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In re Katrina Canal Breaches Consol. Litig. - 533 F. Supp. 2d 615 (E.D. La. 2008)

Rule:

The discretionary function exception to the Federal Tort Claims Act, 28 U.S.C.S. § 2680(a), will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive. And if the employee's conduct cannot appropriately be the product of judgment or choice, then there is no discretion in the conduct for the discretionary function exception to protect. Thus, if an employee violates a mandatory regulation there will be no shelter from liability because there is no room for choice.

Facts:

A case for damages was filed for the flooding and inundation of approximately 80 percent of the City of New Orleans caused by the breaches in certain canals. A master complaint attempted to state in one document all pending allegations against all of defendants. Defendant United States moved to dismiss Counts I-III and V-VII of the master consolidated class action complaint and to strike the remaining counts maintaining that the master complaint for levee failures was barred (a) by the Flood Control Act of 1928, and (b) by the discretionary function exception with respect to allegations of the negligent granting of the dredging permit of one canal. 

Issue:

In an action following Hurricane Katrina flooding, where plaintiffs alleged negligent granting of a permit to dredge a canal, was defendant United States protected from liability with respect to damages by the discretionary function exception to the Federal Tort Claims Act and immunity granted under the Flood Control Act of 1928?

Answer:

Yes

Conclusion:

The United States District Court for the Eastern District of Louisiana concluded that this suit for damages caused by the failures of the levees or floodwalls at two canals was barred by the Flood Control Act of 1928, 33 U.S.C.S. § 702c. Section 702c immunity arose where damage was caused by flood waters emanating from a flood control project. Once the relevant canal was incorporated into a flood control project, and the Army Corps of Engineers (Corps) erected the floodwalls that eventually failed creating floodwaters damaging plaintiffs herein, the fact that those levees or floodwalls were part of the project created immunity for the Corps under § 702c for whatever defalcations it might have made in permitting the dredging of the canal. The Corps' decision to issue the dredging permit at issue was granted in a policy-based judgment and was protected by the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C.S. § 2680(a), as well. The Court granted the United States' motion to dismiss with respect to Counts I-III and V-VII.

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