Hurricane Katrina: The Legal Saga Begins

The New Orleans tragedy may spawn a wave of litigation related to flood protection and levee failures. Public statements, which may serve as a foundation for massive public safety legal claims, began Sept. 1.

Based on the history of flood protection in the United States, it is clear that the Katrina disaster was both foreseen by safety experts and preventable had disaster warnings-which started more than 10 years ago-been heeded.

It has long been common knowledge that Category 4 or 5 hurricanes could cause severe breaches in levees. Prior floods along the Mississippi Delta have given local and national water protection officials direct evidence that it was only a matter of time before New Orleans would suffer a massive disaster.

Since the Katrina disaster was not only predicted but scientifically proven to occur without safety upgrades, the onslaught of claims is both inevitable and justified. In fact, after 9/11, New Orleans was listed as one of the main foreseeable disaster areas.

Flood mechanisms defective

Studies of security risks concluded that due to its geography and inadequate levee system, New Orleans was the most exposed metropolitan area in the country. As the levees were built to protect the city up to a Category 3 hurricane, the flood prevention mechanisms were defective and inherently unsafe, especially in view of the predictable number of Category 4 and 5 hurricanes which occur every decade. The failure to shore-up the levees when faced with a known danger of catastrophic proportions-mass loss of life and risk to an entire city, one of our most historic places-could mean a massive wave of litigation which will challenge the judgment of public and private entities for years to come.

The blame game has already started. The established record over a few days could form the basis for flood protection liability claims that will range far-and-wide for years to come. The types of claims will cover loss of life, injury, insurable risks, commercial losses, property damage, business interruption, jobs lost, repair costs, disability claims, and virtually every type action allowed by our legal system.

Legal principles

Based on sound legal principles, a wide variety of claims have been allowed against a variety of parties, including the Army Corps of Engineers, state governments, public officials, construction companies, architects or design firms and maintenance entities.

Although the number of claims could be complex, the legal rules upon which they will be based are old and well-established-dam and levee failures which cause major flooding have been brought against safety officials since the early 1900s. Virtually every major flood in the United States from a levee or dam failure has resulted in large legal claims and, in many cases, sizeable recoveries to disaster victims.

California precedent

In fact, a 1986 flood in California recently resulted in California being ordered to pay over $500
million to landowners affected by levee failures and it could wind up paying billions in future levee disasters. This precedent could be applied to the New Orleans tragedy, but

the consequences may be much larger-economic devastation and loss of life may mean over $100 billion in losses based on a recent assessment by Risk Management Solutions of Newark, Calif.

Floods have played a major role in the evolution of mass disaster litigation. The public is acutely aware of the millions of dollars paid to dam or levee failure victims along the Mississippi River. Now the liability focus will turn to New Orleans.

The response by the legal community to the Katrina tragedy could be swift, and may result in recovery plans that rival, or even exceed, the 9/11 settlements. The U.S. Congress has approved disaster relief funding for FEMA, with $10 billion in initial expenditures for housing and emergency services. However, this type legislation will not provide compensation for the greatest needs of all-funds for those who lost loved ones, homes, jobs and those who are injured.

Aftermath of 9/11

In the aftermath of 9/11, the U.S. Congress quickly passed authorization for a compensation fund that ended up paying over $10 billion to 9/11 victims. The New Orleans disaster may justify this type of federal intervention to give some systemic cushion or recovery option to death and injury victims who might otherwise swamp our legal system and bankrupt potential defendants. Even if this occurs, the 9/11 liability solution was only one of several options. Victims could accept federal awards or pursue other entities for full and just compensation.

The fault in levee failure cases normally focuses on the demonstration of a breach of basic safety standards, including:

1) The failure to maintain the levee to withstand a foreseeable flood surge; and

2) The levee or its structures were designed or constructed in such a manner that it contributed to the levee’s failure. These rules can apply to a public agency like the Army Corps or to private firms, like design and construction firms or repair, control or maintenance entities.

Negligent design or maintenance

Allegations of negligent design or maintenance are the main avenues of levee liability, according to J. David Rogers at the University of Missouri Department of Geological Engineering. (See, “Flood Damage: Evolving Laws,” by Prof. Rogers.) A public agency like a flood control district or the Army Corps of Engineers must follow established safety rules, build and maintain a sound and secure levee system.

“The fact that a levee fails is not, standing alone, sufficient to impose liability. However, where the public agency’s design, construction or maintenance of a flood control project is shown to have posed an unreasonable risk of harm . . . the plaintiffs may recover,” quoting case law in California. Legal rulings in favor of levee failure liability may open the door for victims in New Orleans to sue flood control agencies, municipal water agencies and a host of other public and private entities.

Although the most serious cases involve death and injury, it is easy to foresee billions of dollars in property damage and commercial losses, such as cars, trucks and store merchandise destroyed in New Orleans.

The system can expect contests over insurance coverage related to the buildings and homes that have been destroyed or
damaged.

Even if insurance does not apply, individuals and businesses might be able to sue flood prevention entities and private companies that were involved in designing, constructing and maintaining the levees.

Political impact

Katrina may also have an enormous impact on the political system. News reports could impact the Bush presidency, both from the standpoint of how it responds to the disaster and how it cut funding for flood protection in New Orleans. Officials from both parties are already claiming that funding limits may have contributed to the disaster.

This compelling history, together with the link between billions spent in Iraq and reductions in spending for flood protection, could further call into question the President’s domestic and foreign policies.

Local and national officials can like-
wise expect serious scrutiny into how

they handle the tragedy. One Army Corps agent has already cast blame on the victims for failing to evacuate. This is harsh, perhaps unjustified, criticism from an entity that may have helped create the tragedy. Innocent citizens without the resources or means to evacuate should be protected, not victimized again by public comments. This size disaster can injure political careers and, hopefully, create new heroes on the national scene.

The destinies of many thousands of people ride on how the levees were implemented and how the rescue and relief efforts are being handled. The American system has vast resources and expertise; in time, the true victims-those who lost loved ones and their standard of living-will demand intervention from our legal system if our public and private entities fail to fairly compensate their losses. Justice demands that innocent victims be restored to their pre-disaster standard of living.

The Katrina Armageddon may force many victims to turn to the legal system for redress. Today, governmental assistance cannot provide comprehensive help. The judiciary, together with armies of lawyers, insurance agents and consumer groups can assist in handling thousands of mass tort claims, and courts can fashion resolution options, ranging from an award plan to emergency relief. Legal heirs and the injured should be afforded special rights, from choosing between a federal-state recovery fund and direct actions against the parties at fault. The Katrina legacy will also include changes in flood control systems, new water protection laws and reviews of our disaster and emergency response systems. In time, let’s hope that much good from safety reforms comes from such a monumental and avoidable tragedy.

As the New Orleans saga plays out,
the legal system could be stretched to its

limits as it struggles to deal with the largest flood disaster in American history. Fortunately, the American system has remarkable resources, fortitude and re-
siliency. All of this and more will be needed to deal with the legal storm clouds now forming over New Orleans.

Guerry R. Thornton Jr. is a lawyer in Atlanta
and admitted in state and federal courts. He has authored articles on mass disaster litigation in

Trial & The National Law Journal.