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Civil Liability for Property Damage, Death, or Injury Near Waterfront Property

July 07, 2023

One commonly asked question regarding waterfront property ownership is the extent of civil liability for property damage, injuries, or death occurring in the waterways adjacent to or on the property.  The answer to this question involves a complex interplay between Virginia state law (tort law) and federal law (admiralty and maritime law).  This article aims to provide a comprehensive understanding of the liability considerations for waterfront property owners.

Virginia State Law

The two branches of tort law that will most commonly affect waterfront property owners are “premises liability” and “negligence.”   The premises liability doctrine applies when the person alleged to have caused the property damage, injury or death also owns the bottomland at the accident site.  The negligence doctrine applies in all of the other situations.  

Premises Liability

In order to understand whether premises liability applies, we must first establish whether the waterfront property owner owns the bottomland beneath the water. In most cases, waterfront property owners do not own the land under the waterbodies adjoining their properties. This is because, as per Virginia Code § 28.2-1200, the bottomland of rivers, creeks, bays, and beaches is usually owned by the Commonwealth and held in trust for the public. Consequently, property owners generally do not bear legal exposure under the "premises liability" doctrine for property damage or injuries occurring in rivers, bays, and oceans adjacent to their properties.

However, there are rare exceptions in which private parties may own bottomland under these types of waterbodies.  For instance, a landowner may possess a "King's Grant" if their chain of title traces back to colonial times and shows ownership of bottomland. 

It is important to understand that Virginia Code § 28.2-1200 applies to rivers, creeks, bays, and shores of the sea.  But there are other types of waterbodies in which people often exercise private ownership of the bottomland.  These include privately owned ponds, lakes, and non-navigable streams.

If a person owns the bottomland, he/she may be liable for injury or damages under the doctrine of premises liability.  When premises liability applies, Virginia law categorizes potential plaintiffs into three groups:

Trespasser: Landowners are generally shielded from liability if individuals trespass on their property and sustain injuries.

Licensee: If someone has the landowner's permission to be on the waterbody, such as a social guest, the landowner is liable only if they are aware of a non-obvious danger and fail to warn the licensee.

Invitee: When the premises are open to the general public for specific activities, like swimming or boating, the landowner has a higher duty of care towards invitees and may have significant civil liability.

Significantly, in order to be successful, the Plaintiff must also show that negligence was the proximate cause of the injury or damage.  For example, “[T]he mere fact that a person has drowned in a swimming pool or lake, even though the owner and operator is negligent in not using reasonable care to protect his patrons, does not, without more, establish the liability of a defendant.  The negligence of the defendant must have a causal connection with the drowning, and in the absence of a showing that a defendant's negligence was the proximate cause of the death there can be no recovery.”  Blacka v. James, 205 Va. 646, 139 S.E.2d 47 (1964)

Although it can be difficult to establish liability for accidents occurring in a waterbody, it is not impossible.  For example, in Volpe v. City of Lexington, 281 Va. 630, 708 S.E.2d 824 (2011) the City of Lexington owned and operated a riverside park open to the public for swimming.  There was a dam on the premises, and the decedent drowned in the vicinity of the dam.  The City was liable because the swimmers were “invitees” and the City had a duty to warn of the danger posed by particularly dangerous hydraulic forces under the water’s surface in the vicinity of the dam, which was known to the City but not apparent from common observation. 

Negligence Liability

If the property damage, injury, or death occurs in waters with bottomland owned by someone other than the alleged perpetrator, the negligence legal doctrine applies.  Negligence liability arises when a property owner fails to exercise reasonable care. For example, in City of Petersburg v. Applegarth's Adm'R, 69 Va. 321 (1877), the owner of a wharf was liable for allowing objects to extend from the wharf in a manner which caused catastrophic damage to a vessel passing by. 

Federal Admiralty and Maritime Law

Waterfront property owners may still face liability under federal law, even if absolved of liability under Virginia state law.  To establish federal jurisdiction, two conditions must be met: (1) the incident must occur in navigable waters, and (2) there must be a connection between the incident and maritime activity.  The definition of "navigable waters" includes tidal waters and those used for interstate commerce.  If both parts of this test are satisfied, the owner may be liable under federal civil law for injuries or damage sustained by a plaintiff. 

Understanding the civil liability associated with waterfront property is crucial for property owners.  By comprehending the interplay between Virginia state law and federal admiralty and maritime law, property owners can better assess their potential liability for property damage, injuries, or death occurring on or near their waterfront properties.  It is advisable to consult legal professionals well-versed in waterfront property law for guidance specific to individual circumstances.

Bryan Peeples is a Pender & Coward attorney focusing his practice on maritime and riparian law and worker’s compensation matters.

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