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Campbell v. CSX Transportation, Inc.

Supreme Court of Appeals of West Virginia

September 9, 2019

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
v.
CSX Transportation, Inc., W.W. McDonald Land Company, and Skidrow Timbering Co., Defendants Below, Respondents

          (Logan County 12-C-68)

          MEMORANDUM DECISION

         Petitioners 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 a response.

         This 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.

         In June 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[1] 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.[2] 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.

         Petitioners 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."[3]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 [petitioners'] homes."

         WWMLC 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.

         Petitioners 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.[4]

         In 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.

         By 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.

         On 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.

         On 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 response.[5]

         Meanwhile, 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.

         A 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 CSX[6] and Skidrow. Additionally, petitioners submitted to WWMLC's counsel and the circuit court a three-page unsigned response to WWMLC's summary judgment motion.

         A 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.[7]

         Pursuant 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. [242] at 252, 106 S.Ct. [2505] at 2512, 91 L.E.2d [202] at 214 [1986]." 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 ...


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