Filed: Jun. 07, 2007
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 6-7-2007 Norfolk S Railway Co v. Pittsburgh Precedential or Non-Precedential: Non-Precedential Docket No. 05-4286 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Norfolk S Railway Co v. Pittsburgh" (2007). 2007 Decisions. Paper 990. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/990 This decision is brought to you for free and open ac
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 6-7-2007 Norfolk S Railway Co v. Pittsburgh Precedential or Non-Precedential: Non-Precedential Docket No. 05-4286 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Norfolk S Railway Co v. Pittsburgh" (2007). 2007 Decisions. Paper 990. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/990 This decision is brought to you for free and open acc..
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Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
6-7-2007
Norfolk S Railway Co v. Pittsburgh
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4286
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Norfolk S Railway Co v. Pittsburgh" (2007). 2007 Decisions. Paper 990.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/990
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 05-4286
___________
NORFOLK SOUTHERN RAILWAY COMPANY
v.
CITY OF PITTSBURGH,
Defendant/Third-Party Plaintiff
v.
CHARLES L. DESMONE & ASSOCIATES
t/d/b/a Desmone & Associates Architects;
MAZZA ENGINEERING ASSOCIATES, INC.,
Third Party Defendants
City of Pittsburgh, Appellant
___________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 04-cv-01808)
District Judge: The Honorable Joy F. Conti
___________
ARGUED MAY 15, 2007
BEFORE: FISHER, NYGAARD, and ROTH, Circuit Judges.
(Filed: June 7, 2007)
___________
John F. Doherty, Esq. (Argued)
George R. Specter, Esq.
City of Pittsburgh Department of Law
414 Grant Street
313 City County Building
Pittsburgh, PA 15219
Counsel for Appellant
W. Gregory Rhodes, Esq. (Argued)
Klett, Rooney, Lieber & Schorling
One Oxford Centre, 40th Floor
Pittsburgh, PA 15219
Counsel for Appellee
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
The City of Pittsburgh appeals the District Court’s order granting a preliminary
injunction in favor of Norfolk Southern Corporation. We will affirm.
I.
The facts and procedural history of this case are well-known to the parties and are
thoroughly set forth in the Magistrate Judge’s Report and Recommendation (R&R).
Hence, we briefly summarize the factual background of the case and limit our discussion
to our ratio decidendi.
A portion of the hillside under Corfu Street in Pittsburgh (“the City”) rests upon a
partially eroded, prehistoric landslide. The hillside recently became unstable, and on
several occasions, boulders, asphalt, trees and other debris have fallen onto a railroad
2
track which Norfolk Southern operates below Corfu Street. The landslides have caused a
multi-car train derailment, extended delays in train traffic and physical injury to a
Norfolk Southern employee. Norfolk Southern has incurred extensive clean-up costs and
employs a flag-man around the clock to guide trains through the area.
Norfolk Southern filed a complaint against the City, seeking, inter alia, a
preliminary injunction to compel the City to abate and correct conditions created by the
landslides, based upon state law public nuisance, private nuisance, and negligence claims.
Initially, the parties reached an agreement which provided for (1) the expedited
completion of an engineer’s report commissioned by the City; (2) continued posting of a
Norfolk Southern flag-man at the site; and (3) withdrawal of Norfolk Southern’s motion
for a preliminary injunction. Shortly thereafter, the City moved to dismiss Norfolk
Southern’s public nuisance claim.
The engineer’s report identified a certain cluster of boulders, which began to fall
upon the railroad tracks, as a threat to rail traffic. Norfolk Southern moved for a
temporary restraining order to require the City to remove the cluster immediately. The
City then agreed to allow Norfolk Southern to enter the City’s property to remove the
largest boulder in the cluster, and to build a catchment fence beneath the cluster.
However, during construction of the fence, a large boulder fell out of the cluster, and
Norfolk Southern renewed its motion for a preliminary injunction.
3
The Magistrate Judge conducted a two-day evidentiary hearing, and recommended
that the District Court grant the preliminary injunction against the City. The District
Court adopted the R&R and entered the injunction.1 The City filed a timely appeal.
II.
We exercise jurisdiction pursuant to 28 U.S.C. § 1292(a)(1). Acierno v. New
Castle County, 40 F.3d 645, 652 (3d Cir. 1994). On appeal, the City contends that
Norfolk Southern failed to satisfy the four requirements necessary to obtain a preliminary
injunction. A party seeking a preliminary injunction must show (1) a likelihood of
success on the merits; (2) it will suffer irreparable harm if the injunction is denied; (3)
granting relief will not result in even greater harm to the non-moving party; and (4) the
public interest favors such relief. Child Evangelism Fellowship of New Jersey v.
Strafford Twp. Sch. Dist.,
386 F.3d 514, 524 (3d Cir. 2004).
First, the City argues that Norfolk Southern failed to establish a “reasonable
likelihood of success” on the merits of its private nuisance and negligence claims.2 Under
Pennsylvania law, a private nuisance is a “nontrespassory invasion of another’s interest in
the private use and enjoyment of land.” Golen v. Union Corp., 718 A.2d 298, 300 (Pa.
Commw. Ct. 1998) (quoting 4 RESTATEMENT (SECOND) OF TORTS 2d §821D). Norfolk
1.
Hereinafter, we refer to the Magistrate Judge’s findings and conclusions as
those of the District Court.
2.
The District Court concluded that Norfolk Southern did not have a reasonable
likelihood of success on the merits of its public nuisance claim. Norfolk Southern does
not appeal the court’s conclusion.
4
Southern does not argue that the City’s actions were “intentional and unreasonable.”
Therefore, to recover under a private nuisance theory, Norfolk Southern must show: (1)
the City’s conduct is the legal cause of its injury; and (2) the City’s conduct was
negligent, reckless, or abnormally dangerous. Folmar v. Elliot Coal Mining Co., 272
A.2d 910, 912 (Pa. 1971).
We agree with the District Court that Norfolk Southern satisfied its burden here.
First, the City owns the land above Norfolk Southern’s property. It has a duty to use and
maintain the land so as not to injure adjoining landowners. McArthur v. Balas, 166 A.2d
640, 643 (Pa. 1961). Second, Norfolk Southern repeatedly warned the City of the
problems posed by the landslides. Meanwhile, over 1500 tons of debris has fallen onto
the railroad tracks, one train has been derailed, and a Norfolk Southern employee has
been injured. Experts for both Norfolk Southern and the City agree that, if no immediate
action is taken, the landslides will continue, with potentially catastrophic results.
Norfolk Southern was likely to succeed on the merits of its negligence claim for
the same reasons. The City has a duty to maintain its property so as not to injure lower or
adjoining landowners. The City took no action, despite numerous warnings from Norfolk
Southern and other adjacent landowners, and its own experts’ recommendations. On
these facts, Norfolk Southern had a reasonable likelihood of success on its private
nuisance and negligence claims.
5
The City also argues that Norfolk Southern failed to establish an irreparable injury
that outweighs potential harm to other interested parties. The irreparable injury element
requires a clear showing of immediate irreparable injury. Establishing a risk of
irreparable injury is not enough. In addition, the purported injury “must be of a peculiar
nature, so that compensation in money cannot atone for it.” Glasco v. Hills, 558 F.2d
179, 181 (3d Cir. 1977).
We agree with the District Court that Norfolk Southern met its burden here as
well. Expert witnesses for both parties testified that, without immediate action, more
landslides will occur. These landslides could lead to an entire collapse of
Corfu Street. As the District Court found, the unstable hillside below Corfu Street poses a
“presently existing actual threat” of severe, even deadly, personal injury to Norfolk
Southern employees and Corfu Street residents.
The City argues that other trains have passed below Corfu Street without incident,
and that the alleged harm to Norfolk Southern is therefore not irreparable. However, the
facts the City adduces in support of this argument are not before us. Our review is limited
to the facts as they were presented to the District Court, and we see no error in the court’s
analysis.
III.
The record supports the District Court’s conclusion that Norfolk Southern was
likely to succeed on the merits of its private nuisance and negligence claims, and that
6
Norfolk Southern established an “irreparable injury.” The District Court carefully
balanced the interests at stake and did not abuse its discretion in awarding preliminary
injunctive relief to Norfolk Southern. Accordingly, we will affirm.
7
