The opinion of the court was delivered by: Judge Vanaskie
Plaintiff, Hema Burke, brought this action against neighboring land owner Hemlock Farms Community Association ("Hemlock") based on damages sustained to her property as a result of flooding caused by inadequate drainage on Hemlock's property. Plaintiff's three-count complaint alleges entitlement to damages based on theories of negligence, trespass, and nuisance. Defendant has filed a motion for summary judgment. (Dkt. 23.)*fn1 Because there are genuine issues of material fact as to whether Plaintiff's property is an open woodland and whether Defendant has artificially channeled water onto Plaintiff's property, Defendant's Motion for Summary Judgment based upon an easement by prescription or by implication will be denied. Moreover, as physical damage has arguably occurred on Plaintiff's land, and the continuing injury doctrine applies, Defendant's private nuisance and statute of limitations challenges are unavailing.
Plaintiff, Hema Burke, acquired her interest in the subject property upon the death of her husband, James B. Burke, on February 24, 1999. (Defendant's Statement of Undisputed Material Fact ("DSUMF"), Dkt. 25, at ¶ 4.) The subject property consists of approximately eighteen (18) acres in Blooming Grove Township, is adjacent to the Hemlock Farms Community, and has some frontage on Route 739. (Burke Dec., Dkt. 29-3, at ¶ 5.) Plaintiff has never resided on the subject property and currently resides in Arizona. (Id. at ¶ 4.)
In general, some portions of Defendant's land is up slope of the subject property. (Plaintiff's Statement of Undisputed Material Fact ("PSUMF"), Dkt. 29, at ¶ 10.) The subject property "rises modestly from front to rear with a sideway slope from west to east." (Henkelman, Dkt. 29-6, at 27.) Plaintiff describes her property as "heavily wooded and overgrown with mature trees, shrubs, and bushes." (Burke Decl., Dkt. 29-3, at ¶ 6; see Burke Dep., Dkt. 29-4, at 11.) An appraisal of the property conducted by William R. Henkelman describes the property as consisting "mainly of woodland." (Henkelman, Dkt. 29-6, at 27.) To the best of Plaintiff's knowledge, no portion of the subject property has been enclosed by a fence, wall, or other structure. (Burke Dec., Dkt. 29-3, at ¶ 8.)
A nearby storm water culvert discharges water onto a lot owned by a member of Hemlock Farms Community and then flows across that lot and two adjacent Hemlock lots before it reaches the subject property. (Nov. 25, 2005 Letter, Dkt. 29-8, at 41.) The culvert "deposits surface water on an area of this parcel near the rear adjacent corner to the road of the [subject property]. . . . . The exact additional land affected by the culvert is difficult to calculate." (Henkelman, Dkt. 29-6, at 28.) The Manager of Hemlock, Mike Sibio, was unable to say when the culvert that traverses under Hemlock Farms Road and ends near Plaintiff's property was installed or constructed. (Sibio Inter., Dkt. 29-9, at 5.) During the course of Plaintiff and her husband's ownership of the subject property, Hemlock never asked permission to discharge water from the culvert onto the subject property. (Burke Dep., Dkt. 29-4, at 11, 13.)
Defendants aver that no sedimentation or erosion exists on the property as a result of the storm water culvert. (Nov. 25, 2005 Letter, Dkt. 29-8, at 41.) Plaintiff, however, disagrees, averring that there was sedimentation and erosion. (Burke Dep., Dkt. 29-4, at 14.)
Plaintiff indicated that she had spoken to Mr. Sibio about the problem and that he indicated that Hemlock was going to "implement a storm water plan to fix the problem." (Burke Dep., Dkt. 29-4, at 12.)
Hemlock has developed at a significant rate over the last 19 years. (Answers to Req. For Admission, June 27, 2008, Dkt. 29-7.) Between 1985 and 2007, an additional 1,347 homes were added to the Hemlock Farms Community. (Id.) As Hemlock continued to build, however, it did not undertake "any construction activities or any activities to handle the increased runoff." (Vandercar Dep., Dkt. 29-8, at 12.) During the past 11 years, Hemlock has taken no steps to ensure that the rate of storm water runoff does not increase. (Id. at 10.) Hemlock's Director of Public Works, Robert Vandercar, admitted that "[w]hen the residential development of Hemlock Farms was originally planned, the implementation of storm water controls was almost an afterthought." (Id. at 15.)
Vandercar indicated that after receiving Plaintiff's complaint, he reviewed the area "to see if there was a way we could remove that pipe," and determined that they could remove the culvert but that water was still going to end up on Plaintiff's property based on the contours of the land. (Id.) When asked whether the storm water that is discharged from the culvert pipe flows onto Plaintiff's property, Vandercar responded: "It flows. I can't say it flows on her property. I never witnessed it flowing on her property. It flows in that direction, but I can't say it flows on her property." (Id. at 18.)
Plaintiff filed a complaint in this Court on June 29, 2007, seeking damages under negligence, trespass, and nuisance theories of liability. (Comp., Dkt. 1.) Discovery was completed on August 31, 2008, and on September 30, 2008, Defendant filed the current motion for summary judgment. The briefing period has expired and the motion is ripe for review.
Summary judgment should be granted when "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 . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A fact is "material" if proof of its existence or non-existence might affect the outcome of the suit under applicable law. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). "Facts that could alter the outcome are material facts." Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 197 (3d Cir. 1994). "[S]ummary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
Initially, the moving party must show the absence of a genuine issue concerning any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). Once the moving party has satisfied its burden, the nonmoving party "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 257. Mere conclusory allegations or denials taken from the pleadings are insufficient to withstand a motion for summary judgment once the moving party has presented evidentiary materials. Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). Rule 56 requires the entry of summary judgment if there was ...