Beatty v. Washington Metropolitan Area Transit Authority

• Decision Date: 04 November 1988
• Docket Number: No. 87-7043,87-7043
• Citation: 860 F.2d 1117,274 U.S.App.D.C. 25
• Parties: Lorraine A. BEATTY, Appellant, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1117

860 F.2d 1117

274 U.S.App.D.C. 25

Lorraine A. BEATTY, Appellant, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY.

No. 87-7043.

United States Court of Appeals District of Columbia Circuit.

Argued March 7, 1988.

Decided Nov. 4, 1988.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 86-0478).

Neil Intrater, Washington, D.C., for appellant.

Gerard J. Stief, Asst. General Counsel, with whom Sara E. Lister, General Counsel, and John G. Elligers, Associate General Counsel, Washington, D.C., were on the brief, for appellee. Jeanette J. Leonard, Washington, D.C., also entered an appearance for appellee.

Before BUCKLEY and WILLIAMS, Circuit Judges, and EDWARD D. RE, ^* Chief Judge, U.S. Court of International Trade.

Opinion for the court filed by Chief Judge RE.

RE, Chief Judge:

Appellant, Lorraine A. Beatty, brought this action claiming damages for trespass to real property and nuisance resulting from the operation of subway trains by appellee, Washington Metropolitan Area Transit Authority (WMATA). She appeals from an order of the United States District Court for the District of Columbia which granted WMATA's motion for summary judgment. Having concluded that the trespass and nuisance were permanent in nature, the district court held that the action was barred by the three-year statute of limitations.

Beatty contends that the district court erred in granting summary judgment because there is a factual dispute as to whether the nuisance is permanent or continuing.

WMATA responds that the Metrorail system is permanent, as a matter of law, because it represents a public project operated by a governmental agency. In the alternative, WMATA contends that the activities in issue arose out of the performance of a "governmental" function for which it is immune under section 80 of the WMATA Compact.

The questions presented are: (1) whether the district court erred in holding that Beatty's action was time barred because the nuisance, as a matter of law, was permanent; and (2) whether WMATA, as a quasi-governmental agency, is immune from liability on tort claims resulting from the operation of its Metrorail system.

On the record presented, we hold that there are genuine issues of material fact, suitable for a trier of fact, as to whether the nuisance was permanent or continuing in nature, and as to whether the challenged activities arise out of the performance of a "governmental" or "proprietary" function of WMATA. Accordingly, the grant of summary judgment by the district court is reversed, and the case is remanded.

I. BACKGROUND

Beatty is the owner of a house located on the corner of Girard and Ninth Streets, N.E., Washington, D.C. WMATA is an agency and instrumentality of Maryland, Virginia, and the District of Columbia empowered to plan, develop, finance and operate a regional transit system pursuant to the WMATA Compact. See Pub.L. No 89-774, 80 Stat. 1324 (1966) (codified as amended at D.C. Code Ann. Secs. 1-2431--1-2436 (1981)). Beatty's house, in which she has lived since 1952, is situated across the street from a retaining wall which separates the Metrorail "B" Route (Red Line) from Ninth Street. This section of the Red Line, which runs 65 to 80 feet from Beatty's house, opened for service on February 6, 1978, after "test trains" were run along that route for several weeks prior to its opening.

In a letter to WMATA dated February 2, 1978, Beatty complained that the vibrations caused by the passing trains caused damage to her house. Specifically, she stated that the walls cracked, and that, whenever the trains passed by, the cabinets and dishes shook.

On January 31, 1986, Beatty sued WMATA, seeking $200,000 in damages under each count for damage to real property, trespass to realty, and nuisance. In her complaint, Beatty alleged that the vibrations from passing trains "caused and will continue to cause excessive cracking and spalling of the plaster and walls and ceiling of the house," and, thus, "greatly reduced its value." Stating that the "nuisance has been of a continuous nature," Beatty also alleged that the vibrations constituted a nuisance which deprived her "of the peaceful enjoyment of her home."

In her deposition and answers to WMATA's interrogatories, Beatty stated that the damage began in 1978, and became very severe in 1983 when she noticed that "a hole developed on one ceiling and ... cracks throughout the entire house." In her answer to interrogatories she stated that the "basement block foundation of the house developed cracks between January 12, 1985 and the present." Her deposition noted that the vibrations vary, stating that, "during the rush hour it is worse and then non-rush hour they don't go as fast and they don't run quite as often." In her deposition she also stated that, in addition to structural damage to her house, china has fallen from her china closet: "when you open the door my dishes have fallen to the floor and broken."

Pursuant to Fed.R.Civ.P. 56(b), WMATA moved for summary judgment. On November 18, 1986, holding that Beatty's claims were barred by the District of Columbia's three-year statute of limitations for actions for injury to real or personal property, D.C. Code Ann. Sec. 12-301(3) (1981), the district court granted WMATA's motion. Beatty v. Washington Metro. Area Transit Auth., Civ. Action No. 86-0478, slip op. at 2 (D.D.C. Nov. 18, 1986). Since the district court concluded that the trespass and nuisance were "of a permanent nature," it held that the statute of limitations began to run when Beatty "knew of the injury that would befall her." Id. at 7.

Pursuant to Fed.R.Civ.P. 59(e) and 60(b), Beatty subsequently moved for reconsideration of the grant of summary judgment. Beatty v. Washington Metro. Area Transit Auth., Civ. Action No. 86-478 (D.D.C. Feb. 17, 1987). Beatty maintained that the nuisance was not permanent, but temporary or continuing, since it was abatable. Id. at 3. Hence, she contended that the cause of action was not barred by the statute of limitations. Id. In support of her motion, Beatty referred to a report prepared by Dr. George Wilson of Wilson, Ihrig & Associates, Inc., WMATA's acoustical consultant, which stated that the vibrations could be reduced by various methods. Id. at 1-2. The district court held that Beatty did not justify her failure to present Dr. Wilson's report to the court prior to the decision granting summary judgment. Id. at 2. Hence, stating that "summary judgment was properly granted in favor of defendant," the district court denied Beatty's motion for reconsideration. Id. at 4.

II. THE GRANT OF SUMMARY JUDGMENT

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Since summary judgment is a determination of law rather than fact, we need not defer to the district court's conclusions and reverse only if clearly erroneous, but rather, may review the matter de novo. See Caiola v. Carroll, 851 F.2d 395, 398 (D.C.Cir.1988) (citing Nepera Chem., Inc. v. Sea-Land Serv., Inc., 794 F.2d 688, 699 (D.C.Cir.1986).

Beatty contends that the district court erred in granting summary judgment on the basis that its claim was time barred, since WMATA "failed to produce any affidavits or other evidence to support its [WMATA's] argument" that the nuisance was permanent and not abatable. WMATA, however, contends that the district court properly ruled that Beatty's action was time barred, because the nuisance was permanent as a matter of law, and Beatty failed to establish an essential element of her case, namely, that the nuisance was continuing.

The Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), discussed the respective burdens of the parties when a motion is made for summary judgment. In Celotex, the United States District Court for the District of Columbia granted the defendant Celotex's motion for summary judgment against plaintiff Catrett on the ground that Catrett did not support her complaint of wrongful death with evidence that the decedent had been exposed to Celotex's asbestos products. This court reversed, holding that Celotex's failure to support its motion with any evidence which tended to negate Catrett's claim, precluded the entry of summary judgment in its favor. Catrett v. Johns-Manville Sales Corp., 756 F.2d 181, 186 (D.C.Cir.1985). The Supreme Court granted certiorari, and reversed, holding that "Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. The Supreme Court further stated that, "unlike the Court of Appeals, we find no express or implied requirement in Rule 56 that the moving party [Celotex] support its motion with affidavits or other similar materials negating the opponent's claim." Id. at 323, 106 S.Ct. at 2553 (emphasis in original).

The Supreme Court explained that "a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion," and that there is an "absence of a genuine issue of material fact." Id. A motion properly made and supported by the moving party requires that the non-moving party "set forth specific facts showing that there is a genuine issue for trial," by responding with affidavits, depositions, answers to interrogatories and admissions on file. See Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. Although a moving party may not be required to support its motion with affidavits, it is still clear that summary...