Funderburk v. S.C. Elec. & Gas Co.

406 F.Supp.3d 527

Sharon FUNDERBURK and Thomas Funderburk, Plaintiffs,

v.SOUTH CAROLINA ELECTRIC & GAS COMPANY, The County of Lexington, SC, and CSX Transportation, Inc., Defendants.

John P. Cantwell, Plaintiff,

v.South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants.

Robert Sherr and Kristi Sherr, Plaintiffs,

v.South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants.

Harry Crosby, Plaintiff,

v.South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants.

Leonard Anderson and Karen Anderson, Plaintiffs,

v.South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants.

Carol Bausinger and Scott Bausinger, Plaintiffs,

v.South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants.

Richard Miranda and Dorothy Miranda, Plaintiffs,

v.South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants.

Calvin Nesbit and Jane Nesbit, Plaintiffs,

v.South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants.

Harry A. Plexico, Jr. and Margaret S. Plexico, Plaintiffs,

v.South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants.

Faron Warwick and Dana Warwick, Plaintiffs,

v.South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants.

Jeanne West, Plaintiff,

v.South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants.

Warren Boyeson and Christine M. Boyeson, Plaintiffs,

v.South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants.

Karl Hagenmeyer and Willette Hagenmeyer, Plaintiffs,

v.South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants.

Demario Benjamin and Kerochedia Amaker, Plaintiffs,

v.South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants.

Richard Green, Plaintiff,

v.South Carolina Electric and Gas Company, The County of Lexington, SC, and CSX Transportation, Inc., Defendants.

Civil Case No.: 3:15-cv-04660-JMC

Civil Case No.: 3:15-cv-04694-JMC

Civil Case No.: 3:15-cv-04695-JMC

Civil Case No.: 3:15-cv-04877-JMC

Civil Case No: 3:15-cv-04887-JMC

Civil Case No.: 3:15-cv-04888-JMC

Civil Case No.: 3:15-cv-04892-JMC

Civil Case No.: 3:15-cv-04893-JMC

Civil Case No.: 3:15-cv-04894-JMC

Civil Case No.: 3:15-cv-04897-JMC

Civil Case No.: 3:15-cv-04898-JMC

Civil Case No.: 3:15-cv-04920-JMC

Civil Case No.: 3:15-cv-04922-JMC

Civil Case No.: 3:16-cv-01141-JMC

Civil Case No.: 3:16-cv-01143-JMC

United States District Court, D. South Carolina, Columbia Division.

Signed July 26, 2019

Stanley L. Myers, Stephen Jahue Moore, William H. Edwards, Moore Taylor and Thomas, West Columbia, SC, for Plaintiffs.

Elizabeth A. McLeod, Michael N. Loebl, Fulcher Hagler Reed Hanks and Harper, Augusta, GA, Morris Wade Richardson, Weinberg Wheeler Hudgins Gunn and Dial, Birmingham, AL, Evan Markus Gessner, Davis Frawley LLC, Patrick John Frawley, Nicholson Davis Frawley Anderson and Ayer, Lexington, SC, for Defendants.

ORDER AND OPINION

J. MICHELLE CHILDS, United States District Judge

Plaintiffs filed these actions, currently consolidated for pretrial purposes, seeking monetary compensation from Defendants South Carolina Electric and Gas Company ("SCE&G"), The County of Lexington, SC ("Lexington County"), and CSX Transportation, Inc. ("CSX") for the damage caused to their homes by flood water released from Lake Murray Reservoir in October 2015.

This matter is before the court by way of CSX's Motions for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (3:15-cv-04660-JMC, ECF No. 165; 3:15-cv-04694-JMC, ECF No. 149; 3:15-cv-04695-JMC, ECF No. 148; 3:15-cv-04877-JMC, ECF No. 148; 3:15-cv-04887-JMC, ECF No. 149; 3:15-cv-04888-JMC, ECF No. 147; 3:15-cv-04892-JMC, ECF No. 148; 3:15-cv-04893-JMC, ECF No. 147; 3:15-cv-04894-JMC, ECF No. 147; 3:15-cv-04897-JMC, ECF No. 148; 3:15-cv-04898-JMC, ECF No. 148; 3:15-cv-04920-JMC, ECF No. 150; 3:15-cv-04922-JMC, ECF No. 149; 3:16-cv-01141-JMC, ECF No. 143; 3:16-cv-01143-JMC, ECF No. 143.¹ ) Plaintiffs oppose the Motions for Summary Judgment "on the grounds that there are genuine disputes of material fact." (3:15-cv-04660-JMC, ECF No. 190 at 1.) For the reasons set forth below, the court GRANTS CSX's Motions for Summary Judgment.

I. RELEVANT BACKGROUND OF PENDING MOTIONS

Plaintiffs own homes in the Coldstream neighborhood located "on the edge of Lexington County[, South Carolina], between Old Bush River Road, Coldstream Drive, and Nursery Road." Coldstream Neighborhood , https://coldstreamhoa.org (last visited July 18, 2019). "SCE&G is a regulated public utility engaged in the generation, transmission, distribution and sale of electricity to ... customers in South Carolina." SCE&G , https://www.sceg.com/about-us/newsroom/2018/05/09/sce-g-replaces-more-than-40-percent-of-its-nuclear-project-capacity-with-purchase-of-natural-gas-fired-power-plant (last visited July 1, 2019). "CSX[ ] is one of the largest rail transportation companies in the United States," providing "common carrier rail transportation services across a rail network consisting of approximately 21,000 railroad route miles." (ECF No. 165-1 at 9 ¶ 3.) And, Lexington County is a county located in South Carolina that is comprised of "a total area of 758 square miles (1,960 km), of which 699 square miles (1,810 km) is land and 59 square miles (150 km2) (7.8%) is water." Lexington County, https://en.wikipedia.org/wiki /Lexington_ County,_South_Carolina (last visited July 18, 2019) (citing 2010 Census Gazetteer Files, https://www2.census.gov/geo/docs/maps-data/data/gazetteer/counties_list_45.txt (last visited July 26, 2019)). "The largest body of water [in Lexington County] is Lake Murray, while other waterways include Broad River, Saluda River and Congaree River." Id.

SCE&G operates the federally licensed Saluda Hydroelectric Project P-516 ("Saluda Hydro Project" or "Project") "located on the Saluda River in Richland, Lexington, Saluda, and Newberry Counties of South Carolina, approximately 10 miles west of the city of Columbia, and near the towns of Irmo, Lexington, and Chapin."² E.g. , Long v. SCE&G , C/A No. 3:15-cv-04890-JMC, ECF No. 115-2 at 13 (D.S.C. June 3, 2019). "The 2,420 square mile watershed area, drained by the Saluda River and its tributaries above Saluda Dam, provides water for Lake Murray and the Saluda Hydroelectric Plant." (Id. ) "The Saluda Hydroelectric Project structures consist of a 7,800 foot long earth fill embankment dam (Saluda Dam [or Saluda River Dam, officially the Dreher Shoals Dam, commonly referred to as the Lake Murray Dam] ), a backup dam, an emergency spillway with six Tainter gates, a powerhouse, five concrete intake towers and associated penstocks." (Id. at 13 ¶ 1.0.) "Lake Murray covers a normal maximum operating water surface area of 75 square miles or approximately 48,000 acres." (Id. at 17 ¶ 2.1.) "The normal maximum operating water surface elevation is 356.5' during the summer months, although the current license permits a maximum operating level (full pool) of El. 358.'." (Id. )

SCE&G operates the Saluda Dam "primarily for hydroelectric power production as its Saluda Hydro facility, but outflow and storage can also be controlled by way of [the] six [T]ainter gates during flood events." (3:15-cv-04660-JMC, ECF No. 190-2 at 5.) "When inflow during major floods requires temporary storage above maximum operating pool level, releases are made through spillway gates to augment discharges through power turbines in order to lower the reservoir to required maximum pool level as soon as possible." (3:15-cv-04660-JMC, ECF No. 190-2 at 5.) "During this operation, spillway gates are opened gradually until the lake level begins to recede." (Id. ) "As long as the reservoir level continues to rise[,] gate openings will be increased until all six spillway gates are wide open." (Id. )

"From October 1st through 5th, 2015, a combination of coincident atmospheric conditions, in combination with a plume of tropical moisture associated with Hurricane Joaquin, resulted in record rainfall over portions of South Carolina." (3:15-cv-04660-JMC, ECF No. 190-2 at 4.) Plaintiffs, as residents of Coldstream neighborhood along Rawls Creek,³ experienced flooding beginning at around 5 or 6 a.m. on October 4, 2015. (Id. at 6.) The flooding completely destroyed Plaintiffs' homes and their personal property. (E.g. , 3:15-cv-04660-JMC, ECF No. 132 at 4 ¶ 25.)

Because they believed damage to their real and personal property occurred as a result of SCE&G's failure to properly manage water levels at the Lake Murray Dam, Plaintiffs filed Complaints in the Lexington County Court of Common Pleas on November 10 and 12, 2015, alleging claims against SCE&G for negligence, trespass, strict liability, and inverse condemnation pursuant to South Carolina's eminent domain laws. (3:15-cv-04660-JMC, ECF No. 1-1.) On December 10 and 11, 2015, SCE&G filed Notices of Removal, removing Plaintiffs' actions to this court pursuant to 28 U.S.C. §§ 1331, 1367, 1441 & 1446, and provisions of the Federal Power Act, 16 U.S.C. §§ 791 – 828c.⁴ (ECF No. 1.)

After the parties litigated the court's jurisdiction over the matter and conducted discovery, Plaintiffs filed Amended Complaints on October 4, 2017, and Second Amended Complaints on January 16, 2019, asserting individual claims of negligence, Fifth Amendment inverse condemnation, trespass, strict liability, and nuisance against SCE&G, CSX, and Lexington County for their perceived roles in the destruction of Plaintiffs' homes.⁵ (3:15-cv-04660-JMC, ECF Nos. 64, 132.) Then, on May...