United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS, UNITED STATES DISTRICT JUDGE
before the Court is Defendant Columbia Gas Transmission,
LLC's Motion for Summary Judgment. ECF No. 78. The Court
heard argument on the motion at the hearing held on April 8,
2019. With respect only to the statute of limitations issue
raised by Defendant as to the negligence and nuisance claims
made by Plaintiffs Roger and Marsha Napier, the Court
DENIES the motion. The Court HOLDS
IN ABEYANCE the remainder of the motion.
are the owners of certain real property located in Kenova,
Wayne County, West Virginia. Between 1996 and 2003, Defendant
constructed two pipelines above Plaintiffs' property. In
their Complaint, Plaintiffs allege that, since the
construction, “there has been continuous and ongoing
land slides, surface slippage and adverse water flow”
that has damaged their property. Compl. at ¶4,
ECF No. 1-1. Plaintiffs assert that these problems did not
occur prior to the construction. Id. In their
Complaint, Plaintiffs claim, inter alia, that
Defendant is negligent by failing to remedy and remediate
these problems and its actions have created a
nuisance for which they are entitled to damages.
Id. at ¶9.
Motion for Summary Judgment, Defendant argues that
Plaintiffs' claims are barred by the two-year statute of
limitations found in West Virginia Code § 55-2-12,
it is undeniable that Plaintiffs were aware of the alleged
damages in the early 2000s. In fact, Defendant points out
that, years before this action was filed, Mrs. Napier made
several complaints about slips and ground movement, and she
attributed those issues to the installation of the pipelines.
Nevertheless, Plaintiffs did not file this action until
October 16, 2017, long after Defendant contends the statute
of limitations ran.
support of its argument, Defendant relies upon Roberts v.
West Virginia American Water, Co., 655 S.E.2d 119 (
W.Va. 2007). In Roberts, a waterline was installed
near a road on the plaintiff's property in 1999. The
plaintiff claimed that, during construction, a concrete
trough at the bottom of his driveway was broken and the toe
of the hillside was significantly disturbed. 655 S.E.2d at
122. Within weeks of the completion of the installation, the
plaintiff said he began noticing slips. Id.
Approximately two years later, the plaintiff said there was a
major slip so he contacted the defendants to inspect and
repair his property. The slips continued to expand over the
course of the next two years. Ultimately, the plaintiff filed
suit in 2004, and the defendants moved for summary judgment
arguing, inter alia, that the statute of limitations had
expired. Id. at 123.
determining when the statute of limitations began to run, the
West Virginia Supreme Court emphasized that “the
distinguishing aspect of a continuing tort with respect to
negligence actions is continuing tortious conduct, that is, a
continuing violation of a duty owed the person alleging
injury, rather than continuing damages emanating from a
discrete tortious act.” Syl. Pt. 4, id. The
court continued by stating that “[i]t is the continuing
misconduct which serves to toll the statute of limitations
under the continuing tort doctrine.” Id. at
124. However, in the case before it, the plaintiff claimed
the damages arose from a “single, discrete act of
constructing and installing the waterline and not for any
continuing malfunction of the installation or further
misconduct of [the defendants].” Id.
Therefore, as the waterline was completed in 1999, the court
found the lower court did not err by finding the complaint
was untimely filed in 2004. Id. at 125.
comparing the allegations of Roberts to the
allegations in the present case, however, the Court finds
Roberts is distinguishable. Initially, the Court
finds that Plaintiffs in this case have alleged continuous
negligent conduct by Defendant by virtue of its failure to
repair and remediate problems with the pipelines.
Compl. at ¶¶ 6-7. As a result of
Defendant's alleged breach of its duty to take such
necessary actions, Plaintiffs allege they have suffered both
personal and property damages. Id. at
¶¶8-10. Thus, unlike Roberts which stemmed
from a single, discrete act, Plaintiffs here claim a
continuous violation of a duty owed to them. See
Syl. Pt. 4, Roberts. Therefore, as stated by the
West Virginia Supreme Court, “‘[w]here a tort
involves a continuing or repeated injury, the cause of action
accrues at and the statute of limitations begins to run from
the date of the last injury or when the tortious overt acts
or omissions cease.'” Syl. Pt. 3, id.
(quoting Syl. Pt. 11, Graham v. Beverage, 566 S.E.2d
603 ( W.Va. 2002)). As Plaintiffs allege Defendant's
tortious acts have not ceased and they continue to be
damaged, the Court finds the statute of limitations has not
expired on Plaintiffs' negligence claims.
Roberts did not address a claim for nuisance as
exists in this case.To determine when the statute of
limitations on a claim of nuisance runs, the Court first must
determine whether the nuisance is temporary or permanent.
See Taylor v. Culloden PSD, 591 S.E.2d 197, 203 (
W.Va. 2003) (stating whether damages for a nuisance is
temporary or permanent “is critical for purposes of
applying the statute of limitations”). Characterizing
the nature of a nuisance as a permanent or temporary,
however, can be difficult at times.
this difficulty, the West Virginia Supreme Court in
Taylor explained that a permanent nuisance is
“one in which a single cause of action is required and
damages are measured by the permanent diminution in the
land's value.” Id. at 205 (citation
omitted). On the other hand, the Court stated that,
“[w]here the acts which constitute a nuisance are
continuing in the sense that distinct instances of injury
result from the nuisance, as opposed to a singular injury,
and the acts of nuisance are capable of being abated or
discontinued, the temporary nuisance continues until such
time as those acts are abated or discontinued.” Syl.
Pt. 5, id. Therefore, as to temporary nuisances, the
court held that the two-year statute of limitations found in
West Virginia Code § 55-2-12(a) begins to run from
“the date of the last injurious act or when the acts
constituting the nuisance have been abated or
discontinued.” Syl. Pt. 6, id.
these principles, the Court noted the defendants in
Taylor operated a wastewater treatment plant that
continuously dumped untreated sewage into a creek that
bisected the plaintiffs' property. Id. at 200.
As relief, the plaintiffs sought more than diminution in
their property value; they also “sought damages for
annoyance; discomfort; loss of use and enjoyment of part of
their property; and mental distress or aggravation associated
with the period presence of effluents running on, over, or
near their property.” Id. at 203 (footnote
omitted). Additionally, the Court found the periodic dumping
of waste into the creek was distinct instances of injury that
was capable of being abated or discontinued. Id.
205. Therefore, under these circumstances, the Court
determined the nuisance was temporary, and the plaintiffs had
filed their action within the statute of limitations because
the dumping was ongoing. Id.; see also Syl.
Pt. 11, Graham; Myers v. Root, No. 13-0757,
2014 WL 1672943, *2 ( W.Va. Apr. 25, 2014) (holding a gate
installed in 2004 over an access road was a continuing
nuisance and, therefore, a claim brought in 2010 was not
barred by the statute of limitations).
Court finds the present action is more closely analogous to
Taylor than to Roberts. In their Response
to Defendant's motion, Plaintiffs argue that,
irrespective of when the damage was first manifested, their
nuisance claim is not barred by the statute of limitations
because they have experienced distinct instances of injury
from the continual and repetitious flow of water onto their
property and the other damage caused by soil movement.
Setting aside for purposes of this Memorandum Opinion and
Order Defendant's challenge to the sufficiency and
admissibility of Plaintiffs' evidence of increased water
flow and causation, the Court agrees with Plaintiffs that the
periodic and continuous nature of the water alleged to be
intruding upon their property creates distinct instances of
injury. Additionally, Plaintiffs made claims in their
Complaint beyond diminution of the value of their property.
As in Taylor, Plaintiffs here also seek damages for,
inter alia, annoyance, inconvenience, and loss of
use. Compl. at ¶5. Furthermore, Plaintiffs
assert there was work done on the pipelines after the initial
construction. Specifically, Plaintiffs claim that in 2015
Defendant conducted some repair work and built a riprap
retaining wall on some nearby property. Plaintiffs assert
that, thereafter, they noticed increased water runoff, ground
movement, and flooding on their property. They further state
there is evidence that the once flat area of their backyard
now is heaved up and bumpy.
the totality of these allegations, the Court finds that
Plaintiffs have alleged an ongoing temporary nuisance. As
such, Plaintiffs' nuisance claim was not untimely filed
despite the fact the original construction of the pipelines
was completed in 2003 and this action was not filed until
2017. Nevertheless, the Court finds that Plaintiffs damages
for nuisance and negligence are limited to the two-year
period in time prior to this action being filed. See
Taylor, 591 S.E.2d at 205, n.21 (stating that the
plaintiffs' damages for “temporary nuisance are
limited to the two-year period in time prior to the filing of
their cause of action” (citation omitted)).
for the foregoing reasons, the Court FINDS
Plaintiffs' nuisance and negligence are not barred by the
statute of limitations and DENIES
Defendant's Motion for Summary Judgment in that regard.
The remainder of the motion is HELD IN
Court DIRECTS the Clerk to send a copy of
this Order to counsel of record and ...