On October 4, 2018, Cohen Milstein filed a putative class action on behalf of faith leaders, businesses, and residents in the southern and western portions of Lumberton, North Carolina who have twice suffered catastrophic flooding and damage due to CSX Corporation and CSX transportation entities ignoring, failing to cooperate with and trying to block government entities from building a floodgate on a train underpass it owns and operates, including preventing the city of Lumberton from building a temporary berm in 2018 to protect its citizens from impending Hurricane Florence.

Case Background

The Lumber River runs through Lumberton, North Carolina.  In 1977, levees were constructed to protect the city from flooding by the Lumber River.  However, there remained a gap in the city’s levee system where Defendants CSX Corporation, CSX Transportation, Inc., and CSX Intermodal Terminals, Inc. railroad tracks ran under Interstate 95. 

Plaintiffs allege that since 2003, CSX entities have been on notice by the city, the North Carolina Flood Map Program (NCFMP) and Federal Emergency Management Agency (FEMA) that the train underpass at Interstate 95 owned by Defendants and running through the Lumberton’s levee system creates a substantial risk of destructive flooding to the southern and western portions of Lumberton. Nonetheless, Defendants have taken no steps to correct the problem. 

As a direct result of Defendants’ disregard of the risk, in 2016, during Hurricane Matthew, when the Lumber River overflowed its banks, the river rushed through the gap in the levee system existing for the I-95 underpass and caused catastrophic damage to the southern and western parts of Lumberton, resulting in more than 1,500 people being displaced, 2,367 structures being damaged, and more than $250 million in damages.

Following Hurricane Matthew, the Resilient Redevelopment Plan for Robeson County, North Carolina concluded that the majority of the homes flooded in the southern and western areas of Lumberton were flooded by the water rushing through Defendants’ I-95 underpass.  The report concluded that without a floodgate at the I-95 underpass, the community was at risk of suffering flooding in the future like that experienced during Matthew.  North Carolina Emergency Management and the Golden LEAF Foundation offered to provide all the funding needed to construct a $3.5 million floodgate to seal the hole in the levee system created by Defendants’ railroad underpass.

On May 1, 2018, the North Carolina Department of Transportation and North Carolina Emergency Management prepared the “Lumber River Basin Flood Analysis and Mitigation Strategies Study,” which concluded that a floodgate would save 2,000 buildings and $232.6 million in damage for a Matthew-equivalent flood, which would amount to a greater than 80% reduction in damage.

Although Defendants could not have had a more compelling demonstration of the damage that its underpass could cause, Plaintiffs allege that they still failed and refused to work with the city and other governmental bodies to take steps to ensure that the flooding resulting from Hurricane Matthew was not repeated. 

Plaintiffs further allege that in 2018, when Hurricane Florence threatened the city, governmental officials pleaded with Defendants to allow the city to build a temporary sandbag berm to try to fill the hole created by the I-95 underpass.  Defendants repeatedly refused, threatening legal action if the city acted without permission.  Only when the Governor signed an emergency order could volunteers, government workers, and the National Guard construct the berm as Hurricane Florence struck.  When the berm ultimately failed, after protecting Lumberton for two days, the Lumber River again rushed through the I-95 underpass, precisely as it had two years before again forcing evacuations, leaving people homeless, and closing businesses and places of worship.

The proposed class seeks relief and compensatory damages on the basis of negligence, public and private nuisance and trespass on the part of CSX. They are also seeking an order requiring CSX to construct a floodgate to prevent future flooding.

The case is named: West Lumberton Baptist Church v. CSX Corporation, Case No. 7:18-cv-00178-FL, U.S. District Court, Eastern District of North Carolina, Southern Division.