Present: Kinser, C.J., Lemons, Millette, and Mims, JJ., and 

Lacy and Koontz, S.JJ. 

S. CHARLES VOLPE, CO-ADMINISTRATOR OF 

THE ESTATE OF CHARLES OLIVER VOLPE, ET AL. 

v. Record No. 092583 OPINION BY JUSTICE WILLIAM C. MIMS 

 April 21, 2011 

CITY OF LEXINGTON 

FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY 

Michael S. Irvine, Judge 

 The primary issue in this appeal is whether the City of 

Lexington, which owned and operated a riverside park that 

included a low-head dam, owed a duty to warn its invitees of 

the dangers posed by the dam. We also consider whether the 

circuit court properly struck claims of gross negligence and 

willful and wanton negligence. 

BACKGROUND 

 On April 23, 2006, Charles O. Volpe (“Charles”) drowned 

in the Maury River below a low-head dam during a visit to a 

riverside park owned and operated by the City of Lexington, 

Virginia (“the City”). His parents, S. Charles Volpe and Kim 

A. Volpe (“the Volpes”), qualified as administrators of his 

estate and filed suit against the City seeking damages for 

gross negligence, willful and wanton negligence, and public 

nuisance. The matter proceeded to trial by jury, at the 

conclusion of which the circuit court struck the ordinary 

negligence claims and refused to instruct the jury on public 
nuisance.1 The jury was unable to reach a verdict on the gross 

negligence claim, and the circuit court granted a renewed 

motion to strike that claim, finding that the danger posed by 

the dam was open and obvious and therefore the City had no 

duty to warn Charles. We awarded the Volpes this appeal. 

FACTS 

 In 1940, the City acquired the low-head dam, which 

traverses the Maury River in the City at a bend in the river 

known as Jordan’s Point.2 The dam originally was constructed 

to raise the level of the river, forming a millpond, so water 

could be channeled into a millrace and used to power a mill. 

By the 1990s, the mill had ceased operating but the dam and 

the millpond remained. 

 The Jordan’s Point dam is described as “low-head” because 

water cascades over, rather than through, it. As the water 

level rises, more water flows over the top of the dam and the 

velocity of the flow increases. However, the surface of the 

millpond remains calm and the heightened currents are not 

apparent to common observation. The pooled water may not 

 1

 It appears from the record that the trial court’s 

refusal to instruct on nuisance was based on the Volpes’ 

failure to submit jury instructions. The circuit court did 

not reach the merits of the nuisance claim. 

2

 At the time of Charles’ death, City officials did not 

realize that the City owned the dam, which was part of a 

larger acquisition of riverside property. 

2
appear higher than normal even when the volume of water 

flowing over the dam is several times greater than the normal 

rate. 

 When the water flow is high, it generates a dangerous 

condition on the downhill side of the dam called a hydraulic. 

The greater the flow of water over the dam, the more powerful 

the hydraulic. When a person is pulled into a powerful 

hydraulic, he may not be able to escape. The presence of such 

a potentially deadly hydraulic may not be apparent to common 

observation. 

 The hydraulic created by a low-head dam is unusually 

dangerous because it is uniform and spans the entire river. 

By contrast, naturally occurring hydraulics, often formed by 

boulders, are limited in size and uneven in shape. 

Consequently they usually will “kick [a person] to the left or 

right.” 

 In January 1997, City officials formed a committee to 

plan a public park at the City-owned riverfront at Jordan’s 

Point. At the initial committee meeting, participants offered 

a variety of suggestions regarding the proposed park, 

including “regained public access to the water.” City 

officials planning the park viewed it as “a place where people 

should be able to swim.” 

3
 In 1998 the City hired an architecture firm to create a 

master plan for the park. According to notes from its 

September 2, 1998 meeting, the committee and the park’s 

architect were “concerned about safety from the beginning, but 

we want swimming.” The master plan, dated August 23, 1999, 

set forth as a purpose of the park: “To provide a place for 

the citizens to access the River.” The plan proposed using an 

existing tire dock, located 85 feet upstream from the dam, as 

the flatwater canoe launch. Part of the City’s plan was to 

encourage and provide an opportunity for people to swim in the 

millpond. The City envisioned swimmers accessing the water 

from the tire dock and a grassy bank between the tire dock and 

the dam. 

 Thereafter, the committee met in October 1999. The 

minutes reflect that Andrew P. Wolfe, representing the Maury 

River Traditional Small Craft Association, questioned the 

location of the canoe launch due to concern of flooding. 

Committee member Carlton Abbott “acknowledged that the 

currently shown boat launch location is not ideal given the 

dam’s proximity and crosscurrents.” The minutes state that 

4
Abbott “also mentioned that techniques are available such as a 

cable with drop straps to prevent boating accidents at dams.”3

 In 2001 the City submitted a grant application for the 

proposed park to the Virginia Department of Transportation 

(“VDOT”). The application stated that the “Safety Impact,” in 

part, would be that “[s]afe flatwater and whitewater canoe 

launches will be established using [previous] pavement and 

other stream bank stabilization measures.” City Manager T. 

Jon Ellestad testified that moving the canoe launch away from 

the dam was a justification for the grant. The City received 

$462,000 in grants from VDOT to create the Jordan’s Point Park 

and implement the safety features proposed in the grant 

application. However, the City did not move the canoe launch 

from the tire dock. Likewise, prior to Charles’ death the 

City did not take any safety precautions with respect to 

swimming in the river. 

 As planned, swimmers visiting the park accessed the 

millpond from the canoe launch. On most days, with very 

little water flowing over the top of the dam, the millpond was 

a placid pool with little detectable current. Swimmers 

 

3

 In 2004, City Manager T. Jon Ellestad approached the 

owner of the property across the river from the city park 

about running a safety cable from the park to his property. 

The City never installed a safety cable. 

5
climbed onto the dam without difficulty, and some jumped from 

the dam into the river below the dam.

 On the day he died, Charles visited the park with his 

friend Bryc Talley (“Bryc”). Charles and Bryc planned to swim 

to the dam, climb onto it, and jump into the water below, as 

they previously had done many times without incident. Bryc 

testified that the river appeared “like it did on any other 

day. The water was pretty smooth and flat.” Bryc jumped into 

the millpond from the grassy bank between the tire dock and 

the dam. He swam over to the tire dock and got out. Then 

Charles entered the river from the grassy bank, and Bryc 

jumped in behind him. The two swam toward the center of the 

dam, and the water “seemed pretty much how it did on any other 

day.” 

 According to Bryc, “it wasn’t until we got right up next 

to it that you could tell a significant difference in the 

current.” The current “was just instant how it picked up.” 

It swept Charles, and then Bryc, over the dam. Bryc found 

himself spinning in a hydraulic which he had never 

experienced, but managed to escape to shore. Charles did not 

escape the hydraulic. Police recovered his body more than 22 

hours later at the base of the dam. 

 Defense witnesses testified that they also visited 

Jordan’s Point on April 23, 2006, but would not swim because 

6
the river appeared dangerous. They testified that it had 

rained for several days and the river was “high,” “turned up,” 

“really white and brown,” “muddy,” and “obviously dangerous.” 

From the park, they saw the water pour over the dam faster 

than usual. Emily J. Heizer testified that she entered the 

river at the tire dock, but got out immediately because she 

felt a powerful current. She stated: “the edge of the dam was 

all white, with the water rolling back, I guess, hitting it, 

all white.” She testified that the sound of water rushing 

over the dam was amplified, and that the conditions on that 

day were the worst she had seen. 

DISCUSSION 

A. DUTY TO WARN 

 The Volpes first assign error to the trial court’s ruling 

that the City, as a matter of law, did not have a duty to warn 

Charles. We review the trial court’s ruling de novo, as 

“[t]he issue whether a legal duty in tort exists is a pure 

question of law.” Kellermann v. McDonough, 278 Va. 478, 487, 

684 S.E.2d 786, 790 (2009). 

 It is undisputed that Charles had the status of an 

invitee, as the park and the millpond were “thrown open to the 

public and [Charles] enter[ed] pursuant to the purposes for 

which [the park was] open.” City of Richmond v. Grizzard, 205 

Va. 298, 302, 136 S.E.2d 827, 830 (1964). In Virginia, a 

7
landowner owes an invitee “the duty of using ordinary care to 

maintain its premises in a reasonably safe condition and to 

warn . . . of any hidden dangers.” Amos v. NationsBank, N.A., 

256 Va. 344, 346, 504 S.E.2d 365, 366 (1998). In Blacka v. 

James, 205 Va. 646, 649, 139 S.E.2d 47, 50 (1964), we 

explained: 

the owner of a swimming pool or lake to which the 

general public is invited for a consideration 

must exercise ordinary care for the safety of his 

patrons. He must make reasonable provisions to 

guard against those accidents which common 

knowledge and experience teach are likely to 

befall those engaged in swimming and other 

aquatic sports for which he has provided 

facilities, but the owner is not an insurer of 

the safety of his patrons. 

See also Knight v. Moore, 179 Va. 139, 146, 18 S.E.2d 266, 269 

(1942). 

 An invitee has the right to assume that premises are 

reasonably safe “unless a dangerous condition is open and 

obvious.” Roll ‘R’ Way Rinks, Inc. v. Smith, 218 Va. 321, 

327, 237 S.E.2d 157, 161 (1977); see also Fobbs v. Webb Bldg. 

Ltd., 232 Va. 227, 229, 349 S.E.2d 355, 357 (1986) (“owner has 

no duty to warn its invitee of an unsafe condition which is 

open and obvious to a reasonable person exercising ordinary 

care for his own safety”); Knight, 179 Va. at 146, 18 S.E.2d 

at 269 (“such notice is not required where the dangerous 

8
condition is open and obvious, and is patent to a reasonable 

person exercising ordinary care for his own safety”). 

 This Court has held that the danger of drowning in an 

excavated quarry was “natural, open, and obvious,” despite a 

sheer, manmade drop-off from a shelf of knee-deep water. 

Washabaugh v. Northern Virginia Construction Co., 187 Va. 767, 

773, 48 S.E.2d 276, 279 (1948). We explained: 

While tragic accidents of the nature disclosed 

are always possible, they are not any more likely 

to happen in this artificial pond than in a 

natural stream of water. Such danger is natural, 

open, and obvious, and is ordinarily encountered 

in most places where children gather to wade or 

swim. 

Id. Under Washabaugh, riparian landowners in Virginia do not, 

in the absence of consideration, owe a duty to warn of the 

natural, “ordinarily encountered” hazards of a body of water. 

Id.

 While we agree with the City that the natural, 

“ordinarily encountered” dangers of the Maury River at 

Jordan’s Point were as a matter of law open and obvious to 

Charles, we do not agree that a deadly, hidden hydraulic 

created by the unusually strong current at the low-head dam 

was open and obvious as a matter of law. 

 A case from our neighboring jurisdiction of West Virginia 

is instructive on the matter. In White v. Kanawha City Co., 

34 S.E.2d 17 (W. Va. 1945), the Supreme Court of West Virginia 

9
reviewed the drowning of a twelve-year-old child in a pool of 

water created by a dam. Id. at 18. The court observed that 

“the mere existence of an unguarded [body] of water . . . does 

not of itself render the owner liable for the death of a child 

drowned therein,” but “if some feature or element of the 

instrumentality or premises operates as a hidden danger or 

trap, liability may arise against the owner.” Id. at 19. The 

court held that the plaintiff failed to allege facts “which 

would indicate that the pool or dam in question was more 

dangerous than an ordinary pool or dam would inherently and 

unavoidably be.” Id. at 19-20. 

 In Perkins v. Byrnes, 269 S.W.2d 52 (Mo. 1954), the 

Supreme Court of Missouri reviewed a drowning that occurred in 

a hydraulic at the base of a mill dam within a waterfront 

resort. It found that the evidence was that the river was 

“ ‘up’ or ‘swollen,’ even ‘high,’ ” when decedent entered the 

water. Id. at 54. It held that the question of the resort’s 

negligence was for the jury, as “a swollen river with a hidden 

or deceptive undercurrent is a circumstance upon which 

reasonable minds could differ.” Id. at 55. 

 The record in this case shows that the hydraulic at 

Jordan’s Point was unlike any naturally occurring feature of a 

river. Specifically, the increased current above the manmade 

dam and the hydraulic created below were not always visible to 

10
a swimmer and were not always present. Unlike a natural 

hydraulic, the hydraulic in which Charles drowned spanned the 

river in a straight line, making escape exceptionally 

difficult. 

Therefore, the circuit court erred in holding as a matter 

of law that the dam presented an open and obvious danger.4 See

Washabaugh 187 Va. at 773, 48 S.E.2d at 279. This factually 

specific determination was an issue for the jury. See Hoar v. 

Great Eastern Resort Management, Inc., 256 Va. 374, 386, 506 

S.E.2d 777, 784-85 (1998) (conflict in testimony as to whether 

a steep drop-off at edge of ski slope was an open and obvious 

condition “presented a typical issue for jury determination”); 

Fultz v. Delhaize America, Inc., 278 Va. 84, 89, 677 S.E.2d 

272, 274-75 (2009) (where reasonable minds could differ, 

question as to whether defect is open and obvious was for the 

jury). 

B. GROSS NEGLIGENCE 

 4

 The question of whether the dam presented an open and 

obvious danger initially was presented to the jury, prior to 

the court granting the renewed motion to strike when the jury 

could not reach a verdict regarding the gross negligence 

claim. Instruction 11, agreed to by the parties, stated, in 

part: “An occupant of premises does not guarantee an invitee’s 

safety, but has the duty . . . to warn an invitee of any 

unsafe condition about which the occupant knows, or should 

know, unless the unsafe condition is open and obvious to a 

person using care for his own safety.” 

11
We now turn to the issue of the circuit court striking 

the Volpes’ evidence of the City’s gross negligence. We 

recently have explained the applicable standard of review: 

When ruling on a motion to strike a plaintiff’s 

evidence, a trial court is required to accept as 

true all evidence favorable to a plaintiff and 

any reasonable inferences that may be drawn from 

such evidence. The trial court is not to judge 

the weight and credibility of the evidence, and 

may not reject any inference from the evidence 

favorable to the plaintiff unless it would defy 

logic and common sense. On appeal, when this 

Court reviews a trial court’s decision to strike 

a plaintiff’s evidence, we likewise view the 

evidence in the light most favorable to the 

plaintiff. 

TB Venture, LLC v. Arlington County, 280 Va. 558, 562-63, 701 

S.E.2d 791, 793 (2010) (internal citations and quotation marks 

omitted). 

In Chapman v. City of Virginia Beach, 252 Va. 186, 475 

S.E.2d 798 (1996), we defined gross negligence as: 

the utter disregard of prudence amounting to 

complete neglect of the safety of another. It is 

a heedless and palpable violation of legal duty 

respecting the rights of others which amounts to 

the absence of slight diligence, or the want of 

even scant care. Several acts of negligence which 

separately may not amount to gross negligence, 

when combined may have a cumulative effect 

showing a form of reckless or total disregard for 

another’s safety. Deliberate conduct is important 

evidence on the question of gross negligence. 

Whether gross negligence has been established is 

usually a matter of fact to be decided by a jury. 

Id. at 190, 475 S.E.2d at 800-01 (internal citations and 

quotation marks omitted). 

12
The Volpes argue that the circuit court erred in finding 

their evidence insufficient for a jury to find that the City 

had acted in a grossly negligent manner. Applying the 

standard as set forth in Chapman, and viewing the evidence in 

the light most favorable to the Volpes, we agree. 

City Manager Ellestad testified that he knew the river 

could be particularly dangerous in certain conditions because 

of the proximity of the low-head dam and could be hazardous 

even when the millpond appeared “relatively normal.” Director 

of Public Works David Woody testified that he was aware of the 

existence of the hydraulic during the planning of the park, 

and he knew that the accelerating currents at the top of the 

dam and the hydraulic below were present only in certain 

conditions. He also knew that in certain conditions, the 

hydraulic would be deadly. It is undisputed that despite the 

City’s knowledge of these dangers, prior to Charles’ death the 

City did not take any safety precautions for its invitees 

swimming in the river. 

On these facts, we find that “reasonable persons could 

differ upon whether the cumulative effect of these 

circumstances constitutes a form of recklessness or a total 

disregard of all precautions, an absence of diligence, or lack 

of even slight care.” Id. at 191, 475 S.E.2d at 801. We hold 

that there was credible evidence to support a jury finding of 

13
gross negligence. The trial court erred in striking the 

Volpes’ evidence when the jury failed to return a verdict. 

C. WILLFUL AND WANTON NEGLIGENCE 

 The Volpes next assign error to the circuit court 

striking their claim for willful and wanton negligence. As 

set forth above, in deciding whether the Volpes established a 

prima facie showing of willful and wanton negligence, the 

circuit court was “required to accept as true all evidence 

favorable” to the Volpes. TB Venture, 280 Va. at 562-63, 701 

S.E.2d at 793. We also view the evidence in the light most 

favorable to the Volpes. See id.

 The tort of willful and wanton negligence has been 

characterized as “a spirit of mischief, criminal indifference, 

or conscious disregard for the rights of others.” Infant C. 

v. Boy Scouts of America, Inc., 239 Va. 572, 581, 391 S.E.2d 

322, 327 (1990). In Infant C., we explained: 

The hallmark of this species of tortious conduct 

is the defendant’s consciousness of his act, his 

awareness of the dangers or probable 

consequences, and his reckless decision to 

proceed notwithstanding that awareness. Because 

such consciousness and awareness are 

prerequisites, the use of the term “negligence,” 

in defining the tort, is a misnomer. 

Id. at 581-82, 391 S.E.2d at 327. 

 Here, taking the evidence in the light most favorable to 

the Volpes, we accept that the City knew that the dam could 

14
present dangers in certain conditions. The evidence, however, 

did not establish that City officials acted with a spirit of 

mischief, criminal indifference, or conscious disregard for 

the rights of swimmers. In fact, the evidence did not 

establish that the City, prior to Charles’ death, even knew 

that swimmers climbed on the dam and jumped into the water 

below. 

Accordingly, the circuit court properly granted the 

City’s motion to strike the evidence for the claim of willful 

and wanton negligence.5

CONCLUSION 

For the reasons stated above, we will reverse the 

judgment of the circuit court holding that the City had no 

duty to warn and striking the Volpes claim of gross 

negligence, affirm the circuit court’s judgment striking the 

Volpes’ claim of willful and wanton negligence, and remand the 

case for further proceedings consistent with this opinion. 

 Affirmed in part,

reversed in part,

 and remanded.

 5

 Because the circuit court did not reach the nuisance 

claim on the merits, we need not address that assignment of 

error, and that cause of action will be available to the 

Volpes on retrial. 

15