|Mother of drowning victim filed $5.35 million wrongful death suit last July|
File Photo by Morris Stephenson:
Swift water used to flow over the low-head dam at the Rocky Mount water filtration plant, where Nichole Underwood Mason drowned when her canoe capsized. Large rocks have been placed at the dam to blunt the force of the water and prevent the hydraulic from occurring.
Wednesday, March 14, 2012
By K.A. WAGONER - Staff Writer
A $5.35 million wrongful death lawsuit filed against the Town of Rocky Mount by the mother of a drowning victim has been dismissed in Franklin County Circuit Court.
Linda Underwood, the mother of Nichole Underwood Mason, who drowned at the low-head dam on the Blackwater River at the site of Rocky Mount's water treatment plant in July 2009, filed the lawsuit in July 2011.
In the dismissal order, Judge W.N. Alexander II said the complaint "must be dismissed with prejudice" because Underwood failed to provide notice of the claim to the Town of Rocky Mount within six months as required by the state code.
Dismissed with prejudice means the plaintiff is barred from bringing another action on the same claim.
In addition, Underwood's claim of negligence is precluded by the sovereign immunity of the town because the dam was legally constructed and maintained as a function of government, the order states.
Underwood, who is the administrator of her daughter's estate, alleged in the lawsuit that the Town of Rocky Mount was negligent when it failed to implement measures to eliminate the dangers and failed to warn river users of the dangers.
Underwood also alleged that the Town of Rocky Mount created a public nuisance on the Blackwater River by failing to abate the nuisance after the town became aware of the dangerous conditions created by the low-head dam.
Nichole Underwood Mason, 21, drowned in a hydraulic in front of the low-head dam after her 14-foot canoe capsized about 10 p.m. on July 23, 2009, as she and a companion crossed the dam.
Rescuers found her body one-quarter of a mile below the dam, according to Sgt. Karl Martin with the Virginia Department of Game and Inland Fisheries. Neither Underwood nor her companion was wearing a life jacket, he said.
Underwood's death was the second drowning at the low-head dam in less than two months. Chris Odum, 38, of Union Hall drowned on June 6, 2009, in the same location.
After Odum's death, the Town of Rocky Mount placed a throw ring, two ropes with small buoys and a grab hook with a long handle on a railing along a platform at the dam.
Those safety measures were in place at the time of Underwood's death.
A hydraulic is created by the force of the water coming over the dam and recirculating after it hits the bottom. The recirculation is powerful and can be difficult to escape.
In 2010, large rocks were placed at the dam to blunt the force of the water and prevent the hydraulic from occurring.