October 04, 2018

New Federal Class Action Details CSX Transportation’s Decision to Ignore Major Vulnerability in Lumberton Levee System, Obstruct Efforts To Fix Problem

Residents Ask Court to Require CSX to Construct Floodgate to Prevent Damage from Future Storms

LUMBERTON, NC – A group of North Carolina faith leaders, entrepreneurs and residents, who suffered from widespread flooding in the wake of Hurricanes Matthew and Florence, filed a federal class action lawsuit today accusing a leading railroad operator of failing to address known risks posed by one of the company’s highway underpasses in Lumberton.

According to the complaint, the company – CSX Transportation -- was made aware of the flooding risks as early as 2003 by both federal and state officials but repeatedly refused to take action, resulting in a catastrophic flooding and widespread destruction and displacement when the town was hit by Hurricane Matthew in October 2016. Two years later, as Hurricane Florence approached, the complaint alleges CSX disregarded new calls to mitigate the problem, even threatening legal action to block local stop-gap measures and refusing to take part in planning efforts with city officials.

“Many of us in Lumberton, including our church, had barely began recovering from the destruction of Hurricane Matthew when our community was struck again by Hurricane Florence,” said Pastor Rick Foreman of the West Lumberton Baptist Church, a plaintiff in the class-action lawsuit. “The pain and turmoil this caused was made worse by the fact that CSX knew of the risks created by the underpass and actively chose to ignore them. Operating a business here means you have a responsibility to our community, and it’s time to hold CSX accountable to ensure our homes, places of worship and livelihoods are protected in the future.”

“Despite multiple warnings from experts and authorities, CSX repeatedly chose to ignore the flood dangers posed by its underpass, even going as far as to threaten those looking to fix the problem with litigation,” said Theodore J. Leopold, Partner at Cohen Milstein Sellers & Toll and lead plaintiffs’ attorney. “First with Hurricane Matthew and then with Hurricane Florence, the company’s inexcusable negligence has left scars on this community that will take years to heal.”

“We look forward to securing justice for those impacted by CSX’s conduct and working to ensure this doesn’t happen again,” added Martha Geer, also a Partner at Cohen Milstein Sellers & Toll and Co-Counsel for the plaintiffs.

Florida-based CSX Corporation is a leading national provider of railroad and transportation services, with a network of tracks that spans more than 21, 000 miles across 23 states and Canada. Nearly two-thirds of Americans live within CSX’s service territory.

CSX owns and operates a rail network that runs through Lumberton, North Carolina, including an underpass through a local portion of Interstate I-95. As detailed in the complaint, concerns about the vulnerabilities posed by the underpass for the city’s levee system surfaced in 2003, when officials from the Federal Emergency Management Agency and the North Carolina Floodplain Mapping Program concluded it presented substantial risks for flooding. Despite these warnings, the company took no action to implement a closure or construct a floodgate system, leaving thousands of residents, business and institutions exposed. 

In 2016, Hurricane Matthew struck Lumberton. Though the city’s levees were not breached, water from the Lumber River poured through the hole created by CSX’s underpass. The resulting floods left much of the southern and western parts of the city navigable only by boat, resulting in more than 1,500 people being displaced and more than $250 million in damages. Local authorities concluded in the wake of Hurricane Matthew that much of the flooding damage stemmed from the vulnerabilities created by CSX’s underpass and that significant risks for future flooding remained.

In response, officials, together with the Golden LEAF Foundation, called on CSX to mitigate the problem, even offering to provide the funding required to construct a floodgate system to seal the hole in the city’s levee system.

Yet, according to the complaint, CSX again refused to act and the company’s disregard for these risks continued well into 2018. The complaint alleges that when state officials renewed calls for a floodgate in May of this year, the company refused to take part in planning discussions.

As Hurricane Florence approached North Carolina in September, local efforts to prepare a temporary stopgap measure were allegedly stymied because CSX threatened to sue local authorities. The lawsuit notes that the company acquiesced to these demands only after North Carolina Governor Roy Cooper signed an emergency order on the morning the storm hit. These temporary measures would ultimately prove unable to stop water from pouring through the underpass, much as it had two years earlier during Hurricane Matthew, leading to numerous businesses, places of worship, homes and vehicles being damaged or destroyed.

The class action proposed in the complaint includes a variety of residents and stakeholders impacted by CSX’s alleged negligence in southern and western parts of the city, including homeowners, entrepreneurs and faith leaders.

The plaintiffs are represented by Theodore J. Leopold, Co-Chair of Cohen Milstein’s Complex Tort Litigation and Consumer Protection practices, Martha Geer, Adam J. Langino and Jay Chaudhuri of Cohen Milstein Sellers & Toll. The proposed class seeks relief and compensatory damages on the basis of negligence, public and private nuisance and trespassing on the part of CSX. They are also seeking an order requiring CSX to construct a floodgate to prevent future flooding.

About Cohen Milstein

Cohen Milstein Sellers & Toll PLLC is recognized as one of the premier law firms in the country handling major, complex plaintiff-side litigation. With more than 90 attorneys, Cohen Milstein has offices in Washington, D.C., Chicago, Ill., New York, N.Y., Palm Beach Gardens, Fla., Philadelphia, Pa. and Raleigh, N.C. For additional information, visit www.cohenmilstein.com or call 919-890-0560.