Chapter 14

Strict Liability

FROM THE DAY OF THE FLOOD ITSELF, ALL THE WAY THROUGH THE amazing relief and cleanup effort, and well into the beginning of the rebuilding of Johnstown, the question raged. What had caused the flood?

And with that question came the even more unsettling question of who, if anyone other than nature itself, bore responsibility for the enormity of the suffering, visited in so many different ways, on so many different people, the living and the dead alike, those who got to tell their stories and those who never did.

The answer to both of those questions was glaringly obvious to people as different in their thinking on many other matters as James Quinn, the Reverend Beale, and Tom L. Johnson. To them, the cause of the flood was obviously the failure of the South Fork dam. And the cause of the failure of the South Fork dam was that the dam was defective. And the defect was caused by the club members’ negligence. A large number of people both in Johnstown and around the country agreed.

Later hydrology and physics studies would prove their view correct, far beyond any reasonable doubt. Yet many people at the time, even in the absence of such studies, were already fully aware that while an earthen dam, if only reasonably well constructed, may hold back an amazing pressure of water even at full flood stage, once the dam is topped, it will go, and all of the water will come out. The way to avoid that is by installing release valves. That was Dam Hydrology 101 in 1889.

Also, many people had seen the South Fork dam’s obstructed spillway. Many had noted the removal of the waste pipes and the infill that Ruff had installed where those pipes had been. With no way to actively lower the water level, the dam was due to get topped sooner or later, and so was due to fall sooner or later. That fact had been called repeatedly to the club’s attention, beginning long ago, by Daniel Morrell’s engineer John Fulton, for one: “a question of time.” An employee of the club, Herbert Webber, had come to Johnstown earlier just this spring and met with burgesses and reported that over the years he’d brought the faulty condition of the dam to the club’s attention: finally they’d told him to stop or he’d be fired. After the flood, Webber reiterated that complaint. To many people looking at the question of accountability, the case looked open-and-shut.

The club’s position, however, had first been floated by Robert Pitcairn on the very night of the flood. Holding the train in the rain at New Florence, Pitcairn had told the first reporters, before they’d even arrived at the site of the disaster, that he had personal knowledge of the dam, that it had been inspected at least monthly, and that no dam on earth could have withstood the onslaught of this never-before-seen degree of flooding. The destruction of Johnstown was a tragedy because nobody could have done anything about it.

That was to be the club’s line, in a conflict that now erupted, exposing even bigger conflicts between the Pittsburgh millionaires and the people of western Pennsylvania, conflicts that would mark American politics, law, and culture for decades to come.

The court of public opinion made its ruling on day one. When night fell on Monday, June 3, with the survivors still in utter shock, a gang formed in Johnstown and climbed up the mountain to the club property. Nobody was there: the few club members who had been there during the flood had taken horse for Altoona in order to avoid going down to Johnstown. The gang broke into some cottages and destroyed furniture, then went to Colonel Unger’s farmhouse overlooking the former lake, now a huge, low expanse of mud with the South Fork Creek still running down the middle. The house was empty. The men hung around outside awhile and then went away.

Unger wasn’t there because only hours earlier, during the day on Monday, he’d actually come down to Johnstown, with John Parke. Having recovered from the prostrate, overwhelmed condition into which he’d fallen when seeing the dam break and the lake start to roar down the valley, Unger was on his way to Pittsburgh, Parke home to Philadelphia, and they were met at the Johnstown station by reporters. Unger told the press of the desperate efforts that he and the others had made at the dam all morning and into the afternoon. Parke said that nobody could be blamed for what was a great, unavoidable calamity.

Also that Monday, reporters had preceded the indignant gang up to the dam site. They inspected the collapsed earthen thing that had been a dam, took note of the empty lake, looked over the clubhouse and the cottages. They also went into the town of South Fork to get stories from people who knew the dam and the club, and from people who had been at the dam when it broke. At the South Fork telegraph office, the reporters put those stories on the wire.

That’s when the story of the club and its dam started blowing up from coast to coast. Stories told by local people painted the club in a highly unflattering way. The fact that the club members had bolted when the victims in Johnstown were going through hell to repair damage that those clubmen had caused, and to bury bodies their negligence had killed, put things in an especially ugly light. The members had always been high-handed and rude, people told reporters, monopolizing the fishing and kicking out boys who snuck in to throw a few lines. Respect was not the tone in which the locals described the members of “the millionaires’ club.”

But the big story, soon to drive long headlines over front-page stories from coast to coast, had to do with the faulty way in which Ruff’s team had rebuilt the dam and the club’s refusal to listen to reason and repair it. People from the region told reporters about the removal of the waste pipes, the infill of hay, the lack of cogent engineering, the warnings given, the years of fear that this spring, or the next spring, might be the year the dam fell. And they told about the fishguard, whose sole intention was to keep the lake stocked with prize game by deliberately obstructing the spillway.

Editors wanting to run these stories as fact needed independent engineering corroboration. They got it, from engineers sent to inspect. The New York Sun, however, scooped many awaiting further confirmation with its June 5 story headlined “Cause of the Calamity . . . The Pittsburgh Fishing Club Chiefly Responsible.” Meanwhile, a Cambria County coroner’s jury had formed, conducted interviews, and heard testimony in court, and the story was the same. On June 6, the jury issued its verdict: “said owners of the dam . . . are responsible for the fearful loss of life and property. . . .”

That did it. Papers in every city exploded with headlines like “The Club Is Guilty,” “Engineering Crime,” and “Shall the Officers of the Fishing Club Answer for the Terrible Results . . .”

Many of the articles under these headlines did miss a few points. Some said, for example, that the dam hadn’t been built high enough, or that the thing wasn’t strong enough to withstand the amount of water it held back. That wasn’t it, as the engineers’ report had made clear. The real issue had to do with what John Fulton had predicted years before: with no way to let the water out, the dam was sure to be topped one day. Then it would go.

But the papers got the bottom line right: neglect.

The think pieces followed fast. The horror of the disaster, the worst ever seen in the United States, was making its painful losses and thrilling rescues front-page news anyway, but the story of industrialists’ heedlessness, in their pursuit of fun, leisure, and the restoration of their souls, wiping out the lives of people who worked below in the very industries that made the millionaires’ millions, was so genuinely outrageous, so truly stark, that outrage flowed freely from the pens and banged hard from the typewriter keys. Welling up from these articles was all the fury harbored by ordinary Americans at the fabulous lifestyles of the captains of industry who were changing the face of American business and the American landscape. The disaster in Johnstown exposed in lurid, grotesque fact what some had already, using metaphor, described: the pursuit of capital to the exclusion of all else lavished life in huge, beautiful dollops to a select few by grinding up the very lives of the many.

Now it was literally true. A mine cave-in or factory explosion was bad enough: death and disaster in the service of profit. But Johnstown was death and disaster in the service of relaxation and enjoyment, the reward of a few at the highest possible cost to the many.

So the worst crime wasn’t, in the end, the flagrant negligence involved in constructing the dam—“that Desolate Monument to the Selfishness of Man,” as one writer put it. The worst crime, as the story developed, was the lake itself, as created by the dam. The millionaires’ fishing, sailing, and cooling off in the summer—the lake, literally—had come down the valley, killed all those people, and plunged all the others into homelessness and orphanhood, widowhood and childlessness, human sorrow and misery. From sober editorials to angrily purple op-eds, from cartoons showing a caricatured millionaire swilling champagne while Johnstown drowns to sarcastic doggerel poetry, the national popular and intellectual culture expressed collective revulsion at the very existence of that institution, whose name many Americans now knew, and could repeat with disdain and loathing: the South Fork Fishing and Hunting Club.

In this light, the members of that exclusive club were anything but enviable. They prized their fish and their fishing more than the lives of thousands of fellow human beings. They were beyond the pale.

That wasn’t a controversial reaction. General Hastings, anything but a firebrand anticapitalist, told a reporter, “It is a case of carelessness, I might say criminal negligence.”

Editor Swank, putting out his Johnstown Tribune a few days after finally abandoning his live-coverage essay, less than an hour before the great wave arrived in town, was one of the first to clarify the difference between a natural and an unnatural disaster. He noted the narrowing of the streams by industrial waste and landfill; the stone railroad bridge, with its visually impressive arches forcing the river through too little space; and then, of course, the failure of the unnatural dam and the fall of the unnatural lake. Thanks to clubmen who wanted to while away the summer days, “in all their spotlessness and glory . . . our misery is the work of man,” he wrote.

Tom L. Johnson, meanwhile, noted that Robert Pitcairn’s assertion that the dam had been inspected every month by civil engineers really meant that the club knew the dam was faulty, and thought it needed constant checking. The independent engineers called in to inspect after the flood reported that Pitcairn’s engineers lacked engineering competency. And the independent engineers didn’t believe the dam had been inspected regularly anyway.

The club took a different view, of course. On that first Saturday night in Pittsburgh, when after the mass meeting to establish the relief fund, the club members had met privately to consider their plans, they’d established a tactic: contribute to relief, and don’t talk publicly about the club, the lake, or the dam.

That policy was carried out in bumpy fashion. In the end, only thirty-five of sixty members would make contributions to Johnstown’s relief. Many of those who did contribute didn’t exactly amaze anyone with the size of their contributions. With Frick’s pretty impressive $5,000, and Carnegie’s mighty $10,000 plus funding the rebuilding of the library, the Mellon family gave only $1,000, and one member donated $15.

Frick, a founding member, declined all interviews. As his great-granddaughter would note years later, Frick’s membership in what had become a nationally odious organization would never be mentioned in her family.

In Paris, the United States legation to France put out a statement on Johnstown. Andrew Carnegie wrote it. The statement expressed sympathy and praised the heroism of the people of Johnstown. Nobody even knew that Carnegie was a member of the club. He didn’t bring it up.

But while Frick, Carnegie, and some other top club members played things close to the vest, the club policy of saying nothing about the dam was difficult to enforce. “I am a member of the South Fork Fishing Club,” one James McGregor told the Pittsburgh Dispatch. And he actually seemed to insist that, regardless of appearances, the dam was still standing. “I am going up there to fish the latter part of this month,” he explained.

McGregor also reviewed the safety situation at the club.

“We have all been shaking hands with ourselves for some years on being pretty clever businessmen,” he pointed out. So the members of this club, he reminded the paper’s startled readers, were hardly likely to drop money anywhere unsafe.

Others went even further. Two club members announced that it must have been some other dam that had broken. “All the engineers,” one claimed vaguely, were in doubt about whether it was the South Fork dam that had broken. The other noted that he’d been all over that dam, many times, and was planning on continuing to doubt that it had let go.

Other members might have found it especially worrying that the latter of those comments, denying that the dam had broken at all, came from James Reed, a partner of the club’s own law firm, Knox & Reed. Both lawyers were club members, and the club’s official position was to acknowledge that the dam had broken—it wasn’t actually deniable—yet had broken only because no dam wouldn’t have broken in such flooding: there was nothing, that is, that anyone could have done to prevent the unleashing of the monster, so there was no liability, personal or organizational. Reed’s comments were way out of line, and by the time lawsuits started heating up, the club’s position would be subjected to some serious discipline.

Part of that discipline was on view when Colonel Unger spoke to the press again, on June 5 in Pittsburgh. This time he didn’t review efforts to cut more spillway and build up the dam. Instead, he pointed out that the original builder of the dam wasn’t the club but the state.

The point of introducing such confusion as to chain of cause and responsibility would be to make clear to anyone considering a lawsuit that a suit might be long and difficult—thus expensive—and in the end potentially futile. Similar attempts at preemptive discouragement came from the club’s lawyer James Reed, who spoke to the press again on June 12. This time, Reed didn’t repeat his former statement that the dam was still standing. Instead he pointed out that the club had no significant assets.

That was true. Reporters had looked into the organization’s finances and discovered that the club held only $35,000, with a $20,000 mortgage on the clubhouse. The members had millions, but the club, by design, didn’t, so suing the club would be a pointless move, Reed stated. He was speaking, he said, just as a lawyer: if the shoe were on the other foot, he’d advise anyone coming to him in hopes of suing the club to drop it. As a lawyer, he couldn’t see any liability, but should there be any, the total amount couldn’t exceed the club’s small capital anyway.

Daunting stuff, for anyone seeking to hold the members accountable. Still, the conclusions arrived at by such disparate observers and victims as General Hastings, editor Swank, the Reverend Beale, Tom L. Johnson, the coroner’s inquest, the independent engineers who inspected the dam after the flood, the people of Johnstown, and the nation as a whole remained firm. The club’s negligence was so arrogant and cavalier, the flood so preventable, the devastation it caused so disproportionately monstrous, the effort to reclaim the city so unprecedentedly challenging, that when the lawsuits did begin, many people had reason to hope that the richest men in the United States would be forced to pay for the horror, grief, and misery that their negligence had caused.

That’s not how it went. Nancy Little was the mother of eight children; her husband died in the flood. She brought suit in Pittsburgh against the South Fork Club for $50,000 in damages for negligence. The club’s lawyers pled not guilty and argued that the flood was an act of God. The case went on for years, but in the end the court ruled for the club. That put the club in a good position for handling other suits. When a consortium of Johnstown business owners explored the possibility of suing the club for damages and loss of property, lawyers spent two years studying the situation and then advised the group that the club couldn’t be beaten in court. The group got a new lawyer and raised more money, but three years later the case was dropped.

A lumber dealer named Jacob Strayer filed suit against the club, first for $80,000, then upping it to $200,000. Strayer retained a Pittsburgh lawyer who died while the case was in progress. After a few years, Strayer learned that his lawyer had settled the case for $500, which he pocketed as a fee without notifying Strayer. A Johnstowner named Leaky sued the club to no avail.

Later, there would be no way to reconstruct, in any detail, just what went on to make it impossible to collect damages for something as overwhelmingly awful as the 1889 flood, when the cause of the event, the club’s blatant negligence, had been attested to by coroners’ juries and independent engineering experts. Record keeping was poor. The progress of each case to its inevitable failure will remain forever obscure.

Of course, the members were among the most powerful people in the United States. They owned everything in Pittsburgh, and that’s where the suits were filed. The club had no assets, and nobody was realistically about to sue Henry Frick or Robert Pitcairn or Andrew Mellon or Andrew Carnegie for damages—even if their membership in the club could have been proven—on the basis that they were personally responsible for a general club failure to repair the dam properly, hence personally responsible for the unspeakable fate of Johnstown. No lawyer would have attempted it.

And that was the problem. As the lawsuits failed or were dropped as the futile efforts they really were, a feeling developed around the country—and in courts considering precedent and how to apply the law—that the law might as well have been written to protect those responsible for the Johnstown disaster from ever having to accept responsibility for it. The feeling was that the broad body of law informally called “the fault doctrine” of the day had abjectly failed the Johnstown victims.

Legal scholars would argue about whether that feeling was based on an informed legal reading. And yet the feeling changed the law. The astonishing horror of the Johnstown Flood of 1889, and the stark fact that nobody responsible could ever be brought to account for having so obviously caused it, turned a big page in the history of liability law in the United States. And the shift in liability law shifted a lot of other things.

Cold comfort to those who suffered loss and misery, to the highest degree, thanks to the flood, and failed to collect anything in return or hold anyone accountable. Yet because the newspapers, in particular, brought a good, strong tone of outrage to playing up the idea it had been impossible for victims of the 1889 flood to collect damages through accepted legal processes regarding fault, definitions of fault shifted in the 1890s and into the twentieth century.

The prestigious American Law Review agreed with the papers. The fault doctrine of the day, it argued, had defeated justice. Courts responded. Not only in Pennsylvania but also in many other states, they suddenly began adopting an expansive reading of an English doctrine known as the Rylands rule. That rule had developed about twenty years earlier, as a court decision in response to deadly dam failures in England, which killed people in the low hundreds, nothing like Johnstown. Also, the English dams that had failed were serving industrial purposes, not fishing and sailing. Still, under circumstances where an owner of property makes major changes to the property, turning something natural into something unnatural, the Rylands ruling stated that new liabilities kick in if something then goes badly awry, regardless of the conscious intention of the owner. While the right to enjoy your property may seem absolute—it certainly did seem so to big men like Ruff and Frick and other members—if you change that property in certain extreme ways, affecting others to their detriment, that right may not be as absolute as you might think.

Some things, that is, can’t be blamed on God—even when the weather’s bad. Sometimes people do things to change the natural situation in ways that, regardless of intention, create human responsibility. Specifically citing the failed dam and the falling lake at the South Fork Fishing and Hunting Club, rulings in a multitude of new U.S. liability cases began treating the bizarre events of May 1889 as not necessarily bizarre at all, but actually emblematic of a big new problem: industrial-age hazard.

For there was, in that sense, something new in the world. Awesome disaster by natural causes—earthquake, hurricane, volcano—had been known since the days of Pompeii and before. But the scale of disaster caused by human interaction with nature, on the industrial level, seemed different, and it was the 1889 Johnstown Flood that first brought that difference home. When a giant, human-created wave can lift locomotives and barbed-wire factories off the ground, rain them down on cities, and explode into flame with molten steel and natural gas, something new is going on. A government of the people has to respond.

So thanks to Johnstowners’ failure to collect damages, and public outrage over the Pittsburgh industrialists’ outrageous unaccountability, courts started applying the Rylands rule in gas explosions, bursting water tanks, exploding nitroglycerine, and floods caused by coal mining. As industrial monopolies boomed in the 1890s, even beyond anything they’d achieved before, the industrialists’ liability boomed, too, especially regarding what courts called “the unnatural.” States imposed strict liability on mining companies, gas companies, and railway companies.

Johnstown became a legal mantra. Judges on the Pennsylvania Supreme Court got sick of hearing plaintiffs’ lawyers waxing eloquent about the horrors of the Johnstown Flood. Other courts were sick of it, too: from precedent to mantra to cliché, the Johnstown Flood quickly become legally trite. That’s because the courts had really learned what the culture at large had determined right after the flood. The Johnstown Flood represented a new and particular kind of crime. It was a crime against Gertrude Quinn and Victor Heiser, and against their families, and against all of the other people, known and unknown, that the flood affected. And yet nobody had ever been found guilty. The impunity of the South Fork Club, far from serving as precedent for further impunity, caused reaction instead.

Thus the 1889 Johnstown Flood served as the prime trigger for new relationships between big industry and liability, and between big industry and the people of the United States. For too long, courts, the press, and American institutions generally had excused industrialists, on the basis of their all-importance to employment and regional economic development, supposedly worthy in that sense of special protection—special privilege, as Tom L. Johnson now saw it. Suddenly, after Johnstown, the industrial corporation was just as often described in court cases, and throughout American culture, as too powerful, reckless, manipulative of the public good, deserving of no special protection at all. Sometimes big, awful events carried by news media cause change more quickly and definitively than scholarship or argument or protest ever can. The simple idea that those who create risk, and have the ability to reduce risk, must bear responsibility for costs of that risk—even when all they may have intended was restoration of their souls by healthful recreation—came to seem, for the first time, mainstream. Soon millionaires could no longer realistically presume that heedlessness would bring no dire consequences or loss down on their own heads. From that change, much would ensue.

The conflict, in the end, was between the people and the monopoly. In 1890, Congress passed the Sherman Antitrust Act. In 1901, President Teddy Roosevelt started using that act to break up monopolies. In the meantime, the labor organizing that men from Andrew Carnegie to Daniel Morrell had been so adept at suppressing strengthened beyond what even men with that degree of power could stop. The early years of the new century would see outright warfare between labor and capital in the embattled but ultimately successful American labor movement. In a host of areas, from factory conditions to housing to children’s rights, reformers of all kinds would begin to find new ways of using government to inspect, regulate, fine, and otherwise control the otherwise limitless power of wealth to destroy lives.

The ground had shifted. As the twentieth century began, new conflicts opened that would, in their own ways, change the face of American society yet again. As the 1890s legal cases show, it was the Johnstown Flood that began that shift, changing not only American law but all of American culture.