In September, 2011, Hurricane Lee slammed into the eastern seaboard of the United States. The northeast was particularly hard hit, including Pennsylvania. Damage to both commercial and residential property was extensive. Many of those affected did not have flood insurance. Those home and business owners have looked for deep pockets out of which to recoup their losses. Railroads have been particular targets.
Claims asserted against railroads for flood damage have been based upon a variety of alleged deficiencies. Allegations of improper design and construction of track beds, the failure to clear or to maintain bridges or culverts for drainage and even claims that the “natural damming” of elevated roadbeds causes the water table to rise have been asserted. As the two year statute of limitations for negligence actions approaches in September, many of these types of claims have been filed against railroads and more are possible.
Fortunately, principles of federal preemption under the Federal Railroad Safety Act (“FRSA”) have provided valuable defenses to the railroads against the onslaught of these claims. The courts in Pennsylvania have been particularly receptive to federal preemption defenses against such claims.
A recent decision of the Commonwealth Court demonstrates the protections afforded by federal preemption under the FRSA against these types of flood claims. In David Miller and I26 Hotel Corporation v. SEPTA, (Pa. Cmwlth. Ct. March 7, 2013), the Commonwealth Court en banc upheld the granting of summary judgment to SEPTA against claims that it was liable for flooding allegedly caused by the poor maintenance of a railroad bridge over a local creek.
Miller was the owner of a hotel which was located near the creek. A nearby stone arch railroad bridge crossed the creek. In June, 2001, Tropical Storm Allison struck the area causing massive flooding. The hotel was flooded up to the ceiling of its first floor. The hotel subsequently closed and the corporate owner declared bankruptcy.
Miller filed a complaint against SEPTA alleging that the negligent care, repair, inspection and maintenance of the stone arch bridge (the bridge itself was destroyed by the hurricane and replaced) impacted the flow of the creek which caused the flooding and the eventual loss of his business. Miller sought damages for the repair costs and lost revenue. Miller engaged the services of an engineering firm which opined that the twin arches of the bridge created a “choke point” of the creek which caused a backup of waters and the flooding. They also claimed that silt deposits under the bridge exacerbated the choke point.
SEPTA denied the claim and asserted that any claims based upon faulty maintenance of the bridge were preempted by the FRSA. SEPTA obtained summary judgment before the trial court and Miller appealed to the Commonwealth Court.
Judge Leavitt, writing for the court, firmly embraced the preemptive effect of the FRSA for such claims. Citing a previous decision of the Commonwealth Court, Mastrocola v. SEPTA, (Pa. Cmwlth. Ct. 2008), and a decision of the federal court for the Eastern District of Pennsylvania, Rooney v. City of Philadelphia, (2009), the court found that based upon specific Federal Railroad Administration regulations governing roadbed and track construction, maintenance and drainage requirements, including 49 CFR §213.33, preemption of common law negligence claims was required.
The court rejected arguments that preemption was not applicable because the stated purpose of the regulations was safety rather than providing remedies or dealing with flood claims. The court stated that in preemption analysis, the stated purpose of the regulation is irrelevant. The proper inquiry is whether the subject matter of the regulation covers the area(s) which form the basis of the negligence claims. If it does, preemption occurs. The court also rejected any distinction between manmade or natural “facilities” saying that such a distinction was irrelevant in the required analysis.
The Rooney case relied upon by the court, decided four years earlier, similarly involved a claim by landowners for flood damage. Those homeowners claimed that Amtrak’s failure to prohibit excess drainage from its roadbed which was elevated above a city street and drained into the storm water system of Philadelphia rendered Amtrak negligent to them for flooding of their property. The federal court rejected that argument citing the preemption provisions of the FRSA. The court recognized that there were federal regulations concerning the controlling of drainage on and from the roadbed and that this preempted any of the homeowners’ common law state claims.
Similarly, in Mastrocola, a claim by homeowners that vibrations from a temporary track constructed by SEPTA near their property were responsible for damage to their homes was preempted by FRSA. Judge Leavitt, again writing for the Commonwealth Court, indicated that such claims were preempted because of the specific regulations involving track engineering, design and construction which showed a clear intent to “cover” and thus preempt such claims.
As these cases demonstrate, federal preemption provides a viable, broad defense to many types of property damage claims brought by landowners, particularly where the allegations of negligence against the railroad arise out of negligent design, construction, maintenance, inspection or repair of roadbed, bridges, drainage facilities and the like. This defense should not be overlooked by railroads and their counsel when facing such claims.