The Fifth Circuit Court of Appeals has affirmed a district court ruling finding the U.S. Army Corps of Engineers (Corps) liable to several Louisiana property owners for its negligent work maintaining a shipping channel between New Orleans and the Gulf of Mexico, which purportedly caused billions of dollars in damage as the result of Hurricane Katrina in 2005. In Re: Katrina Canal Breaches Litig., No. 10-30249 (5th Cir. 3/2/12).
Claimants filed hundreds of lawsuits, many of which were consolidated before the district judge, who worked with plaintiffs’ litigation committees to identify several categories of plaintiffs and individual “bellwether” plaintiffs. Of three groups of bellwether plaintiffs identified, one went to trial, another was dismissed when the Corps was found to be immune, and the third survived motions to dismiss and is proceeding to trial. Of the plaintiffs that went to trial, three prevailed, and four did not.
All losing parties appealed, and the government petitioned for a writ of mandamus to stay the third group’s trial pending this appeal. The Corps argued that it was immune from lawsuits under the Flood Control Act of 1928, which provides the government with immunity from tort liability in the flood-control context, and urged the court to adopt a broad interpretation of the immunity provision to bar claims “[i]f the flood waters at issue are connected to a floodcontrol project.”
The court rejected the government’s argument under a judicially created exception to immunity where flood water damage is caused by “the negligence of the United States unconnected with any flood control project.” According to the court, the Corps had not properly maintained the shipping channel, made several “negligent decisions” and flatly failed to gauge the risk. Concluding that the Flood Control Act provided immunity for the government in the context of flood- control activity only and determining that the ship channel was a navigation project and not a flood-control project, the court upheld the district court’s ruling and allowed five plaintiffs to recover approximately $720,000.