The U.S. Fifth Circuit issued a landmark decision
My home or business was damaged by the flooding of the MR-GO during Hurricane Katrina. What does the Robinson decision mean for me?
The answer depends on the location of your home or business. Multiple sources of water ravaged the St. Bernard, Chalmette and Lower Ninth Ward areas during Hurricane Katrina. Under this landmark decision, the United States is liable for some of the damage caused by floodwaters from the MR-GO. Other court cases address different sources of water (for example, the Armstrong case applies to floodwaters from the IHNC, which goes to trial in September 2012).
On March 2, 2012, the United States Court of Appeals for the Fifth Circuit of the United States issued their long-awaited decision on the United States of America’s appeal from Judge Duval’s ruling holding the Army Corps liable for damage caused by the flooding of the MR-GO during Hurricane Katrina. In order to hold the Army Corps liable for Katrina-related damages, the Plaintiffs had to overcome two powerful immunities: §702c floodwater immunity, and the “Discretionary Function” exception to the Federal Tort Claims Act.
The Fifth Circuit found that the construction, maintenance and design of the MR-GO were navigation activities-and not flood control activities-so §702c floodwater immunity does not apply.
The Fifth Circuit next determined that the discretionary function exception immunized the United States for the Army Corps’ failure to obtain environmental impact statements and failure to armor the MR-GO from erosion. However, the Fifth Circuit found that the Army Corps failure to gauge the risk of storm surge on the MR-GO was a scientific error, and not a “discretionary function,” so the immunity did not apply to that failure. This means that certain residents of St. Bernard, Chalmette, The Lower Ninth Ward, and others residing west of the MR-GO channel can recover for damage caused by the MR-GO during Hurricane Katrina.
However, the Fifth Circuit found that the Army Corps had no duty to build a surge-protection barrier to protect New Orleans East, and that the operation and maintenance of the MR-GO did not cause the flooding in New Orleans East. Therefore, under this decision residents of New Orleans East will not be able to maintain a claim against the United States for damage caused by the MR-GO during Hurricane Katrina.
The Fifth Circuit found that the 17th Street, London Avenue, and Orleans Avenue outfall canals are flood control projects, so §702c floodwater immunity applies. Therefore, the United States is immune to lawsuits from residents of Lakeview, Gentilly, and the City Park area for damage caused by these three canals.
Finally, the Fifth Circuit found that the Franze plaintiffs, who reside near the IHNC, may recover only for damages to the second floor of their home. This ruling is based on evidence that IHNC waters arrived at their home first, and caused damage to the first floor, and MR-GO waters arrived 30 – 120 minutes later, causing damage to the second floor.
The United States is expected to take this case to the U.S. Supreme Court, where Bruno & Bruno will proudly continue the fight for hard-earned justice for the residents of Southeast Louisiana.
For the complete ruling please see the following: