United States District Court, D. Vermont
CHARLES GORDON, ALICIA GORDON, DJ. ENTERPRISES LLC, A.C. LAWN MOWING, DENIELLE GORDON, individually and doing business as DEN & COMPANY, Plaintiffs,
NEW ENGLAND CENTRAL RAILROAD, INC., Defendant.
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DOC.
Christina Reiss, District Judge United States District Court
Charles, Alicia, and Denielle Gordon (the
"Gordons"), DJ. Enterprises LLC, and A.C. Lawn
Mowing (collectively, "Plaintiffs") bring this
action against Defendant New England Central Railroad, Inc.
("Defendant"), alleging that Defendant's
failure to appropriately maintain track facilities caused a
railroad embankment adjacent to the Gordons' land located
at 68 Old River Road in Hartford, Vermont (the
"Property") to collapse following a July 1, 2017
rain event. Plaintiffs further allege that Defendant's
efforts to repair the embankment resulted in a trespass on
the Property. The First Amended Complaint ("FAC")
asserts the following claims against Defendant: trespass
(Count I); negligence (Count II); unlawful mischief in
violation of 13 V.S.A. § 3701 (Count III); and unjust
enrichment (Count IV).
before the court is Defendant's January 14, 2019 motion
for summary judgment. (Doc. 85.) On April 26, 2019,
Plaintiffs opposed the motion, and on May 26, 2019, Defendant
replied. A hearing was held on May 31, 2019, after which the
court took the pending motion under advisement.
are represented by R. Bradford Fawley, Esq., and Timothy C.
Doherty, Jr., Esq. Defendant is represented by Mark D.
Oettinger, Esq., Michael B. Flynn, Esq., and Matthew M.
The Factual Record Before the Court.
Whether Defendant's Contested Exhibits Are
object to twenty-eight exhibits cited in support of
Defendant's Motion for Summary Judgment. The majority of
Plaintiffs' objections fall into three categories: (1)
the exhibit is irrelevant to the extent that it addresses
Plaintiffs' trespass claim because the court has already
found Defendant liable for trespass; (2) the exhibit is not
authenticated; or (3) the exhibit contains inadmissible
hearsay. Defendant responds that Plaintiffs' objections
are premature and that all of its evidence will be admissible
at trial when presented in the proper format.
summary judgment stage, a party can support a factual
assertion by "citing to particular parts of materials in
the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other
materials[.]" Fed.R.Civ.P. 56(c)(1)(A). While the
content of the evidence submitted to support or dispute a
fact must be admissible, "the material may be presented
in a form that would not, in itself, be admissible at
trial." Lee v. Offshore Logistical & Transp.,
L.L.C., 859 F.3d 353, 355 (5th Cir. 2017) (internal
quotation marks omitted). Rule 56(c) of the Federal Rules of
Civil Procedure affords the opposing party the opportunity to
"object that the material cited to support or dispute a
fact cannot be presented in a form that would be admissible
in evidence." Fed.R.Civ.P. 56(c)(2). "The objection
functions much as an objection at trial, adjusted for the
pretrial setting. The burden is on the proponent to show that
the material is admissible as presented or to explain the
admissible form that is anticipated." Id.,
advisory committee's note to 2010 amendment.
sole basis for Plaintiffs' objections to nineteen of
Defendant's exhibits is that "to the extent [the
exhibit] is aimed at establishing a defense to
Plaintiffs' trespass claim it is irrelevant because the
court has already found [Defendant] liable for trespass.
Irrelevant evidence is not admissible." (Doc. 118
¶¶ 2, 5, 7, 10-14, 16, 18-20, 22-27, 29.) (citing
Fed.R.Evid. 402) In response, Defendant asserts that "no
response is required" to Plaintiffs' "blanket
objections" because the "trespass claim ... has
been decided by the [c]ourt." (Doc. 125 at 3.)
Plaintiffs understandably interpret this as a
"concession[.]" (Doc. 127 at 2.) The court agrees.
To the extent Defendant's exhibits pertain only to
Plaintiffs' trespass claim, they will be disregarded.
nine remaining disputed exhibits, Plaintiffs object to seven
exhibits because of a lack of authentication. "The bar
for authentication of evidence is not particularly
high." United States v. Gagliardi, 506 F.3d
140, 151 (2d Cir. 2007) (citation omitted). It "'is
satisfied by evidence sufficient to support a finding that
the matter in question is what its proponent
claims.'" Id. (quoting Fed.R.Evid. 901(a)).
"The testimony of a witness with knowledge that a matter
is what it is claimed to be is sufficient to satisfy this
standard." Id. (citing Fed.R.Evid. 901(b)(1)).
In response to Plaintiffs' objections, Defendant
identified either the creator of each exhibit or a person
with knowledge of the document's creation who will
properly authenticate the document at trial. Because
Defendant proffered sufficient evidence for authentication of
Exhibits 2, 5, 6, 10, 19, 30, and 32, the court will not
exclude them on that basis. Plaintiffs, however, further
object to these same exhibits, as well as Exhibit 35, on the
ground that they contain inadmissible hearsay. Defendant
responds that the exhibits will be admissible at trial
pursuant to a hearsay exception or through live witness
2 is a July 24, 2017 letter from Governor Phil Scott to
President Donald Trump seeking a Presidential Disaster
Declaration as a result of the July 1, 2017 rain event. It
consists of a four-page letter accompanied by a four-page
"Request For Presidential Disaster Declaration Major
Disaster Or Emergency" form supported by a seven-page
enclosure containing various spreadsheets of damage
estimates. While portions of the document may fall within the
public records exception, Fed.R.Evid. 803(8), the court
cannot conclude that its entire contents are admissible and
relevant. The court thus considers Exhibit 2 only for the
fact that the State of Vermont made a request for a
Presidential Disaster Declaration related to the July 1, 2017
5 is a twenty-slide presentation entitled "New England
Central Railroad Mainline [W]ashout 1 July 2017." It
contains statements regarding and photographs of the damage
to Defendant's railroad. The document itself appears to
fall within the business records exception, Fed.R.Evid.
803(6), and Defendant asserts that its employees could
"provid[e] whatever evidentiary foundation is needed for
final admission[.]" (Doc. 125 at 4.) Exhibit 5 is
therefore properly before the court.
6 is a FEMA Preliminary Damage Assessment Report summarizing
the estimated costs of public assistance to address damage in
Vermont caused by the July 1, 2017 rain event. Because the
document appears to be a public record admissible under
Fed.R.Evid. 803(8), it is properly before the court although
its entire contents do not appear to be relevant. The court
considers the document solely for the fact that a FEMA
Preliminary Damage Assessment was rendered.
19 is a map labelled "Storm Event - Summary of Trackrow
Damage" with captioned photographs of railroad tracks
superimposed over a map of the Hartford, Vermont area.
Defendant represents that its employee, David Cuthbertson,
gave sworn testimony in his deposition that he created the
document on or about July 3, 2017 and Defendant offers the
document in conjunction with Mr. Cuthbertson's testimony.
Exhibit 19 is therefore admissible.
30 is a "Digital Track Notebook Defect Report."
This document is a business record under Fed.R.Evid. 803(6)
provided Defendant can lay a proper foundation for it at
trial and is therefore admissible.
32 is a November 28, 2017 letter from John T. Seguin,
Assistant Chief Counsel for Safety at the Federal Railroad
Administration ("FRA"), to attorneys at the law
firm of Steptoe & Johnson LLP providing the FRA's
opinion on the proper interpretation of 49 C.F.R. §
213.33. Defendant represents that this document is not
offered to prove the truth of its contents but to
"provid[e] guidance as to the meaning and/or
interpretation" of regulatory language. (Doc. 125 at 8.)
Evidence that would "communicat[e] a legal standard[,
whether] explicit or implicit[, ]" is not admissible.
Hygh v. Jacobs, 961 F.2d 359, 364 (2d Cir. 1992);
see also Mola Dev. Corp. v. United States, 516 F.3d
1370, 1379 n.6 (Fed. Cir. 2008) (affidavit of former
government official proffering interpretation of regulation
deserved no weight because interpretation is an issue of
law). The court will therefore disregard Exhibit 32.
33 is a January 2017 Track and Rail and Infrastructure
Integrity Compliance Manual from the FRA's Office of
Railroad Safety. Plaintiffs object to its admission on the
ground that it contains legal opinions as well as a specific
disclaimer that "[i]ndented paragraphs are not to be
construed as regulatory language in any manner." (Doc.
85-33 at 5.) Defendant responds that the document is offered
to provide guidance as to the meaning or interpretation of
regulatory language. Because evidence that communicates a
legal standard or regulatory interpretation is inadmissible,
the court will disregard Exhibit 33. See Hygh, 961
F.2d at 364.
35 is a July 2, 2017 report entitled "Structural
Assessment of Building Damage[, ] 68 Old River Road, White
River Jet., VT" prepared by Professional Engineer
Timothy L. Schaal and provided to the Gordons opining that
"[g]iven the structural condition of the building and
the on-going work on the railroad embankment, the western
garage/maintenance bays and the hair salon and apartment
above are not safe to occupy." (Doc. 85-35 at 3.) As
this document reflects testimony that may be provided at
trial, it is properly before the court.
The Undisputed Facts.
Charles and Alicia Gordon purchased the Property located at
68 Old River Road in Hartford, Vermont for $150, 000 in 2009.
Three buildings are situated on the Property: (1) a 1,
120-square-foot, three-bay garage; (2) a 1, 500-square-foot,
five-bay garage; and (3) a 6, 492-square-foot mixed-use
building. Prior to July 2017, the mixed-use building
contained garage bays, warehouse storage space, a residential
apartment, and commercial space that served as a day-care
center and a beauty salon. The Property was used for the
Gordons' three businesses: A.C. Lawn Mowing, a lawn and
snow removal service; D.J. Enterprises LLC, an entity that
leased storage space; and Den & Company, the beauty
Property is adjacent to Defendant's mainline railroad
tracks, located near the VA Cut-Off Road at railroad Mile
Post 16.23. The railroad's right-of-way and a building
that houses R.H. Scales Co., a seller and distributor of
automotive and machine parts, are both located directly above
the Property. Defendant's railroad tracks run north-south
from the Canadian border through St. Albans, Montpelier,
White River Junction, and Brattleboro, Vermont. The section
of the tracks that runs adjacent to the Property is known as
the "Roxbury Subdivision." Defendant's
right-of-way includes three culverts: a culvert at
approximately Mile Post 16.23, a drop inlet culvert located
at Mile Post 16.28 (the "Drop Inlet Culvert"), and
a box culvert at Mile Post 16.32. The opening of the Drop
Inlet Culvert was covered by a metal plate on July 1, 2017.
On or about March 8, 2016, Defendant's employee, Jonathan
Allbee, completed an inspection of the Drop Inlet Culvert,
noting that the "Drop Inlet out in driveway [h]as [a]
[s]olid [c]over[.]" (Doc. 85-27 at 3.) Prior to July 1,
2017, the Gordons did not complain to Defendant about the
Drop Inlet Culvert.
1, 2017, more than four inches of rain fell in a twelve-hour
period in Hartford, Vermont, damaging both the Property and
Defendant's railroad tracks. The railroad embankment
directly above the Property collapsed, causing rocks and
debris to enter and damage the mixed-use building on the
Property. The railroad tracks and right-of-way were flooded,
leaving the railroad tracks suspended in the air.
sent its employees and a contractor to assess the damage to
its tracks, right-of-way, and embankment. Within one day of
the July 1, 2017 rain event, Defendant and its contractors
began to rebuild the collapsed embankment above the Property.
As part of this work, they placed riprap rocks on the damaged
areas of the right-of-way and embankment, including at the
"toe of the slope" located at the embankment's
footing. The riprap rocks provided additional support for
track stabilization by reinforcing the slope of the
embankment. In the course of Defendant's rebuilding of
the embankment, Defendant placed riprap rocks on the
Property. In December 2018, Defendant removed the riprap
rocks from the Property at its own expense.
The Disputed Facts.
parties dispute the appropriate characterization of the July
1, 2017 rain event. Defendant refers to it as a
"historic rain event" or a "natural
disaster[.]" (Doc. 117-1 at 12.) In contrast, Plaintiffs
characterize it as a "typical rain event" that
produced a reasonably expected water flow; they nonetheless
concede that it was a "[fifty] year rainfall
event." Id. at 13-14.
asserts that before placing the riprap rocks on the Property,
it consulted its valuation maps to determine the boundary
line between Defendant's right-of-way and the Property.
Defendant's employees believed that a stone wall depicted
on the valuation maps indicated the boundary. R.T. Boucher, a
former chief engineer of Defendant, testified that Defendant
rebuilt the slope of the embankment as close as possible to
its location prior to the July 1, 2017 rain event. As a
result, Defendant contends its employees believed they were
placing the riprap rocks on Defendant's property.
Defendant admits that it later discovered that a mistake was
made in determining the boundary's location.
assert that Mr. Boucher ignored instructions from David
Cuthbertson, Assistant Vice President of Engineering at
Genesee & Wyoming Railroad Services, Inc., regarding how to
determine the location of the boundary before placing riprap
rocks adjacent to the stone wall on the Property. Mr.
Cuthbertson advised that the stone wall "wasn't a
reference point that we used to dimension the property
line." (Doc. 117-1 at 6, ¶ C-5.) They point out
that Mr. Boucher previously testified: "If we were to
remove the rock back to the property line, it would allow for
. . . that embankment to slide down." (Doc. 117 at 22)
(citing C-8). Plaintiffs allege that Defendant knew the
location of the boundary but ignored it because the stone
wall provided support for the toe of the slope and because
building a retaining wall on Defendant's property was
"more expensive than what [Defendant] chose to do."
Id. at 23 (citing C-l 1). According to Plaintiffs,
the collapse of the embankment "buried much of one of
their mixed commercial/residential buildings with mud and
debris" which "resulted in over 50% of the building
being condemned by Town of Hartford officials[.]"
Id. at 19 (citing B-19). The day after the
embankment failure, Mr. Gordon asked Mr. Cuthbertson what he
was going to do about the mud, rocks, and debris that had
been deposited on the Property. Mr. Cuthbertson allegedly
responded: "when the rocks, mud and debris is on
[Defendant's] property that is our problem, but when it
is on your [P]roperty, that is your problem[.]"
Id. at 31 (citing B-21).
contends that the riprap rocks were placed on the embankment
in part to "reduce and control the natural flow of water
down the slope leading to Plaintiffs' [P]roperty."
(Doc. 85 at 7.) Plaintiffs dispute both that this
consideration influenced the placement of the riprap rocks as
well as Defendant's representation that the riprap rocks
were effective in reducing the flow of water down the
states that prior to July 1, 2017, the embankment had not
collapsed. Plaintiffs counter that during rain events prior
to July 1, 2017 the embankment collapsed and eroded in
certain places, prompting Plaintiffs to raise concerns
regarding the embankment with Defendant.
claims that the metal plate covering the Drop Inlet Culvert
was elevated with gravel on either side of it, allowing water
to drain under the plate and enter the culvert. According to
Defendant, the Drop Inlet Culvert was monitored during
inspections and was not "identified as a problem or
defect that needed to be corrected." (Doc. 85 at 12.)
Prior to July 1, 2017, flooding or stagnant water around the
Drop Inlet Culvert was not observed. Plaintiffs dispute these
facts, claiming that the metal plate obstructed the flow of
water into the Drop Inlet Culvert. They assert that because
the water from the July 1, 2017 rain event could not drain,
it backed up and saturated the embankment causing it to fail.
Plaintiffs note that approximately an hour after the
conclusion of the July 1, 2017 rain event, there was standing
water pooled over the Drop Inlet Culvert. Plaintiffs also
note that Mr. Allbee testified he observed that water
"would build up when it came up high and go under [the
cover of the Drop Inlet Culvert]." (Doc. 117-7 at 6.)
When asked if the metal plate "constitute[d] an
obstruction to th[e] drainage facility" in the Drop
Inlet Culvert, Mr. Allbee responded in the affirmative.
Id. After the July 1, 2017 rain event, the metal
plate was removed from the Drop Inlet Culvert and replaced
with a perforated drop inlet cover.
Conclusions of ...