posts on the site prior to the Volpe trial, posted by the same 35 users. Furthermore, 31 of those posts had been posted by S. Charles Volpe.

Zunka went on to say that because of the media coverage before the first trial, extra jurors had been brought in. However, the court had been able to seat a suitable jury during the first day of the trial, and Zunka indicated that he did not believe that there would be any difficulty during a second trail. Zunka’s assessment of the print media coverage was that it was balanced and accurate.

Furthermore, Zunka pointed out that changes of venue are almost exclusively reserved for criminal cases. In fact, he pointed out that there had not been a civil case in Virginia requiring a change of venue during the past century.

Turning to public discussion about the case after the trial, Zunka said Volpe shared that responsibility. “He called the court a monkey,” Zunka said.

“He poisoned the well by his own conduct,” the city’s attorney stated.

Irvine asked Zunka what harm would be done by moving the trial elsewhere. Zunka’s response focused on the basis of trial by a jury of the defendant’s peers. He said the trial should be held in the community of the city that is being accused in the case.

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Amy Probenski
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Re: East Lexington's Dam

Postby Amy Probenski » 2011 Oct 05 13:31

And the beat goes on.
Patte Wood in the Rocbridge Weekly wrote:Change Of Venue Denied In Volpe Case
Judge Irvine Leaves Door Open For Change During Hearing

The City of Lexington has received a ruling by 25th Judicial Court Judge Michael Irvine regarding a request by the Volpe's to have a change of venue regarding a second trial with respect to their suit against the City in the death of their son, Charles Volpe.

Judge Irvine explains that the "moving party" bears the burden of demonstrating that there would be widespread prejudice against receiving a fair trial if the trial is held in Lexington. In reviewing the evidence presented so far, consisting of news articles and internet forums, he says that citizens of Rockbridge County had the opportunity to avail themselves of the facts of this case and certain extraneous information before and after the first trial. However, he said, "no evidence was presented indicating that a pervasive bias or prejudice against the plaintiffs exists throughout the county."

On the other hand, he continues, "difficulty impaneling the jury and evident influence of publicity on the jury pool may make a change of venue necessary even if the jury is ultimately seated if, after considering all of the circumstances, it is not reasonably certain that a party will get a fair trial."

He concludes, "Considering . . . the limited evidence presented at this time, the Court is unable to grant the plaintiffs' Motion to Change Venue. However, pursuant to our discussion during the hearing, I will grant both parties an opportunity to present further evidentiary support for their positions if they desire. Following such hearing, I will reconsider plaintiff's motion and make a ruling at that time. In the meantime, the matter will remain under advisement."

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Wise One
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Re: East Lexington's Dam

Postby Wise One » 2012 Jun 29 12:17

Well, it looks as though this thing is closing in on final resolution.
While the Chuck's dreams of avarice may not be realized, the jury has concluded that the city of Lexington is partly to blame for the tragedy that occurred. There is award to the mother and reimbursement for some expenses. I'd love to know what legal principles justify an award to one but not all of the plaintiffs!
As usual, one must wonder how much of the award will actually reach the plaintiff after lawyers have raked off their loot.

:coffee:

News-Gazette wrote:Jury Reaches Verdict in Volpe Case

10 a.m. Friday

The jury has reached a verdict in favor of the plaintiffs in the $9 million lawsuit filed against the city of Lexington by the family of Charles O. Volpe.

The decision came less than 30 minutes after the jury had reconvened Friday morning after being unable to reach a decision during five hours of deliberation on Thursday evening.

Compensatory damages for the grief and anguish cased by the loss of her son in the 2006 drowning death in the sum of $97,444,75 were awarded to the Volpe’s mother, Kim Volpe. Other beneficiaries of the lawsuit, Chuck Volpe and Derrick Volpe, were not awarded any compensation.

The jury also awarded $2,555.25 for funeral expenses.

The plaintiffs had charged that city with gross negligence and maintaining the nuisance by for not taking safety measures to warn users of the Maury River at Jordans Point Park about the lowhead dam located there.

7:30 p.m. Thursday

The jury was deadlocked as of Thursday evening it its deliberations on the $9 million lawsuit against the city of Lexington concerning the 2006 drowning of Charles O. Volpe at Jordans Point.

Judge Michael Irvine then delivered the Allen charge to the jury at approximately 7:30 p.m. after receiving word from the jury that they were at an impasse. The Allen charge dates back to 1896 when the courts ruled that a judge did have the right to strongly encourage deadlocked jurors to continue deliberations until a verdict is reached.

The case against Lexington must be decided by a jury according to a ruling made by the Virginia Supreme Court in 2011.
That ruling was made after the first trial of the case held in 2009 ended in a hung jury, and the judge ruled in favor of the city. The family of Charles O. Volpe who brought the case against the city then appealed the judge’s verdict to the Virginia Supreme Court, resulting in the higher court’s directive.

Final witnesses for the defense testified, and closing arguments were made earlier on Thursday. Volpe attorney Mark Obenshain argued the city was guilty of gross negligence by not warning the public about the potential dangers of the Jordans Point dam. He said city officials were aware of the dam’s potential danger to users of the Maury River but did not take measures to inform the public. He accused the city of playing “Russian Roulette” in the operation of the park.

Utilizing a large television screen set up in the courtroom, Obenshain flashed photographs of Charles Volpe taken before the 16-year old’s 2006 death as he asked the jury to consider appropriate compensation for beneficiaries of the lawsuit that include Chuck Volpe, Kim Volpe and Derrick Volpe. Kim Volpe, the only member of the Volpe family to appear at the trial, sobbed as the pictures were displayed. Obenshain suggested $5 million as appropriate compensation.

Speaking on behalf of the city, attorney John Zunka argued the city was not acting with gross negligence regarding the dam because there was no previously documented history of anyone drowning at the dam. He said Volpe had failed to use ordinary care on April 23, 2006 when the river was above normal levels and Volpe chose to swim out to the dam with the intention of jumping off the other side. “People in our society need to take responsibility for their own actions,” Zunka said.

6 p.m. Wednesday

Kim Volpe, mother of the late Charles O. Volpe who drowned while swimming at Jordans Point Park in 2006, was the final witness to testify today on behalf of the plaintiffs in the Volpe family’s $9 million lawsuit against the city of Lexington.

Kim Volpe emotionally described for the jury the events of April 24, 2006, the day Charles Volpe died. Volpe also described the impact that the loss of one of her two children has had on her; her former husband, Chuck Volpe; and son, Derrick. “It was like losing my identity,” Volpe said.

City Manager Jon Ellestad also took the stand today as a witness called by both the plaintiffs and the defense. Ellestad testified that swimming in the Maury River at Jordans Point island had occurred before the city began renovation of the area as a city park and that city officials did not intend to close off access to the river as park plans progressed. Ellestad acknowledged to the plaintiff’s attorney, Mark Obenshain, that city officials were aware that conditions at the lowhead dam that spans the river become dangerous as water levels rise. However, Ellestad refused to concede that during periods of high water that the appearance of the mill pond in the river created by the dam would continue to look normal.

In his testimony for the defense, Ellestad also recounted his experiences on the day that the drowning occurred. He described the color of the water in the mill pond as being “murky” with debris floating down the river and noted water levels at the tire dock in the park were elevated.

Testimony for the defense will continue on Thursday.

During opening statements for the trial on Monday, the Obenshain said he would prove that the city of Lexington was grossly negligent by not warning swimmers at a public park about the potential dangers of the lowhead dam at Jordans Point, even though city officials were aware of the hazard. Obenshain said the city is also guilty of maintaining a nuisance by allowing the dam to remain in an area that was intended for use by the public for swimming.
The city’s attorney countered in his opening remarks to the jury that Volpe’s own negligence contributed to his death.

6 p.m. Tuesday

Testimony in the $9 million lawsuit against the city of Lexington regarding the 2006 drowning death of Charles O. Volpe got underway on Tuesday.

Bryc Talley, Volpe’s companion on the day Volpe was swept over the Jordans Point dam, testified that he did not perceive the Maury River to be dangerously high or fast on the Sunday afternoon in April when the two, then-teenagers decided to go swimming and jump off the dam at Jordans Point Park. Talley also was drawn by the water currents over the dam but survived.

Talley’s mother, Heather Talley, testified as well that she did not believe the river looked dangerous for swimming that day. Attorneys for the city countered by recalling earlier testimony from both witnesses given during depositions that the area had received two to three days of rain prior to the drowning incident.

Former Lexington director of public works David Woody was grilled by Mark Obenshain, attorney for the plaintiffs, about the planning process for creating Jordans Point Park and concerns that had been expressed by at least one citizen about the potential dangers for boating safety created by the presence of the lowhead dam. Woody was also asked about prior knowledge by city officials of the hydraulic boil below the dam that occurs in periods of high water.

On cross examination, Woody testified on behalf of the city that he was not aware of the practice of “dam diving” off the Jordans Point dam, the stunt that Talley said both he and Volpe as well as others had performed on multiple occasions prior to Volpe’s death.

The final witness for the day was Andy Wolfe who testified about his suggestions made during the Jordans Point Park planning process for boating safety.

Monday

Jury selection was completed and opening arguments were made Monday in Rockbridge County Circuit Court for the civil trial to determine the outcome of the $9 million lawsuit filed against the city of Lexington by the family of Charles O. Volpe.

Volpe drowned while swimming at Jordans Point in 2006.

Attorneys for the plaintiff and the defendant found 22 potential jurors to be acceptable of the 37 people who were interviewed. Of the 22, a nine-person jury that includes two alternates was seated after the five-hour jury selection process. Although the majority of the potential jurors had read about the Volpe case in the media, most said they could abide by Judge Michael Irvine’s instructions to “put aside what you’ve read and decide according to the evidence.”

In his opening statement, Mark Obenshain, attorney for the Volpe family, said the plaintiffs would prove that the city of Lexington was grossly negligent by not warning swimmers at a public park about the potential dangers of the lowhead dam at Jordans Point, even though city officials were aware of the hazard. Volpe died after being swept over the dam and getting caught in the hydraulic whirlpool on the other side. Obenshain said the city was also guilty of maintaining a nuisance by allowing the dam to remain in an area that was intended for use by the public for swimming.

The city’s attorney, John Zunka, countered in his opening remarks to the jury that Volpe’s own negligence contributed to his death. Volpe and his companion were “two teen-aged boys that jumped into a rain-swollen river,” Zunka asserted.

The trial will resume at 9 a.m. Tuesday with testimony from witnesses for the plaintiffs.
"If your only tool is a hammer, every problem looks like Donald Trump."

russ5150
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Re: East Lexington's Dam

Postby russ5150 » 2013 Feb 22 16:20

Frankly Charles Volpes death was a result of youthful hubris. . In other words he let overconfidence in his own abilities override common sense. The argument to remove the damn is pointless. We live in a litigious age where stupidity often leads to unnecessary lawsuits. Chuck Volpe is just trying to get paid.

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Wise One
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Re: East Lexington's Dam

Postby Wise One » 2017 Aug 13 22:49

This topic is heating up again. What do you think?

There is equally strong sentiment for
  • taking down the damn dam in order to restore the stream to its natural state for habitat, safety, and other benefits
  • leaving it there, with repairs to make it safe and durable to keep the flat water.
What do you think? I have an inkling, but I'd love to hear others before I complete and solidify an opinion of my own.

:coffee:
"If your only tool is a hammer, every problem looks like Donald Trump."


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