288 F. Supp. 3d 565
E.D. Pa.2017Background
- MacDade Mall (Plaintiff) owns property immediately north/downhill of a CSX railroad right-of-way; heavy rains cause pooled storm water on the ROW to flow onto the Mall's southeast parking area, flooding since ~2010.
- Mall alleges (1) 19th-century construction of the railroad altered natural sheet flow into concentrated swales that discharge onto the Mall, and (2) more recent negligent maintenance (including 2009 surfacing/ballast work and an apparently clogged pipe) exacerbated flooding.
- CSX contends water flows naturally from higher residential development south of the ROW, through porous ballast and low spots, and that CSX did not artificially create the discharge; responsibility for certain pipes/inlets (installed in the 1960s) is unclear.
- Trial included three engineers and a site visit; the court found the Mall’s expert testimony about historic cut-and-fill, swales, and ballast effects speculative and credited that upgradient residential runoff substantially contributes to the problem.
- The court held the Mall failed to prove liability under continuing trespass or negligence and rejected CSX’s FRSA and ICCTA preemption defenses on the existing record, entering judgment for CSX.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Continuing trespass (storm-water) | Railroad construction created artificial swales/berm concentrating and point-discharging water onto Mall property, constituting an ongoing trespass. | Any low points are natural; railroad construction over a century ago could not be shown to have intentionally and substantially certainly caused present flooding. | Mall failed to prove pre- and post-construction flow change or requisite intent; continuing trespass claim dismissed. |
| Negligence (maintenance/design) | CSX negligently maintained ditch/ballast, spread fouled ballast in 2009, failed to maintain/clear pipe/inlets, and failed to implement remedies. | No duty unless water was artificially diverted or unreasonably increased by CSX; alleged maintenance theories speculative and unsupported. | Mall did not show CSX diverted or increased water or breached a duty; negligence claim dismissed. |
| FRSA implied preemption | (Plaintiff) FRSA does not preempt state tort claims addressing discharge onto adjacent property. | CSX contends federal rail-safety regulation and permitting obstacles make state tort relief preempted as an obstacle to federal purposes. | Court found CSX did not meet its burden to prove plaintiff's claims are impliedly preempted by FRSA on the record. |
| ICCTA preemption | (Plaintiff) State tort law applies; relief would not impermissibly regulate rail transportation. | CSX argues ICCTA preempts because the claims implicate construction/maintenance of tracks/roadbed and would unreasonably burden rail operations (permitting/construction over/under tracks). | Court declined to find ICCTA preemption on the record (CSX did not show the requested remedies would unreasonably burden rail transportation), but plaintiff still failed on merits. |
Key Cases Cited
- Shamnoski v. PG Energy, 858 A.2d 589 (Pa. 2004) (upper landowner may discharge surface water in natural ways but duty arises when water is diverted or unreasonably increased)
- Lucas v. Ford, 69 A.2d 114 (Pa. 1949) (upper landowner's right of flowage limited by prohibition on concentrating water in artificial channels)
- Chamberlin v. Ciaffoni, 96 A.2d 140 (Pa. 1953) (recognition of easement for natural discharge from higher to lower land)
- Pfeiffer v. Brown, 30 A. 844 (Pa. 1895) (distinguishing reasonable use from actionable diversion or concentration of surface water)
- LaForm v. Bethlehem Twp., 499 A.2d 1373 (Pa. Super. Ct. 1985) (to impose liability plaintiff must show diversion to artificial channel or unreasonable increase)
- New York Susquehanna & W. Ry. Corp. v. Jackson, 500 F.3d 238 (3d Cir. 2007) (ICCTA preemption test: state regulation preempted if it discriminates against or unreasonably burdens rail transportation)