Hurricane Drowning Could Leave Towns Liable

     (CN) - A pair of New Jersey towns that opened floodgates without warning as Hurricane Irene neared may be liable for the drowning of a woman, a federal judge ruled.
     Having lost power at her apartment, Celena Sylvestri, 20, had been trying to evacuate when "raging" floodwaters suddenly swept her car off the road and killed her in Salem County, N.J., on Aug. 28, 2011, according to the complaint.
     The borough of Woodstown, N.J. had allegedly announced the night before that it would soon open the floodgates of the Veterans Memorial Lake Dam and close the road Sylvestri took.
     But the borough never blocked the road nor took any steps to lead drivers away from the floodwater's path, Sylvestri's mother, Kathryn Van Orden, claims.
     Defendants include the borough and its police department; New Jersey, its state police, and Department of Environmental Protection Bureau of Dam Safety and Flood Control; Salem County and its sheriff; and Pilesgrove Township.
     The complaint asserted various state-law tort claims, state-created danger, and violations of the due process clause of the Fifth and 14th Amendments.
     U.S. District Judge Jerome Simandle dismissed claims against the state defendants on 11th Amendment immunity this past December but upheld the state-created danger claim against Woodstown, its police department, and Pilesgrove Township on March 11.
     The ruling emphasizes that Sylvestri was a foreseeable victim.
     "She was driving on a public road, within the path of raging floodwater allegedly unleashed by defendants, shortly after the floodgates opened, at a time (1 a.m.) when, it may be reasonably inferred, few vehicles use this road," Simandle wrote (parentheses in original).
     Van Orden sufficiently alleged an affirmative use of state authority, the ruling states.
     "While Ms. Sylvestri's death might have been avoided if Route 40 had been closed or blocked off, and, in that sense, the failure to close the road was a 'direct' cause of her drowning, plaintiff does not allege that the mere failure to close the road is the predicate conduct for her claim," Simandle wrote. "Plaintiff alleges that defendants' affirmative opening of the floodgates created a dangerous condition that would not have existed had state authority not been exercised, and then failed to protect her."
     The judge found a "direct" link between the floodgates opening and Sylvestri's injury.
     "Plaintiff alleges that Ms. Sylvestri drowned in a flood that defendants created by opening a floodgate," Simandle wrote. "It is difficult to imagine a more direct link between action and harm than the facts alleged here."
     Sylvestri's mother has adequately pleaded that the defendants deliberately disregarded "a great risk of serious harm," according to the ruling.
     "Defendants' conscious disregard of the risk may be inferred from the fact that they issued a statement of their intent to close the road due to flooding," Simandle wrote. "It also may be reasonably inferred that causing 'millions of gallons of water' to rush 'into the Salem River and consume bridges and roadways downstream including Route 40' involves a great risk of serious harm to anyone who may be in the path of the sudden rush of the released water. Plaintiff specifically asserts that defendants 'knew that their actions could result in great harm to drivers travelling on Route 40,' but did not close the road. Releasing 'raging flood water' capable of enveloping roads and bridges and causing serious bodily injury or death, without taking safety measures to protect citizens, certainly could be considered conduct that shocks the conscience."
     The judge did, however, dismiss the state-law tort claims for negligence, vicarious and strict liability, wrongful death, and survival, noting that Van Orden did not object.