Landslide death case ends in mistrial
A wrongful death lawsuit surrounding a landslide in Maggie Valley was declared a mistrial this week after a jury failed to come to a unanimous decision.
Ed Jones, 75, sued the Maggie Valley Sanitary District, a non-profit water department, for negligence surrounding the landslide that killed his wife and destroyed his home and possessions. Both sides in the case agree that a waterline in the hillside above Jones’ house broke, spilling nearly 4,000 gallons of water in about 10 minutes, saturating the slope and causing it to collapse onto the Jones’ house. But the sides disagree over whether the water department was negligent or the leak was an unforeseen accident beyond their control.
Jones’ attorney, Mark Melrose, claims there were warning signs of the leak and ample opportunity for the water department to detect it and stop it.
“The reason why we are here is the water department didn’t do its job,” Melrose told the jury. “The water department failed to exercise due care. This danger was there to be seen by people who knew what they were looking for. They failed to go out there and investigate it.”
Meanwhile, the attorney for the Maggie Valley Sanitary District, Andy Santaniello, claimed it was “physically impossible” for the water department to know there was a leak in the works.
“There was no warning. There was no indication of this tragedy,” Santaniello told the jury. “The sanitary district does not deserve to be blamed for her death. We could fill this courtroom with money and it is not going to bring Mrs. Jones back. Don’t make an award out of pity, out of sympathy.”
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Melrose told the jury he was offended at the accusation that Jones was simply after money.
“We aren’t here because Ed Jones wanted to be here. If people would admit when they are wrong, pay what they owe and treat their neighbors with respect, we wouldn’t have very many court sessions,” Melrose told the jury.
What the jury didn’t know is that the water department has a $1 million liability insurance policy and Santaniello was hired by the insurance company, not the water department, Melrose said.
“It is unfortunate the way the system is set up the jury has to worry about whether the public’s water rates would go up as a result of their verdict. That’s just not true,” Melrose said after the trial.
Melrose said the insurance company for the water department hopes Jones will give up or get too old.
“They are just going to try to starve him out,” Melrose said, adding that it won’t work. The case will be retried in coming months.
Tough call
After listening to nearly two weeks of testimony and then deliberating for eight hours, the jurors told the judge that no amount of discussion would reconcile their views. Over the course of the trial, jurors were asked to become pseudo experts in soil science, geology, pipe laying, pipe repairs, engineering and physics involving the force of water.
A long section of PVC pipe that was once embedded in the hillside above Jones’ house was waved around by both attorneys during the trial. Both sides agree that a joint in the water pipe pulled apart around the edges of the joint. The force of water spurting out eroded the plastic pipe as the two ends slid apart. But the consensus ends there.
According to Santaniel-lo, the slope was unstable and on the verge of collapse anyway. That’s what caused the pipe to pull apart in the first place, he argued, a theory supported by a geotechnical expert with a Raleigh engineering firm, Benjamin Wilson.
“My best opinion is that slope had been doing what is called creeping, when a slope slowly moves down a hill,” Wilson testified. “My best theory is that the creep caused the water line to break.”
A witness on Jones’ side disputed that notion, however.
“Do you think the entire mountainside of Wild Acres is creeping down toward J. Arthur’s?” Melrose asked Ray Hobby, a contractor who lays water lines.
“No. That’s preposterous. If that’s the case, that would be a national emergency,” said Hobby, who is a partner in Maggie Valley Country Club. “Y’all better be evacuating the entire mountain community if that’s the case.”
Santaniello said that Melrose mischaracterized the concept of creep. Santaniello said an isolated part of a slope can shift gradually over time, not necessarily the whole thing.
Warning signs?
Prior to the catastrophic leak in the water line, Jones complained on three or four occasions to the water department about sediment in his water filter and, on the final occasion, he even brought his filter down to the water department to show them.
“That shows how concerned he was and they should have driven out there and taken a look,” Melrose said.
Witnesses on Jones’ side said that the persistent sediment in his filter was mud getting into the line through a leak in the water line above his house, thus was a warning sign.
Neil Carpenter, director of the Maggie Valley Sanitary District, said workers responded the way any water department would to such a complaint. They flushed the lines. Carpenter said the sediment in Jones’ filter wasn’t mud getting sucked into the pipe through a leak. Instead, it was iron and manganese deposits from the water building up inside the line and occasionally getting pulled through, Carpenter said
Carpenter said it is impossible for dirt to be sucked into the line through a leak due to the constant water pressure running through the line.
“It is physically impossible if a system is pressurized for any contaminates to get back in the line,” Carpenter said.
Mineral deposit build-up is so common, especially near dead end lines like the Jones’, that the state regulations will soon require water departments to perform monthly flushing of those lines, Carpenter said.
Hindsight
Meanwhile, Jones had noticed water seeping off the hillside and moisture building up behind a decorative wall behind his house. Jones thought it was runoff coming from the road on the hillside above his house. He called the department of transportation and told them about it. A road maintenance worker came out to check the road, but found the berm that keeps water from draining over the edge of the road and down onto Jones’ house was intact.
Melrose said if the water department had come out to investigate Jones’ complaint about his filter, they would have seen the moisture on the hillside and put two and two together.
“You are still in your office two miles down the road and you are flushing the line. You can’t take the little extra effort to drive the two miles up the road and see what the man is complaining about?” Melrose posed to the jury. “The duty to get out there and follow up with these complaints persisted until the day of the tragedy.”
Not so, Santeniello said. Complaints of sediment in Jones filter doesn’t constitute a warning or classify as negligence.
“It had to mean someone called the sanitary district and said ‘Hey Neil, there’s a leak. Come fix it.’ That didn’t happen,” Santaniello said.
Melrose disagreed.
“It’s not the responsibility of everyone who lives in Wild Acres to do the job of the water department,” Melrose said.
Down the line
One potential ramification of this case is how readily public water departments will take over water or sewer lines built by private developers.
Wild Acres subdivision was designed and developed — from the roads to the water lines — in the 1970s by a company owned by U.S. Rep. Charles Taylor, R-Brevard, who has large land holdings in Maggie Valley. Taylor convinced the Maggie Valley Sanitary District to take over ownership and maintenance of the water lines.
Hobby claims water departments are sometimes too quick to accept private water lines. Despite being underground and difficult to assess, there should be a grain of skepticism, Hobby said.
“I have seen too many of these developers with systems put in under no supervision, no criteria, and no standards whatsoever with a high probability of all sorts of failures,” Hobby said.
Another subdivision above Wild Acres called King’s Ridge was tied in to the Wild Acres system in 1998.
“Nobody goes back and checks whether this system someone else built is capable of withstanding the additional load they put on the system,” Hobby said.
Melrose said the water department was just crossing its fingers and hoping for the best with an aging system.
“They’re just running it like a horse until it can’t run anymore, and at what risk?” Melrose posed to the jury.
If the jury in the new trial sides with the water department, that, too, could have precedent-setting ramifications. The defense claims the water line broke as a result of the shifting hillside, a natural occurrence known as creep. If creep caused the waterline to break, which in turn killed Jones’ wife, then liability could fall with whoever granted a building permit on an unstable slope. If the case takes that turn, a slope stability assessment could one day be part of the county’s process in granting building permits.
