LINCOLN, Neb. (Legal Newsline) - A law passed in 2005 protects the State of Nebraska against a lawsuit by a woman whose husband was killed after a dam built in the 1920s failed, the Nebraska Supreme Court ruled, upholding sovereign immunity against claims the state could have done more to prevent the tragedy.
Spencer Dam on the Niobrara River was built by Northern Nebraska Power Co. in the 1920s but since the 1970s has been owned by the Nebraska Public Power District. Kenneth and Linda Angel owned a house, saloon and campground east of the dam. On March 14, 2019 the dam failed and the Niobrara River carved a new channel through nearby properties, apparently sweeping Kenneth Angel to his death. His body was never found.
A 2018 inspection found several deficiencies that could cause it to fail “during rare, extreme storm events.” But after the failure, an investigative panel found there was nothing the dam operators could have done to prevent it, given “the magnitude of the flood and ice run.” The panel also said Nebraska officials had underestimated the risk the dam presented to downstream residents.
Linda Angel sued NNPPD and the Nebraska Department of Natural Resources on behalf of herself and her late husband. The utility settled, but the NDNR moved to dismiss the claim against it, citing sovereign immunity. The Safety of Dams and Reservoirs Act in 2005 was passed to “regulate all dams and associated reservoirs” to “minimize the adverse consequences” associated with dam failures, including property damage and death. The law grants immunity to the state, but not to private dam owners.
A plaintiff expert said the dam failed because it wasn’t constructed, tested or operated to withstand reasonably foreseeable weather events, and the state should have given it a higher danger classification because the Angels’ property was only 1/3 of a mile downstream.
The trial court dismissed the case against the state, ruling the Angels were suing for negligence over a regulatory action covered by the Safety of Dams act. The Angels focused on what the state did or didn’t do before the accident, the judge noted, not during the weather emergency.
The Nebraska Supreme Court affirmed the dismissal in an April 14 decision. On appeal, the Angels argued the state wasn’t immune from lawsuits over negligence that occurred before the act was passed in 2005. But the language of the statute “provides no support for the Angels’ assertion,” the Supreme Court ruled, since the legislature knew “that hundreds, if not thousands of dams” had been constructed in Nebraska before 2005.
The high court also rejected arguments the state could be liable under an exception to immunity for actions taking “in assuming control of a dam during an emergency.” The Angels said the exception applied to inspections before the failure. “We disagree with their strained interpretation,” the court said. Under the law, dam owners are supposed to alert the state to an emergency and the utility never did, the court observed.
“Here the Department did not become aware of the Dam’s failure or the conditions leading tothe failure until after it had been breached,” the court ruled. As a matter of law, the trial court correctly determined it didn’t have jurisdiction over the case and dismissed it, the court concluded.