Army Corps' MRGO Flooding Liability Could Extend to Wrongful DeathDec 1, 2009 | Parker Waichman LLP
Last month's decision in a MRGO (Mississippi River Gulf Outlet) lawsuit that found the U.S. Army Corps of Engineers liable for much of the Hurricane Katrina flooding that occurred in Louisiana could ultimately mean that the federal government will have to foot some of the bill for the destruction of property that accompanied the historic storm. But could the Corps also be liable for the loss of life caused by this negligence? Some legal experts think so.
MRGO was built to allow ships easier access between New Orleans and the Gulf of Mexico. In order to build it, the Army Corps of Engineers cut through 76 miles of swamp and wetlands that had once served to protect the Crescent City from destructive storm surges, like the one that accompanied Katrina. Flood victims had claimed that during the storm, the MRGO acted as a funnel, and pulled much of Katrina’s storm surge into the New Orleans and St. Bernard.
Last month, U.S. District Court Judge Stanwood R. Duval, Jr. awarded over $719,000 to four different sets of MRGO flooding plaintiffs. The plaintiffs had claimed that the poor design and the Corps’ failure to maintain MRGO had attributed to the flooding that followed Hurricane Katrina. The Corps had argued that the federal Flood Control Act shielded the government from liability for defective flood-control projects.
While Judge Duval did agree that the Army Corps of Engineers was not liable for flood damage stemming from the design of MRGO, he did rule that the Corps could be held liable for its negligent failure to properly maintain and operate the channel.
Judge Duval's ruling found that the Corps of Engineers’ negligent failure to maintain and operate MRGO properly was a substantial cause for the fatal breaching of the Reach 2 Levee and the subsequent catastrophic flooding of the St. Bernard Polder following Hurricane Katrina. The judge then went on to rule that the Corp’s failure to provide timely foreshore protection doomed the channel to grow to three times its design width and destroyed the banks which would have helped to protect the levee.
If Judge Duval’s landmark ruling is upheld on appeal, thousands of individuals and entities whose property was damaged or destroyed in Hurricane Katrina flooding could be eligible for compensation from the U.S. Army Corps of Engineers. As we’ve reported previously, attorneys for MRGO Katrina flooding plaintiffs have already said they would be seeking a global settlement with the U.S. to cover residents and businesses impacted by the Corps’ MRGO negligence.
Some legal experts are already predicting that the Corps' liability could extend beyond property damage. According to a report on WWL.com, an attorney who represented some of the plaintiffs in the case decided by Judge Duval said that ruling can also be applied to victims who lost family members due to MRGO Flooding. Wrongful death lawsuit have already been filed by some victims, but were not included in the MRGO test case because they were personal injury cases. The attorney told WWL.com that Judge Duval's ruling provides a mechanism for those who lost loved ones in some areas to sue.
"If you lived in St. Bernard Parish, or your relative did, or in the Lower 9th Ward, and that person drowned. You already have liability determined," the attorney said. "You would have to prove up the economic damages of that particular individual."
In order to be eligible to file a MRGO lawsuit against the Army Corps of Engineers, claimants must have previously filed SF Form 95 claims with the Corps on or before Aug. 29, 2007. They must also live in one of seven Louisiana zip codes impacted by the flooding that resulted from the Corps' MRGO negligence. Those zip codes are: 70129, 70117, 70092, 70085, 70075, 70043, 70032.