Earnest et al v. Norfolk Southern Corporation Real Estate and Contract Services

Filing 27

MEMORANDUM OPINION re: 16 MOTION for Summary Judgment filed by Norfolk Southern Corporation Real Estate and Contract Services. Signed by Judge L Scott Coogler on 6/26/2012. (LID)

FILED
2012 Jun-26 PM 04:16
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
RICHARD ALLEN EARNEST, et al., ]
]
Plaintiffs,
]
]
vs.
] 6:11-cv-00906-LSC
]
NORFOLK SOUTHERN CORP.
]
REAL ESTATE & CONTRACT
]
SERVICES,
]
]
Defendant.
]
MEMORANDUM OF OPINION
I.

Introduction.
The Court has for consideration a motion for summary judgment, which was

filed by the Defendant, Norfolk Southern Railway Company (“Norfolk Southern”),
on February 21, 2012. (Doc. 16.) Plaintiffs Richard Allen Earnest and Deborah
Earnest sued Norfolk Southern for trespass, nuisance, negligence, and wantonness.
(Doc. 13.) Specifically, Plaintiffs argue that Norfolk Southern’s failure to maintain a
drainage culvert on its adjacent property caused flooding on Plaintiff’s property.
Defendant’s motion for summary judgment has been briefed by the parties and is ripe
for review. Upon full consideration of the legal arguments and evidence cited by the

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parties, it is the opinion of this Court that the motion for summary judgment is due to
be granted in part and denied in part.
1.

Facts.1
Plaintiffs Richard Earnest and Deborah Earnest purchased 30 acres of

commercial property (“Plaintiffs’ Property”) in the Town of Oakman, Alabama, in
February 2002. Norfolk Southern owns railroad property adjacent to, and north of
Plaintiffs’ Property (“Railroad Property”). Norfolk Southern or its predecessors have
owned the Railroad Property for over 127 years. In the past, a branch railroad line on
the Railroad Property served an area coal mine. However, trains have not operated on
the Railroad Property since 1988. In 1997, Norfolk Southern removed track rails, tie
plates, and spikes from the Railroad Property.
When Plaintiffs’ Property was purchased in 2002, it was wooded and
undeveloped. Richard Earnest cleared trees, re-graded some of the land, and built a
shopping center, which included a Dollar General as its primary tenant. Plaintiffs
testified that they began having flooding problems in the northeast acres of their

1

The facts set out in this opinion are gleaned from the parties’ submissions of facts claimed
to be undisputed, their respective responses to those submissions, and the Court’s own examination
of the evidentiary record. All reasonable doubts about the facts have been resolved in favor of the
nonmoving party. See Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir.
2002). These are the “facts” for summary judgment purposes only. They may not be the actual
facts. See Cox v. Adm'r U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th Cir. 1994).
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property in 2007. At first, the land would stay covered with water for seven or eight
days before draining. Then, the acres stopped draining, filling portions of Plaintiffs’
Property with a half foot of water for months at a time until Richard Earnest used 300
dump truck loads of dirt to regrade the land.

The flooded land constituted

approximately three to four acres bordered by Railroad Property to the north and
Washington Street to the east (“Flooded Land”).
Richard Earnest testified that although the Railroad Property to the north is a
higher elevation than his property and most rain water on Plaintiffs’ Property drains
to the south, from 2002 through 2007, water from the Flooded Land drained north
onto Railroad Property through a cast iron culvert (the “Culvert”) and into a drainage
ditch on the north edge of the Railroad Property. Richard Earnest claims he saw part
of the Culvert in 2006 or 2007, but he cannot identify its location now. He contends
the Culvert became buried over the years due to build-up from dirt and mud. He
maintains that the clogged Culvert caused his property to flood from 2007 until he regraded his land in 2010.
Norfolk Southern does not have any documentation showing the existence of
any drainage structure in the area of the Culvert described by Richard Earnest, nor has
Norfolk Southern located any such culvert. Norfolk Southern admits that it has not
maintained or inspected any drainage devices on the Railroad Property since it ceased
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railroad operations there. When Richard Earnest contacted Defendant to complain
about the flooding and ask about cleaning out the Culvert, Alessandro U. Rocca, who
works in Norfolk Souther’s real estate department, told Richard Earnest that the
railroad would not clean any culvert on the property.
III.

Standard.
Summary judgment is proper “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a).2 The party moving for summary judgment “always bears
the initial responsibility of informing the district court of the basis for its motion, and
identifying those portions of [the evidence] which it believes demonstrate the absence
of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The movant can meet this burden by presenting evidence showing that there is no
genuine dispute of material fact, or by showing that the nonmoving party has failed to
present evidence in support of some element of its case on which it bears the ultimate
burden of proof. Id. at 322-23. In evaluating the arguments of the movant, the court
must view the evidence in the light most favorable to the nonmoving party. Mize v.
Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996).
2

Although Fed. R. Civ. P. 56 was amended on December 1, 2010, “the standard for granting
summary judgment remains unchanged.” Fed. R. Civ. P. 56 advisory committee’s note (2010
Amendments).
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Once the moving party has met his burden, Rule 56 “requires the nonmoving
party to go beyond the pleadings and by [his] own affidavits, or by the depositions,
answers to interrogatories, and admissions on file, designate specific facts showing that
there is a genuine issue for trial.” Celotex, 477 U.S. at 324 (internal quotations
omitted); see also Fed. R. Civ. P. 56(c). “A factual dispute is genuine only if a
‘reasonable jury could return a verdict for the nonmoving party.’” Info. Sys. &
Networks Corp., 281 F.3d at 1224 (quoting United States v. Four Parcels of Real Property,
941 F.2d 1428, 1437 (11th Cir. 1991)).
IV.

Analysis.
A.

Trespass.

Plaintiffs contend that Norfolk Southern is liable for indirect trespass. (Doc. 21
at 15.) “In Rushing v. Hooper-McDonald, Inc., 293 Ala. 56, 300 So. 2d 94 (1974), [the
Alabama Supreme] Court held that an indirect trespass occurs where the trespasser
releases a ‘foreign polluting matter’ beyond the boundaries of his property, knowing
to a ‘substantial certainty’ that it will invade the property.” Russell Corp. v. Sullivan,
790 So. 2d 940, 946-47 (Ala. 2001). In order to establish an indirect trespass, a plaintiff
must prove:
1) an invasion affecting an interest in the exclusive
possession of his property; 2) an intentional doing of the act
which results in the invasion; 3) reasonable foreseeability
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that the act done could result in an invasion of plaintiff’s
possessory interest; and 4) substantial damages to the res.
W. T. Ratliff Co., Inc. v. Henley, 405 So. 2d 141, 145 (Ala. 1981) (quoting Borland v.
Sanders Lead Co., Inc., Ala., 369 So. 2d 523, 529 (1979)).

Norfolk Southern contends

that it is entitled to summary judgment on Plaintiffs’ trespass claim for two reasons:
(1) there is no evidence its purported action was “intentional,” and (2) Plaintiffs’
claim is barred by the six-year statute of limitations.
1.

Intentional Action.

Norfolk Southern contends that there is no evidence it “intentionally” caused
a substance to enter onto Plaintiffs’ Property. (Doc. 17 at 18-19.) Notably, Defendant
does not challenge whether there is sufficient evidence to show that a clogged culvert
caused flooding or the diversion of silt or debris onto Plaintiffs’ Property. Norfolk
Southern only argues there is no evidence its actions were “intentional.” “[I]n order
for one to be liable to another for trespass, direct or indirect, the person must
intentionally enter upon land in the possession of another or the person must
intentionally cause some ‘substance’ or ‘thing’ to enter upon another’s land. . . . That
is, the intent to do the act which leads to the trespass is the requirement, not the intent
to actually trespass.” W. T. Ratliff Co., Inc., 405 So. 2d at 146.

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The Court agrees with Plaintiffs that there is sufficient evidence in the record
for a jury to conclude that Norfolk Southern’s conduct in this case was “intentional”
for the purposes of establishing an indirect trespass claim. It is undisputed that as early
as December 2007, Richard Earnest called Norfolk Southern and complained about
flooding on his property caused by failure to maintain a culvert. (Doc. 21 at 12 ¶ 11;
Doc. 24 at 4 ¶ 11.) The Norfolk Southern employee responded by saying it would not
clean any culvert on the property. (Id.) A reasonable jury could conclude that, from
at least that point onward, Norfolk Southern could foresee that its failure to clean or
maintain the culvert “could lead to trespass when it rained, [and] the element of intent
[is] satisfied.” W. T. Ratliff Co., Inc., 405 So. 2d at 146.
2.

Statute of Limitations.

Norfolk Southern also argues that Plaintiffs’ trespass claim is barred by the
applicable six-year statute of limitations. (Doc. 17 at 20-21 (citing Ala. Code § 6-234(2)).) In support of its argument, Defendant cites to Plaintiffs’ Answers to
Defendant’s Supplemental Interrogatories, in which Plaintiffs assert that they dug a
trench in 2003 “in order to drain the swamp that developed on [Plaintiffs’ P]roperty
as a result of the Defendant Railroad’s failure to maintain its land and drainage
facilities thereon.” (Doc. 18-8 at 3.) Defendant contends that this Answer establishes

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that the purported trespass began well before six years prior to Plaintiffs’ lawsuit;
therefore, the claim is barred.
In response to Defendant’s motion for summary judgment, Plaintiffs amended
their Answers to Defendant’s Supplemental Interrogatories, explaining that “[t]he
statement in my original answer to this interrogatory that the trench was dug in order
to drain the swamp that developed as a result of the railroad’s failure to maintain its
drainage facilities was in error. This trench did not even reach those affected acres and
the swamping conditions had not even developed at the time this trench was dug. This
trench had no effect on draining those acres.” (Doc. 22-2 at 3.) In his deposition
testimony, Richard Earnest maintained that swamp conditions did not develop on the
Flooded Land until 2007, or within the six-year statute of limitations period.
Norfolk Southern moved to strike Plaintiffs’ Amended Answers, arguing that
“when a party has given clear answers to unambiguous questions which negate the
existence of any genuine issue of material fact, that party cannot thereafter create such
an issue with an affidavit that merely contradicts, without explanation, previously given
clear testimony.” (Doc. 25 at (quoting Van T. Junkins & Assocs. v. U.S. Indus., 736
F.2d 656, 657 (11th Cir. 1984)).) The statements at issue, however, do not meet the
standard in Van T. Junkins. Plaintiff Richard Earnest provided an explanation for the
contradictory answers: he erred. The credibility of that explanation is a question for
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a jury. This Court does not make credibility decisions at summary judgment.
Accordingly, Defendant’s motion to strike is denied.3
Because there is sufficient evidence in the record to create a question of fact
whether the purported trespass occurred within the applicable six-year statute of
limitations, Defendant’s motion for summary judgment with regard to the indirect
trespass claim must be denied.
B.

Nuisance.

Norfolk Southern also contends that Plaintiffs’ nuisance claim is barred by the
applicable two-year statute of limitations. (Doc. 17 at 21-23 (citing Ala. Code § 6-238).) Defendant cites Burge v. Jefferson County, Ala., 409 So. 2d 800 (1982), for the
proposition that the statute of limitations for the creation of a permanent unabatable
nuisance begins to run when the nuisance is created. Norfolk Southern argues that,
even according to Plaintiffs, the Culvert became completely blocked in 2007—more
than two years prior to the filing of their lawsuit.
However, in Burge, the defendant created a permanent unabatable nuisance by
filling a ditch. The nuisance at issue was a permanent construction completed at the
behest of the defendant. While Plaintiffs contends the Culvert in this case became

3

Defendant’s motion to strike is also due to be denied for failure to follow the requirements
of section IV(B) of the Court’s Uniform Initial Order. (Doc. 5 at 9-10.)
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clogged, they argue that it clogged because Norfolk Southern failed to maintain its
drainage devices– not because it had them filled in. “[F]or an improper or negligent
maintenance[,] the rule applicable to an abatable condition has application.” City of
Birmingham v. Leberte, 773 So. 2d 440, 445 (Ala. 2000) (quoting Harris v. Town of
Tarrant City, 130 So. 83, 84-85 (1930)). With an abatable nuisance, “[i]t is sufficient,
if within that period damages accrue which are separable and recur not from the
installation of the [drainage] system, but from its method of maintenance or operation.”
Id. at 446 (quoting City of Clanton v. Johnson, 17 So.2d 669, 672 (1944)) (emphasis in
original). Because there is sufficient evidence in the record for a reasonable jury to
conclude that Plaintiffs suffered damages to the Flooded Land from recurrent flooding
within the time period of two years prior to the filing of this lawsuit, summary
judgment is due to be denied.
C.

Negligence.

Norfolk Southern also argues that Plaintiffs’ negligence claim is barred by the
two-year statute of limitations. (Doc. 17 at 24-25 (citing Ala. Code § 6-2-38(l)).)
However, as early as 1897, the Alabama Supreme Court ruled that each instance of
flooding constituted a “separate and distinct cause of action” for negligence when a
defendant was sued for negligently maintaining a culvert. Alabama Great Southern R.
Co. v. Shahan, 22 So. 509, 511 (Ala. 1897). As stated above, there is sufficient evidence
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to convince a reasonable jury that Plaintiffs suffered damages to their property from
recurrent flooding within the time period of two years prior to the filing of this lawsuit.
Accordingly, summary judgment must also be denied with regard to Plaintiffs’
negligence claim.
D.

Wantonness.

Defendant maintains that the evidence in the record does not sustain a claim for
wantonness. “Wantonness in a trespass action is established by the mere knowledge
on the part of the defendant of his invasion of the plaintiff’s rights.” Chestang v.
IPSCO Steel (Alabama), Inc., 50 So.3d 418, 433 (Ala. 2010) (quoting Cummans v.
Dobbins, 575 So.2d 81, 82 (Ala. 1991)). Plaintiffs contend that Norfolk Southern knew
its lack of maintenance of the Culvert was damaging Plaintiffs’ Property because of
Richard Earnest’s repeated complaints to Defendant’s employee, Alessandro Rocca.
However, “notice of a complaint is not the equivalent of knowledge on the part
of the defendant that it was the cause of the problem.” Id. at 435 (emphasis added).
The Alabama Supreme Court has found that repeated complaints to a defendant’s
representative were sufficient to send a wantonness count to the jury when the
complaints were accompanied by “frequent promises to ‘take care of the problem.’”
Id. (discussing W.T. Ratliff, 405 So. 2d at 146). In that case, the defendant responded
to the complaints in a manner that “acknowledg[ed] fault coupled with wrongdoing.”
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Id. Here, Norfolk Southern’s representative repeatedly disclaimed liability, and
Plaintiffs have not proffered any evidence that Norfolk Southern knew its failure to
maintain the Culvert was actually causing damage to Plaintiffs’ property and allowed
the trespass to continue. The Court will enter summary judgment in favor of the
Defendant on Plaintiffs’ wantonness claim.
E.

Damages.

Finally, Norfolk Southern argues that all counts should be dismissed because
Plaintiffs have not proffered sufficient evidence of legally cognizable damages. The
Amended Complaint does not include a request for equitable relief. “The appropriate
measure of direct, compensatory damages to real property generally is the diminution
in the value of that property, even when the cost to remediate the property exceeds the
diminution in the value thereof.” Poffenbarger v. Merit Energy Co., 972 So. 2d 792, 801
(Ala. 2007). Norfolk Southern argues that because Richard Earnest was willing to
purchase the Railroad Property adjacent to his property for 50% more per acre in 2007,
2008, and 2009 than he paid for his property in 2002, there is no evidence of any
diminution in the fair market value of Plaintiffs’ Property due to the purported trespass
and nuisance in this case. (Doc. 17 at 29 n.16.) Defendant’s contention is simply not
sufficient to meet its burden at summary judgment. The Court will allow Plaintiffs to

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present evidence regarding alleged diminution in the fair market value of their property
at trial.
V.

Conclusion.
For the reasons outlined above, Norfolk Southern’s motion for summary

judgment will be granted with regard to Plaintiffs’ wantonness claim and denied in all
other respects. A separate order will be entered.
Done this 26th day of June 2012.

____________
L. SCOTT COOGLER
UNITED STATES DISTRICT JUDGE
139297

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