Roger D. Campbell, Kathryn D. Campbell, Heather Leigh Bailey, Bobby Lee Bailey, Terry Lee Plumley, II, Shirley Marie Grimmett, Donna Jean Plymale, Shanda Miller, Rebecca A. May, and Carol Murphy, Plaintiffs Below, Petitioners
CSX Transportation, Inc., W.W. McDonald Land Company, and Skidrow Timbering Co., Defendants Below, Respondents
and plaintiffs below Roger D. Campbell, Kathryn D. Campbell,
Heather Leigh Bailey, Bobby Lee Bailey, Terry Lee Plumley,
II, Shirley Marie Grimmett, Donna Jean Plymale, Shanda
Miller, Rebecca A. May, and Carol Murphy, by counsel D.
Adrian Hoosier, II and Erica Lord, appeal three orders
entered on October 23, 2017, in the Circuit Court of Logan
County that granted the respective motions for summary
judgment filed by respondents and defendants below CSX
Transportation, Inc. ("CSX"), W.W. McDonald Land
Company ("WWMLC"), and Skidrow Timbering Company
("Skidrow"). Both Respondent CSX, by counsel Luke
Lafferre, and Respondent WWMLC, by counsel Robert H. Sweeney,
Jr. & Kierston Eastham Rosen, filed responses in support
of the circuit court orders. Respondent Skidrow did not file
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's orders granting summary
judgment in favor of Skidrow and WWMLC is appropriate under
Rule 21 of the Rules of Appellate Procedure. With regard to
CSX, this matter is reversed and remanded for entry of an
order containing findings of fact and conclusions of law that
are appropriate for appellate review.
of 2010, certain areas of Logan County, West Virginia, were
flooded following severe rain storms. Petitioners, who are
residents of the unincorporated town of Landville, alleged
claims in the Circuit Court of Logan County
against CSX, WWMLC, and Skidrow, and other defendants
asserting that they negligently caused or contributed to the
flooding that damaged petitioners'
property. According to petitioners, the historic
flood waters did not come from the river located adjacent to
their properties; rather, petitioners alleged that surface
water runoff emanated from the mountain where respondents
were conducting commercial activities causing harm to
petitioners' real and personal property.
alleged that CSX "owns and maintains rails and culverts
in the subject area" and that CSX has a duty to make
sure the culverts are clear in order to prevent flooding.
Petitioners alleged that CSX was negligent in designing,
constructing, and maintaining the culverts and drainage
structures around its railroad track located across the
highway from petitioners' properties. Petitioners
specifically alleged that CSX "negligently designed its
culverts/drains, failed to clear its culverts/drains from
debris, negligently built a wall along side its rail-road, .
. . and failed to ensure that run off water could exit under
Route 80 and into the Guyandotte River."Petitioners
further alleged that the culvert "behind [the] wall or
mound" "built by CSX" was "blocked with
debris" and "allowed water to pool"; that the
water "broke through the wall" and "flowed
into" "CSX[-]maintained culverts located 10-15 feet
from the rail-road"; and that these culverts were also
"blocked with debris" so "water pooled and
crested over the rail-road, over Route 80 and into
owns the land that constitutes the drainage basin, or water
shed, that flows toward petitioners' properties.
Petitioners alleged that WWMLC leased or provided access to
its land to the other defendants to conduct various business
operations; that WWMLC owed petitioners a duty of care to
ensure that such operations were conducted in compliance with
state and federal regulations and in a manner that would not
harm petitioners' properties; and that WWMLC breached
that duty. With regard to Skidrow, a timbering company that
conducted operations on land owned by WWMLC above Landville
in 2008, petitioners alleged that Skidrow failed to comply
with state and federal regulations relating to its timbering
operations and failed to have a run-off plan to ensure the
safety of petitioners' properties.
alleged claims of negligence, intentional private nuisance,
unintentional private nuisance, public nuisance, prospective
nuisance, trespass, recklessness or gross negligence,
intentional infliction of emotional distress, negligent
infliction of emotional distress, interference with riparian
rights, "violation of statutes" (i.e., West
Virginia Code § 22-3-13-involving general environmental
protection performance standards for surface mining), damages
for securing water supply, punitive damages, and res ipsa
loquitur. Petitioners sought compensatory and punitive
damages and injunctive relief.
April of 2016, CSX filed a motion to dismiss petitioners'
complaint on the ground that the circuit court lacked subject
matter jurisdiction because, under the Supremacy Clause of
the United States Constitution, Article VI, clause 2, the
Interstate Commerce Commission Termination Act of 1995
("ICCTA") expressly preempts state law claims, such
as those asserted by petitioners, concerning the design,
construction, operation, and maintenance of CSX's railway
facilities and structures.
order entered October 21, 2016, the circuit court granted
CSX's motion to dismiss, in part, finding that, under 49
U.S.C. § 10501 of the ICCTA, the Safety Transportation
Board has exclusive jurisdiction over petitioners' claims
against CSX "that the culverts and drainage structures
were negligently designed, constructed, and/or
maintained," and "that the clearing and cutting of
vegetation" are all "related to the construction,
maintenance, and operation of tracks and facilities as
contemplated by the ICCTA and are therefore preempted."
To the extent petitioners alleged that CSX negligently
discarded debris, the circuit court denied CSX's motion
to dismiss on such claims as they "are not related to
the normal construction, maintenance, and operation of tracks
and facilities as contemplated by the ICCTA" and are,
therefore, not preempted.
August 14, 2017, Skidrow filed a motion for summary judgment
as to all of petitioners' claims, WWMLC filed a motion
for summary judgment as to all of petitioners' claims
other than those claiming private nuisance, and CSX filed a
motion for summary judgment as to the claims that remained
following entry of the October 21, 2016, dismissal order.
August 30, 2017, WWMLC filed a motion in limine to exclude
the testimony of petitioners' expert environmental
engineer, Dr. Scott Simonton, whose deposition had previously
been taken. Petitioners failed to file a
petitioners, by counsel Erica Lord, filed a motion to stay
the proceedings, or, alternatively, to continue the
proceedings for ninety days due to the temporary suspension
of lead counsel D. Adrian Hoosier II's law license on
August 30, 2017. Attorney Hoosier's law license was to be
automatically reinstated on December 1, 2017.
summary judgment hearing was scheduled for September 27,
2017. Prior to the hearing, petitioners filed untimely
responses to the motions for summary judgment filed by
and Skidrow. Additionally, petitioners submitted to
WWMLC's counsel and the circuit court a three-page
unsigned response to WWMLC's summary judgment motion.
hearing on respondents' motions for summary judgment was
conducted on September 27, 2017, at which time the circuit
court orally denied petitioners' motion to continue/for a
stay. By order entered on October 23, 2017, the court granted
all three respondents' motions for summary judgment and,
in the order granting WWMLC's motion, also granted
WWMLC's motion in limine to exclude the testimony of
petitioners' expert witness. It is from these orders that
petitioners now appeal.
to Rule 56(c) of the West Virginia Rules of Civil Procedure,
summary judgment should be awarded "if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of
law." Thus, "[a] motion for summary judgment should
be granted only when it is clear that there is no genuine
issue of fact to be tried and inquiry concerning the facts is
not desirable to clarify the application of the law."
Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of
New York,148 W.Va. 160, 133 S.E.2d 770 (1963). We note,
as well, that "the party opposing summary judgment must
satisfy the burden of proof by offering more than a mere
'scintilla of evidence' and must produce evidence
sufficient for a reasonable jury to find in a nonmoving
party's favor. Anderson [v. Liberty Lobby,
Inc.], 477 U.S.  at 252, 106 S.Ct.  at 2512,
91 L.E.2d  at 214 ." Williams v.
Precision Coil, Inc.,194 W.Va. 52, 60, 459 S.E.2d 329,
337 (1995). On appeal, this Court accords a plenary review to
the circuit court's order ...