David O. Bordelon v. Gravity Drainage District No. 4 of Ward 3 of Calcasieu Parish

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-1318

DAVID O. BORDELON, ET AL.

VERSUS

GRAVITY DRAINAGE DISTRICT NO. 4 OF WARD 3 OF CALCASIEU
PARISH, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2006-4422
HONORABLE DAVID KENT SAVOIE, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and Shannon J.
Gremillion, Judges.

AFFIRMED.

Steven Broussard
Randall E. Hart
Attorneys at Law
1301 Common Street
Lake Charles, LA 70601
(337) 439-2450
Counsel for Plaintiffs/Appellees:
David O. Bordelon, et al.

Timothy George Schafer
Rachel S. Kellogg
Schafer & Schafer
328 Lafayette St.
New Orleans, LA 70130
(504) 522-0011
Counsel for Defendant/Appellant:
American Alternative Insurance Corp.
Robert E. Landry
Scofield, Gerard, Singletary & Pohorelsky

P.O. Drawer 3028
Lake Charles, LA 70602
(337) 433-9436
Counsel for Defendant/Appellant:
Gravity Drainage District No. 4 of Ward 3 of Calcasieu Parish

Edwin Henry Byrd III
Pettiette, Armand, Dunkelman, Woodley, Byrd & Cromwell
P.O. Box 1786
Shreveport, LA 71166-1786
(318) 221-1800
Counsel for Defendant/Appellant:
Gravity Drainage District No. 4 of Ward 3 of Calcasieu Parish

Todd A. Townsley
Townsley Law Firm
3102 Enterprise Blvd.
Lake Charles, LA 70601
(337) 478-1400
Counsel for Plaintiffs/Appellees:
Carl Thibodeaux
Janet Postell
J. B. Postell
Douglas Shearman
Claire Shearman
Karen Thibodeaux

GREMILLION, Judge.

The defendants, Gravity Drainage District No. 4 of Ward 3 of Calcasieu

Parish (the district) and American Alternative Insurance Corporation, appeal the

jury verdict in favor of the plaintiffs, 24 homeowners whose properties are located

within the drainage district. These homes experienced flooding in the wake of

Hurricane Rita in September 2005, and plaintiffs claimed that the planning and

delayed implementation of measures intended to cope with the hurricane resulted

in the flooding. A jury decided in favor of plaintiffs and awarded them

$1,570,219.60. The judgment recognized that American Alternative‟s liability was

limited to its policy limits of $1 million. Plaintiffs have answered the appeal and

asserted a number of errors. For the reasons that follow, we affirm.

FACTS

Hurricane Rita made landfall on Friday, September 24, 2005. It had been

projected as either a category 4 or 5 hurricane. On September 20, 2005, Governor

Kathleen Blanco declared a state of emergency in an area that included Calcasieu

Parish. The employees of the district were allowed to evacuate on Thursday,

September 23, in anticipation of the hurricane‟s arrival. Among the district‟s

drainage works are a large-diameter pipe connecting Pithon Coulee to Griffith

Coulee in Lake Charles. This pipe can be closed by a pipe gate. At Pithon Coulee,

the district maintains a high-capacity pumping station that can be used to drain

both Griffith and Pithon Coulees (when the gate to Griffith is open). That pumping

station has both electric- and diesel-powered pumps. The diesel-powered pumps

must be turned on manually.

In July 2005, officials from the district met with members of the Governor‟s

Office of Homeland Security and Emergency Preparedness (hereafter OEP) to

discuss possible hurricane scenarios including evacuation points. The OEP did not

deem any Calcasieu Parish evacuation sites sufficient to withstand the forces of a

category 4 or 5 hurricane. In the past, personnel had weathered storms in one of

the pump houses, which were stocked with food, water, and cots; however, these

were deemed insufficient to withstand the force of even a category 3 storm.

The district board met on Thursday, September 23, and decided to allow the

employees to evacuate with their families that afternoon. They instructed the

employees to return after sustained winds dropped to 35 to 40 miles per hour, in

accordance with OEP recommendations. Before they evacuated, the employees

left the Pithon-Griffith gate open and placed the electric pumps in automatic mode.

Most of the employees then evacuated to Opelousas, Ville Platte, and Lafayette,

Louisiana. The emergency contingencies the district implemented were made after

consultation with OEP officials but were never formulated into a written plan.

A mandatory evacuation was ordered for all points south of Interstate 10 in

Lake Charles on Thursday. The area at issue was within that mandatory

evacuation zone.

By the time Rita made landfall, it had weakened to a category 3 storm.

However, it did cause wide-spread electrical service outages, including the Pithon

Coulee pumping station, which the evidence indicates lost power at approximately

9:00 p.m. Friday. Accordingly, the electric pumps could no longer operate, and no

one was manning the diesel pumps to turn them on.

Mr. Mike Whittler, the district‟s supervisor since 1987, monitored television

coverage of the storm from his evacuation site. Whittler determined from the live

television feeds that conditions had not quieted to warrant placing district

employees at risk by 11:00 a.m. Saturday.

On Saturday, many of the residents in the Pithon-Griffith area returned to

their homes to find them above flood waters. However, many noticed that the
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coulee waters were rising. There was disagreement among the experts as to when

the flooding of the plaintiffs‟ homes occurred, but several of the homeowners,

including those not party to this litigation, testified that their homes were not

endangered by rising waters until as late as 3:00 p.m.

The district‟s personnel returned to Lake Charles in the early hours of

Sunday, September 26. They activated the pumps at 8:30 a.m. and the water had

lowered to below flood stage by noon.

Plaintiffs filed their petition for damages against the district in September

2006 and alleged the district was negligent in failing to foresee the need to activate

the pumps, in failing to evacuate personnel to a location “some minimum distance

from Lake Charles,” failing to instruct employees to return immediately after

conditions allowed, failing to provide key personnel with safe local shelter, failing

to automate the diesel pumps, failing to keep the coulees properly dredged, and

failing to train key personnel in other agencies in the operation of the systems in

the event district employees were absent. The district answered and denied

negligence. Additionally, the district pled the affirmative defenses of discretionary

governmental immunity under La.R.S. 9:2798.1 and the specific immunity for

emergency preparedness activities under the Louisiana Homeland Security and

Emergency Assistance and Disaster Act, La.R.S. 29:721 et seq (the Act). The

petition was later amended to add American Alternative as a defendant.

Subsequent amendments added additional theories of liability on the district‟s part.

American Alternative filed a motion for summary judgment in which it

asserted that the district was immune under the immunity statutes mentioned

previously. The district joined American Alternative‟s motion. The trial court

granted the motion as to the district‟s response in terms of implementing its plan,

including evacuating the personnel from Lake Charles, but denied judgment on
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whether the district should have automated its diesel pumps and whether it should

have planned to evacuate personnel to a more immediate area and to return them to

Lake Charles immediately after the storm had subsided.

The case proceeded to a jury trial. Following the conclusion of evidence and

argument, the jury retired and returned with a verdict finding the district negligent

in failing to have a plan in place prior to the storm in failing to automate its pumps.

Both breaches were deemed by the jury to be causes in fact of the plaintiffs‟

damages. This appeal ensued.

ASSIGNMENTS OF ERROR

The district assigns the following errors:

(1) It was error for the trial court to conclude that La. R.S. 29:735
immunity applied to claims regarding whether to evacuate, where to
evacuate, when to return, and whether to obtain safe local shelter, but
at the same time to conclude that such immunity was not applicable to
a claim that defendant should have had a different plan not to evacuate,
to return sooner, and to utilize local shelter. The court erred in
denying defendant‟s motion for directed verdict on these claims, as
there is immunity for planning decisions, and if not, no evidence that
another plan would have prevented the flooding of plaintiffs‟ homes.

(2) The trial court erred in denying defendant‟s motion for directed
verdict on discretionary immunity regarding evacuation and return
decisions as well as claims that defendant should have constructed an
unmanned or automated pumping station.

(3) Even if immunity were not required as a matter of law at the close
of the evidence and there was a factual issue regarding same, it was
error for the trial court to fail to submit to the jury whether evacuation
and return decisions, as well as claims that defendant should have
constructed an unmanned or automated pumping station, were rooted
in social or economic policy such that discretionary function
immunity was applicable.

(4) The jury charge regarding negligence failed to provide a duty risk
analysis or that fault had to be a ‟substantial” factor in causing the
harm alleged.

(5) The trial court erred in allowing the plaintiffs' expert, Dr. Philip
Bedient, to express opinions concerning the abilities of the District‟s
pumps, after Dr. Bedient admitted that he was not an expert in the
field of pumping.
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(6) To the extent necessary, defendant also adopts the issues presented
and assignments of error of the defendant American Alternative
Insurance Company.

American Alternative specified the following errors:

1. The Trial Court erred in allowing the plaintiff to maintain a
negligence claim directed toward the District‟s evacuation
planning, when it is clear that any claim regarding the decision to
evacuate and/or the manner in which the evacuation was actually
conducted are barred by La. R.S. 29:735.

2. The Jury‟s finding that the District was negligent with respect to its
evacuation plan is unsupported by the evidence and should be
reversed.

3. The Trial Court erred in failing to apply discretionary function
immunity to bar negligence claims directed toward asset allocation
issues such as pump automation and/or the procurement of a
dredging barge and evacuation planning

4. The trial court erred in allowing the plaintiffs‟ expert, Dr. Philip
Bedient to express opinions concerning the abilities of the
District‟s pumps, after Dr. Bedient admitted that he was not an
expert in the field of pumping.

The plaintiffs answered the appeal and asserted that the trial court erred:

1. In granting the defendants‟ motion for summary judgment because
the district‟s conduct did not take place while it was attempting to
comply with the Act, and in precluding evidence that the district‟s
actions were willful, flagrant, outrageous, reckless, or otherwise
excepted from immunity under the discretionary immunity statute.

2. In improperly refusing to allow evidence that the district has since
automated its pumps after the district opened the door to allow
such evidence during trial.

3. In refusing to allow them to ‟proffer into evidence” certain
photographs necessary to impeach the testimony of a defense
witness on the issue of the district‟s failure to dredge the coulees.

4. In not finding the failure to dredge the coulees to be a breach of
duty nor a cause in fact of plaintiffs‟ damages.

5. In not allowing ‟the proffered examination of Mike Whittler into
evidence.”

6. By allowing defendants to proffer the deposition transcript of Ivor
van Heerden because defendants failed to follow proper procedure.
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7. By allowing the district‟s engineer, Walt Jessen, to testify after
violating the rule of sequestration and violating an order entered
pursuant to a motion in limine regarding events surrounding
Hurricane Ike.

ANALYSIS

The Act immunizes from liability the State and its political subdivisions

‟engaged in any homeland security and emergency preparedness activities while

complying with or attempting to comply with” the Act or with rules and

regulations promulgated pursuant to the Act. La.R.S. 29:735(A)(1). ‟Emergency

preparedness” is defined as ‟the mitigation of, preparation for, response to, and the

recovery from emergencies or disasters.” La.R.S. 29:723(4). An ‟emergency” is

an ‟actual or threatened condition which has been or may be created by a disaster,”

or ‟[a]ny natural or man-made event which results in an interruption in the delivery

of utility services. . . and which affects the safety, health, or welfare of a Louisiana

resident,” or ‟[a]ny instance in which a utility‟s property is damaged and such

damage creates a dangerous condition to the public,” or ‟[a]ny national or state

emergency, including acts of terrorism or a congressional authorization or

presidential declaration pursuant to the War Powers Resolution.” La.R.S.

29:723(3). Lastly,

‟Disaster” means the result of a natural or man-made event which
causes loss of life, injury, and property damage, including but not
limited to natural disasters such as hurricane, tornado, storm, flood,
high winds. . . forest and marsh fires. . . nuclear power plant incidents,
hazardous materials incidents, oil spills, explosion, civil disturbances,
public calamity, acts of terrorism, hostile military action, and other
events related thereto.

La.R.S. 29:723(2).

The ordinary rules of statutory construction are altered in any discussion of

statutes conferring civil immunity. Monteville v. Terrebonne Parish Consol. Gov't,

567 So.2d 1097 (La.1990). The statutes are strictly interpreted, and where there is

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any doubt about the meaning, courts adopt that interpretation which changes the

law the least. Id. See also Rodriguez v. Louisiana Medical Mut. Ins. Co., 618

So.2d 390 (La.1993).

The Act was passed in 1993. Since Hurricanes Katrina and Rita struck

Louisiana, it has seen much development in terms of construction and application

as suits involving the damage those storms wrought have winded their way through

the courts. These cases have all interpreted the Act in accordance with the

principles set forth in Monteville, 567 So.2d 1097. Among the cases that have

interpreted the Act‟s grant of immunity is the unpublished decision of the Fifth

Circuit Court of Appeal in Chicago Property Interests, L.L.C. v. Broussard, 08-

1210 (La.App. 5 Cir. 3/6/09) (unpublished grant of writ), writ denied, 09-758 (La.

5/22/05), 9 So.3d 150.

Anticipating the landfall of Hurricane Katrina, Jefferson Parish President

Aaron Broussard ordered the evacuation of 226 pump operators. Those pump

operators evacuated with their pumps turned off. The following day, Katrina made

landfall and widespread flooding engulfed large portions of Jefferson Parish.

Chicago Property Interests, LLC and Zoe Aldigé filed a class action against

Broussard, Jefferson Parish, and other defendants on behalf of all persons or

entities residing in or owning property in Jefferson Parish who were damaged by

flooding from Katrina.

The parish and co-defendant, Consolidated Drainage District No. 2, filed a

motion for partial summary judgment asserting that they were immune from any

liability for evacuating the pump operators and leaving the pumps off while the

operators were evacuated. The plaintiffs then amended their petition to add claims

based upon the negligent adoption in 1998 of a ‟doomsday policy” regarding

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disaster response and for failing to properly educate key parish personnel on the

provisions of the policy.

The motion was denied. The trial court reasoned that the grant of immunity

was not ‟devoid of any temporal element.” Id. at p. 4. Defendants sought writs

from this denial, and the fifth circuit reversed the trial court in part.

The fifth circuit held that the defendants were immune from liability arising

from actions taken during the emergency, including evacuating the pump operators

and leaving the pumps turned off. However, the court held that they were not

immune for claims based upon their alleged failure “to properly draft, implement,

distribute, and/or review the „doomsday policy,‟” which had been adopted many

years prior to the hurricane. Id at p. 7.

The trial court in the present case found this reasoning persuasive in

reaching its decision on the motion for summary judgment filed by the district, and

so do we.

The jury in the present matter found that the district breached its duty to the

plaintiffs “in failing to have a plan in place prior to September 20, 2005” and “in

failing to provide for the automatic operation of the Pithon Coulee pumps.” These

acts predated Hurricane Rita; accordingly, the district is not immune under the Act.

However, this does not end the analysis, because, in addition to the Act, the

district can claim immunity under La.R.S. 9:2798.1, which reads, in pertinent part:

B. Liability shall not be imposed on public entities or their officers or
employees based upon the exercise or performance or the failure to
exercise or perform their policymaking or discretionary acts when
such acts are within the course and scope of their lawful powers and
duties.

C. The provisions of Subsection B of this Section are not applicable:

(1) To acts or omissions which are not reasonably related to the
legitimate governmental objective for which the policymaking or
discretionary power exists; or
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(2) To acts or omissions which constitute criminal, fraudulent,
malicious, intentional, willful, outrageous, reckless, or flagrant
misconduct.

Whether discretionary immunity would attach to the failure to plan for

contingencies that arose during Hurricane Katrina was not addressed by the court

in Chicago Property Interests. Perhaps the seminal pronouncement on

discretionary immunity was issued by the Louisiana Supreme Court in Fowler v.

Roberts, 556 So.2d 1 (La.1989) (on rehearing). In Fowler, the supreme court held

that discretionary immunity did not shield the Department of Public Safety‟s

Office of Motor Vehicles for issuing a driver‟s license to an epileptic whose

condition was not controlled by medication and who subsequently suffered a

seizure while operating a motor vehicle and caused a crash.

The court‟s analysis noted that §2798.1 was patterned after a similar

exception from governmental liability contained in the Federal Tort Claims Act.

See 28 U.S.C. §2680(a). Under federal jurisprudence, a two-step inquiry is

employed in determining whether the discretionary function exception applied: If

a government employee had no choice but to adhere to a given course of conduct,

he had no discretion, and the exception did not apply. Even if the employee had

discretion, the court must then determine whether that discretion “is grounded in

social, economic or political policy. If the action is not based on public policy, the

government is liable for any negligence, because the exception insulates the

government from liability only if the challenged action involves the permissible

exercise of a policy judgment.” Fowler, 556 So.2d at 15.

We find that the very nature of the complaint regarding planning involves

discretion on the district‟s commissioners‟ part. They were accused of negligence

in failing to plan for the evacuation of employees to locations less remote than

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Lafayette, Opelousas, and Ville Platte. Where employees are to evacuate is a

function of the nature of the emergency. As previously noted, Rita was projected

to make landfall as a category 4 or 5 storm. There is no question that these

strengths exceeded the rating of any of the public building in Calcasieu Parish.

The decision to place the lives of the district‟s employees above concerns about the

property in the district is clearly within the discretion of the district.

However, the jury also found the district negligent in failing to automate the

diesel pumps. The parties stipulated that the cost of automating the pumps was

approximately $40,000.00, that automating the pumps was technically feasible, and

that the money was available to automate them. Automating the pumps was

simply something the district had never considered.

Drainage districts are authorized by statute in Title 38 of the Louisiana

Revised Statutes, Chapter 6. They are created by parish governing authorities or

by petition of property owners. La.R.S. 38:1602, 1604. The purpose of a drainage

district is to facilitate the drainage, protection, and reclamation of land within the

district. La.R.S. 38:1638. The boards of commissioners of drainage districts are

given broad powers to effect the drainage, protection, and reclamation. Id. In

effecting the drainage, protection, and reclamation of the land in its district, ‟the

drainage district shall make adequate provision for the drainage of all lands and

property affected thereby.” Id.

In other words, the primary function of the drainage district is to provide for

drainage. They are mandated to make adequate provision for drainage. In Fowler,

the issue was whether it was discretionary for employees of the Department of

Motor Vehicles to request a certificate from Roberts‟ doctor indicating that he was

capable of driving. The statute governing limitations on the licensure of disabled

drivers, La.R.S. 32:403.2, provides that the department may waive the requirement
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in the case of a person applying for a renewal of his license. This, the department

argued, made the furnishing of the certificate discretionary. However, the

department routinely waived the certificate. There was no discretion on the

employees‟ part. Further, the department could not demonstrate that its failure to

adopt a policy was grounded in economic, social, or political considerations.

In the present matter, the district can articulate no such considerations, either.

Automating the pumps was a step the district had never considered. Despite the

mandate that the district provide for adequate drainage, it failed to anticipate the

contingency that when no one was available to turn on the pumps, flooding would

ensue. Immunity does not attach.

Lastly, appellants argue that the plaintiffs‟ hydrology expert, Dr. Phillip

Bedient, should not have been allowed to testify about the pumping capacity of the

district‟s pumps. Dr. Bedient made it clear that his testimony was based on the

pumps‟ manufacturer‟s specifications about their capacity. Experts are allowed to

testify based upon information even if that information is not admissible. La.Code

Evid. art. 703. Whether an expert‟s testimony may reveal such facts is determined

by reference to Code of Evidence articles 403 and 705. Id. at comment (f). Under

article 403, relevant ‟evidence may be excluded if its probative value is

outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, or waste of time.” We

find none of these considerations present. Dr. Bedient‟s testimony about the

pumping capacity was highly probative, and we find nothing unfairly prejudicial,

confusing, or misleading in his testimony about that capacity.

Under La.Evid. Code art. 705, an expert in a civil case may testify in terms

of opinion or inference and give his reasons without disclosing the facts or data

upon which he bases it, unless he is required to by the court. If the expert fails to
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disclose the factual underpinnings of his opinion on direct examination, he may

still be compelled to on cross examination. Id. In the present case, Dr. Bedient did

testify about the underpinnings of his opinions. The fact that he is not an expert in

pumps does not disqualify him from testifying about pump capacity and the

dynamics of fluids, a field in which Dr. Bedient has taught courses at the university

level. This assignment of error is without merit.

Because we affirm the verdict in favor of plaintiffs/appellants, their

assignments of error are rendered moot.

CONCLUSION

A failure to plan for an emergency is not an emergency preparedness activity

under the statutes conferring immunity for such activities. However, the decision

of where to evacuate personnel is a discretionary act that does consider economic,

political, and social factors and is subject to discretionary immunity under

Louisiana Revised Statute 9:2798.1. The failure of the district to plan for

contingencies should there be no one available to turn on the backup diesel pumps

is neither an emergency preparedness activity nor a discretionary function, as there

were no economic, political, or social factors even considered.

The verdict of the jury and judgment of the trial court are affirmed. All

costs of this appeal in the amount of $3,577.00 are taxed to Appellants, Gravity

Drainage District No. 4 of Ward 3 of Calcasieu Parish and American Alternative

Insurance Company.

AFFIRMED.

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