CSX Transportation, Inc. v. CRH Americas, Inc., et al.

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:21-cv-00480-RJC-SCR
CSX TRANSPORTATION, INC,
Plaintiff,
v.
BONSAL AMERICAN, INC.,
OLDCASTLE BUILDING PRODUCTS,
INC., OLDCASTLE LAWN & GARDEN,
INC., ABC CORPORTATIONS 1–10, and
JOHN DOES 1–10,
Defendants.
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AMENDED ORDER1
THIS MATTER is before the Court on Defendants’ Motion for Summary
Judgement, (Doc. No. 66), Plaintiff’s Motion for Partial Summary Judgment, (Doc.
No. 69), Plaintiff’s Motions to Strike, (Doc. Nos. 77, 79), Defendants’ Motions to
Strike, (Doc. Nos. 64, 67, 72, 74), the parties’ Consent Motion to Continue (Doc. No.
123). For the reasons explained below, Defendants’ Motion for Summary Judgment
is GRANTED IN PART, DENIED IN PART, and DENIED IN PART AS MOOT.
Plaintiff’s Motion for Partial Summary Judgment is GRANTED IN PART and
DENIED IN PART. Defendants’ Motion to Strike Mazzanti testimony, (Doc. No. 67),
is DENIED AS MOOT. Plaintiff’s and Defendants’ remaining pending Motions to
Strike are DENIED WITHOUT PREJUDICE to the parties’ right to renew. The
1 This Amended Order is issued solely to correct typographical errors on page 49 in
the Court’s prior order and in no way changes the substance of the Court’s ruling on
the matter.
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parties’ Consent Motion to Continue (Doc. No. 123) is GRANTED, and the Court will
schedule a pre-trial conference to address setting a new trial date.
I. BACKGROUND
In late August 2018, off the west coast of Africa, a storm emerged, gathering
strength as it moved across the Atlantic Ocean. As it approached the United States,
it became the hurricane that we know as Florence. When Hurricane Florence hit
landfall in North Carolina, it created havoc wherever it went. Governor Roy Cooper
would declare a state of emergency, and President Trump would follow with a
declaration of a national emergency.
In the morning hours of September 14, 2018, Florence made landfall as a
category one hurricane. Within days, a CSX freight train derailed on the Oldcastle
sand and gravel mine property situated off Highway 74 near Lilesville in Anson
County, North Carolina.
A subsequent tempest arose, a legal one, in which the parties to this litigation
attempted to sort out vexing issues associated with that crash, such as who was to
blame, what should or should not have been done, whether state or federal laws apply
or preempt some or all the claims and defenses, the proper measure of damages, and
assorted other issues addressed below.
A. The Parties
Plaintiff CSX is a Class 1 railroad providing interstate freight transportation
services subject to the jurisdiction of the United States Surface Transportation Board.
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(Doc. No. 71 at 4). Plaintiff operates as a rail common carrier over approximately
20,000 route miles of track in 23 states and the District of Columbia. (Id.).
The Oldcastle Defendants own and operate the Oldcastle sand and gravel
mining and bagging plant facility located at 7772 US-74, Lilesville, North Carolina
(“Property”). (Doc. No. 1 at ¶¶ 12–13). In 2001, Defendant Oldcastle acquired the
Defendant Bonsal entities as well as control of the Property. (Doc. No. 71-A; Barnhill
Dep. at 10:15–11:3).
B. Oldcastle’s Property
The Property’s relevant mine sits between Highway 74 to the north and
Plaintiff’s right of way immediately to the south. (Doc. No. 94-9). The mine area is
known as the “plant area” for its gravel bagging plant. (Doc. No. 71-A; Barnhill Dep.
at 25:10–14, 29:5–25). Oldcastle mines material from the ground, runs it through a
sifter that cleans and separates the gravel by size, and then sells the finished product
in bags. (Id. at 29:18–25). A water recycling system encircles the plant area and works
to capture runoff, separate solids, and pump freshwater north (uphill) for reuse in the
mining operation. (Doc. No. 94-8; Doc. No. 94-6; Kiefer Dep. at 91:7–93:9, 155:4–
156:21). A silt pond or “Wash Pond” sits uphill from Plaintiff’s right of way. (Doc. No.
70-12 at 2). The exact measurements of the Wash Pond are disputed.2
2 The measurements come from a Declaration of Michael Ports, whose opinions and
testimony are subject to a pending motion to strike. (Doc. No. 72). Defendant alleges
Plaintiff filed the Ports Declaration in violation of Fed. R. Civ. Pro. 26 and 37, (Doc.
No. 102 at 4, 16), and requests the Court disregard it. (Id.). The Court has considered
the argument, finds that it goes to weight not admissibility, will excuse the
untimeliness, and will consider the affidavit.
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Along the south hillside edge of the plant area, Oldcastle placed piles of sand
or gravel bags for storage (“Stockpile Area”). (Doc. No. 71-2; Barnhill Dep. at 98:6–
20). Oldcastle occasionally used the Stockpile Area and other stockpiles to create
berms and divert water. (Doc. No. 71-2; Barnhill Dep. at 102:7–104:14). Plaintiff
alleges that Oldcastle installed a pipe under the Stockpile Area to divert water to the
main line. (Doc. No. 94-4; Lowe Dep. at 18:21–20:12). The parties dispute whether
Oldcastle intentionally diverted water over Plaintiff’s tracks. (Doc. No. 94 at 13).
Defendants reject that any sandbags at the Stockpile Area were used as a makeshift
dam on the property or that such a pipe was ever installed. (Doc. No. 70 at 4, 9; Doc.
No. 70-29 at 7–8). Oldcastle used ditches and mud pools to collect water at the bottom
of the hill. (Doc. No. 94-8; Oldcastle’s 2018 Water Management Map). Overall, the
water system encircled the Property, sending water through culverts and over land,
naturally crossing Plaintiff’s right of way. (Id.)
C. Florence
On the morning of September 14, 2018, Florence made landfall as a category
one hurricane but was downgraded to a tropical storm by 5:00 p.m. (ET). (Doc. No.
71-11; Altschule Dep. at 26:10–14). By the time of derailment, Florence had moved
significantly southwest of the derailment area and was downgraded to a tropical
depression. (Id. at 28:9–16). The parties dispute the amount of rainfall occurring
during the derailment. (Doc. No. 71 at 5 (citing Doc. No. 71-11; Altschule Dep. at
109:21–110:4); Doc. No. 85 at 2 (citing Doc. No. 85-2)). On September 16, flash flood
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warnings due to Florence remained in effect. (Doc. No. 71-19; Callaway Dep. at
127:15–20:19, 174:19–24).
D. Before the Crash
On September 14, 2018, and throughout the storm, Plaintiff consulted with
operations staff, weather consultants, and engineers to evaluate weather data to plan
operations for Florence. (Doc. No. 71 at 5; Doc. No. 71-10; Albright Dep. at 20:24–
22:24). In the early morning of September 15, Plaintiff halted X807 after members of
the crew expressed concern about the conditions. (Doc. No. 85 at 2 (citing Doc. No. 85-
3); Doc. No. 71-6; Detreville Dep. at 14:22–20:22).
On September 16, 2018, Plaintiff conducted train operations through the
Monroe Subdivision. (Doc. No. 71 at 4). Plaintiff’s train Q58315 (“Q583”) departed
from South Carolina as a “through freight” toward its ultimate destination, Hamlet,
North Carolina, approximately 180 route miles away. (Doc. No. 71 at 5; Doc. No. 71-
5; Gambrell Dep. at 11:12–12:14, 17:2–25). Train X807 was also running that day.
(Doc. No. 71 at 4).
Prior to departure, the Q583 crew received a copy of a track bulletin containing
relevant train dispatch advisories applicable at that time, including an advisory that
a flash flood warning was in effect between railroad mileposts SF 264.9 and SF 293.9,
which includes the derailment location. (Doc. No. 71-14; Cowan Dep. at 123:8–21;
Doc. No. 71-15 (CSX Track Bulletin) at 4; Doc. No. 71-5; Gambrell Dep. at 158:7–
159:7). In the afternoon, Plaintiff temporarily stopped X807 during a tornado warning
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before allowing it to proceed. (Doc. No. 71-5; Gambrell Dep. at 54:1–8; Doc. No. 71-19;
Callaway Dep. at 160:9-16).
Also on September 16, Plaintiff’s inspector Jon Cowan performed a special
inspection of the Monroe Subdivision, heading west (railroad South). (Doc. No. 71 at
8; Doc. No. 71-14; Cowan Dep. 48:17–50:7). Ordinarily, Plaintiff performs regular
inspections of the Monroe Subdivision’s main line track three times per week. (Doc.
No. 71-14; Cowan Dep. at 40:6–8). Between approximately 12:30 p.m. (ET) and 1:30
p.m. (ET), Cowan performed a special inspection of the section of the track where the
derailment occurred. (Id. at 166:24–167:6, 194:12–20). Upon completing his initial
inspection, Cowan commenced a second special track inspection until his shift
concluded but worked in the opposite direction (railroad north) behind the X807 and
Q583 trains. (Id. at 198:14–199:6).
E. The Crash
Around 5:00 p.m. (ET), X807 traveled over the future derailment site without
issue. (Doc. No. 71 at 4, Doc. No. 94 at 4). One hour later, at approximately 6:02 p.m.
(ET), Q583 traveled that same route, proceeding at approximately 19 miles per hour,
before it encountered a segment of collapsed, washed-out track bed, and derailed.
(Doc. No. 71 at 4, 11; Doc. No. 71-6; Detreville Dep. at 9:9–25). The first locomotive
containing the crew made it over the washout, but a series of locomotives and railcars
behind the lead locomotive derailed into the washout. (Doc. No. 71 at 11). Three
locomotives were destroyed, and one was damaged but is in the process of repair.
(Doc. No. 81-18; Kennedy Depo. at 5–6).
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F. CSX Employees Arrive at the Scene
On the evening of the 16th, Plaintiff’s employees arrived at the derailment site
to investigate. (Doc. No. 71 at 11; Doc. No. 71-S; Beverly Dep. 110:20–24; Doc. No. 71-
R; Callaway Dep. 73:1–7). Chad Beverly, Plaintiff’s then-Director of Track,
determined that an extensive amount of water flowed into the washed-out track
where the derailment occurred. (Doc. No. 71-11; Doc. No. 71-S; Beverly Dep. at
112:15–113:16). Beverly physically followed the water to its sources on the Oldcastle’s
adjacent, uphill sand and gravel mine. (Doc. No. 71 at 11; Doc. No. 71-S; Beverly Dep.
at 115:2–116:18; Doc. No. 71-R; Callaway Dep. 80:24-82:5). Beverly and Callaway
allegedly observed and documented water escaping from only two locations that
converged at the bottom of the hill: the Wash Pond (Northwest of the derailment site)
and the collapsed Stockpile Area (directly North of the derailment). (Doc. No. 71 at
11; Doc. No. 71-19; Callaway Dep. at 80:24–82:22 (pond), 116:21–118:1 (both), 152:9–
22 (converging)). Beverly also observed high-water marks indicating water had
receded. (Doc. No. 71-20; Beverly Dep. at 143:16–144:6).
G. Procedural History
On September 10, 2021, Plaintiff filed the present action, asserting claims of
negligence, negligence per se, res ipsa loquitor, trespass, nuisance, and unjust
enrichment. (Doc. No. 1). Plaintiff seeks damages for injuries resulting from the
alleged claims. (Id. at ¶ 24). On November 5, 2021, after a grant for an extension of
time, Defendants timely filed an answer and counterclaim, which they subsequently
amended and ultimately dismissed on July 21, 2022. (Doc. No. 26; Doc. No. 49). On
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September 9, Defendants filed a Motion for Summary Judgment and motions to strike
the opinions and testimonies of certain experts. (Doc. No. 64; Doc. No. 67; Doc. No.
66; Doc. No. 74). Also on September 9, Plaintiff filed a Motion for Partial Summary
Judgment and motions to strike experts. (Doc. No. 69; Doc. No. 72; Doc. No. 77; Doc.
No. 79). Both Plaintiff and Defendants filed timely responses and replies to all
pending motions. In its briefing, Plaintiff voluntarily dismissed its claims for res ipsa
loquitor and unjust enrichment. (Doc. No. 94 at 4 n.2). Additionally, Defendants
expressed their intent to withdraw one of their pending motions—the Motion to
Strike Mazzanti testimony. (Doc. No. 102 at 18). On December 19, 2023, the Court
held oral arguments regarding the motions for summary judgment. (Doc. No. 110).
Having been fully briefed and argued, these motions are now ripe for adjudication.
II. STANDARD OF REVIEW
Summary judgment shall be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A factual dispute is genuine “if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material only if it
might affect the outcome of the suit under governing law. Id. The movant has the
“initial responsibility of informing the district court of the basis for its motion, and
identifying those portions of the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,
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477 U.S. 317, 323 (1986) (internal citations omitted). “The burden on the moving
party may be discharged by ‘showing’ . . . an absence of evidence to support the
nonmoving party’s case.” Id. at 325.
Once this initial burden is met, the burden shifts to the nonmoving party. The
nonmoving party “must set forth specific facts showing that there is a genuine issue
for trial.” Id. at 322 n.3. The nonmoving party may not rely upon mere allegations
or denials of allegations in his pleadings to defeat a motion for summary judgment.
Id. at 324. Instead, “Rule 56(e) . . . requires the nonmoving party to go beyond the
pleadings and by her own affidavits, or by the depositions, answers to interrogatories,
and admissions on file, designate specific facts showing that there is a genuine issue
for trial.” Id. The nonmoving party must present sufficient evidence from which “a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S.
at 248; accord Sylvia Dev. Corp. v. Calvert Cnty., Md., 48 F.3d 810, 818 (4th Cir.
1995). The Fourth Circuit has concluded that “evidence, which is inadmissible at
trial, cannot be considered on a motion for summary judgment.” Maryland Highways
Contractors Ass’n, Inc. v. State of Md., 933 F.2d 1246, 1251–52 (4th Cir. 1991) (finding
that inadmissible hearsay evidence could not be considered on a motion for summary
judgment) (citing Rohrbough v. Wyeth Laboratories, Inc., 916 F.2d 970, 973–74 n.8
(4th Cir.1990); Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir.1990); Randle v.
LaSalle Telecommunications, Inc., 876 F.2d 563, 570 n.4 (7th Cir.1989); Pink Supply
Corp. v. Hiebert, Inc., 788 F.2d 1313, 1319 (8th Cir. 1986)).
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When ruling on a summary judgment motion, a court must view the evidence
and any inferences from the evidence in the light most favorable to the nonmoving
party. Anderson, 477 U.S. at 255. “Where the record taken as a whole could not lead
a rational trier of fact to find for the nonmoving party, there is no genuine issue for
trial.” Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (citations omitted). The mere
argued existence of a factual dispute does not defeat an otherwise properly supported
motion. Anderson, 477 U.S. at 248. “If the evidence is merely colorable or is not
significantly probative” such that a jury could not return a verdict for the other party,
summary judgment is appropriate. Id. at 249–50 (cleaned up).
III. DISCUSSION
A. Defendants’ Motion for Summary Judgment
In addressing Defendants’ Motion for Summary Judgment, the Court takes the
facts in the light most favorable to the nonmovant, Plaintiff CSX. Defendants move
for summary judgment as to all of Plaintiff’s claims for negligence, trespass, nuisance,
and negligence per se. (Doc. No. 66 at 1–2).3 Further, Defendants also argue that
Plaintiff deploys an improper measure of damages and seeks summary judgment on
that issue. Plaintiff responds that when all inferences are drawn in its favor, genuine
issues of material fact exist as to evidence of flooding and erosion on Defendants’
3 As stated earlier, Plaintiff voluntarily dismissed its claims of res ipsa loquitor
(Count V) and unjust enrichment (Count VI) in its response, and the Court will not
consider them. (Doc. No. 94 at 4 n.2). Defendants’ Motion for Summary Judgment
regarding Counts V and VI is denied as moot.
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property, Defendants’ intentional acts that imperiled the tracks downstream, and the
issue of damages, (Doc. 94 at 26).
At the outset, as this Court sits in diversity jurisdiction, it will apply the
substantive law of North Carolina. Kingsley v. Brenda & Gene Lummus, Inc., No.
1:11CV32, 2012 WL 727091, at *9 (W.D.N.C. Mar. 6, 2012) (citing Erie R.R. Co. v.
Tompkins, 304 U.S. 64, 78 (1938)).
1. Negligence
“To prove negligence, a plaintiff must prove that “(1) defendant failed to
exercise due care in the performance of some legal duty owed to plaintiff under the
circumstances; and (2) the negligent breach of such duty was the proximate cause of
the injury.” Id. (citing Whisnant v. Carolina Farm Credit, 204 N.C. App. 84, 93–94,
693 S.E.2d 149, 156 (2010); see Ward v. Carmona, 368 N.C. 35, 37, 770 S.E.2d 70, 72
(2015); Bridges v. Parrish, 366 N.C. 539, 541, 742 S.E.2d 794, 796 (2013); Fussell v.
N.C. Farm Bureau Mut. Ins. Co., 364 N.C. 222, 226, 695 S.E.2d 437, 440 (2010)). “The
law imposes upon every person who enters upon an active course of conduct the
positive duty to exercise ordinary care to protect others from harm[] and calls a
violation of that duty negligence.” Fussell, 364 N.C. at 226, 695 S.E.2d at 440 (quoting
Council v. Dickerson’s, Inc., 233 N.C. 472, 474, 64 S.E.2d 551, 553 (1951)).
“Negligence is not presumed from the mere fact of injury.” Stoltz v. Burton, 69
N.C. App. 231, 234, 316 S.E.2d 646, 647 (1984). “Negligence is the failure to exercise
proper care in the performance of a legal duty which the defendant owed the plaintiff
under the circumstances surrounding them.” Shock v. Wells Fargo Bank, N.A., No.
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5:23-CV-466, 2024 U.S. Dist. LEXIS 37812, at *7 (E.D.N.C. Mar. 4, 2024) (citing
Dunning v. Forsyth Warehouse Co., 272 N.C. 723, 725, 158 S.E.2d 893, 895 (1968);
Moore v. Moore, 268 N.C. 110, 112, 150 S.E.2d 75, 77 (1966); Coulter v. Catawba Cnty.
Bd. of Educ., 189 N.C. App. 183, 185, 657 S.E.2d 428, 430 (2008)). “It is sufficient if
by the exercise of reasonable care[,] the defendant might have foreseen that some
injury would result from his conduct or that consequences of a generally injurious
nature might have been expected. Usually[,] the question of foreseeability is one for
the jury.” Slaughter v. Slaughter, 264 N.C. 732, 735, 142 S.E.2d 683, 686 (1965)
(citations omitted); see also Fussell, 364 N.C. at 226, 695 S.E.2d at 440.
a. Duty and Breach
Plaintiff has put forward sufficient facts from which a reasonable jury could
find Defendants had a duty to exercise reasonable care, and Defendants breached
that duty. “[W]hether a duty exists [can be] a mixed question of law and fact.”
Copeland v. Amward Homes of N.C., Inc., 269 N.C. App. 143, 150, 837 S.E.2d 903,
908 (2020) (citation omitted).
Defendants argue insufficient evidence exists to establish duty because they
were not statutorily required to inspect the Wash Pond and Stockpile area, and
Plaintiff cannot show Defendants knew or should have known of a potential breach.
Without notice, Defendants argue, no duty exists because water flow erosion can
occur quickly, without warning. (Doc. No. 70 at 9). Defendants argue its semi-annual
inspection found no observable problems, the Wash Pond never previously failed, and
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neither a routine visual check two days prior to the breach nor an inspection prior to
the storm showed any issues. (Doc. No. 70-20; Doc. No. 70-22).
The record demonstrates Defendants entered a specific course of conduct when
they created a water recycling system that impounds and diverts water throughout
their property and around Plaintiff’s right of way. In accordance with that conduct,
Defendants had a duty to operate this system with reasonable care. Liability arises
for “one who constructs and maintains a dam to impound the waters of a river or
other stream into a reservoir” if “he was negligent in the original construction or
subsequent maintenance of the dam.” Bowling v. City of Oxford, 267 N.C. 552, 558,
148 S.E.2d 624, 628 (1966) (citations omitted). “[T]he owner of a dam is not bound to
anticipate unprecedented storms or rainfalls.” Bruton v. Carolina Power & Light Co.,
217 N.C. 1, 10 (1940). “But where the negligence of the defendant in the operation of
its plant during unprecedented and unforeseeable storm or rainfall is a contributing
factor in producing injury[,] . . . the defendant is not relieved from liability.” Id.
Taking the evidence in a light most favorable to the non-moving party, it
includes, testimony from Defendants’ Plant Manager suggesting that Defendants
knew of flooding in the Wash Pond and Stockpile Area during storms, they diverted
this flooding downhill, and either intended for water to escape from the Wash Pond
or were indifferent to the path the water traveled. When the Wash Pond began
overflowing and eroding nearby roadways, Defendants allegedly installed an
additional culvert to divert water toward Plaintiff’s right of way. (Doc. No. 71-2;
Barnhill Dep. at 89:5–22; 90:11–91:3). Evidence also shows that Defendants received
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warnings to prepare for twenty inches of rain during Florence. (Doc. No. 94-20
(warning email); Doc. No. 94-14; Thompson Dep. at 93:11–94:9; Doc. No. 71-2;
Barnhill Dep. at 108:10–18). Testimony from Defendants’ employees indicates any
pre-storm “inspections” were merely the result of a quick drive around the property.
(Doc. No. 70-13 at 3–4; Doc. No. 70-13 at 7, 85:1–22; see also Doc. No. 70-26 at 3
(inspection was “probably about four days prior to the storm. Maybe a week prior to”
the storm)).
Plaintiff has put forward sufficient evidence from which a reasonable jury
could find that Defendants owed a duty of care regarding the care and maintenance
of their water filtration system, especially during a heavy storm. A reasonable jury
could rely on this same evidence to find Defendants failed to act reasonably in
operating their water management system.
b. Causation
Plaintiff sets forth sufficient evidence from which a reasonable jury could find
that Defendants’ negligence was a proximate cause of Plaintiff’s injury. “It is not
enough to establish liability if all that can be shown is that an actor was negligent.
There must be a showing or determination of proximate cause.” King v. Allred, 309
N.C. 113, 117, 305 S.E.2d 554, 557 (1983). Proximate cause
is a cause which in natural and continuous sequence, unbroken by any
new and independent cause, produced the plaintiff’s injuries, and
without which the injuries would not have occurred, and one from which
a person of ordinary prudence could have reasonably foreseen that such
a result, or consequences of a generally injurious nature, was probable
under all the facts as they existed.
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Hairston v. Alexander Tank & Equip. Co., 310 N.C. 227, 311 S.E.2d 559, 565 (N.C.
1984). “Foreseeability of injury is thus an essential element of proximate cause.”
Adams v. Mills, 312 N.C. 181, 193, 322 S.E.2d 164, 172 (1984). Foreseeability “does
not require that the actor should have been able to foresee the injury in the precise
manner in which it actually occurred.” Adams v. Mills, 312 N.C. 181, 193, 322 S.E.2d
164, 172 (1984). Whether a defendant’s negligence is a proximate cause is ordinarily
a question for the jury. Norfleet v. Hall, 204 N.C. 573, 169 S.E. 143, 145 (N.C. 1933).
Defendants point to still shots from the train’s front-view camera arguing that
they show no water moved across the tracks prior to derailment, and Plaintiff’s theory
is based entirely on speculative field observations occurring hours and days after the
derailment. (Doc. No. 70 at 4 (citing Doc. No. 71-R; Callaway Dep. 164: 1–16)).
Defendants contend the photos show a lack of matted down vegetation or erosion.
(Doc. 70 at 3, 12; Doc. No. 70-7; Doc. No. 70-8; Doc. No. 70-9 at 3, 9, 32, 33)).
Not only does the Court find the scene presented in the photograph
inconclusive, but an additional aerial photograph of the scene presents information
from which a reasonable jury could conclude that the water came from Defendant’s
property. (Doc. No. 70-4; Doc. No. 70-9 at 3, 9, 32, 33 (still shots from lead-locomotive’s
front facing camera); Doc. No. 94-4 at 14 (aerial photo of scene)). Additionally,
testimony from those who arrived shortly after the crash details their observations of
the direction and flow of water, sourcing from Defendants’ property. Thus, the Court
finds there exists a genuine issue of material fact, and Plaintiff has alleged sufficient
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facts from which a reasonable jury could find that Defendants’ alleged negligent
conduct proximately caused Plaintiff’s injury.
Because the Court finds photographs of the scene and testimony of lay
witnesses are sufficient evidence of a dispute of material fact regarding causation,
the Court need not consider, at the summary judgment stage, the expert opinions
provided by both parties. Such evidence “sets up a battle of the experts, which should
not be resolved at summary judgment.” Reyazuddin v. Montgomery Cnty., Maryland,
789 F.3d 407, 417 (4th Cir. 2015).
2. Trespass
Plaintiff argues that Defendants committed trespass when they intentionally
and/or negligently directed the release and spread of water, mud, and other debris
from its property onto Plaintiff’s right of way. (Doc. No. 1 at ¶¶ 32–36). A trespass
claim requires that (1) “plaintiff was in possession of the land at the time of the
alleged trespass;” (2) “that defendant made an unauthorized, and therefore unlawful,
entry on the land;” and (3) “that plaintiff was damaged by the alleged invasion of his
rights of possession.” Rainey v. St. Lawrence Homes, Inc., 174 N.C. App. 611, 614, 621
S.E.2d 217, 220 (2005) (quoting Jordan v. Foust Oil Co., 116 N.C. App. 155, 166, 447
S.E.2d 491, 498 (1994)). A trespass may be intentional or negligent. Id. (“[I]n the
absence of negligence, trespass to land requires that a defendant intentionally enter
onto the plaintiff’s land.); Wagner v. City of Charlotte, 269 N.C. App. 656, 672, 840
S.E.2d 799, 809 (2020). “One’s action of causing water to flow onto another’s property
can constitute such a trespass.” Shadow Group v. Heather Hills Home Owners Ass’n,
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156 N.C. App. 197, 201, 579 S.E.2d 285, 287 (citing Wilson v. McLeod Oil Co. Inc., 327
N.C. 491, 398 S.E.2d 586 (1990), reh’g denied, 328 N.C. 336, 402 S.E.2d 844 (1991)).
The parties do not dispute that Plaintiff was in possession of the right of way
at the time of the alleged invasion. Rather, Defendants argue Plaintiff cannot
establish sufficient facts to create a genuine issue of material fact that Defendants
caused water to enter Plaintiff’s property prior to derailment or had notice that such
entry of water would occur. (Doc. No. 70 at 13). Defendants argue Plaintiff fails to
show that Defendants’ entry was unlawful or that Plaintiff was damaged by
Defendants’ conduct. (Id.) For the reasons explained above, the Court finds that
Plaintiff has put forth sufficient facts from which a reasonable jury could find
Defendants either intentionally or negligently caused water to exit their property and
enter Plaintiff’s right of way.
3. Nuisance
“A nuisance is a non-trespassory invasion of the property rights of another.”
Grant v. E. I. Du Pont De Nemours & Co., Inc., No. 4:91-CV-55, 1995 WL 18239435,
at *5 (E.D.N.C. July 14, 1995), aff’d sub nom. Stancill v. E.I. Du Pont De Nemours &
Co., 91 F.3d 133 (4th Cir. 1996) (citing Watts v. Pama Mfg. Co., 256 N.C. 611, 124
S.E.2d 809 (1962)). “In order to establish a claim for nuisance, a plaintiff must show
the existence of a substantial and unreasonable interference with the use and
enjoyment of its property.” Wagner v. City of Charlotte, 269 N.C. App. 656, 670, 840
S.E.2d 799, 808 (2020) (quoting Shadow Grp., LLC v. Heather Hills Home Owners
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Ass’n, 156 N.C. App. 197, 200, 579 S.E.2d 285, 287 (2003)); see also Jordan v. Foust
Oil Co., 116 N.C. App. 155, 167, 447 S.E.2d 491, 498 (1994).
However, when damages arise from a “‘single physical injury, instead of an
on-going injury[,]’ the action sounds in negligence and not nuisance.” Wagner, 269
N.C. App. at 671, 840 S.E.2d at 809 (first quoting Walden v. Morgan, 179 N.C. App.
673, 683, 635 S.E.2d 616, 624 (2006); and then citing Boldridge v. Construction Co.,
250 N.C. 199, 203, 108 S.E.2d 215, 218 (1959)).
Defendants argue Plaintiff cannot provide sufficient evidence for its nuisance
claim for the same reason it puts forth in its other arguments—Plaintiff cannot show
water came from Defendants’ property to interfere with Plaintiff’s use and enjoyment
of their right of way. (Doc. No. 70 at 13–14). Additionally, Defendants argue that
Plaintiff’s nuisance claim should be dismissed because the alleged damages result
from a single instance of flooding rather than an on-going, recurrent injury. (Id. at
14–16).
Defendants rely on Wagner v. City of Charlotte, 269 N.C. App. 656, 840 S.E.2d
799 (2020). In Wagner, a city water main pipe burst and damaged plaintiff’s property.
The court affirmed a grant of summary judgment to the city on the nuisance claim
because the flooding arose from a single instance rather than an ongoing situation.
Id. at 671, 840 S.E.2d at 809. The court of appeals distinguishes this from Hughes,
where a failure in a city’s sewage system led to recurring overflow of sewage into
plaintiff’s home. Id. Plaintiff attempts to argue that the cause of the injury must be
recurrent, not the injury itself. (Doc. No. 70 at 20). But that is not the law. Where a
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claim arises from a single injury, the claim sounds in negligence, not nuisance. The
record, viewed in the light most favorable to Plaintiff fails to support a reasonable
finding of a recurring injury. Thus, summary judgment is warranted.
4. Negligence Per Se
“The general rule in North Carolina is that the violation of a public safety
statute constitutes negligence per se.” Stein v. Asheville City Bd. Of Educ., 360 N.C.
321, 326, 626 S.E.2d 263, 266 (2006) (cleaned up) (quoting Byers v. Standard Concrete
Prods. Co., 268 N.C. 518, 521, 151 S.E.2d 38, 40 (1966)). “Even when a defendant
violates a public safety statute, the plaintiff is not entitled to damages unless the
plaintiff belongs to the class of persons intended to be protected by the statute, and
the statutory violation is a proximate cause of the plaintiff’s injury.” Stein v. Asheville
City Bd. Of Educ., 360 N.C. 321, 326, 626 S.E.2d 263, 266 (2006) (cleaned up) (first
quoting Baldwin v. GTE S., Inc., 335 N.C. 544, 546, 439 S.E.2d 108, 109 (1994); and
then quoting Hart v. Ivey, 332 N.C. 299, 303, 420 S.E.2d 174, 177 (1992)).
Here, Plaintiff alleges that Defendants are negligent per se for violating the
Dam Safety Law of 1967. (Doc. No. 1 at 8). Defendants counter that the law is
inapplicable, but even if it were, Plaintiff cannot demonstrate Defendants’ actual or
constructive knowledge of the violation of a public safety statute. (Doc. No. 70 at 7).
For the same reasons discussed regarding Defendants’ alleged negligence, Plaintiff
puts forth sufficient evidence that Defendant “knew or should have known” of a
violation. Lamm v. Bissette Realty, Inc., 327 N.C. 412, 416 (1990). Defendants do not
argue proximate cause or whether the Dam Safety Law is a public safety statute.
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Thus, the Court will consider only the argument before it—whether the Wash Pond
and Stockpile Area are under the statute’s jurisdiction.
a. The Dam Safety Law (N.C. Gen. Stat. §§ 143-215.23–143.215.37)
The Dam Safety Law “provide[s] for the certification and inspection of dams in
the interest of public health, safety, and welfare.” N.C. Gen. Stat. § 143-215.24. The
Dam Safety Law is regulated and enforced by the North Carolina Department of
Environmental Quality (“NCDEQ”). The Dam Safety Law defines a dam as “[a]
structure and appurtenant works erected to impound or divert water.” Id. at
§ 143-215.25(1). The NCDEQ regulations separate dams into one of three levels:
Class A (low hazard); Class B (intermediate hazard); and Class C (high hazard). 15A
N.C. Admin. Code 2K.0105 (2018). A high hazard dam “includes dams located where
failure will likely cause loss of life or serious damage to homes, industrial and
commercial buildings, important public utilities, primary highways, or major
railroads.” Id. at 2K.0105(a)(3) (2018).
At the time of derailment, the Dam Safety Law exempted from its coverage
any dam that “is less than 25 feet in height or that has an impoundment capacity of
less than 50 acre-feet, unless the Department determines that failure of the dam
could result in loss of human life or significant damage to property below the dam.”
N.C. Gen. Stat. § 143-215.25A(a)(6) (2018). Prior to 2011, the Dam Safety Law
exempted dams that are “less than 15 feet in height or that [have] an impoundment
capacity of less than 10 acre-feet.” N.C. Gen. Stat. § 143-215.25A(a)(6) (2010). Dam
height “shall be measured from the highest point on the crest of the dam to the lowest
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point on the downstream toe.” 15A N.C. Admin. Code 2K.0223(a) (2017). Accordingly,
“[t]he total storage capacity of a dam shall be that volume which would be impounded
at the elevation of the highest point on the crest of the dam.” Id. at 2K.0223(b).
b. The Wash Pond
Defendants argue the Wash Pond is exempt from the Dam Safety Law because
its size qualifies it for an exemption, no evidence shows otherwise, and the NCDEQ
allegedly knew about the Wash Pond and did not consider it a hazard within its
jurisdiction. (Doc. No. 70 at 16–17; Doc. No. 70-36 at 4; Doc. No. 71-2; Barnhill Dep.
at 97:4–17; Doc. No. 70-38 at 4).
Plaintiff disputes the size of the dam and surface area of its impoundment;
argues that its size should have been calculated differently to include the North
Ponds; this different calculation would not exempt it from coverage under the statute;
and it is a high hazard dam that may endanger a major railroad, which is never
exempt from regulation.4 (15A N.C. Admin. Code 2K.0105; Doc. No. 94 at 23–25; Doc.
No. 94-13 (Ports Affidavit5) at 3–4; Doc. No. 94-9 (Mining Map); Doc. No. 94-16;
Joyner Dep. at 128:1–13; Doc. No. 94-6 at 141). Further, Plaintiffs argues that even
if the Wash Pond qualified for an exemption under the statute, Defendants still
should have engaged an engineer to evaluate the dam in light of relevant hazards.
(Doc. No. 94 at 25; Doc. No. 94-16; Joyner Dep. at 158:20-159:4).
4 Plaintiff misstates the law. N.C. Gen. Stat. § 143-215.25A provides eight distinct
exemptions to the Dam Safety Law. Id. at § 143-215.25A(a). Nothing in the plain
language of the statute indicates that all exemptions categorically do not apply to
high-hazard dams.
5 See supra text accompanying note 1.
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Plaintiff has alleged sufficient facts from which a reasonable jury could find
that the Wash Pond’s size removes it from any exemption under the Dam Safety Law.
Melissa Joyner, Defendants’ witness from the NCDEQ, read during her deposition an
email chain stating that the NCDEQ was aware of the Wash Pond and did not
consider it a jurisdictional dam, but Ms. Joyner also stated she does not work in such
classifications and does not have an opinion as to the size or volume of the Wash
Pond. (Doc. No. 94-16; Joyner Dep. at 104:14–106:8, 163:21–164:2). Alternatively,
Plaintiff has offered a Declaration from Michael Ports calculating the size of the Wash
Pond as larger than what is covered by the exemption. There remains a question of
fact for the jury as to whether Defendants’ Wash Pond qualifies for an exemption
under N.C. Gen. Stat. § 143-215.25A. Defendants’ Motion for Summary Judgement
regarding Count IV is denied as to the Wash Pond.
c. The Stockpile Area
Defendants argue the Stockpile Area is exempt from the Dam Safety Law
because it is not an impoundment, the sandbags were “never there to divert water;”
it is less than 25 feet high; there is no evidence it had an impoundment capacity of
more than 50 acre-feet; and no evidence shows the NCDEQ determined it to be a high
hazard dam under N.C. Gen. Stat. § 143-215.25A(a)(6) that “could result in loss of
human loss or significant damage to property below the dam.” (Doc. No. 70 at 17; Doc.
No. 70-42 at 3; Doc. No. 70-44 at 3; Doc. No. 70-34 at 5).
Plaintiff has put forth sufficient evidence from which a reasonable jury could
conclude that the Stockpile Area impounded water, and this impoundment could have
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qualified as a high hazard dam. Defendant alleges the Stockpile Area was no higher
than five to ten feet at the time of derailment, however, it would not be exempted if
it were classified as a high hazard dam. N.C. Gen. Stat. § 143-215.25A (a dam “that
is less than twenty feet in height” is exempted where it “is not a high hazard dam”).
The Court finds that a genuine issues of material fact exist as to whether the
Stockpile Area impounded water, and further, whether it was exempted from
jurisdiction under the Dam Safety Law. Defendants’ Motion for Summary Judgment
regarding Count IV is denied as to the Stockpiles.
5. Damages
Plaintiff seeks $8,092,227.90 for the destroyed locomotives—$2,697,409.30 per
locomotive. (Doc. No. 111-5; Doc. No. 81-18 (Kennedy Depo.) at 4–5).6 Defendants
argue that Plaintiff’s measure of damages for its three destroyed locomotives and one
partially damaged locomotive are improper. (Doc. No. 70 at 18). Specifically, they
argue the Court should limit damages for the destroyed locomotives to the FMV
immediately prior to the derailment less the salvage value because a market for
locomotives exists, and Plaintiff’s method of calculating damages would result in a
windfall for Plaintiff. Additionally, they argue the Court should limit damages for the
partially damaged locomotive to cost of repairs. (Id. at 18–19; Doc. No. 70-15 (Railroad
Appraisal Associates Report) at 14)). Defendants point to the opinion of Plaintiff’s
6 Deposition testimony gives the amount of $8,245,265.52. The Defendants supply
the amount of $8,092,227.90.
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damages expert, Patrick Mazzanti7, who opined that the total FMV of the four
locomotives immediately prior to the derailment amounted to $2,150,000.00.8 (Doc.
No. 70-15 (Railroad Appraisal Associates Report) at 5, 8).
Plaintiff argues the jury should determine whether a market exists, and
Plaintiff should be permitted to present other competent evidence of its damages for
the jury to use in determining FMV. Further, Plaintiff does not dispute that the cost
of repairs is the proper measure, rather it claims that the repairs of the CSX 370 are
ongoing, more information will develop in advance of trial, and the record will be
supplemented accordingly. (Doc. No. 94 at 26).
“[T]he measure of damages used should further the purpose of awarding
damages, which is to restore the victim to his original condition, to give back to him
that which was lost as far as it may be done by compensation in money.” Shera v. N.C.
State Univ. Veterinary Teaching Hosp., 219 N.C. App. 117, 126, 723 S.E.2d 352, 357
(quoting Belcher v. Fleetwood Enters., Inc., 162 N.C. App. 80, 85, 590 S.E.2d 15, 19
(2004) (emphasis in original)). In North Carolina, “the measure of damage for injury
to personal property is the difference between the market value of the property
immediately before the injury and the market value immediately after the injury” at
the time and place of injury. U.S. Fid. & Guar. Co. v. P. & F. Motor Express, 220 N.C.
7 Defendant says it intends to withdraw its Motion to Strike Mazzanti testimony.
The Court denies the motion to strike and will not address arguments regarding his
testimony. (Doc. No. 102 at 18).
8 Mazzanti found the FMV of the CSX 370 (built in 1998) was $450,000.00, the CSX
5411 (built in 2007) was $850,000.00, the CSX 6001 (built in 1972) was $450,000.00,
and the CSX 6092 (built in 1975) was $400,000.00. (Doc. No. 70-15 (Railroad
Appraisal Associates Report) at 5, 8).
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721, 18 S.E.2d 116, 117 (1942) (citation omitted); State v. Maynard, 79 N.C. App. 451,
452, 339 S.E.2d 666, 667 (1986). FMV is often defined as “the amount which would
be agreed upon as a fair price by an owner who wishes to sell but is not obliged to do
so, and a buyer who wishes to buy but is not compelled to so.” Huff v. Thornton, 287
N.C. 1, 12, 213 S.E.2d 198, 206 (1975).
The North Carolina Supreme Court has recognized that a fair market value
calculation based solely on “the market value immediately before the injury and the
market value immediately afterwards” is “often too remote from the factual pattern
of the injury and its compensable items to reflect the fairness and justice which the
administration of the law presupposes.” Therefore, “it is applied with caution, and
often with modifications designed to relax its rigidity and fit it to the facts of the
particular case.” Carolina Power & Light Co. v. Paul, 261 N.C. 710, 711, 136 S.E.2d
103, 104 (1964).
A jury may consider a variety of evidence when determining fair market value.
Southern Watch Supply Co. v. Regal Chrysler-Plymouth, Inc., 82 N.C. App. 21, 30
(1986). The jury “should fairly weigh and consider all of the evidence the parties have
presented to [it].” Huff, 287 N.C. at 12. (affirming jury instructions on FMV that
allowed consideration of evidence of damage before and after injury, sale price by a
willing buyer and seller, costs of repairing the house, and costs of rebuilding the
house). A jury is “not compelled to accept . . . the precise amounts suggested by any
of the witnesses. Id.
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Further, “if there is no market, there can be no market value.” Carolina Power
& Light Co. v. Paul, 261 N.C. 710, 711 (1964). This often arises “when the property is
custom made or has been destroyed, [and] courts often determine its value based on
the amount paid for the property in the most recent transaction for it” Innovative
Healing Sys., Inc. v. XPI Servs., LLC, No. 3:21CV345, 2023 WL 1156997, at *8
(W.D.N.C. Jan. 30, 2023) (quoting Weener Plastics, Inc. v. HNH Packaging, LLC, 590
F. Supp. 2d 760, 766 (E.D.N.C. 2008)). Replacement cost is an appropriate measure
of damages for destroyed property “when no market exists for it.” Id. (citation
omitted); Appeal of AMP, Inc., 287 N.C. 547, 572 (1975) (listing factors for
consideration in determining damages for destroyed property with no market,
including “[c]ost of replacement or repair”)).
Regarding damaged, but not destroyed, goods, the Supreme Court of North
Carolina has held that cost of repairs is the appropriate measure of the extent of the
damage. Carolina Power & Light Co. v. Paul, 261 N.C. 710, 711–12, 136 S.E.2d 103,
104 (1964). The supreme court cited with approval Central Illinois Light Co. v.
Stenzel, which held “[w]here property had been damaged and can be repaired, true
measure of damages is reasonable cost of repairs, providing that such is less than
value of property before damage.” 44 Ill. App. 2d 388, 394, 195 N.E.2d 207, 210 (1963)
(citation omitted). “The purpose of the proviso is to prevent the owner of property
from profiting by the injury.” Carolina Power & Light Co., 261 N.C. at 712, 136 S.E.2d
at 105.
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A question of fact remains as to whether a market exists for Plaintiff’s
locomotives. Testimony from one expert of a fair market value calculation is
insufficient to establish a market for damages as a matter of law. The jury may
consider additional evidence regarding the destroyed locomotives to determine
whether a market exists, and if so, what constitutes a proper calculation of a fair
market value based on the unique circumstances of the case. Here, a jury may find
that an exact FMV calculation does not make Plaintiff whole. Thus, the Court will
not limit Plaintiff’s damages for the destroyed locomotives to a strict calculation. The
proper measure of damages for the damaged locomotive is cost of repairs, but because
repairs are ongoing, the Court denies Defendants’ request to declare an exact amount
or limit what evidence may be presented regarding repairs.
B. Plaintiff’s Motion for Partial Summary Judgment
In addressing Plaintiff’s Motion for Summary Judgment, the Court takes the
facts in the light most favorable to the nonmovant, Defendants. Plaintiff moves for
summary judgment as to Defendants’ affirmative defense of contributory negligence,
arguing that the defense is premised on the idea that Plaintiff “should have
suspended train operations or should have altered train schedules and inspection
practices so as to inspect directly in front of trains X807 and Q583.” (Doc. No. 71 at
13). Plaintiff argues this theory is an “unabashed attempt[]” at regulating rail
operations via state tort law, which is preempted by federal law, specifically, the
Interstate Commerce Commission Termination Act (“ICCTA”) and the Federal
Railroad Safety Act (“FRSA”). (Id.)
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Plaintiff asserts that to the extent Defendants’ contributory negligence defense
is based on attempts to “regulate” the railroad, it is expressly preempted by the
ICCTA. To the extent Defendants’ affirmative defense is based on attempts to impose
a standard of care inconsistent with federal regulations and Plaintiff’s own rules,
such attempts are preempted by the FRSA. (Doc. No. at 13). Plaintiff’s motion does
not ask the Court to consider the merits of Defendants’ defense, rather, Plaintiff
solely argues for preemption.9
In response, Defendants narrow their defense and argue that Plaintiff was
contributorily negligent for six primary reasons:
1. Plaintiff failed to add a culvert at the derailment site (Milepost 270.4);
2. Plaintiff failed to conduct studies of expected water flow in the area of
derailment;
3. Plaintiff failed to conduct a special track inspection(s) before the Q583 train
traversed the derailment site;
4. Plaintiff’s crew on the X807 train failed to report the unsafe conditions at
Gravelton tracks and at the derailment site;
5. Plaintiff failed to take the safe course by ordering the Q583 train to proceed
on September 16, 2018; and
9 Plaintiff discusses the merits of the defense in its reply. (Doc. No. 102). But the
Court will consider the motion as presented and look solely at preemption.
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6. Plaintiff failed to take the safe course by not ordering the train to either
suspend operations or remain stopped at Lilesville until it performed an
inspection of the Gravelton tracks and derailment site. (Doc. No. 85 at 2).
The Court will address preemption for each of Defendants’ arguments.
“Where a state statute conflicts with, or frustrates, federal law, the former
must give way.” CSX Transp. v. Easterwood, 507 U.S. 658, 663 (1993) (citing U. S.
Const., Art. VI, cl. 2; Maryland v. Louisiana, 451 U.S. 725, 746, 68 L. Ed. 2d 576, 101
S. Ct. 2114 (1981)). “[F]ederal law can preempt state law expressly or by implication
and . . . ‘the purpose of Congress is the ultimate touchstone in every pre-emption
case.’” PCS Phosphate Co. v. Norfolk Southern Corp., 559 F.3d 212, 217 (4th Cir. 2009)
(citing Altria Group, Inc. v. Good, 129 S. Ct. 538, 543, 172 L. Ed. 2d. 398 (2008)). The
party claiming preemption bears the burden of showing that the claim or defense is
preempted by federal law. Great-W. Life & Annuity Ins. Co. v. Info. Sys. & Networks
Corp., 523 F.3d 266, 270 (4th Cir. 2008). When a statute “contains an express pre-
emption clause, we do not invoke any presumption against pre-emption but instead
focus on the plain wording of the clause, which necessarily contains the best evidence
of Congress’ pre-emptive intent.” Puerto Rico v. Franklin California Tax-Free Tr., 579
U.S. 115, 125, 136 S. Ct. 1938, 1946, 195 L. Ed. 2d 298 (2016) (cleaned up).
The ICCTA grants the Surface Transportation Board exclusive jurisdiction
over:
(1) transportation by rail carriers, and the remedies provided in this part
. . . with respect to rates, classifications, rules (including car service,
interchange, and other operating rules), practices, routes, services, and
facilities of such carriers; and (2) the construction, acquisition,
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operation, abandonment, or discontinuance of spur, industrial, team,
switching, or side tracks, or facilities, even if the tracks are located, or
intended to be located, entirely in one State.
49 U.S.C. § 10501(b). The ICCTA expressly provides that “the remedies provided
under [the ICCTA] with respect to regulation of rail transportation are exclusive and
preempt the remedies provided under Federal or State law.” Id. This is also referred
to as “express preemption” under the ICCTA. “Transportation” is defined to include:
(A) a locomotive, car, vehicle, vessel, warehouse, wharf, pier, dock, yard,
property, facility, instrumentality, or equipment of any kind related to
the movement of passengers or property, or both, by rail, regardless of
ownership or an agreement concerning use; and (B) services related to
that movement, including receipt, delivery, elevation, transfer in
transit, refrigeration, icing, ventilation, storage, handling, and
interchange of passengers and property[.]
49 U.S.C. § 10102(9).
In Edwards v. CSX Transportation, Inc., the Fourth Circuit stated that “[w]ith
respect to express preemption, Congress narrowly tailored the [ICCTA] to displace
only regulation,—that is, those laws and actions that may reasonably be said to have
the effect of managing or governing rail transportation.” Edwards v. CSX Transp.,
Inc., 983 F.3d 112, 121 (4th Cir. 2020) (cleaned up); Skidmore v. Norfolk S. Ry. Co., 1
F.4th 206, 213 (4th Cir. 2021). “‘Those state or local laws that have a more remote or
incidental impact on rail transportation’—think laws of general applicability, like
local fire or plumbing codes—are not expressly preempted.” Id. (citations omitted).
The Fourth Circuit noted that many circuit courts “acknowledge that the Act’s
preemptive reach can encompass common-law tort actions, in addition to statutes and
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ordinances.” Id. (citations omitted). But the court noted that “not all common-law
claims against railroads are preempted.” Id. at 122 (emphasis in original).
In a negligence action, a defense of contributory or comparative negligence
brought against a plaintiff railroad could effectively “regulate” the plaintiff railroad
by imposing a common-law duty on the plaintiff railroad from which the jury would
assess the railroad’s negligence. See, e.g., PCS Phosphate Co., 559 F.3d at 218 (“The
STB’s interpretation of [the express preemption clause] focuses on the regulatory
nature of the remedies preempted.”); Barreto v. Titan Transp. Servs. LLC, No.
3:22CV650, 2023 WL 6210763, at *3 (E.D. Va. Sept. 20, 2023). (finding that the
ICCTA expressly preempts common-law tort claims that “seek to regulate the day-to-
day operations at the railroad facility”). Thus, in determining whether a state
common-law tort action is expressly preempted under the ICCTA, the question is
whether the common-law duty imposed, either in a claim or an affirmative defense,
“may reasonably be said to have the effect of managing or governing rail
transportation.” Edwards, 983 F.3d at 121 (citations omitted).10
A primary example of a preempted attempt to regulate rail transportation
occurs “where that liability arises from a railroad’s economic decisions such as those
10 State common law “actions may be impliedly preempted if, in application, they
have the effect of unreasonably interfer[ing]’ with railroad transportation.”
Edwards, 983 F.3d at 121 (emphasis in original). When determining “whether the
action constitutes an ‘unreasonable interference,’” the Court must make a factual
assessment of the effect of providing the claimed remedy.” PCS Phosphate Co., 559
F.3d at 221. Nevertheless, Plaintiff is not arguing for implied preemption. (Doc. No.
110 at 5:11–13 (“There is also an implied preemption that applies under ICCTA.
That’s not what we are arguing today. We’re arguing express preemption.”)).
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pertaining to train length, speed or scheduling.” PCS Phosphate Co. v. Norfolk
Southern Corp., 559 F.3d 212, 220 (4th Cir. 2009) (citation omitted); Franks Inv. Co.
LLC v. Union Pac. R.R. Co., 593 F.3d 404, 411 (5th Cir. 2010) (“[A] tort suit that
attempts to mandate when trains can use tracks and stop on them is attempting to
manage or govern rail transportation in a direct way.”).
Plaintiff contends that the ICCTA preempts Defendants’ defense because
central to the defense is the argument that Plaintiff should have ceased or altered
operations. Specifically, Plaintiff argues Defendants seek to control special
inspections, which in turn would alter the timing and coordination of trains, and
ultimately regulate Plaintiff’s railroad operations. (Doc. No. 70 at 17).
The FRSA preempts imposing a standard of care inconsistent with federal
regulations. “Congress enacted the FRSA ‘to promote safety in every area of railroad
operations and reduce railroad-related accidents and incidents.’” Harris v. Norfolk S.
Ry. Co., 784 F.3d 954, 957 (4th Cir. 2015) (quoting 49 U.S.C. § 20101).
The FRSA preempts state law where a regulation or order “cover[s] the subject matter
of the State requirement.” 49 U.S.C. § 20106(a)(2). A party asserting preemption
“must establish more than that [the regulations] ‘touch upon’ or ‘relate to’ that subject
matter.” CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993). The FRSA
preemption applies where “the FRSA regulation substantially subsumes the subject
matter of the relevant state law.” Id.
Even when the FRSA “substantially subsumes” certain subject matter,
preemption does not apply in some circumstances:
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• First, the FRSA preemption does not apply to a common-law claim that
a party “‘has failed to comply with the Federal standard of care
established by a regulation or order issued by the Secretary of
Transportation . . . covering’ laws, regulations, and orders related to
railroad safety.” Harris, 784 F.3d at 962 (quoting 49 U.S.C. §
20106(b)(1)(A)).
• Second, it does not apply when the party “has failed to comply with its
own plan, rule, or standard that it created pursuant to a regulation or
order issued by either of the Secretaries.” 49 U.S.C. § 20106(b)(1)(B).
• Third, the FRSA preemption does not apply “when the law, regulation,
or order is necessary to eliminate or reduce an essentially local safety
or security hazard; is not incompatible with a law, regulation, or order
of the United States Government; and does not unreasonably burden
interstate commerce.” 49 U.S.C. § 20106(a)(2).
1. Culverts
Defendants argue that Plaintiff was contributorily negligent for failing to add
a culvert at the area of derailment. (Doc. No. 85 at 11). Plaintiff urges that express
preemption under the ICCTA applies to the extent that Defendants’ theory of
contributory negligence attempts to regulate the railroad. (Doc. No. 70 at 15–18).
Defendants responded to Plaintiff’s briefing with their six theories of contributory
negligence and argued generally that the ICCTA does not preempt its arguments. In
oral argument at the summary judgment hearing, Plaintiff argued that Defendants’
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theory dealt with track construction and as such, should be preempted under the
ICCTA. (Doc. No. 110 at 13:17–14:8).
In Edwards, the Fourth Circuit preempted tort claims based on, among other
theories, a “fail[ure] to install a floodgate (or similar permanent fix).” Edwards v. CSX
Transp., Inc., 983 F.3d 112, 120 (4th Cir. 2020). The Fourth Circuit found this
“squarely implicate[s] questions . . . that Congress has reserved for the [Surface
Transportation Board].” Id. (citation omitted). Establishing a standard of care that
affects a railway’s construction and operation, like what materials a railway uses or
when a railway must install permanent structures, is regulatory, and thus,
preempted. Id. at 123; see also Skidmore, 1 F.4th at 215 (finding the ICCTA expressly
preempts a quiet title action regarding a right of way a defendant railway used for
drainage because the railway’s need to ensure proper drainage is essential to the
maintenance of the tracks, and preventing its access would amount to a regulation).
Thus, Defendants’ contributory negligence defense is preempted under the ICCTA to
the extent that it is based on Plaintiff’s failure to install culverts within the railway.
Because the Court finds this theory of contributory negligence based on a
failure to install culverts is preempted under the ICCTA, the Court need not address
Plaintiff’s argument for preemption under the FRSA.
2. Hydraulic Studies
In response to Plaintiff’s general preemption argument, Defendants argue that
Plaintiff failed to conduct any flood or hydraulic studies or investigations at any point
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to determine the expected waterflow for the area of derailment. (Doc. No. 85 at 11).
ICCTA
Although closely related to the addition of culverts, the Court finds that a
contributory negligence defense based on a failure to conduct hydraulic studies is not
preempted under the ICCTA. The parties failed to specifically argue why such studies
should or should not be expressly preempted under the ICCTA. Nevertheless, the
Court finds that unlike imposing a duty to physically install culverts on a railway,
imposing a duty to conduct studies related to track flooding does not directly regulate,
manage, or govern the actual railway. Rather, such a duty seeks to ensure the
railway’s awareness of the conditions surrounding its tracks. As such, the Court finds
this theory is not preempted under the ICCTA.
d. FRSA
In its response to Plaintiff’s motion, Defendants specifically argue that under
the FRSA preemption analysis, federal regulations do not substantially subsume the
area of hydraulic or flood studies. (Doc. No. 85 at 11). Defendants contend only one
FRA regulation addresses drainage, and one regulation is insufficient to
“substantially subsume” the area of drainage and flood studies. See Gallo v. Union
Pac. R.R. Co., 372 F. Supp. 3d 470, 484 (“Although Section 213.33 mentions drainage,
it merely touches upon, rather than substantially subsumes, the subject matter”).
The Court agrees.
Section 213.33 provides that “[e]ach drainage or other water carrying facility
under or immediately adjacent to the roadbed shall be maintained and kept free of
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obstruction, to accommodate expected water flow for the area concerned.” 49 C.F.R. §
213.33. One other regulation mentions drainage. Id. at § 213.103(c) (“[A]ll track shall
be supported by material which will [p]rovide adequate drainage for the track.”). Two
regulations do not “substantially subsume” the area of drainage. Thus, Defendants’
allegations of Plaintiff’s contributory negligence for failing to conduct flood or
hydraulic studies are not preempted by the FRSA.
3. Failure to Conduct Special Track Inspections
a. ICCTA
Plaintiff argues that a contributory negligence defense based on a failure to
inspect is preempted by the ICCTA because it serves as a regulation for when trains
should stop on the tracks, which is an “unabashed attempt[] to regulate how the
railroad operates using state tort law principles.” (Doc. No. 71 at 13). Plaintiff relies
on testimony from expert Pagels11 to argue that additional special inspections could
result in a larger effect on networked train operations. (Doc. No. 71 at 17 (citing Doc.
No. 71-7; Pagels Dep. at 145:140:25–143:15)).
Defendants respond by arguing that executing additional special inspections
would not amount to an unreasonable burden on Plaintiff, so it would not be
preempted under the ICCTA. But the analysis for express preemption does not
involve looking at the reasonableness of the conduct at issue—such an inquiry falls
under implied preemption.
11 Plaintiff has a pending motion to strike Pagels’ opinions and testimony, (Doc. No.
78), but the fact Plaintiff asserts here does not go to the heart of the motion.
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The Court finds the ICCTA does not expressly preempt a defense of
contributory negligence based on failure to conduct special inspections because
special inspections deal with safety and do not directly regulate the maintenance of
tracks or when a train starts or stops. Sigman v. CSX Corp., No. 3:15-13328, 2016
U.S. Dist. LEXIS 60718, at *77 (S.D. W. Va. May 5, 2016) (noting claims based on a
failure to inspect are not preempted by the ICCTA “[b]ecause those claims relate to
rail safety, and do not amount to the economic regulation of railroads”). Thus, this
theory of contributory negligence is not preempted under the ICCTA.
a. FRSA
The Court agrees with Plaintiff that the FRSA preempts a contributory
negligence defense based on failure to conduct special inspections because
promulgated regulations govern and subsume the area of track maintenance and
inspections. (Doc. No. 71 at 18). The numerous sections regulating inspections
indicate that federal regulations substantially subsume the subject matter of
inspections. 49 C.F.R. §§ 213.231–213.241; see In re Derailment Cases, 416 F.3d 787,
794 (8th Cir. 2005) (“[A] regulatory framework need not impose bureaucratic
micromanagement in order to substantially subsume a particular subject matter.”);
Fed. Ins. Co. v. Burlington N. & Santa Fe Ry. Co., 270 F. Supp. 2d 1183, 1187 (C.D.
Cal. July 7, 2003) (finding “the maintenance, repair, and inspection of track
conditions is directly and comprehensively covered by the FRSA” in section 213);
Trimbur v. Norfolk Southern Ry., No. 2:13-cv-0160, 2015 U.S. Dist. LEXIS 104803,
at *22–23 (S.D. Ohio Aug. 10, 2015); Indem. Ins. Co. of N. Am. v. BNSF Ry. Co., No.
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4:16-CV-763, 2017 U.S. Dist. LEXIS 215626, at *19 (E.D. Tex. Sept. 29, 2017)
(citation omitted) (“[T]he standard of care for inspections of track conditions ‘is
directly and comprehensively covered by the FRSA.’”).
However, Defendants argue exceptions to preemption apply—specifically, they
argue Plaintiff violated 49 C.F.R. § 213.239 when it failed to conduct additional track
inspections before Q583 traversed the derailment location, (Doc. No. 85 at 13), and
Plaintiff failed to conduct additional track inspections in violation of both the FRA
Safety Advisory 97-01 (SA 97-01) and its internal rule promulgated pursuant to
federal regulations, MWI 1110-02. (Doc. No. 85 at 15).
i. Failure to Comply with 49 C.F.R. § 213.239
Although, the Court finds the FRSA substantially subsumes the subject matter
of inspections, preemption does not apply where the allegation is based on a party’s
“fail[ure] to comply with . . . a federal standard of care established by a regulation or
order.” 49 U.S.C. § 20106(b)(1)(A).12 Section 213.239 provides that “in the event of
fire, flood, severe storm, or other occurrence which might have damaged track
structure, a special inspection shall be made of the track involved as soon as possible
after the occurrence and, if possible, before the operation of any train over that track.”
49 C.F.R. § 213.239. (Doc. No. 85-25; Doc. No. 85-27). Plaintiff argues it complied with
all special inspection requirements. (Doc. No. 71-7 at 93:22-94:5).
12 Plaintiff incorrectly argues that reference to any internal rules is preempted by the
federal regulations. The cases Plaintiff cites for this proposition come before this
language was added to section 20106. (Doc. No. 71 at 20).
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It is undisputed that on September 16, 2018, Plaintiff conducted a special
inspection of the derailment site around 12:30 p.m. (ET). The plain language of the
statute does not require ongoing inspections for a single occurrence. But Defendants
argue that additional potential tornadoes at 3:30 p.m. (ET) and 5:15 p.m. (ET).
constituted additional “occurrences” under section 213.239 such that Plaintiff should
have inspected the tracks again prior to derailment. (Doc. No. 71 at 14). Additionally,
Defendants contend that at 4:54 p.m. (ET), X807 noticed high water on the tracks
and at 4:56 p.m. (ET), X807 noticed compromised track bed at the derailment site.
(Id.).
The Court finds that the plain language of section 213.239 requires a special
inspection for each time the statute is triggered. Thus, additional “occurrences” may
trigger the need for additional inspections. But according to the plain language of the
regulation, Plaintiff was only required to inspect prior to the operation of a train over
the affected rail “if possible.” Hendrickson v. Rapid City, Pierre & Eastern R.R., 2024
U.S. Dist. LEXIS 39247, at *20–21; Indem. Ins. Co. of N. Am. v. BNSF Ry. Co., 2017
U.S. Dist. LEXIS 215626, *19–20.
A genuine issue of material fact exists as to whether additional occurrences
arose such that Plaintiff had a duty to conduct another special inspection. Defendants
allege that on September 16, at 2:13pm, an additional flash flood warning was issued
for Anson County after the 12:30 p.m. (ET) inspection, and at 3:24 p.m. (ET), a
dispatcher issued a tornado warning in the area of derailment. (Doc. No. 85-2 at 20,
35; Doc. No. 85-12 at 5). Such warnings could trigger a duty under section 213.239 if
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they were new warnings. Thus, the Court finds Defendants put forth sufficient
evidence of additional occurrences to trigger Plaintiff’s duty under section 213.239.
To the extent these or other alleged occurrences are based on disputed facts, a jury
must make such determinations.
Further, a jury must determine based on the circumstances whether it was
“possible” for Plaintiff to inspect prior to derailment. If it was possible for Plaintiff to
inspect between these afternoon “occurrences” and prior to derailment, then Plaintiff
violated section 213.239. Defendants have put forth sufficient evidence that
additional inspections prior to derailment were possible. (Doc. No. 85 at 14; Doc. No.
85-33 (discussing ability to conduct additional inspection). The Court will not preempt
Defendants’ theory based on Plaintiff’s failure to follow section 213.239 because a
genuine issue of material fact exists for the jury to determine whether additional
“occurrences” arose, and whether additional special inspections prior to derailment
were possible.
ii. Failure to Comply with FRA Safety Advisory 97-01
Defendants argue Plaintiff also violated SA 97-01 and such a violation falls
under an exception to preemption. According to SA 97-01, after the receipt of a flash
flood warning which might damage track or bridges:
the railroad should notify train crews and limit the speed of all freight
and passenger trains to that which will permit the train to operate
safely, consistent with the potential water levels and visibility
conditions, on all track subject to damage from the flood. The limitations
should continue until a special inspection in accordance with 49 CFR
213.239 has been performed of that track and it is determined that a
hazard no longer exists. In making that inspection and determination,
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the time taken for the heaviest flow of water to reach the track should
be considered.
SA 97-01(2) (Doc. No. 85-37 at 1–3). Plaintiff argues SA 97-01 is a nonbinding
recommendation. (Doc. No. 71 at 20). The Court agrees. Defendants do not cite to any
authority finding SA 97-01 binding. Section 213.239’s exception to preemption is
based on whether the party violated a “federal standard of care established by a
regulation or order.” 49 U.S.C. § 20106(b)(1)(A)-(B). A safety advisory is not a binding
regulation, and Defendants have not provided any authority establishing it as such.
Indem. Ins. Co. of N. Am. v. BNSF Ry. Co., No. 4:16-CV-763, 2017 U.S. Dist. LEXIS
215626, at *12 (E.D. Tex. Sept. 19, 2017) (noting 97-1 was not adopted as a regulation,
so it cannot establish a federal standard of care); see Track Safety Standards, 63 Fed.
Reg. 33992, 34013 (noting the safety advisory contains “recommended procedures
that reflect best industry practice for special track inspections”). Thus, Defendant’s
argument based on a violation of SA 97-01 is preempted.
iii. Failure to Comply with Internal Regulation MWI 1110-02
Defendants further argue that Plaintiff failed to comply with MWI 1110-02,
Plaintiff’s internal regulation governing special inspections during flash flood
warnings. (Doc. No. 91-2). Defendants argue that MWI 1110-02 was adopted
pursuant to section 213.239, so it falls under the exception to preemption. (Doc. No.
85 at 15 n.6). In support of its argument, Defendants contend that MWI 1110-02 is
based on SA 97-01, which in turn is based on section 213.239. (Doc. No. 85 at 16).
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For MWI 1110-0213 to establish a standard of care that is not preempted by a
federal regulation, the Court must find the internal rule was “adopted pursuant to a
regulation.” 49 U.S.C. § 20106(b)(B). Plaintiff argues that for an internal rule to be
“created pursuant to” a federal regulation, the specific regulation must “affirmatively
mandate” adoption of the rule. (Doc. No. 85 at 9–10). Many courts join Plaintiff in this
argument. Tipton v. CSX Transportation, Inc., No. 3:15-CV-311, 2017 WL 10398182,
at *21 (E.D. Tenn. Oct. 25, 2017) (collecting cases) (“[T]he overwhelming majority of
federal courts to address this issue have concluded that a railroad operating rule is
only created ‘pursuant to’ federal law if a specific regulation affirmatively mandates
adoption of the rule.”); Harris v. Norfolk S. Ry. Corp., No. 2:11-CV-00497, 2012 WL
6209164, at *6 (S.D.W. Va. Dec. 13, 2012), aff’d in part, rev’d in part on other grounds
sub nom. Harris v. Norfolk S. Ry. Co., 784 F.3d 954 (4th Cir. 2015) (finding that for
an internal operating rule to be promulgated “pursuant to” a federal regulation, such
federal regulation must require railroads to adopt internal standards of care);
Rhinehart v. CSX Transp., Inc., No. 10-CV-86, 2017 WL 3500018, at *12 (W.D.N.Y.
Aug. 16, 2017) (“[I]nternal rules are not preempted when they are adopted pursuant
to—i.e., required by—federal law.”). Thus, to survive preemption, Defendants must
show the internal regulation was mandated by a federal regulation.
13 MWI 1110-02 denotes that during heavy rain the tracks should be inspected, and
severe weather and flash flood warning conditions require periodic inspection and
temporary speed restrictions, among other things, to protect train operations. (Id. at
Doc. No. 91-2 at 3 (“The track inspections will be performed periodically until the
severe weather-flash flood warning conditions have passed. Temporary speed
restrictions, taking the track out of service and other appropriate measures will be
used, as necessary, to protect trains operations.”).
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The Court finds that Defendants fail to specifically argue why MWI 1110-02
was adopted pursuant to section 213.239, and nothing in the plain language of section
213.239 indicates such internal rules were required. As such, Defendants’ theory of
contributory negligence based on Plaintiff’s violation of its own internal operating
rules regarding inspections is preempted by federal law.
iv. Failure to Avoid a Known, Local Safety Hazard and/or a
Specific, Individual Hazard
Last, Defendants argue that Plaintiff’s failure to conduct special track
inspections is not preempted because Plaintiff failed to avoid a known, local safety
hazard.14 Specifically, Defendants argue that a combination of factors in the
derailment area constituted such a hazard, which Plaintiff could have avoided. (Doc.
No. 85 at 18–19 (listing factors)). Such factors include, for example, poor visibility,
historic rainfall, power failures, and X807’s observations of high water, as well as
alleged facts indicating Plaintiff’s awareness over time of issues with the track. (Id.).
“Even after federal standards have been promulgated, the States may adopt
more stringent safety requirements ‘when necessary to eliminate or reduce an
essentially local safety hazard,’ if those standards are ‘not incompatible with’ federal
laws or regulations and not an undue burden on interstate commerce.” CSX Transp.
v. Easterwood, 507 U.S. 658, 662 (1993). This is not merely a factual inquiry
surrounding the circumstances. Id. at 665. “Generally, courts which have considered
14 Despite Defendants arguments separating a “local safety hazard” from a “specific,
individual hazard,” courts use these phrases interchangeably to help describe the
other.
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this issue have ruled that a “specific individual hazard” must be a discrete and truly
local hazard such as a child standing on the railway.” Seyler v. Burlington N. Santa
Fe Corp., 102 F. Supp. 2d 1226, 1236 (D. Kan. 2000) (citation omitted); accord
O’Bannon by & Through O’Bannon v. Union Pac. R.R., 960 F. Supp. 1411, 1420 (S.D.
Mo. April 8, 1997).
Extreme weather, without more, is not a “local safety hazard.” In Cox v. Norfolk
& W. Ry., the district court found that the snowy weather did not constitute a
“specific, individual hazard” because snow was not “discrete and truly local to this
locality.” 998 F. Supp. 679, 685 (S.D.W.V. March 4, 1998). Defendants attempt to
distinguish this case by noting that the district court acknowledged that no snow was
falling when the accident occurred, it was not foggy, and the train had good visibility.
Id. In Seyler v. Burlington Northern Santa Fe Corp, the district court found that
“heavy rainfall, combined with a weather service flash flooding warning, is not a
‘specific, individual hazard.’” 102 F. Supp. 2d 1226, 1237 (D. Kan. May 31, 2000).
The Court finds the weather at issue did not constitute a local safety hazard.
The historic rainfall, potential for flooding, and difficulty in stopping the train do not
constitute the type of local safety hazard that the Secretary would be unable to
account for in its regulations. Cox v. Norfolk & W. Ry., 998 F. Supp. 679, 685 (S.D. W.
Va. March 4, 1998) (“Such a holding would also mean that the Secretary only took
into account perfect weather conditions” when promulgating regulations.). Further,
this historic rainfall and other factors Defendants put forth occurred over time. A
slower accumulation of factors distinguishes the present case from the classic
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example of a child suddenly on the tracks, which requires an imminent reaction.
Thus, this argument does not save Defendants from preemption.
4. Failure to Report Unsafe Conditions
Neither Plaintiff nor Defendants specifically argue how contributory
negligence based on a failure to report does or does not amount to a regulation under
the ICCTA. As such, the Court will turn to whether this argument is preempted under
the FRSA.
Plaintiff argues that allegations of X807’s observance of conditions at the
derailment are purely speculative, and the X807 crew had no duty to report the
derailment site for “low ballast, exposed ties, or ‘steep slope.’” (Doc. No. 105 at 13).
Defendants contend that Plaintiff violated its own internal rules, or in the
alternative, violated 49 C.F.R. § 213.5. The Court finds that reporting of track
conditions to track owners is substantially subsumed by federal regulations
regarding inspections. 49 C.F.R. § 213.5 (duty of track owners to act upon notice of
track’s lack of compliance); Id. at § 213.7 (designation of persons to inspect tracks);
Id. at § 213.233 (visual track inspection and report requirements); Id. at § 213.113
(duty upon notice of defective rails). The regulations identify who has a duty to
inspect tracks and to whom any discovered defects must be reported, among other
requirements. The regulations substantially subsume the subject matter of
inspections and reporting. Any defense based on failure to report is preempted unless
an exception applies.
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Defendants argue that Plaintiff violated 49 C.F.R. § 213.5 for failing to report,
which would qualify as an exception to preemption. The Court disagrees. Section
213.5 imposes a duty on track owners, not conductors or engineers. Id. at § 213.5. The
X807 crew does not amount to a track owner, so it does not have a duty under section
213.5. Based on the evidence presented, this attempt to escape preemption fails.
Further, Defendant fails to show that Plaintiff’s internal rules were created
“pursuant to” a federal regulation. As such, a theory of contributory negligence based
on Plaintiff’s failure to comply with its own reporting requirements is preempted.
Alternatively, Defendants argue that the failure to report theory is not
preempted because of the local safety hazard exception. Defendants cite the same
reasoning and factors previously mentioned for why the situation amounted to a local
safety hazard. The Court rejects this argument for the same reasons previously
mentioned. As such, this exception does not apply, and the defense of failure to report
is preempted.
5. Ordering Q583 to Proceed on September 16, 2018 and Failing to Suspend
Operations or Remain Stopped until an Inspection is Performed
Defendants argue that Plaintiff violated its own regulations and section 213.5
when it did not stop that day, and that the conditions constituted a local safety
hazard. Plaintiff argues that any of Defendants’ theories based on attempting to
control when the trains stop or start are expressly preempted under the ICCTA as an
attempt to regulate the railway. The ICCTA preempts common-law negligence claims
“where that liability arises from a railroad’s economic decisions such as those
pertaining to train length, speed or scheduling.” PCS Phosphate Co. v. Norfolk
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Southern Corp., 559 F.3d 212, 220 (2009) (quoting Friberg v. Kansas City S. Ry. Co.,
267 F.3d 439, 444 (5th Cir. 2001)). “It is clear that a tort suit that attempts to mandate
when trains can use tracks and stop on them is attempting to manage or govern rail
transportation in a direct way.” Edwards v. CSX Transportation, Inc., 983 F.3d 112,
123 (4th Cir. 2020) (quoting Franks Inv. Co. LLC v. Union Pac. R. Co., 593 F.3d 404,
411 (5th Cir. 2010)).
Accordingly, this Court finds that any arguments that Plaintiff should have
ceased or altered operations on September 16, 2018, are expressly preempted by the
ICCTA because such arguments attempt to impose regulations on Plaintiff regarding
when and how to run its trains. Because this Court finds these arguments are
preempted under the ICCTA, it need not consider the parties’ arguments regarding
whether, under the FRSA, the defense is preempted or falls within an exception to
preemption.
C. Pending Motions to Strike
In reaching its conclusions, the Court did not rely on any testimony or evidence
found in the pending motions to strike, and the Court will not consider the arguments
regarding experts at this time. Accordingly, the Court denies the pending motions to
strike without prejudice but will fully consider the matters before trial in response to
motions in limine or renewed motions to strike. Permitting the parties to refile these
motions will ensure that the parties and the Court have the benefit of full briefing in
the context of the narrowed case and the issues that remain.
IV. CONCLUSION
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IT IS, THEREFORE, ORDERED that:
1. Defendant’s Motion for Summary Judgment, (Doc. No. 66), is GRANTED
IN PART, DENIED IN PART, and DENIED IN PART AS MOOT as
follows:
a. Defendants’ Motion for Summary Judgment is DENIED AS MOOT
with respect to Plaintiff’s claims for unjust enrichment and res ipsa
loquitor.
b. Defendants’ Motion for Summary Judgment is DENIED as to
Plaintiff’s claims for: Negligence; Trespass; Negligence Per Se; and
Damages.
c. Defendants’ Motion for Summary Judgment is GRANTED as to
Plaintiff’s claim for Nuisance.
2. Plaintiff’s Motion for Partial Summary Judgment, (Doc. No. 69), is
GRANTED IN PART and DENIED IN PART as follows:
a. Plaintiff’s Motion for Partial Summary Judgment is GRANTED as
to following bases underlying Defendants’ contributory negligence
defense:
i. Plaintiff’s failure to install culverts because it is preempted
under the ICCTA;
ii. Plaintiff’s failure to comply with FRA Safety Advisory 97-01
because it is preempted under the FRSA;
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iii. Plaintiff’s failure to comply with its internal regulation, MWI
1110-02 because it is preempted under the FRSA;
iv. Plaintiff’s failure to avoid a known, local safety hazard
because it is preempted under the FRSA;
v. Plaintiff’s failure to report unsafe track conditions because it
is preempted under the FRSA; and
vi. Plaintiff’s ordering of Q583 to proceed on September 16, 2018,
and failure to suspend operations or remain stopped until an
inspection was performed because they are preempted under
the ICCTA.
b. Plaintiff’s Motion for Partial Summary Judgment is DENIED as to
following bases underlying Defendants’ contributory negligence
defense:
i. Plaintiff’s failure to conduct hydraulic studies because it is not
preempted under the ICCTA or FRSA; and
ii. Plaintiff’s failure to comply with 49 C.F.R. § 213.239 because
genuine issues of material fact remain.
3. Plaintiff’s Pending Motions to Strike, (Doc. Nos. 77, 79), are DENIED
WITHOUT PREJUDICE to Plaintiff’s right to renew.
4. Defendant’s Motion to Strike the opinions and testimony of Patrick
Mazzanti (Doc. No. 67) is DENIED AS MOOT.
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5. Defendants’ remaining Motions to Strike (Doc. Nos. 64, 72, 74). are
DENIED WITHOUT PREJUDICE to Defendants’ right to renew.
6. The parties’ Consent Motion to Continue (Doc. No. 123) is GRANTED. The
Court will schedule a pre-trial conference at which time it will address
setting a new trial date.
Signed: October 28, 2024
SEALED DOCUMENT with access to All Parties/Defendants.
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