New Orleans Flooding Part I: City May be Liable for Negligence
Written by Kristin Lausten
New Orleans suffered yet more flooding in early August 2017 as a result of broken and faulty pumps and loss of power to pumping stations. The citizens of the city have expressed anger and frustration at the ongoing problems with the city’s pumps. It is clear that, under the law, they can take their city to court.
The state, the city and any other governmental subdivisions can be sued for negligence and the citizens of New Orleans can recover for personal injury and for property damage. Both the Louisiana Constitution (Art. XX, § 10) and the Governmental Claims Act (La. R.S. §§ 13:5101-5113) allow lawsuits to be filed against the State and any political subdivision for tort and contract liability.
Among the available causes of action, citizens can sue for negligence. (I will discuss other causes of action in Part II.)
In general, to prove negligence, a plaintiff must show:
- Existence of duty
- Breach of duty
- Causation, resulting in
- Personal injury and/or property damage
Under the facts as currently disclosed in news reports, a negligence case against the city and its subdivisions would be strong. The leading Louisiana Supreme Court case is Saden v. Kirby, 660 So. 2d 423 (La. 1995).
Cities and Political Subdivisions Have a Clear Duty to Maintain Pumps
The first element, existence of duty, is clear cut here. Our Supreme Court has already stated that political subdivisions have a duty to maintain pumps and pumping stations to prevent flooding. See Saden v. Kirby, above. This is well-known to the city of New Orleans and to the department in charge of the pumps. One of the defendants in Saden was the New Orleans Sewerage & Water Board (“NOS&WB”)
Breach of Duty: Knowledge and Failure to Repair
The second element, breach of duty, may also be present here.
When August 5th rains began, many of the city pumps were out of service or operating at partial strength. Cedric Grant, the then-director of the NOS&WB, admitted that “more than a dozen pumps” were out of service. Some drainage stations were functioning at less than 60% of capacity. Mayor Mitch Landrieu admitted that “[t]hree of the five generators were already out of service, [which] contributed to several feet of flooding over the weekend.”
Then, on August 10, there was a fire which took out a fourth power generator. Without power, pumps do not function.
Moreover, the deficiencies related to the pumps and power have been a problem all summer. There was a significant earlier flood on July 22nd. Further, for years, citizen watchdog groups have extensively documented problems at pump, levee and water control stations. See here.
No doubt, litigation discovery will uncover documents showing that the NOS&WB was aware of problems long before August 5, 2017. Pumping and drainage systems rarely break because of a single catastrophic event; usually, such systems degrade over time with many minor failures and other indicia of needed maintenance and repair.
Causation: Admitted by Mayor Landrieu
The third element of negligence is causation. Legal liability will exist if the breach of duty is at least a substantial factor in causing the injury or damage, even though there might be other contributing causes.
Again, Saden v. Kirby, above, provides our guidance. In that case, the plaintiff sued (among others) the NOS&WB for flooding allegedly caused by the NOSWB’s failure to keep pumps at full capacity. At trial, the NOS&WB was found liable and our Supreme Court affirmed. The NOS&WB tried to defend against liability by arguing that the rain was a so-called “force majeure” or an “act of God.” However, that argument was rejected. The Supreme Court stated: “We conclude that the lower courts correctly ruled that the NOS&WB’s pumps’ operating only at slightly above one-half capacity was a cause-in-fact of the damages resulting from additional flooding and from the prolonged period of flooding.”
The case at hand is similar. Just as importantly, Mayor Landrieu has already admitted that three generators were out of service and that such “… contributed to several feet of flooding over the weekend.”
The final element of proving negligence is damage, be it property damage or injury to person. In the case at hand, that element seems satisfied, too. By all reports, there was significant damage to automobiles and other personal property because of the August 5, 2017 flooding. While not reported, the flooding might have caused personal injury in the manner of slip and fall injuries, injuries to muscles, ligaments, and bones due to cleanup efforts and heavy lifting, etc.
Money damages are awarded to compensate victims for their losses. Among such losses are:
- Clean up costs
- Repair costs regarding damage to property (e.g., damage to car or engine)
- Medical bills and expenses
- Loss of Use
In addition, New Orleans businesses and landlords may be able to claim lost profits and lost rents not otherwise covered by business-interruption insurance.
The author may be contacted at:
Kristin M. Lausten
New Orleans, Louisiana
This article is provided as an educational service for general informational purposes only. The material does not constitute legal advice or rendering of professional services.