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November 19, 1997


The opinion of the court was delivered by: ATTRIDGE

 The plaintiff, Jack Massengale, Trustee (Massengale), filed suit against the Washington Metropolitan Area Transit Authority (WMATA), the Mayor and City Counsel for the District of Columbia and John Doe in the Superior Court for the District of Columbia for damages to his property arising out of the construction of the Metro Green Line -- Petworth Station. The action was removed to the U.S. District Court by the Transit Authority pursuant to D.C. CODE § 1-2439 (1981 Ed., 1992 Repl. Vol.)). The parties consented to proceed before a U.S. Magistrate Judge pursuant to 28 U.S.C. § 636(C)(3). Thereafter, the Mayor and City Council were dismissed from these proceedings as was the District of Columbia which had been joined as a defendant in the second amended complaint. The case came on for a bench trial solely against WMATA. For the reasons stated, the Court finds in favor of the defendant, WMATA, and against the plaintiff, Massengale.

 Findings of Fact

 In the fall of 1994, WMATA, began construction of the Metro Green Line - Petworth Station in the area of Georgia and New Hampshire Avenues, N.W., Washington, D.C. (T. 102). The construction area was enclosed by an eight-foot chain-link fence (T. 161, 165). 3801 New Hampshire Avenue N.W., owned by Massengale (Pl's exh. 4), is a corner property located at the intersection of New Hampshire Avenue, and 8th and Quincy Streets, N.W. (T. 159), adjacent to the construction area and immediately outside the perimeter fence.

 For the 13 years that Massengale has owned the property (T. 47) and for a number of years before his ownership, the property has been vacant (T. 90) and in a deteriorating condition (T. 23, 102, 105, 129).

 Sometime during the latter part of 1994 or early 1995, someone removed a plywood barrier (T. 51) and steel gate (T. 76) from the door opening and began to store machine bolts (Pl's exh. 1, T. 30, 63) in the interior of the premises as well as steel rods and plastic pipe against the exterior of the building (T. 63, 64). This construction material was similar in appearance to materials used in the Metro construction (T. 17, 24, 36).

 When Massengale observed the storage of construction equipment on his property, he informed individuals, whom he described at one point as a construction foreman (T. 51, 52) and at another as a Metro foreman (T. 83), that he did not object to this use of his property as long as any damage caused was repaired and the premises were kept clean of trash (T. 52, 83).

 Massengale now complains that the collapse of the roof of the building (T. 64) and the removal of a portion of a retaining wall (T. 64) arose out of Metro's use of his property and that it has failed to make repairs. Neither the roof nor the retaining wall have been replaced nor repaired. Massengale offered no evidence of the costs of these repairs. He seeks $ 800 a month for one year (T. 52) as reasonable rent for the use of his property (T. 53, 59).

 WMATA asserts that no Metro construction material was ever stored outside the perimeter fencing and specifically on premises 3801 New Hampshire Avenue, N.W. (T. 166). WMATA's on-site resident engineer, the highest-ranking on-site Metro employee and the owner's representative for this project, never saw any construction materials stored on premises 3801 (T. 160), nor was the storage of construction material outside the perimeter fence ever authorized by him (T. 161, 166-168). The resident engineer did see non-Metro related construction on-going in the vicinity of 3801 being performed by utility companies such as Washington Gas Light (T. 199). This construction involved the use of a backhoe (T. 202, 221-222). Massengale and the resident of premises 3805 saw a bulldozer on or near 3801. Of significance, a survey plot of the construction area (Def's exh. 7) disclosed that a temporary gas line was to be installed in the vicinity of the retaining wall of premises 3801 of the construction area (T. 222). And, of further significance was the fact that the Metro contract drawings did not provide for the removal of any retaining wall at 3801 (T. 223). Also of note, as recently as October 1997, construction equipment was on or near the plaintiff's property in connection with the servicing of a water line or meter (T. 240), an activity not directly related to the Metro construction.

 I conclude, as a matter of fact, that the retaining wall was not removed by WMATA. It was outside the perimeter fence and was not required to be removed because of the subway construction.

 I further find that the plaintiff failed to prove that the collapse of the roof of 3801 was caused by Metro construction activity. The wooden cross members of the roof evidenced dry rot (T. 236) and the masonry pockets on which these cross members rested were wholly intact at the time of a recent investigation by a WMATA-retained engineer (T. 232, 233, 236). In light of the prior testimony of a neighbor who resided at 3805 New Hampshire, N.W., that the roof collapsed following a heavy snow storm on January 13, 1995, the Court finds credible the testimony of the defendant's structural engineer expert witness that the roof collapse was caused by the weight of the snow on the rotted cross members (T. 235). No other damage to the premises is attributed to Metro construction by the plaintiff other than the removal of a plywood entrance cover and iron gate. The Court finds no evidence from which it could conclude that WMATA personnel acting within the scope of their employment removed the plywood and iron gate.

 This brings us to a consideration of the plaintiff's claims of nuisance, unauthorized use of his property and negligent excavation.

 Conclusions of Law

 Massengale's theories of liability are somewhat difficult to understand. As ascertained from his Second Amended Complaint, he seeks damages in the sum of $ 9600.00 ($ 800.00 a month for 12 months) for the unauthorized use of his property when Metro, without his consent, permission or authority, stored "building material, pipes, tool ...

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