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August 20, 1998



Before Terry, Schwelb and Ruiz, Associate Judges.

The opinion of the court was delivered by: Schwelb, Associate Judge:

On April 8, 1994, according to her complaint, Sarah L. Brown was injured when a metal object fell through the windshield of her car as she passed eastbound through the underpass of the East Capitol Street railroad bridge. Ms. Brown commenced this negligence action against Consolidated Rail Corporation (Conrail), which operates trains on railroad tracks that run perpendicular to East Capitol Street on the ground above the underpass. The trial judge granted Conrail's motion for summary judgment, concluding that "[Ms. Brown] cannot establish that [Conrail] had a duty to her which it breached, for the reasons stated in [Conrail's] motion and reply."

Ms. Brown argues on appeal, as she did before the trial judge, that Conrail had a duty of care which flowed from each of three alternate sources: (1) a statutory duty to maintain railroad bridge underpasses, pursuant to D.C.Code § 7-1414(b) (1995); (2) a common law duty as a railroad to inspect and maintain its crossings; and (3) a common law duty as a landowner to use reasonable care to protect passers-by on adjoining public land. We disagree with Ms. Brown's statutory argument, but conclude that genuine issues of material fact exist with respect to each of her common law theories. [717 A2d Page 311]



Ms. Brown contends that the metal object which allegedly injured her, identified as a "railroad tie plate," *fn1 fell through one of four "bridge vents," which are essentially air shafts that run from the ceiling of the underpass to the surface above, where the tracks lie. According to Conrail, each rectangular bridge vent measures eighty-three feet by one foot, and the long end of each vent spans the full width of the highway below. As an eastbound car passes through the underpass, it travels under overhead vents at irregular intervals along the 300 foot tunnel: the first vent is located at 65 feet, the second at 136 feet, the third at 208 feet, and the fourth at 235 feet. Conrail's tracks run between the fourth bridge vent and the tunnel's eastbound exit. According to Ms. Brown's deposition testimony, she was two to three car lengths inside the tunnel when the piece of metal struck her windshield. Ms. Brown was unable to state, however, which of the four vents was involved.

On the surface above the underpass, the bridge vents are covered with wire mesh. The parties appear to agree that, at the relevant time, the wire mesh on at least some of the bridge vents was in a state of disrepair.

The parties disagree as to the nature and extent of Conrail's property interest in the East Capitol Street bridge. Conrail's corporate designee, Wayne Lukaszuk, testified at his deposition that Conrail owns all of the land that runs atop the underpass except for the bridge vents. Notwithstanding Lukaszuk's testimony, Conrail contends that any interest it has in the bridge and its surrounding property is quite limited, because the preceding landowners dedicated the property to the District of Columbia for the purpose of building the bridge. Conrail therefore claims that when it obtained the property, it received only a right of way over the bridge; the maintenance of the land surrounding the bridge and the bridge itself, including the bridge vents, was the District's responsibility. *fn2



To prevail on its motion for summary judgment, Conrail "must demonstrate that there is no genuine issue of material fact and that [it is] entitled to judgment as a matter of law." Hendel v. World Plan Executive Council, 705 A.2d 656, 660 (D.C. 1997); see Super Ct.Civ.R. 56(c); Colbert v. Georgetown Univ., 641 A.2d 469, 472 (D.C. 1994) (en banc). The evidence must be viewed in the light most favorable to Ms. Brown, and all reasonable inferences must be drawn in her favor. See Hendel, supra, 705 A.2d at 660; Beard v. Goodyear Tire & Rubber Co., 587 A.2d 195, 198 (D.C. 1991). "Once the movant has made an initial showing that there is no genuine issue of material fact, the non-moving party then has the burden to show that an issue does exist." Claytor v. Owens-Corning Fiberglas Corp., 662 A.2d 1374, 1381 (D.C. 1995). In this regard, "the mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Bolle v. Hume, 619 A.2d 1192, 1194 (D.C. 1993) (per curiam) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

In reviewing an order granting summary judgment, "this court conducts an independent review of the record and applies the same standard used by the trial court." Kerrigan v. Britches of Georgetowne, Inc., 705 A.2d 624, 626 (D.C. 1997).



"It is a familiar principle that a person is liable to another in negligence only if ...

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