The Fifth Circuit Court of Appeals has ruled that a contractor retained by the U.S. Army Corps of Engineers (Corps) is not immune from liability in a lawsuit seeking damages for work it performed around a floodwall that failed during Hurricane Katrina. In re: Katrina Canal Breaches Litig., No. 09-30428 (5th Cir. 9/14/10). The ruling reverses a district court’s summary judgment decision, which found that the Corps had given sufficient instructions to the contractor to make it immune under the government-contractor immunity (GCI) defense. To the contrary, the appellate court determined that the specifications for work provided to the contractor were not reasonably precise; therefore, the contractor failed to satisfy the U.S. Supreme Court’s three-part test for GCI.  

The complaint alleged the contractor’s negligence under state law after the levees it backfilled failed. Specifically, plaintiffs alleged that the methods of excavation and backfill used by the contractor allowed for under-seepage, thus undermining the levees’ integrity, resulting in their failure and the subsequent flooding of New Orleans East, the Lower Ninth Ward and St. Bernard Parish.