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Jury spreads out blame for Hadlock Pond dam collapse

2010-06-17T17:30:00Z 2010-06-17T18:01:56Z Jury spreads out blame for Hadlock Pond dam collapseBy Don Lehman dlehman@poststar.com Glens Falls Post-Star

QUEENSBURY -- A state Supreme Court jury found Thursday that Kubricky Construction Co. was 45 percent liable for the 2005 Hadlock Pond dam collapse, with the jury also spreading out responsibility among three other defendants to cap a seven-week trial.

After two days of deliberations, the panel found that Glens Falls-based Kubricky, which built the dam, was most responsible for the collapse that caused millions of dollars in property damage when the dam gave way in July 2005, months after it was completed.

The three-man, three-woman panel also determined that HTE Northeast Engineering, the company that designed the dam, bore 27 percent of the responsibility, the town of Fort Ann 23 percent and Atlantic Testing Laboratories Ltd. -- which tested the construction materials -- 5 percent.

The jury also ruled that the town of Fort Ann breached its dam construction contract with Kubricky when it did not pay, a verdict that Fort Ann town attorney John Aspland said was "inconsistent" since Kubricky was found to be most responsible for the dam's collapse.

The jury did not determine the amount of damage to which the 110 or so plaintiffs are entitled. That process will begin in the coming weeks when the plaintiffs will have to begin proving their monetary losses.

Several of the plaintiffs sat through much of the trial. One of them, George Tuttle, said afterward that he believed the allocation of blame was "pretty fair."

"My only problem is it took five years to get to it," he said.

He had a bridge to his home was washed out by the water from the 220-acre lake, and he lost about an acre of land. He said his loss was estimated at about $350,000 a few years ago, and it is likely higher now.

The jury's foreman, Bud Brock of Easton, said he did not agree with the panel's decision to blame the town for 23 percent of the failure, and he felt that 10 percent was more appropriate. He said one male juror was dead-set on the town receiving a higher percentage of fault.

"I said, ‘They (the town) had nothing to do with building the dam," Brock said. "We tried to be as fair as we could. We talked about it a lot and we compromised."

Brock said there was "too much (of the dam) gone" to know what really happened.

He said he believed the town breached its contract with Kubricky and should have paid for the dam even if it wasn't built correctly, with the town then seeking its money back if it believed it should do so.

Lawyers for all but Kubricky waited around after the verdict to talk to the media and the jurors. Kubricky's counsel left court without commenting to the media, and could not be reached later Thursday for comment.

Aspland said it was unclear Thursday whether the town would appeal the verdict, but he said he believed the town was assigned too much blame.

"I thought the percentage of allocation was a little high for the town," Aspland said.

The town was sued because it gave the go-ahead to close the dam to fill the lake.

Thomas Mortati, a lawyer for HTE, said it was clear that all of the defendants "would get some degree of a black eye" during the trial, but he praised the jury for its efforts. He said it was unclear if the company would appeal.

A lawyer for Atlantic Testing would not comment on the verdict.

Daniel Stewart, a lawyer for some of the plaintiffs, called the verdict "very fair" and "well thought-out."

Despite the verdict, the case is far from over, Aspland said. In addition to possible appeals, the damage assessment process will be lengthy.

"I would measure it in years instead of months," Aspland said.

But Paul Wein, a lawyer for numerous plaintiffs, said it would be "insane" for the defendants to appeal and he wanted to expedite the damages process.

"We're going to push to get this to a quick end," he said.

 

Copyright 2015 Glens Falls Post-Star. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

(27) Comments

  1. Sceptical Mass
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    Sceptical Mass - June 19, 2010 8:54 am
    It is the inspectors' jobs to ensure that proper construction practices are followed during the building of ANYTHING of this nature, and that the proper materials are used and placed properly.

    It's hard to believe Kubricky (sp!) cut corners in the construction process intentionally. It seems far more likely to me there was a flaw in the design somewhere that led to this, or materials designated were flawed in some respect.

    There should have been a qualified inspector there daily, with total authority over all facets of the entire job.
  2. Report Abuse
    - June 19, 2010 8:26 am
    That is one nice thing about the NYSDOT. Even though we all see the guys from the state sitting there watching people work, they are the inspectors that are the eyes and ears of for the design engineer. If there is a problem they contact the proper people immediately. If FA was too cheap to pay for full time inspection then the town got exactly what it paid for.
  3. annasgramp
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    annasgramp - June 19, 2010 5:49 am
    This case could have been over a long time ago.. 3 of the 4 parties involved wanted to sit down with an arbitrator to determine each others involvement and to pay the landowners. The 4th party was the Town of Fort Ann, they were denying any wrong doing on their part. Hmm, a jury of 6 saw differently. And now the Town (Attorney) might want to appeal. They did have a big hand in this case and should just stop and pay. DO THE RIGHT THING!!!!! And I'm not one that is suing, but I had a front row seat the day the dam burst.. see I'm one of the fireman that went around making sure people were accounted for and notified of the burst. We were in service for 7 straight days helping our community, without compensation.
  4. Watching Out
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    Watching Out - June 18, 2010 10:34 pm
    The manner in which the Town is handling this case is a travesty. Besides losing the court case, the Town Attorney has done nothing to settle the case and promises to drag it out for years. The downstream people had their homes destroyed and the Town is talking about stretching the case out for years.

    To add insult to injury, the Town has to pay Kubricky for their balance due. If you paid someone to put a roof on your house and leaked and leaked, would you still have to pay the roofer.

    As bad as the result was for the Town, appealing would be worse. It will cost the taxpayers more money and it will delay payment to the victims, who are Fort Ann taxpayers.
  5. gambler
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    gambler - June 18, 2010 7:05 pm
    The Town's leaders set the groundwork for this tragic failure. Initially they significantly understated the scope of the project. This lead HTE to accept the assignment for an unrealistically low fee.

    As soon as Ms. Hall took over as Supervisor, she appointed the previous Supervisor's son's firm as the new town attorneys. The Town's legal fees grew from $2,900/yr to over $165,000.

    In lieu of retaining the Engineer to provide full-time inspection services, Ms. Hall announced at a Town Board Meeting that the Town's attorneys were serving as Project Managers. In reviewing the few documents that have been released, it appears that Ms. Hall & her attorneys were directing the testing agency, attending all project meetings & making the decision to fill the pond despite not having gone through all the safety procedures required by DEC.

    It appears that Ms. Hall has placed her interests ahead of the Town's. Ms. Hall should step down & the Town should take action against the attorneys.
  6. FA Taxpayer
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    FA Taxpayer - June 18, 2010 7:05 pm
    I'm sorry if it seems that I'm blaming the guy who turned the valve. He (they) was just following orders from a Town Board who completely ignored the protocol that was set forth by the N.Y.S.D.E.C. This blatant action is what dragged the Taxpayers of Fort Ann (both on-lake and off-lake) into this lawsuit to begin with. The desire to have water for the 4th of July weekend overtook the process of properly filling the lake. Until the trial I didn't know (as well as many of the taxpayers within the Town) that K.C.C. and Northeast Engineering had never attempted a project of this magnitude. I beleive the Town Board as well as N.Y.S.D.E.C. should have picked up on this during the interview/consultation process. As much as I would like to blame Mrs. Hall for our tax problems I only ask look around, read the news, as bad as it is in the Little Town of Fort Ann, it's a heck of alot worse elsewhere. I will join you in blaming the entire Town Board (of 2002-2005)for creating this mess we're in.
  7. Farmerbrain
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    Farmerbrain - June 18, 2010 2:07 pm
    Why do the upstream people deserve compensation?? I am one of those people and here is why. I am not a rich person. Over 20 years ago I set my eyes on Hadlock Pond. I knew that this was the place i wanted my kids to be at. to get away from the stresses of life and enjoy what mother nature has to offer. i actually rolled my pennies and every time i got some money i bought a few 2X4's and i built a nice summer home. mr aspland senior was supervisor then and he was a pleasure to work with. he supported the folks on the pond. then along came gail hall. my taxes went from $3,000 to $9,000 a year. my dreams were washed away and i was forced to put my place up for sale. the same summer, just like that the dam broke and the lake was gone. three years of paying $9,000 a year in taxes and no lake. three years of not seeing my children enjoy god's given creation. now, not a soul on this planet will buy on hadlock pond. i lost my kids dream and my investment. that is why
  8. Farmerbrain
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    Farmerbrain - June 18, 2010 1:50 pm
    Stop blaming the guy who turned the valve. Do you blame the construction worker who threw dirt with a shovel. NO, the blame is at the top. Gail Hall is to blame. She is the town supervisor and it is her job to make sure procedure is being followed. Now that I think of it, there is only one person who might try to blame the guy who turned the valve. Hmmm, who could that be?.
  9. radio
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    radio - June 18, 2010 12:52 pm
    Also the engineer left out a major part of the dam that every other engineer said they would of put in. It was a filter that would have prevented the dam failure they all agreed on. There was no excuse for this but lack of knowledge of this type of dam. But DEC did approve it so what can you say?
  10. radio
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    radio - June 18, 2010 12:40 pm
    THERICK109
    If this is true about engineers only going out 3 times then maybe there lawyers should have brought that up because that never came across in the trial. You said KCC has never built such a dam then they shouldn’t have bid, well the engineer never designed such a dam like this why was he invited to bid? I would guess because the town didn’t want to put more time in looking for a competent professional.
  11. FA Taxpayer
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    FA Taxpayer - June 18, 2010 12:05 pm
    Bottom Line: The dam's valve was closed before a permit was issued, I for one would like whomever is responsible for this selfish act to come forward, explain his/her reasoning and resign after all is said and done.
  12. Report Abuse
    - June 18, 2010 10:21 am
    radio: Most design engineers take 3 trips to the project. Once during preliminary design, once during construction, and once when the job is done. I agree that 11% is too low, but that is how it works. Most engineering firms are reluctant to allow "field trips" since it burn up billable hours that they could be charging a client. The only time an engineer is involved is when there is a problem. Also, 95% of all engineering failures are a result of faulty construction. If KCC had never built such a dam then why were they invited to bid? Also, the DEC may have approved the plans, but ultimately the Licensed Professional Engineer's stamp literally seals their fate. Did they show you the plans to which NYS Law requires a claus that "It is a violation of law to alter the drawings"? Even if ther was a mistake NYS DEC is not liable for anything because it was a sealed set of drawings. I agree that the blame should have been spread, but I would have given KCC more and the town less.
  13. radio
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    radio - June 18, 2010 9:57 am
    His parents never told the town, parents said they spent so much money on it and there was so many engineers involved in it then it must be doing what its supposed to be doing!

    DWC121 said: "Correct me if I'm wrong, but didn't a young lad who was fishing near the old repaired dam, notify the town (through his parents) that a "lot of water" was leaking through the embankment near the spillway? The town could have investigated it, but I don't recall if they did. I'm not familiar with the old dam, but most dams have a means to release more water than usual but in a controlled manner. If the town did not investigate this lad's complaint and take immediate action, THAT COULD HAVE BEEN why the town's share of the fault was higher than expected. "

  14. annasgramp
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    annasgramp - June 18, 2010 8:31 am
    If Fort Ann stopped paying for the first dam.... where is that money?? Is the Town Board using that money to fund the lawsuit and pay the lawyers?? Instead it should be used to harvest the lake bottom so that the once prestine lake can be used again. In stead they removed the harvester for lack of money... should be a lot of money if only paying for dam #2..

    All the Defendents should just pay up when the next court action starts. The lake people that only lost use of the water shouldn't be awarded anymore than the taxes that they paid.... The people downstream that lost property are the ones that need to be awarded. But only enough to cover the costs of what they had.... Not anymore and not any less..... Its time to stop the bickering and move on..... The town as a whole has opportunities coming up in the very near future.... concentrate on them together and help the town grow in a positive way....
  15. radio
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    radio - June 18, 2010 7:36 am
    The town could have let out the water when there were problems that a 14yo boy saw. If it was properly inspected they would have saw this. The engineer never designed a dam like this and the construction company never built a dam like this, DEC approved it but again you can’t touch the state, maybe the town could have looked a little further for some experienced professionals that could have done the job. IDK. I feel sorry for KCC and there supervisor “J.W.” they should of never been put in this predicament. They thought they built the dam to the engineers drawings may be they didn’t build it 100% like the specs called for but every negative thing they said the KCC did the engineer was there and never told them they were not building it how he wanted it to be built. One more thing the engineer was only on sight 11% of the time. If you hired a man to make sure something was built correctly wouldnt you want him there more than 11% of the time? Again I put blame on the town.

  16. radio
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    radio - June 18, 2010 7:20 am
    First let me start by saying I have first hand knowledge of the trial. I was one of four that sat there for seven weeks only to be told at the end “thank you for your time but you will not have a say in the outcome” They pulled the names out of a hat. So I guess this is the only place where I can give my opinion, again not that it will change anything at all. Mr. Aspen the town’s attorney I thought did a great job, but there’s only so much you can do when the evidence is overwhelming. The town NEVER got the OK to fill the dam, you may have thought so but there was a lot of paper work the engineer was supposed to do before they could fill and they never got it. They never had an inspector and the state required them to have the dam inspected daily, this never happened. DEC you cant sue there part of the state. KCC built the dam but I dont think they are any where close of 47% at fault thats just nuts. The town lack of inspections is why the people lost all that they did.
  17. jilleos
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    jilleos - June 18, 2010 5:56 am
    I'm curious. Why is the focus of these comments solely the Town? Why hasn't anyone mentioned Kubricky or HTE?
  18. DWC121
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    DWC121 - June 18, 2010 12:10 am
    Correct me if I'm wrong, but didn't a young lad who was fishing near the old repaired dam, notify the town (through his parents) that a "lot of water" was leaking through the embankment near the spillway? The town could have investigated it, but I don't recall if they did. I'm not familiar with the old dam, but most dams have a means to release more water than usual but in a controlled manner. If the town did not investigate this lad's complaint and take immediate action, THAT COULD HAVE BEEN why the town's share of the fault was higher than expected.
  19. GJHLAW
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    GJHLAW - June 17, 2010 10:54 pm
    FA Taxpayer - take away the Dam & lake and my school taxes go from $7k to $2K. Your kid can then go to Hudson Falls Schools. Big guy , the 300 or so members of the dam district pay 65% of your school & town taxes and send nearly no one to the schools. Figure it out, you'd pay a lot more if it weren't there. Your town tax cronies have been milking that cash cow for decades. ( See the results of the 2005 Maxwell partial assessment disaster in support). Its now high time to "man up", reassess, admit they screwed up, pay the plaintiffs and move on already. In other words, become leaders, not lawyers.

    I understand that some people lost alot, but you have others who lost nothing but the ability to swim or boat for a couple of years. If the Town owns the dam then I say tear it down and we won't have to worry about a failure in the future. And those of you who live on the lake won't have to worry about paying the high taxes any longer. "
  20. jilleos
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    jilleos - June 17, 2010 10:39 pm
    FA Taxpayer: Who are the "boys" to whom you are referring? And what is your basis for making that claim?
  21. the woo woo kid
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    the woo woo kid - June 17, 2010 9:05 pm
    Dam jury!? hehe. sounds funny. Ok....This kinda reminds one of the Queensbury Snowplow/Handyman truck wreck fiasco.
  22. sasquatch
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    sasquatch - June 17, 2010 7:10 pm
    The lawyers are the only ones who make money. In economic crises, the stockbrokers and the banks are the only ones. Parties like GJHLAW are an example of this, along with the plaintiffs' named lawyer. Pay them so I can collect my fees. Shakespeare is believe to have known and said it best.
  23. Localguy101
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    Localguy101 - June 17, 2010 5:25 pm
    I don't understand why the town is at fault at all. Yes they said fill it back up but only after they were told the dam was finished and ready for the water. If I get the brakes in my car replaced and 10 feet down the road they fail and I rear end someone is that my fault or the mechanics? Yes I decided to drive it but only afte rbeing told it was fixed.
  24. FA Taxpayer
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    FA Taxpayer - June 17, 2010 5:24 pm
    GJHLAW, that was spoken like someone who is already standing in line waiting for your award check. This case was flawed from the start. How can the Judge exonerate the D.E.C. (State of New York) who approved the plans for the dam's construction, and then let the designer be held liable for those very same plans? If it weren't for a certain Town Board member who just happens to live on the lake having the "boys" close the valve so the lake/pond would fill the Town wouldn't be held liable at all. Maybe he should be sued by the Town for his actions. I understand that some people lost alot, but you have others who lost nothing but the ability to swim or boat for a couple of years. If the Town owns the dam then I say tear it down and we won't have to worry about a failure in the future. And those of you who live on the lake won't have to worry about paying the high taxes any longer.
  25. chuckyarla
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    chuckyarla - June 17, 2010 5:19 pm
    The Town of Fort Ann should have considered hiring a real attorney to represent the people of Fort Ann. Mr. Aspland's inept fumbling is what initially put the town in this position. Strike one. Then he gets paid to muddle his way through the trial, ultimately costing the town an unwarranted quarter of the liability. Strike two. Is it wise to leave him in the game to churn more money in an appeal only to strike out? Think about it. Of course he wants to appeal. He bills the town for every minute. Mr. Aspland is NO trial attorney. He is a blowhard. This result fully supports my position. The town has suffered far too long from his legal malpractice. Every town that employs his firm should take a long hard look at whether they can really afford to be represented by someone who is only capable of talking a good game. Strike out.
  26. GJHLAW
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    GJHLAW - June 17, 2010 4:35 pm
    It is tragic that the town thinks or predicts final resoloution may take years. The town needs to distance itself from the hard line bunker mentality that got them to this result. Accept responsibility, now move on to resoloution. While the lawyers can appeal, it takes clearheaded real leadership to accept resonsibility and seek a less costly, honorable termination of hostilities.

    Also, the costs of defense of the town should no longer be shouldered by the Dam District landowner-taxpayers. ( Tens of Thousands of dollars thus far). The Township of Fort Ann bears responsibility as a whole for it's leaders errors in building this Dam and decisions to litigate this case and the endless motions and appeals. It's morally and ethically wrong to make the damaged parties pay for the defense of the of others. Ms. Hall, take this oppurtunity, step up and end the madness now.

    Reimburse the funds, settle with the Plaintiffs, get away from this endless litigation that soils our town.
  27. Watching Out
    Report Abuse
    Watching Out - June 17, 2010 3:52 pm
    Why does the Town have to pay?

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