Lawsuit blames CSX for adding to Gills Creek flooding

A railroad bridge across Gills Creek didn’t draw much attention until a storm blasted Columbia with heavy rain and flooding last fall.

That’s when Sabrina Todd, Vince Osborne and several neighbors began wondering if the CSX structure had contributed to the flood damage they suffered Oct. 4. Water rose rapidly that morning, reaching the second floor of homes like the one Todd and Osborne own near South Beltline Boulevard.

Had embankments that support the bridge blocked water rushing down Gills Creek? And had the obstruction caused water to back up onto their property?

A federal lawsuit contends the answer is yes. The suit, filed after the flood by Todd, Osborne and four others, says the CSX railroad corporation is liable for damage the flood caused to their homes and property. According to the suit, the train trestle stopped water that was moving down Gills Creek during the storm. The company denies responsibility.

“It’s almost like we were getting hit from both directions,’’ Todd said last week. “The water didn’t have a place to escape. In my mind, it kind of seems like a sandwich with too much jelly on it.”

The railroad lawsuit isn’t unprecedented, but it’s an unusual twist in the legal wars that have erupted in Columbia since the October flood.

At least four suits filed since the flood claim that failed dams upstream contributed to the damage received in downstream homes and businesses.

But the case against CSX focuses on how some property might have affected homes upstream. In effect, the suit says huge earthen abutments holding up the train bridge across Gills Creek repelled water back into neighborhoods upstream, said Jones Andrews, a lawyer representing the property owners. The suit relies in part on a South Carolina railroad law that says train corporations are liable for damage to neighbors “from the wrongful obstruction of watercourses.”

The lawsuit, filed in November in state court but later moved to federal court, says CSX was negligent in maintaining the trestle structure. The suit seeks a “class action” status, meaning that dozens of people beyond the six who filed the suit could receive compensation if the case is successful. The class would have to be certified by a judge. The suit does not specify how much property owners would be compensated.

Others who’ve sued CSX along with Todd and Osborne are Michael Haley, Lisa Johnson and Dale and Alyssa Stigamier. The Stigamiers, Haley and Johnson declined comment, Andrews said.

“We think the law is very clear: You cannot create a situation where you flood people,” Andrews said.

Railroad denies allegations

CSX, one of the nation’s biggest railroad companies, declined comment when contacted by The State newspaper. But in court filings, the corporation denied the allegations. It also has asked a federal judge to dismiss the case.

In its legal response to the suit, CSX said the railroad didn’t cause the flooding and the company wasn’t negligent in maintaining the bridge structure, as alleged.

At the same time, the company said the flood was an “act of God” that can’t be blamed on anything CSX did. The residents who filed suit “assumed the risk of any damages incurred from the alleged backing up and flooding along Gills Creek,” the response said.

CSX, headquartered in Jacksonville, Fla., operates about 20,000 miles of rail lines in the U.S. and Canada. It was formed from the merger of several smaller railroad companies in 1980. The company employs about 32,000 people.

Last fall’s flood will be hard for many people to forget. Over a single weekend, about a foot of rain fell on some parts of the Columbia area as the storm hovered over South Carolina. Scores of homes had water pour inside, in some cases to the rooftops. Some people had to flee their neighborhoods in boats as local streets turned into rivers. Several people trapped in the floods died.

Property in the Gills Creek watershed, which winds through much of Columbia, took the heaviest brunt of the storm as dams burst on a chain of lakes.

Those involved in the federal lawsuit say they’ve had plenty of damage. The six people who sued CSX own three homes valued collectively at nearly $650,000, court records show.

The split-level house Todd and Osborne own on Glenhaven Drive is an example of the lingering effects of the flood.

Valued at more than $126,000 before the storm, the home has been damaged more than 50 percent and may have to be rebuilt, Osborne said.

The walls inside are gone in many rooms, leaving only exposed beams. The cabinet around the kitchen sink is missing. And the house has no heat. Osborne and Todd, who bought the house in 2000, had never seen flooding on their property until last October, Osborne said.

Todd and Osborne said the home was not covered by flood insurance and the couple have received only $33,000 from the Federal Emergency Management Agency as compensation for the loss.

Osborne said winning the lawsuit could help offset the financial loss he has suffered since October, but his main goal is to ensure that CSX makes any improvements necessary to avoid similar upstream flooding one day. The railroad bridge is about two-thirds of a mile downstream from the house Todd and Osborne own.

At the area downstream, a tall earthen embankment holding up part of the bridge extends from South Beltline Boulevard through the soggy flood plain to the creek bed, where the railroad tracks cross the water as part of a bridge. The bridge then connects back with another huge embankment that holds up the railroad tracks as they extend into deep woods. It was unclear when the trestle was built.

“This doesn’t really make me mad, it just makes me wonder about the thought processes that went on when this was built,” Osborne said as he looked at the train bridge that is the subject of his lawsuit. “This was the cheapest land and this was the easiest way to get through from Point A to Point B. Instead of paying Farmer Jones money for his land on a higher (area), they could just go right in the middle of the swamp.”

The CSX train bridge is one of two across Gills Creek along South Beltline between Shop Road and Rosewood Drive. The other is a Norfolk Southern bridge that is farther away from Osborne’s home. Norfolk Southern was not named in the suit.

Railroads and flooding

Although the case is different from many filed in Columbia after the flood, it isn’t unprecedented. Cases similar to the CSX suit have come up across the country, including:

▪ In 2013, residents of a Louisiana community claimed that the BNSF Railway flooded their property by failing to adequately maintain a drainage culvert. The case ultimately was settled and dismissed, records show.

▪ In 2009, residents of an Arkansas neighborhood claimed the Union Pacific Railroad put up two embankments in 1972 and 1980 that caused their homes to flood years later. The residents lost their case at trial, records show.

▪ In 2010, environmentalists in South Carolina sued the Federal Highway Administration in an attempt to get rid of some embankments that support U.S. 601 as the road was being reconstructed for a bridge project over the Congaree River. Environmentalists said the embankments blocked water flow in the flood plain near Congaree National Park.

The highway administration ultimately prevailed in court after state road officials argued that replacing the embankments with bridging was too expensive.

Legal arguments aside, experts say railroad and road embankments can be problematic.

Will Graf, a river scientist and professor emeritus with the University of South Carolina’s geography department, said railroad and highway embankments alter the flow of water through flood plains. In turn, that can cause high water to remain longer in areas upstream, he said.

“Railroads that are constructed across flood plains obviously seek to elevate their tracks because they want to keep their property dry,” Graf said, noting that railroads sometimes put culverts in the embankments to release water. “If the water passage beneath the embankment is under-engineered, or under-constructed, it may cause problems in the future.”

This story was originally published February 6, 2016 at 7:19 PM with the headline "Lawsuit blames CSX for adding to Gills Creek flooding."