Appeals court upholds $3.8M verdict against BNSF

The Missouri Court of Appeals Western District on Sept. 4 upheld a jury award of $3.8 million to a couple in Holt County whose farm was ravaged by floodwater after a railroad embankment collapsed.

Thomas and Dana Tubbs had sued BNSF Railway Company in 2012 in the wake of the property damage, which had occurred during a massive flood of the Missouri River the year before.

The Tubbses are the owners and operators of a farm in a valley northwest of St. Joseph. A BNSF track bisects the Tubbses’ property and runs atop an earthen embankment that had first been constructed in 1887.

The valley suffered at least seven major floods between 1950 and 2011. To keep the tracks safe, the railroad kept elevating the height of the embankment, which in effect created a dam. As floodwater rose against it, the pressure on it increased, creating the risk of a breach. In 2011, an engineering consultant hired by BNSF determined that, to help relieve pressure and let the water flow more freely, the height and length of the embankment required 10 times more drainage than the railroad had provided.

In June 2011, a levee upstream of the Tubbses’ farm failed, putting more water pressure on the north side of the embankment than on the south side. Eventually, a breach occurred. According to the appeals court’s summary, the water rushed onto the Tubbses’ land with such velocity that it scoured holes down to the bedrock, some of which were 60 feet deep. The flood also left sand deposits on nearly 400 acres of the farm. An appraiser estimated that the farm lost nearly $2.6 million in value as a result of the flood damage.

At trial, the Tubbses proceeded solely on a state-level claim of negligence under a drainage rule in the Federal Railroad Safety Act. The trial jury found for the farmers and awarded them $2,598,000 in compensatory damages and $1,231,000 in punitive damages.

On appeal, the railroad argued, among other things, that the Tubbses failed to make a submissible case as to the applicable standard of care. Appeals judges Karen King Mitchell, Lisa White Hardwick and Edward R. Ardini Jr., found that the parties did indeed agree that the federal drainage rule was the applicable standard. The parties disagreed, however, on two key phrases that provided that each drainage facility “be maintained and kept free of obstruction” “to accommodate expected water flow for the area concerned.”

The railroad argued that “to maintain and keep free of obstruction” a drainage facility means to keep intact only what is already there, with no obligation to build any extra features. The railroad also argued that its duty to accommodate an “expected water flow” did not encompass atypical floods at historic levels.

The appeals judges disagreed on both points. They concluded that the words “maintain” and “expected” were not defined in the federal drainage rule, so they turned to the dictionary. They ultimately found that the railroad was required to build the extra drainage features. Whether or not such high-water levels were “expected” was a question for the jury, which could’ve decided that they were, given that the U.S. Army Corps of Engineers had announced years prior to the incident that greater flooding would occur.

Ed Murphy of Murphy, Taylor, Siemens & Elliott in St. Joseph, an attorney for the Tubbs family, welcomed the court’s reading of the federal regulations.

“You can’t just install a very small opening in 1887 and expect that, 140 years later after you’ve raised the track many times, that’s going to be adequate to avoid damming water up onto the upstream landowners,” he said.

Douglas Dalgleish of Stinson Leonard Street, who argued the case for BSNF, declined to comment. Thomas Jayne, an in-house attorney for the railroad, said in an email that the company would petition for further relief.

The case is Tubbs v. BNSF Railway Company Inc., WD80749.