Mass “Hurricane” Tort – The Katrina Case

Will Hurricane Katrina be the Largest Tort in History?

Synopsis:

The situation follows; a piece of property is protected from sea water by a navigation channel maintained by the Army Corps of Engineers. Katrina comes along and destroys the barrier, letting sea water ravage the property. The property owner then sues the Corps claiming that they should be responsible for the harm caused. The claim has been denied for years using an 80 year old federal statute.

Major Issue:

Up until today, the Corps has been immune from liability. Shielded by the Flood Control Act of 1928 provides: “No liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place.” 33 U.S.C. Sec. 702c, p 2, cl. 1 (1988). If Section 702c is to be construed broadly, ”This immunity shields the government from tort claims arising from construction or management of federal flood control projects.”

Narrowness of Statute: Although this provides for flood control, this specific Mississippi Gulf River Outlet, which is center to this claim, was a navigation channel not explicitly under the purview of the Flood Control Act of 1928. The MGRO is not covered by this 80 year old statute and thus has no inherent immunity.

33 U.S.C. Sec 702c Construed Narrowly

A federal judge, Stanwood Duval, has decided that the narrowness of this statute precludes the MGRO from immunity.

Section 702c immunity does not depend on the location of the plaintiff at the time of the injury, but instead turns on whether governmental control of flood waters was a substantial factor in causing the injury. 31 F3d 683 Fisher v. United States Army Corps of Engineers31 F.3d 683

The courts seem to have been giving this statute a continually narrower interpretation, carte’ blanch immunity is rather incompatible with justice. Remember, that this statute was enacted 80 years ago – a lifetime of distance. The legislature would see this negative treatment and have the option to affirm the initial law by the passage of a bill. But remember, the legislature acts in broad strokes while the courts function to adapt and fill in responsible law. But this is really only the beginning. The property owners, plaintiffs, must demonstrate all the applicable elements of a tort claim.

The Twist – Negligence

The second major stumbling block for the plaintiffs was to prove Breach. To prove breach they had to establish that the Corps was negligent in its construction and maintenance.

The judge claimed the breach by the Corps was “Negligence and Myopia”. Mississippi Gulf River Outlet was apparently  widened, dredged, and further increased intensity of the storm by its shape. Assuming the science is correct, it reasonably looks to an objective person that it was in breach. According to the case, it was several longstanding practices that culminated in the massive failure. The judge found “monumental negligence” of the MGRO.

The plaintiffs say they hope a victory in the case could open the door for a broader class action in which more than 400,000 claims have been filed against the government. An Army financial projection has concluded that there is a reasonable possibility that potential government losses could ultimately range from $10 billion to $100 billion. Law Professors Blog Network

Ingredients of  a Torte’

Duty: Was this type of harm to the plaintiff foreseeable to the Corps? Yes, the Corps seems to have operative knowledge that the system was lacking. The surrounding factors show that the Corps was in unilateral control and that a failure would directly lead to massive property damage and loss of life. There was clearly a duty between the Corps and the plaintiffs

Breach: (Proving Negligence) – Judge has claimed that a myriad of factors has demonstrated that a manifest negligence existed. Another way to show breach could be using the hand model:

If (Burden of Prevention) < (Probability) x (Magnitude of Loss) -> Breach

Cause- “But For” the failure of the MGRO, the plaintiffs would not have been harmed. Easily established.

Proximate Cause- Was the breach a substantial factor in the catastrophe? One could argue that Katrina was responsible for an unforeseeable accident. Science seems to have shown that it was not the case. The MGRO would have held together if it was not subject to years of improper restructuring. Therefore, it was not Katrina but rather the Corps that was the substantial factor.

Harm- Lives lost, property destroyed.

Conclusion – Fairness Necessities Verdict

This tort has a caustic feeling, $100 billion in a tort claims for a hurricane… Lets pause for a moment and reflect on the implications before the visceral reactions. These plaintiffs – people – who lost their entire lives, were relying on the soundness of the MGRO to protect their property. The science has shown that it was not merely an unforeseeable natural event,  but rather that the negligent maintenance was responsible for the breach. That being established, it is the proper role for the government to assume responsibility - provided it was found by to be the tortfeasor. As a society we should be willing to shoulder and distribute the financial burden of a negligent government agency.

Benefit of the Tort

If this case receives positive treatment from other courts, it could force the Corps to rethink how it secures structures around the country. Many scientists have argued that there is a crumbling infrastructure posing major threats to population centers. While I highly doubt the Corps is willfully maintaining dangerous projects around the country, the immunity clause they operate under surely reduces the ability to receive funds. If a negligent canal collapses  they could owe billions whereas it would only cost millions to fix. The benefit is future events are less likely to occur under the threat of tort litigation.

“The Corps’ lassitude and failure to fulfill its duties resulted in a catastrophic loss of human life and property in unprecedented proportions,” Duval wrote. “The Corps’ negligence resulted in the wasting of millions of dollars in flood protection measures and billions of dollars in congressional outlays to help this region recover from such a catastrophe. Certainly, Congress would never have meant to protect this kind of nonfeasance on the part of the very agency that is charged with the protection of life and property.” Judge Duval

“Finally, somebody has said the truth,” said Catherine Serpas, 67, whose family runs a bicycle and lawn mower store in Chalmette, La. She said the Army Corps’ work on the 76-mile channel “destroyed the family life we knew. St. Bernard will never be what it used to be.” Chicago Tribune