(The following story by Kevin Murphy appeared on the Dubuque Telegraph Herald website on August 15.)
MADISON, Wisc. — The Burlington Northern Santa Fe Railroad wants the class-action lawsuit — filed by village of Bagley residents whose homes were damaged in a July 2007 flood — transferred from Grant County Circuit Court to federal court in Madison.
The 53 residents allege in the suit filed May 16 in Grant County that BNSF is liable for the millions of dollars of flood damage in the community due to the railroad’s failure to clear debris from a trestle spanning Glass Hollow Creek.
According to their suit, the flood wasn’t “an act of God” but was man-made as the floodwaters spilled over the debris-choked trestle, damaging about half of the 400 residences in and around Bagley. Because Glass Hollow has flooded previously and the railroad maintains the track and trestle, it knew or should have known that the tree branches and other debris clogging the trestle would impede subsequent floods.
An expert the residents’ attorney has hired would testify at trial that design capacity of the trestle would have handled the runoff from the July 17, 2007, rainfall had it not been for the railroad’s failure to clear the creek bed.
In responding to the suit, BNSF has denied the allegations of negligence and a company spokesman has said that the debris was brought down from the bluffs above the trestle by the rushing water. Also, the area’s drainage system was inadequate to accommodate the flash flooding that occurred after the heavy downpour.
Another legal battle is shaping up over what court should hear the case. Platteville attorney Christopher Stombach, representing the residents, argues the suit should remain in Grant Count Circuit Court because the residents and the railroad employees in charge of maintenance are all Wisconsin residents. Also, there are no federal issues in the suit.
Stombach said Thursday that he believed it would be “unlikely” for the federal court to take the case.
“Based on the law we have a high degree of confidence that this case will eventually be tried in Grant County,” Stombach said.
BNSF’s attorney Timothy Thornton, of Minneapolis, argued the case belongs in federal court because the railroad’s corporate headquarters in Ft. Worth, Texas, and the Wisconsin residents create diversity of citizenship required for federal jurisdiction.
“I’ve been doing this for 35 years and I’ve never seen a lawsuit pled that there isn’t any federal jurisdiction. I mean, if you don’t have federal jurisdiction, you don’t have to plead it,” Thorton said.
Thornton also said that the suit seeks class-action status which according to federal law puts it in federal court.
The suit’s contention that all parties are Wisconsin residents fails because while railroad employees William Barbee and Francis Weber are Wisconsin residents, they are supervisors and the claims against them aren’t distinct from the suit’s claims against the railroad, according to the court documents BNSF filed.
BNSF spokesm an Steve Forsberg said the company “believes there was no negligence in the operation of the railroad,” in regard to the flooding. Forsberg didn’t specify why the railroad wanted the case moved from Grant County other than “procedural reasons.”
Federal Magistrate Stephen Crocker will first have to determine if the case can be transferred to federal court before acting on Stombach’s request to designate the suit as class-action status. As many as 74 residents could qualify as class-action plaintiff, according to the suit.
The railroad is liable for about $5 million in damages to Bagley, according to the suit. That includes compensation for damage for homes and personal property, reduced market value, clean-up and restoration expense and punitive damages.