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Rooney v. City of Philadelphia

April 22, 2009


The opinion of the court was delivered by: Eduardo C. Robreno, J.


I. BACKGROUND........................ -3-

A. Facts........................ -3-

1. Plaintiffs' proofs . . . . . . . . . . . . . . -4-

a. John E. Tesoriero's expert report . . . -4-

b. Michael T. Di Camillo's deposition testimony-6-

c. Clifford Brown's deposition testimony . . -7-

2. Defendants' proofs . . . . . . . . . . . . . . -9-

a. Mark Rosencranz's and Craig Benedict's expert report .................... -9-

b. Dr. Lowell Krawitz's expert report . . -10-

c. David H. Fleisher's expert report . . . -12-

B. Procedural History . . . . . . . . . . . . . . . . -14-

II. ANALYSIS....................... -14-

A. Rule 56(c) Standard . . . . . . . . . . . . . . . -14-

B. The City's Motion for Summary Judgment . . . . . -15-

C. SEPTA's Motion for Summary Judgment . . . . . . . -25-

1. Whether sovereign immunity bars Plaintiffs' claim for negligent maintenance or construction of the Bridge and the adjacent tracks or negligent maintenance or construction of the sewer system-25-

2. Whether SEPTA owed a duty to Plaintiffs . . -32-

3. Whether Mr. Tesoriero's expert report should be excluded ...................... -33-

D. Whether Plaintiffs' Strict Liability and Injunctive Relief Claims Against the City and SEPTA Are Barred by Sovereign Immunity ........................ -37-

E. AMTRAK's Motion for Summary Judgment . . . . . . -39-

1. Federal preemption . . . . . . . . . . . . . -39-

a. Subject matter jurisdiction . . . . . . -39-

b. Whether Plaintiffs' claims are preempted by the Federal Railroad Safety Act . . . . -39-

c. Complete preemption doctrine . . . . . -48-

2. Whether AMTRAK is liable for negligent maintenance or construction of the sewer system . . . . -50-

III.CONCLUSION...................... -51-

Plaintiffs Eric Rooney ("Rooney"), Woodbine Auto, Inc. ("Woodbine"), Lawrence Tobin ("Tobin"), and James Wysong ("Wysong," and collectively referred to as "Plaintiffs") brought this lawsuit against Defendants City of Philadelphia (the "City"), Southeastern Pennsylvania Transportation Authority ("SEPTA"), National Railroad Passenger Corporation ("AMTRAK"), and Consolidated Rail Corporation*fn1 (collectively referred to as "Defendants"). Plaintiffs' claims arise out of water damage to their residences and places of businesses resulting from a flood. Accordingly, they seek relief under the following theories against each Defendant: (1) negligence; (2) strict liability; (3) nuisance.*fn2 The City, SEPTA, and AMTRAK move for summary judgment under Fed. R. Civ. P. 56(b). (Doc. nos. 76, 77, 79.) For the reasons that follow, (1) the City's motion for summary judgment is granted in part and denied in part; (2) SEPTA's motion for summary judgment is granted; and (3) AMTRAK's motion for summary judgment is granted. Accordingly, only Plaintiffs' negligence claim against the City may proceed to trial.


A. Facts*fn3

On August 1, 2004, a severe rain storm caused fourteen feet of water to accumulate under the Woodbine Avenue Bridge (the "Bridge") located at 62nd Street and Woodbine Avenue (the "intersection") in Philadelphia, Pennsylvania. According to Plaintiffs, the water accumulated on the date of the storm because the sewage drains that serve the intersection were clogged. Plaintiffs allege that as much as one foot of mud and ballast in certain locations blocked the sewage drains. As a result, the water flooded the adjacent area thereby causing extensive damages to Plaintiffs' properties and businesses. Plaintiffs claim two main factors caused the flood: (1) the artificially created runoff pattern from the railroad tracks and the area adjacent to the tracks; and (2) a failure to clean and maintain the sewage drains. Pls.' Resp. Def. AMTRAK's Mot. Summ. J. 7-8 (doc. no. 83).

The City acknowledges ownership of the sewage drains.

Def. City's Mot. Summ. J. 4 (doc. no. 76). However, the City avers that the "sewer system was filled beyond its capacity and back-flowed . . . [beyond what] it could . . . have been designed to handle, causing hydraulic pressure to build up within the system." Id. at 4-5. AMTRAK acknowledges ownership and maintenance responsibility for the Bridge and the railroad tracks at the intersection in the form of a railroad right of way. AMTRAK's Ans. ¶ 10 (doc. no. 33). On the other hand, SEPTA denies ownership or other interest in the sewage drain, the Bridge, and the area adjacent to the tracks. SEPTA's Mot. Summ. J. 5 (doc. no. 77). Accordingly, SEPTA also denies responsibility for the maintenance thereof. Id.

1. Plaintiffs' Proofs

a. John E. Tesoriero's Expert Report

Plaintiffs' expert, John E. Tesoriero, P.E., P.P. ("Mr. Tesoriero"),*fn4 prepared a report regarding the August 1, 2004 incident. Pls.' Expert Report. In preparing his expert report, Mr. Tesoriero specifically considered the following: (1) Plaintiffs' amended complaint; (2) a site specific weather analysis report by CompuWeather dated June 11, 2008; (3) vhs video titled "Glenn News Footage 2004 Flood"; (4) several hundred photographs from various unidentified sources documenting incident flooding and cleanup; (5) website maps and aerial photographs; and (6) two site inspections in June of 2008. Id. at 2.

Mr. Tesoriero found that on August 1, 2004, between the hours of 6:45 a.m. and 11:00 a.m., 4 inches of rain fell in the area, which was classified as a "2 - 5 year rainfall event." Id. at 2-3. This classification was made considering rainfall "occurring within a 24 hour period . . . ." Id. at 3. There were two previous events within a ten-year period where 5.58 (September 16, 1999) and 5.10 (July 12, 2004) inches of rain fell in the area. Id.

The report also charged Defendants with notice by identifying a 3.75 inch rainfall event on July 10, 1994, which resulted in flooding and damages to the same area in question. Id. The July 10, 1994 event led to a lawsuit by Rooney, Woodbine, and others against SEPTA, Consolidated Rail Corp., AMTRAK, and the City. Id.*fn5

Mr. Tesoriero concluded that at the time of the August 1, 2004 incident:

[t]he stormwater [sic] runoff was laden with stone ballast from the railroad track base soils which subsequently clogged the stormwater [sic] collection system inlets within Woodbine Avenue causing the inlets to become defective and create the flooding condition of the roadway. This in turn caused the flooding damages incurred by Plaintiffs.

Id. Mr. Tesoriero concluded that Defendants were liable for the damages caused by the storm. Id. at 3-4. He also opines that at the time of the August 1, 2004 incident: (1) the City "owned, controlled, operated and maintained the incident related Woodbine Avenue stormwater [sic] collection system"; and (2) SEPTA, AMTRAK, and CONRAIL "jointly and or separately controlled, owned, constructed, operated and maintained the [Bridge] crossing and adjacent track laden defective property that was a significant contributing cause of the Plaintiffs [sic] complained about damages." Id. at 3-4.

b. Michael T. Di Camillo's Deposition Testimony

Michael T. Di Camillo ("Mr. Di Camillo"), senior program manager of the engineering, maintenance, and construction division at SEPTA, was deposed on May 21, 2008. Mr. Di Camillo testified about SEPTA's Overbrook maintenance facility located south east of the intersection. The facility was purchased from AMTRAK and is now used to service SEPTA's rail cars. Di Camilo Dep. 11:8, 12:3, May 21, 2008.

The facility is parallel to existing tracks and can be accessed by using a "turnout," which "is a divergence of the rail into another track." Id. at 13:10-16. AMTRAK constructed two turnouts from the existing tracks to the facility because the "turnout[s] [were] on AMTRAK's property." Id. at 13:19-22. One of the turnouts was constructed at the Bridge. Id. at 14:7-10. SEPTA actually paid AMTRAK to build the turnouts, presumably as part of the transaction. Id. at 16:8-15. According to Mr. Di Camillo, SEPTA is entitled to use the tracks in the area, but AMTRAK owns and maintains them. Id. at 20:22-24, 21:12-23.

c. Clifford Brown's Deposition Testimony

Clifford Brown ("Mr. Brown"), Crew Chief Two at the Philadelphia Water Department (the "Water Department"), testified on June 4, 2008. Brown Dep. 5:13-17, June 4, 2008. Mr. Brown supervises the mechanical and manual cleaning of the sewage system in West Philadelphia, which includes the intersection.

Id. at 6:10, 7:21-23.

He testified that the Water Department does not have a procedure or policy dictating the frequency to which the sewers must be cleaned. Id. at 9:2-20. However, Mr. Brown said that the Water Department "tr[ies] to [clean] [the] inlet[s] at least once or twice a year . . . ." Id. at 9:9-10. While the Water Department "would like to do [so,]" it is delayed by complaints and other matters, and "have a shortage of manpower." Id. at 10:3-9.

On the other hand, the Water Department sends its supervisors a letter if a particular inlet area has not been cleaned in twelve months or more. Id. at 27:16-24, 28:1. Mr. Brown indicated that the Water Department cleans the sewers as the only precaution to prevent overflowing. Id. at 28:11-22. To the best of his knowledge, the Water Department does not use flood gates to prevent sewage overflow. Id. at 28:23-24, 29:1-18. He said, "[i]f the river overflows, then the water is going to come back up through the inlet." Id. at 29:19-21.

With respect to the intersection, Mr. Brown confirmed that the area is a "trouble spot" because it has a history of flooding. Id. at 31:19-24, 32:1-11. He described a trouble spot as "a place [the Water Department] knows personally that . . . completely may overflow due to the inlets being clogged or with the debris on top of it." Id. at 31:24, 32:1-3. According to Mr. Brown, trouble spots are checked in the event of major storms. Id. at 32:3-4.

2. Defendants' Proofs

a. Mark Rosencranz's and Craig Benedict's Expert Report

AMTRAK's experts, Mark Rosencranz*fn6 and Craig Benedict,*fn7 P.E. (the "AMTRAK Experts"), prepared a joint report regarding the incident on August 1, 2004. AMTRAK's Expert Report. In preparing the expert report, the AMTRAK Experts specifically considered the following: (1) site visits; (2) review of depositions and testimony by all parties; (3) review of Mr. Tesoriero's expert report; (4) review of the documented historical changes within the immediate location of study; (4) a meteorological expert report by Dr. Lowell Krawitz ("Dr. ...

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