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No evidence that railroad’s acts damaged property

Virginia Lawyers Weekly//February 19, 2021

No evidence that railroad’s acts damaged property

Virginia Lawyers Weekly//February 19, 2021//

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Where homeowners alleged a railroad was liable for flooding damage to their properties because it failed to maintain a culvert, their expert testimony was excluded and they offered no other competent evidence, the homeowners failed to show causation sufficient to survive summary judgment.


This case arises from Hurricane Joaquin, a historic storm that caused flooding to appellants’ properties. In their complaints (which were consolidated below and on appeal), appellants alleged that CSX Transportation Inc. was liable for that flooding.

The district court granted summary judgment to CSX, finding that appellants’ claims were preempted by Section 10501(b) of the Interstate Commerce Commission Termination Act, or ICCTA, which provides that the regulatory jurisdiction of the Surface Transportation Board over rail carrier transportation and tracks is “exclusive and preempt[s] the remedies provided under Federal or State law.”


On appeal, appellants assert that the ICCTA did not preempt their claims or, at the very least, they have proffered sufficient evidence to give rise to a genuine issue of material fact as to whether ICCTA preemption applies.

Assuming, without deciding, that appellants are correct and that their claim is not preempted, appellants nevertheless failed to proffer admissible evidence in district court showing causation sufficient to survive summary judgment. Specifically, the only evidence offered that the lack of culvert maintenance caused or worsened the flooding damage was an expert opinion that the district court found “glaringly problematic,” leading it to exclude the portion of the expert’s opinion regarding “the life expectancy of the culverts and whether the culverts caused the flooding.”

Appellants do not address the exclusion of this evidence but instead contend that the court does not have jurisdiction over CSX’s alternative argument because CSX did not separately appeal the district court’s failure to address this issue. Appellants aver that the district court rested its holding entirely on the preemption issue.

However, the district court did, in fact, expressly address the expert’s opinion and its value in the summary judgment proceeding. In its text order denying appellants’ motion for reconsideration, the court noted that appellants’ argument that the court had failed to consider the expert’s opinion regarding “debris removal and maintenance of the culverts” was without merit because the court had previously excluded the portion of the opinion “regarding maintenance of the culverts.” Given that CSX’s motion for summary judgment was granted in full, there was nothing for CSX to appeal.

Thus, because appellants failed to proffer any admissible evidence in district court to support the causation element of the only claim pursued on appeal, the district court properly granted summary judgment to CSX.


Funderburk v. CSX Transportation Inc., Appeal Nos. 19-2220, 19-2278, 19-2279, 19-2280, 19-2281, 19-2282, 19-2284, 19-2290, 19-2291, 19-2292, 19-2293, 19-2294, 19-2296, 19-2298, 19-2299, Feb. 2, 2021. 4th Cir. (per curiam), from DSC at Columbia (Childs). S. Jahue Moore and William H. Edwards for Appellants. Michael N. Loebl, Elizabeth A. McLeod, Evan Tager and Andrew Tauber for Appellee. VLW 021-2-049. 12 pp.

VLW 021-2-049

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