In lawsuit response, CSX Transportation denies role in Waverly 2021 flood deaths

Blame the record-setting rainfall, not us.

That’s the response by CSX Transportation, a national railroad company, to a wrongful death lawsuit filed by the families of eight of the 22 victims who died in flash flooding in Waverly, Tenn., in August 2021.

“This lawsuit seeks to turn a natural disaster of historic proportions into a tort suit,” attorneys for the firm wrote in a recent filing in U.S. District Court. “The catastrophic flash flood of August 2021, unprecedented in recent times in dimension and degree, visited tragedy upon the people of Waverly, Tenn. Plaintiffs now seek to find their culprit not in record-breaking torrential rainfall and flash flooding but in a private railroad.”

At least 17 inches of rain fell on Waverly within 24 hours — a one-day record rainfall in Tennessee. Floodwaters destroyed homes and businesses throughout the small Middle Tennessee town and claimed the lives of 22 residents, including twin babies and a toddler.

A year after the deadly floods, the survivors of eight of those victims sued CSX Transportation and private landowners James and Sherry Hughey. They claim a debris-clogged CSX culvert dammed up Trace Creek and caused a “tidal wave” of floodwaters to crash down on Waverly.

“The deadly tidal wave was formed by millions of gallons of water that became bottled up behind the CSX railroad bridge crossing over Trace Creek,” the lawsuit stated. “The water backed up because CSX allowed various debris to clog its culvert under the bridge, which substantially impeded the creek’s natural flow.

“Unable to pass freely through the culvert, the rushing waters of storm-welled Trace Creek were diverted over the banks of the creek bed and were further prevented from flowing downstream by the man-made dam formed by the earthen railbed which supported CSX’s elevated tracks,” the lawsuit continued.

“CSX knew that its culvert would regularly clog with debris prior to (the flood) because its personnel would occasionally remove debris from the culvert,” according to the litigation. “CSX also knew that its debris-clogged culvert could turn its elevated railroad tracks into a dangerous makeshift dam because CSX had experienced this same problem in other locations.”

The suing families blame the Hugheys for being “complicit in CSX’s malfeasance because they permitted CSX to pile debris on the creek bank on land which they owned near the Trace Creek Bridge.”

“Although CSX would on occasion remove timber and other debris clogging the culvert, it would simply pile the removed materials onto the neighboring creek bank owned by the Hugheys,” the lawsuit stated. “This made the problem even worse because the next heavy rain would push the piled-up debris back into the creek where it could then return, along with new debris, to the culvert — creating an environment for an even more significant blockage of the natural flow of Trace Creek.”

CSX: No duty to protect

Attorneys for CSX and the Hugheys are now asking a federal judge to toss out the lawsuit as baseless and legally flawed.

In its motion to dismiss the lawsuit, the railroad company contends it had no legal duty to protect the citizens of Waverly from any flooding a clogged culvert might cause.

“The duty the (lawsuit) hypothesizes — a generalized duty in tort of a private landowner to protect the general public from a flood — does not exist,” the motion stated. “The (lawsuit) charges CSX with the duty of flood protection for the general population of Waverly. Tennessee law recognizes no such duty.

“Time and again, courts and other authorities recognize that community flood protection is the function of government,” the motion continued.

The Hugheys are taking a similar stance in their motion seeking dismissal of the litigation.

“Plaintiffs attempt to impose on the Hugheys a duty to protect the constituents of Waverly from widespread community flooding,” the Hugheys’ response stated. “Plaintiffs’ complaint is void of any factual allegations that arise to impart a legal duty from the Hugheys to the plaintiffs.

“The Hugheys do not work for any government agency and certainly they do not become arms of the government by virtue of the location of their property,” the response continued. “The Hugheys are not insurers of the safety of the entire Waverly community and absent a special relationship, such imposition constitutes an unreasonable burden.”

A hearing date on the motions to dismiss the litigation has not yet been set.