(CN) - A woman whose daughter drowned in her car after floodgates were opened in anticipation of Hurricane Irene can sue Salem County, N.J., and its sheriff, a federal judge ruled.
New Jersey issued a statewide emergency order on Aug. 25, 2011, in anticipation of Hurricane Irene, a large and powerful Atlantic hurricane that had caused extensive flood and wind damage in the Caribbean and coastal North Carolina before it started edging north along the eastern seaboard.
The order authorized the state director of emergency management to control the flow of traffic on any state or interstate highway through the police.
Two days later, on the eve of the hurricane's arrival, the Borough of Woodstown in Salem County, N.J., fully opened the floodgates to the Veterans Memorial Lake Dam to take pressure off it.
While Salem County Emergency Management Coordinator Jeffrey Pompper claims that Woodstown's coordinator, Harry Vanaman, opened the floodgates, Vanaman testified that the two of them made the decision jointly with the Woodstown mayor.
That night, Mario Oliveto told his friend, Celena Sylvestri, about the state of emergency and to stay put in her apartment, he testified.
Meanwhile, nearby Salem River water levels rose and flooded a section of Route 40, so the Woodstown State Police told Salem County they would close the section.
The county then issued a county-wide travel ban around 10 p.m.
Sylvestri, 20, allegedly left home sometime between 11 p.m. and 1 a.m., and drove onto Route 40.
Though state police had blocked traffic west of the flooded section of the road, they had not blocked traffic east of it.
Floodwaters reportedly swept Sylvestri's car off the road, and she drowned before emergency workers could reach her in the wee hours of Aug. 28, 2011.
Kathryn Van Orden, Sylvestri's mother, sued various state, county, and municipal entities in federal court, alleging they opened the floodgates without notifying drivers or closing the road.
U.S. District Judge Jerome Simandle dismissed the state defendants based on sovereign immunity under the 11th Amendment on Dec. 9, 2013.
The remaining defendants, Salem County and its sheriff, moved to dismiss or for summary judgment on the Sec. 1983 claim for state-created danger.
But Simandle denied the motion Thursday, finding that unlike the state defendants, the county defendants are not entitled to sovereign immunity under the Eleventh Amendment.
"That there is little in New Jersey statutes prescribing the role of county [offices of emergency management] OEMs and [emergency management coordinators] EMCs suggests that their function is left more or less to the counties themselves, and they do not serve as an arm of the state office," Simandle wrote. "Moreover, unlike county prosecutors, who are nominated and appointed by the governor with advice and consent of the senate, a county EMC is appointed by the county itself."
That factor weighs "slightly against" a finding of immunity, the ruling states.
"Because the county EMC creates emergency action plans tailored to the county and is primarily responsible for carrying out county-specific actions rather implementing state actions, the court finds that, despite being subject to some state oversight, county EMCs function more or less autonomously and are not as an arm of the state director of emergency management," Simandle wrote. "This factor weighs against a finding of immunity."
Plus, "a ruling on this claim would be premature," the judge added, as discovery is incomplete, with the designee for Salem County yet to testify.
The court dismissed the state law claims, noting that Van Orden did not oppose such.
The county and its sheriff, Woodstown and its police department, and Van Orden have yet to respond to emailed requests for comment.
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