Tubbs v. BNSF Ry. Co.

• Decision Date: 04 September 2018
• Docket Number: WD 80749
• Citation: 562 S.W.3d 323
• Parties: Thomas TUBBS, et al., Respondents, v. BNSF RAILWAY COMPANY, INC., Appellant.
• Court: Missouri Court of Appeals

562 S.W.3d 323

Thomas TUBBS, et al., Respondents,

v.BNSF RAILWAY COMPANY, INC., Appellant.

WD 80749

Missouri Court of Appeals, Western District.

OPINION FILED: September 4, 2018

Motion for Rehearing and/or Transfer to Supreme Court Denied October 23, 2018

Application for Transfer Denied December 18, 2018

R. Edward Murphy, Michael L. Taylor, and Benjamin S. Creedy, St. Joseph, MO, Attorneys for Respondents.

Douglas R. Dalgleish and Bryce Langford, Kansas City, MO, Booker T. Shaw, St. Louis, MO, and Charles G. Cole (pro hac vice) and Alice E. Loughran (pro hac vice), Washington, D.C., Attorneys for Appellant.

Before Division Two: Karen King Mitchell, Chief Judge, and Lisa White Hardwick and Edward R. Ardini, Jr., Judges

Karen King Mitchell, Chief Judge

BNSF Railway Company (BNSF) appeals the denial of its motion for judgment notwithstanding the verdict following a jury trial and judgment awarding Thomas and Dana Tubbs (the Tubbses)¹ $2,598,000 in actual damages and $1,231,000 in punitive damages for BNSF’s negligence in failing to provide adequate drainage for a portion of track that bisects the Tubbses' farm. BNSF argues that the trial court erred in denying BNSF’s motion because the Tubbses failed to make a submissible case as to (1) the applicable standard of care and (2) punitive damages. BNSF also argues that the trial court erred in refusing BNSF’s withdrawal instructions pertaining to evidence of (1) the height and design of the track and (2) an intentional breach of the track. Because we find that the Tubbses made a submissible case on the standard of care and punitive damages and that the trial court did not abuse its discretion in denying BNSF’s withdrawal instructions, we affirm the trial court’s denial of BNSF’s motion for judgment notwithstanding the verdict.

Background²

The Tubbses own and operate a farm in a floodplain near the Missouri River in Holt County, Missouri. The farm is located just southeast of Big Lake and about three-and-a-half miles east of the Missouri River. BNSF, an interstate freight railroad, owns and operates a track that runs east to west across the floodplain and bisects the Tubbses' farm. The track sits atop an earthen embankment, which was originally built in 1887.

The embankment blocked the free flow of occasional floodwaters from the Missouri River. In response to recurrent flooding over the years, BNSF incrementally raised the height of the track and added more ballast (crushed rock) between the embankment and the track to prevent water from spilling over the track and interrupting rail service. But, as the height of the track increased, BNSF did not provide additional drainage capacity (e.g. , bridges or culverts) to address the increased volume of dammed water. Record-setting floodwaters from the Missouri River breached the embankment in July 2011 and damaged the Tubbses' farm.

In 2012, the Tubbses filed a lawsuit in Holt County Circuit Court against BNSF and its contractor, Massman Construction Company, seeking actual and punitive damages for state-law torts, including trespass, nuisance, negligence, inverse condemnation, and statutory trespass in connection with the embankment breach.³ After discovery, BNSF moved for summary judgment on the ground that federal law preempted the Tubbses' state-law claims. The Tubbses requested and obtained a stay from the trial court so they could seek a Declaratory Order from the Surface Transportation Board (STB) addressing whether their state-law claims were preempted by federal law.

In 2014, the STB concluded that the Tubbses' state-law claims were related to the design, construction, and maintenance of BNSF’s rail line and, therefore, were preempted by the Interstate Commerce Commission Termination Act, 49 U.S.C. § 10101, et seq. (ICCTA).⁴ Thomas Tubbs , No. FD 35792, 2014 WL 5508153, *4 (STB Service Date: Oct. 31, 2014). But, to the extent the Tubbses' claims were based on alleged violations of the Federal Railroad Administration’s (FRA) Federal Railroad Safety Act (FRSA) regulations (specifically 49 C.F.R. §§ 213.33 and 213.103(c) ),⁵ they were not preempted because "the FRSA regulations that Petitioners cite are applicable to the entire national rail system and do not directly conflict with the uniform federal regulation of railroads under the Interstate Commerce Act." Id. at *7. The Tubbses filed a petition for review of the STB’s decision with the U.S. Court of Appeals for the Eighth Circuit. Tubbs v. Surface Transp. Bd. , 812 F.3d 1141 (8th Cir. 2015). The Eighth Circuit denied their petition, leaving the STB’s decision in place. Id. at 1146.

Following the STB and Eighth Circuit decisions, the Tubbses filed a Second Amended Petition relying on the same factual assertions but consolidating their allegations into a single claim of negligence based on two FRSA regulations—the drainage regulation in 49 C.F.R. § 213.33 and the ballast regulation in 49 C.F.R. § 213.103.⁶ At trial, the Tubbses did not pursue their negligence claim based on the ballast rule in § 213.103, but instead proceeded solely on their claim under the drainage rule in § 213.33. The verdict-directing instruction given to the jury paraphrased the language of § 213.33, which states, in full, "[e]ach drainage or other water carrying facility under or immediately adjacent to the roadbed shall be maintained and kept free of obstruction, to accommodate expected water flow for the area concerned." Specifically, the verdict-directing instruction stated,

Your verdict must be for plaintiffs, if you believe:

First, defendants failed to maintain and keep free of obstruction each drainage or other water carrying facility under or immediately adjacent to the roadbed to accommodate expected water flow for the area concerned, and

Second, defendant was thereby negligent, and

Third, as a direct result of such negligence plaintiffs sustained damage.

Over BNSF’s objection, the court also instructed the jury to decide whether punitive damages should be awarded against BNSF.

The following evidence favorable to the jury’s verdict was adduced at trial. Historically, the valley where the Tubbses' farm is located had experienced several large floods, including floods in 1952, 1967, 1973, 1984, 1993, 2007, 2008, and 2010. In response to, or anticipation of, these events, BNSF occasionally raised the height of its track to prevent water from spilling over it and interrupting rail service, but BNSF never added any new openings in the embankment to allow for cross-drainage. Each time BNSF raised the track to protect it from expected water flow, the increase in height, together with the lack of additional drainage, increased the damming capability of the embankment because, as the track grew in height, the more water it would block, thereby raising the pressure on the embankment.⁷ During flooding, the absence of cross-drainage produced a water pressure differential—more water and greater water pressure on the upstream (northern) side of the embankment and substantially less water and thus lower water pressure on the downstream (southern) side. During the 2011 flood, the water on the north side of the embankment was approximately two feet deeper than the water on the south side. The uneven water pressure forced water to flow through the soil in the embankment, eroding the fine sediment therein, and eventually causing the breach that is the subject of this lawsuit.

Upstream from the Tubbses' farm, the U.S. Army Corps of Engineers (the Corps) operates a series of five large reservoirs. In 2007, the Corps publicly announced that it would be releasing a larger volume of water from its reservoirs in the future, which would increase the flow of the Missouri River, creating a greater likelihood of downstream flooding.

In the spring of 2011, BNSF knew there "was a possibility that there would be flooding" in the Missouri River Basin that year. The previous winter had been the snowiest in recent years in the northern region, and the eventual snowmelt significantly raised water levels in the Corps' reservoirs. Then, both April and May of 2011 had record-setting rainfall in the upper Missouri River Basin. The rain in May nearly filled the Corps' reservoirs to capacity. By the end of May, the Corps announced that it planned to release 150,000 cubic feet of water per second from its Gavins Point reservoir in South Dakota.

In May and June of 2011, BNSF hired engineering consultants to advise it regarding the anticipated flooding that summer. At the time, BNSF’s embankment had one drainage opening in its five-mile span, which was a bridge 134 feet in length. One consultant advised BNSF that four additional drainage openings in the embankment and a substantial increase in the existing opening were needed to address the anticipated water flow. Specifically, the consultant indicated that the height and length of the track necessitated ten times the amount of existing drainage through the embankment to accommodate expected water flow.

Around the same time, BNSF raised its mainline track and fortified the entire track structure by placing rock, riprap, and other material trackside. BNSF focused its efforts on raising its track east of Big Lake—a stretch of about a mile—where the track sat at a slightly lower elevation.⁸ However, BNSF "ran out of time." Also, in the initial stages of the flood, before the embankment breach at the Tubbses' farm, BNSF contractors were "out there mobilizing to start building bridges." BNSF "knew [they] were going to do something. [They] just didn't know exactly what."

On June 19 or 20, 2011, a levee about eight miles north of Big Lake collapsed. The breach was several hundred feet wide and allowed a tremendous volume of water to move south, requiring the evacuation of local community members, including the Tubbses. Floodwaters quickly reached the north side of BNSF’s embankment, and BNSF stopped operating freight trains on that segment of the line on June 20 because the track was submerged.

In an...