Columbia Gas Transmission Corporation v. United States of America et al

Filing 244

MEMORANDUM OPINION denying 158 MOTION by Tri-State Airport Authority for Summary Judgment. Signed by Judge Robert C. Chambers on 3/1/2016. (cc: attys; any unrepresented parties) (mkw)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

COLUMBIA GAS TRANSMISSION LLC,
Plaintiff,
v.

CIVIL ACTION NO. 3:14-11854

UNITED STATES OF AMERICA
and TRI-STATE AIRPORT AUTHORITY,
Defendants.
MEMORANDUM OPINION
On January 26, 2016, the Court issued a short order denying a motion for summary
judgment, ECF No. 158, brought by Defendant Tri-State Airport Authority (the “Airport”). ECF
No. 194. The Court issued the Order to inform the Parties that it found the Airport’s motion
unmeritorious, but time constraints made it impossible to issue a more detailed opinion before a
then-impending pretrial conference.1 Now, the Court issues this Memorandum Opinion to explain
why it denied the Airport’s motion for summary judgment.
Pursuant to Federal Rule of Civil Procedure 56, the Airport asked the Court for Summary
Judgment on Columbia Gas’ negligence, trespass, and nuisance claims against the Airport. First
as to the negligence claim, the Airport argues it is entitled to summary judgment because the
negligence claim is “based upon unduly speculative assumptions about the timing and identity of
parties associated with [the 2012 slope failure].” Second, the Airport contends the negligence claim

See ECF No. 158 (stating the “Court will expound upon its reason for denying the Motion at a
later time, but enters this Order to dispose of the Airport's Motion and to give the Parties notice of
the Court's decision in advance of the pretrial conference scheduled in this case.”).
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fails because it is necessarily based on alleged negligent acts of unidentified, independent
contractors hired by the Airport, and the Airport cannot be held responsible for their negligent acts.
Third, the Airport argues the negligence claim fails because Columbia Gas has not produced expert
testimony establishing a professional standard of care and breach of that standard. Lastly, the
Airport says in a footnote that the trespass and nuisance claims fail because under West Virginia
law such claims require proof of negligent conduct. For the following reasons, each of the Airport’s
arguments for summary judgment fails.2
I.

Legal Standard

To obtain summary judgment, the moving party must show there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a). In considering a motion for summary judgment, the Court will not “weigh the evidence
and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Instead, the Court will draw any permissible inference from the underlying facts in the light most
favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587-88 (1986). Summary judgment is appropriate when the nonmoving party has the
burden of proof on an essential element of his or her case, and after discovery, has not made a
showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
II.

Discussion

A. The Negligence Claim is Supported by Non-Speculative Expert Opinion

The relevant background for this Memorandum Opinion can be found in the Court’s previous
Memorandum Opinion and Orders. See Columbia Gas Transmission, LLC v. United States, __
F.Supp.3d __, No. 14-11854, 2016 WL 447627, at *1 (S.D.W. Va. Feb. 4, 2016); Columbia Gas
Transmission, LLC v. United States, No. 14-11854, 2015 WL 4276334, at *1 (S.D.W. Va. July 14,
2015).
2

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First, the Airport argues it is entitled to summary judgment on Columbia Gas’ negligence
claim because that claim is “based upon unduly speculative assumptions about the timing and
identity of parties associated with [the 2012 slope failure].” However, the Court concludes the
Airport is not entitled to summary judgment on this ground.
The Airport contends there is insufficient evidence to conclude that the Airport placed onto
the subject slope the deleterious materials that caused the 2012 landslide. Memo. in Supp. of Mot.
for Summ. J. 10–11, ECF No 159. To put this argument into the context of a motion for summary
judgment on a negligence claim, the Airport argues Columbia Gas failed to demonstrate the
causation element—that the Airport factually and proximately caused the damage to Columbia
Gas’ pipeline.
Columbia Gas maintains that the Airport placed or approved placement of deleterious
materials onto the slope, and that this placement, combined with the Airport’s later decision to
permit a drain field on the slope, factually and proximately caused the 2012 slope failure. To
support this theory, Columbia Gas produced expert opinion testimony of W. Dale Nicholson, who
opined that the Airport placed deleterious fill materials into the subject slope between 1972 and
1975, Cardno Supp. Report 20, ECF No. 158-3, Ex. B, and that the slope failure was caused, in
part, by those deleterious fill materials. See Cardno Supp. Report at 3 (stating “[w]ith respect to
the construction of the fill that failed and the likely combination of key factors that played a role
in this failure Cardno, EL Robinson, WBC and P&A are aligned in the conclusion that the fill
failed as a result of poor construction practices in combination with the presence of water in the
fill”). The Court has previously ruled that Nicholson’s expert opinion is admissible under 702 as
it is relevant and reliable. Columbia Gas Transmission, LLC v. Tri-State Airport Authority, No.
14-11854, 2016 WL 503195, at *7 (S.D.W. Va. Feb. 8, 2016).

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The Court rejects the Airport’s argument that Nicholson’s opinion is based on speculation
and therefore insufficient to support the causation element of a negligence claim.3 As the Court
noted in its Order finding Nicholson’s opinions admissible, Nicholson’s expert opinions were
arrived at through a method of reviewing topographical maps and pictures, and the Court finds
Nicholson’s method reliable under these circumstances. See Pl’s Resp. 10–11, ECF No. 167.
(explaining methods and basis for Nicholson’s opinion). 4 Moreover, who else but the Airport
would have authority to place fill, or approve its placement, in a slope that the Airport owned and
exclusively possessed at the time the fill was placed? Thus, Nicholson’s conclusions are based on
facts and arrived at through a reliable method applied to the facts of this case, making Nicholson’s
opinions sufficient evidence for a reasonable juror to conclude that the Airport’s breach of duty to
Columbia Gas factually and proximately caused damage to Columbia’s pipeline. See Pl.’s Resp.
at 9.5
The Airport cites an Eastern District of Kentucky case, Crum v Equitrans, No. 12-80, 2014
WL 1883801 (E.D. Ky. May 12, 2014) as an illustration of when summary judgment is appropriate
on the causation element of a negligence claim, but the Court finds Crum distinguishable. In Crum,

According to the Airport, Nicholson’s opinion is based on “two highly speculative assumptions”:
first, that fill material was placed in the slope between 1972 and 1975 when the airport moved
earth during expansion construction; second, that the fill materials were placed “at the behest” of
the Airport. Memo. in Supp. of Mot. for Summ. J. at 11.
4
Plaintiff described this method in its Response to the Airport’s motion for summary judgment:
First, Nicholson narrowed the possible time period for when the fill occurred by reviewing maps
and photographs supplied by the Airport, and second, Nicholson determined the entity responsible
for the fill by considering the construction activities that took place during those time periods. Pl’s
Resp. at 10–11.
5
Furthermore, the US’s expert witness, Christopher Grose of Potesta Engineers, also supports
Nicholson’s conclusion that fill material was placed “at the behest of the Airport.” Potesta
concluded that the fill material was placed (1) in conjunction with 1957 grading work by the
Airport’s contractor and (2) during the Airport’s construction for taxiway upgrades. Report of
Potesta Engineers and Environmental Consultants 10 (Jan. 30, 2015), ECF No. 167–19.
3

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the plaintiff’s only expert witnesses said they could not determine whether the landslide was
actually caused by the defendant. Crum, 2014 WL 1883801, at *5 (“Nothing in either [experts’]
testimony addressed the cause of [the plaintiff’s] damage other than speculating or simply
repeating what [the plaintiff] had told them before and such evidence cannot support a finding of
causation.”). The court found plaintiff’s evidence too speculative to support the causation element,
and therefore granted summary judgment for Defendants. Id. In this case, because Nicholson has
offered admissible expert opinion evidence that the 2012 landslide was caused by the Airport’s
placing deleterious material in the subject slope, Crum is not applicable and therefore not
persuasive.
The Court also rejects the Airport’s argument that it is entitled to summary judgment
merely because the jury may infer that some other entity placed fill on the slope. The Airport points
to Columbia Gas Operations Manager Tim Sweeney’s report that the West Virginia Army National
Guard (the “Guard”) placed fill onto the slope, Def.s Memo at 14, and it suggests that Columbia
Gas’ predecessor, United Fuel, placed telephone poles into the slope pursuant to a 1957 agreement.
According to the Airport, if these entities placed fill onto the slope, the Airport is entitled it to
summary judgment. First, there is scant evidence to permit an inference that other entities placed
fill on or in the slope. As for the Guard, Sweeney’s report is the only evidence the Airport cites,
despite a host of other evidence that the Airport placed most or all of the fill on the slope. As for
United Fuel, the only evidence that it placed telephone poles in the slope is a 1957 agreement
between the Airport and United Fuel for removing telephone poles. To rebut this inference that
United Fuel placed poles in the slope, Columbia Gas offered a picture from 1972 showing what it
purports to be the same telephone poles still in place, indicating they were not removed in 1957
and therefore not placed in the slope by United Fuel. Moreover, evidence that the poles were

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removed is not evidence that United Fuel placed them in a slope that was under the exclusive
possession and control of the Airport. Second, if an entity like the Guard or United Fuel ever placed
fill into the slope, it must have been at the Airport’s direction or with its permission because the
Airport is, and was at the relevant time, the landowner that retained a right to approve such
construction matters. In sum, scant evidence that other entities placed fill into the slope does not
entitle the Airport to summary judgment on the causation element of Columbia Gas’ negligence
claim.
For the foregoing reasons, the Court determined that Columbia Gas, in support of its
negligence claim, has offered expert opinion evidence that is not speculative and from which a
reasonable juror could conclude that the Airport both factually and proximately caused the 2012
slope failure that damaged Columbia Gas’ pipeline. As such, Columbia Gas made a sufficient
showing on the causation element, making summary judgment on this ground inappropriate.
B. The Negligence Claim is Not Based on Acts of Independent Contractors
Second, the Airport contends the negligence claim fails because it is necessarily based on
allegedly negligent acts of unidentified, independent contractors hired by the Airport, and the
Airport cannot be held responsible for their negligent acts. This argument asks the Court to apply
the independent contractor exception to respondeat superior liability, however Columbia Gas does
not assert a claim based on respondeat superior liability.
Columbia Gas brings a negligence claim directly against the Airport by maintaining that
the Airport itself acted negligently, not the Airport’s independent contractors. More specifically,
Columbia Gas contends that the Airport breached a duty of care the Airport owed to Columbia
Gas by placing—or approving placement of—end-dump fill on the slope above Columbia Gas’
easement, and by permitting the Airport’s tenant, the Guard, to place a drainage field on the slope

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constructed with end-dump fill. Even if the fill was placed by independent contractors, this does
not alleviate the Airport of its liability for the Airport’s allegedly negligent decision to place enddump fill on the slope and its decision to permit the Guard’s drainage system which emptied onto
the fill. This is not a case where Columbia Gas contends it was injured by the negligent acts of
contractors, such as their filling or constructing the slope in a negligent manner. Columbia Gas
contends, instead, that it was injured by the Airport’s decisions, the decision to place or approve
placement of end-dump fill on the slope, and the decision to permit a drainage field on the slope.
These decisions were both necessarily made by the Airport, as it was the owner of the slope with
the only authority to approve or disapprove such placement and construction. No entity other than
the landowner had authority to make these decisions.
For the foregoing reasons, the Court determined Columbia Gas’ negligence claim was not
predicated upon negligent acts of independent contractors, and therefore the independent
contractor exception to respondeat superior liability does not apply in this case.
C. The Negligence Claim Does Not Require Applying a Professional Standard of Care
Third, the Airport argues the negligence claim fails because Columbia Gas has not
produced expert testimony establishing a professional standard of care and breach of that standard.
The Court finds evidence of a professional standard of care is not necessary in this case. On the
contrary, Columbia Gas has put forth evidence in support of its contention that the Airport owed
Columbia Gas a duty and that the Airport breached its duty.
There are two different duties the Airport owed to Columbia Gas, and neither requires
expert testimony to show a breach of that duty. First, as Columbia Gas maintains, under West
Virginia law a person owes a duty to foreseeable plaintiffs to act with ordinary care. Second, the
Airport, as an owner of land burdened by an easement, has a duty to the easement holder to not

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interfere with the uses authorized by the easement. See Restatement (Third) of Property
(Servitudes) § 1.2 (Am. Law Inst. 2000).
Applying either theory of the Airport’s duty, Columbia Gas has put forth evidence of
breach. First, Columbia Gas adduced evidence that filling the slope in the end-dump manner and
later approving the Guard’s drainage field on that slope fell below what an ordinary, prudent person
would do under the circumstances. See Pl.’s Resp. at 9 (citing the Airport expert Weaver’s
testimony that end dump fill limits the future use at the fill site and additional measures will need
to be taken to make these types of fills suitable for future development). Second, an intentional or
negligent interference by the property owner with the easement holder’s use constitutes breach of
the owner’s obligation not to interfere with the easement holder’s use. Here, Columbia Gas
adduced evidence that the Airport intentionally or negligently interfered with Columbia Gas’ use
by filling the slope in the end dump manner and by later approving a drainage field on the slope.
The evidence adduced indicated that a foreseeable result of these two actions, without additional
measures to stabilize the slope, is a slope failure that would certainly interfere with Columbia Gas’
use of its easement.
Under both theories of duty applicable to this case, Columbia Gas offered evidence of the
Airport’s breach. Therefore, the Airport is not entitled to summary judgment on the ground that
Columbia has not offered evidence of the standard of care and breach of that standard.
D. The Trespass and Nuisance Claims Survive Summary Judgment Because there is
Evidence the Airport Acted Intentionally or Negligently
Lastly, the Airport argues the trespass and nuisance claims fail because under West
Virginia law such claims require proof of negligent conduct. The Court disagreed and determined
the Airport is not entitled to summary judgment on the trespass and nuisance claims because, based

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on the analysis above, the Court has concluded that Columbia Gas adduced evidence that the
Airport was negligent.
III.

Conclusion

For the foregoing reasons, the Court DENIED the Airport’s motion for summary
judgment.
The Court DIRECTS the Clerk to send a copy of this written Memorandum Opinion to
counsel of record and any unrepresented parties.

ENTER:

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March 1, 2016