In a lawsuit filed against the U.S. Army Corps of Engineers involving allegations that the Army Corps was negligent in its maintenance of the Mississippi Gulf River Outlet ("MRGO"), a federal district court in Louisiana recently denied plaintiffs' partial summary judgment motion and defendants' renewed motion to dismiss. The lawsuit was filed by individuals whose property was damaged by flooding following Hurricane Katrina. Since the court denied the Army Corps' motion to dismiss and the plaintiffs' motion for partial summary judgment, the litigation will proceed to trial, which is currently scheduled to commence on April 20th. In re Katrina Canal Breaches Consolidated Litigation, No. 05-04182 (E.D. La. Marc. 20, 2009). (Click here for copy of the court's decision.)

The plaintiffs' primary argument in the litigation is that the Army Corps failed to properly maintain the MRGO, allowing Katrina’s surge to flood portions of Louisiana. In deciding the recent motions, Judge Stanwood Duval, Jr., determined that plaintiffs created a question of fact as to whether due care was exercised in the maintenance and operation of the MRGO. The Army Corps relied primarily on two defenses: the due care exception and the discretionary function exception to a waiver of sovereign immunity. The Army Corps argued that it was shielded from prosecution under the due care exception, which immunizes government agencies from prosecution for claims based on the execution of a statute or regulation with which the government exercised due care. The Army Corps also argued that it was protected by the discretionary function exception, which bars claims based on the performance of a discretionary function of the government. Judge Duval held that there was a question of fact about whether the Army Corps violated a mandate under the National Environmental Policy Act, and therefore denied the Army Corps’ motion to dismiss.