A wrongful death lawsuit filed by the widow of a 71-year-old Niobrara man who disappeared and is presumed dead following the Spencer Dam collapse last year has cleared a legal hurdle to go forward against the state agencies that owned and operated the dam.
Holt County District Judge Mark Kozisek wasn’t addressing the merits of the claims but rather whether the case should be in his court at all.
In a recently filed six-page order, he rejected the arguments made by attorneys for the Nebraska Public Power District and the Nebraska Department of Natural Resources, who said the case should be dismissed because, by law, they were immune from such a lawsuit.
Kenny Angel’s wife, Linda Angel, sued them in October, alleging their negligence had led to the failure March 14, 2019, which sent a torrent of water and ice downstream, sweeping away homes and washing out farmland in its path.
NPPD owned the 92-year-old dam and, along with the Department of Natural Resources, was responsible for its operation and maintenance.
Kenny Angel lived just downstream from the dam and is believed to have drowned when floodwaters washed away his home and business.
His body never was found, but in June 2019 a judge declared him dead.
At a hearing Jan. 27, Kozisek heard from both sides on the motion to dismiss before overruling them in late May and letting the case go on to discovery.
NPPD’s attorneys, who are with the Nebraska Attorney General’s Office, argued the claims arose out of snow or ice conditions, exceptions included under the Emergency Management Act, and they were carrying out emergency management activities.
But, the judge said, development of an adequate record is “critical to making such a determination and would be ill-advised at the pleading stage.”
For instance, the act doesn’t grant immunity for actions taken that are unrelated to emergency management, Kozisek said.
“Again, discovery will identify more specifically the activities taken and the manner in which they were performed,” he wrote in his ruling.
Omaha attorney Mike Coyle is alleging NPPD and the Department of Natural Resources had failed to prevent the collapse, to mitigate the dangers and to properly operate, manage and control the dam prior to the snow and ice.
He said they also failed to properly inspect or test the dam, to properly warn Angel about the danger that it could fail and to adequately hire and train employees who worked there.
In a report released in April, the Association of State Dam Safety Officials said the dam had a history of unaddressed ice issues and had no formal emergency plan because regulators wrongly assumed that no one would die if it failed.
In this case, it meant that Kenny Angel didn’t get a notification that the dam might fail until just minutes before it did.
The independent panel that investigated the failure also concluded that the regulator and owner were not fully aware the dam had failed and been damaged by ice flows in the ’60s and said a more thorough examination of the earlier events may have led to mitigation of the ice-run risk.
However, the panel ultimately concluded there was nothing the dam’s operators could have done in the early morning of March 14, 2019, to prevent Spencer Dam from failing after unusually intense snow and rain created a raging flood on the Niobrara River in rural northern Nebraska.
Attorneys for NPPD and the Nebraska Department of Natural Resources both filed answers in the case in June.
Lincoln attorney Steven Guenzel, who represents NPPD, said: “The unprecedented weather conditions were an extraordinary natural occurrence and/or an extraordinary force of nature.”
Plaintiffs assumed the risk, he said.
Assistant Nebraska Attorney General Justin Lavene made similar arguments for the Nebraska Department of Natural Resources, saying plaintiffs are barred from recovery against them “because an extraordinary force of nature was the only proximate cause of plaintiffs’ alleged claims and the resulting damages alleged by plaintiffs.”
He said plaintiffs may not recover against the department because any damages they suffered were “solely and proximately caused by the contributory negligence of plaintiffs.”
Gunzel said NPPD has received at least one other claim from the same incident. State law caps damages against political subdivisions at $1 million per person and $5 million per event.
A pre-trial hearing is set in the case later this month.
Source: JOURNAL STAR