Confusion lingers on liability
In a major victory for Jefferson Parish and former Parish President Aaron Broussard, a jury found Wednesday night that the parish was negligent in how it added the so-called “doomsday plan” to the emergency response protocol it used during Hurricane Katrina, but that the mistakes did not cause the widespread flooding the parish experienced or rise to a higher level of misconduct.
The jury also decided that the decision to evacuate pump operators more than 100 miles away — a decision that rested with Broussard as the parish’s chief executive during a declared emergency — did not amount to “willful misconduct” even though Broussard said in a taped deposition that he wasn’t aware of the evacuation plan.
Parish attorneys would not comment following the 9-3 verdict, which was reached after 7 1/2 hours of deliberation ending at 9 p.m.
Plaintiff attorneys said they need some time to talk with their clients before commenting, other than to call the verdict “confusing” and to say the issues raised by the eight-year case would hopefully serve as a lesson to be learned from.
“No one can answer who gave that order,” attorney Richard Martin said as he left the courtroom, referring to the contradictory testimony during the trial about who knew what when.
The verdict means there will be no second phase to determine how much in monetary damages the parish would have been liable for had the jury decided the flooding was caused by governmental negligence or misconduct.
The one finding of negligence likely came from testimony that the two-page “doomsday plan” wasn’t approved by the Parish Council or vetted in a public process, though the jury found the conduct of parish officials didn’t rise to the level of reckless, wanton or criminal.
The jury began deliberating at 1:30 p.m. in 24th Judicial District Court in Gretna.
Judge John Peytavin had instructed the jurors that nine of the 12 would have to agree that, based on the preponderance of the evidence, the parish was negligent — and, in the case of Broussard, acted with willful misconduct — when it evacuated its pump stations as the storm approached and sent its operators more than 100 miles away to Washington Parish.
In their closing arguments, plaintiff attorneys told the jury that the “doomsday plan” was written in secret and didn’t have the legislative approval or public input required to make it legal — a key factor in whether the parish can claim legal immunity.
“There was nothing lawful being executed,” Martin said. “You can’t be immune if what you’re executing isn’t lawful.”
Plaintiff attorneys noted Broussard admitted in a deposition he had never seen or heard of the doomsday plan and didn’t know pump operators had been evacuated until after it happened. That amounts to willful and wanton misconduct, they argued.
“Isn’t it his duty to protect the citizens of this parish?” attorney Darlene Jacobs asked. “That’s why you elected him?”
Parish attorneys, however, painted a much different picture of the events leading up to the decision to evacuate the workers.
In the year before Katrina, attorney Dennis Phayer said, the parish had been told by its engineers that the previous planned evacuation point, Louis Armstrong International Airport, couldn’t withstand a Category 4 or 5 hurricane. Although Katrina landed at a decreased strength, it had been projected to hit the area at those levels.
Phayer said jurors could disagree with Mount Hermon in Washington Parish as a prudent evacuation point, but shouldn’t take the next step and conclude the decision to send the pump operators there was an act of willful misconduct by the parish or Broussard.
“He wants to flood the parish? He wants damage to occur? That’s nonsense,” Phayer said.
But plaintiffs pointed out the parish’s two public hospitals weren’t included in the study that found no suitable evacuation structure in Jefferson. The two community hospitals in fact housed a number of parish officials, including Parish Council members, during the storm.
Pump operators, Jacobs said, “could have immediately gone back to their jobs” if they had been sent to the hospitals.
Plaintiff attorneys reminded the jury of testimony by meteorologist Nash Roberts III and civil engineer and hydrologist Barry Benedict, who estimated 73 percent of the flooding in the parish would not have happened if the pump operators had been at their stations. The flooding that Jefferson Parish would have experienced would have been confined to the streets, they testified.
But Phayer urged the jury to keep in mind how easy it is to view a decision with the benefit of hindsight, noting the lack of any major problems in the metro area during last week’s freeze could be credited to cautious leaders. Conditions weren’t as bad as parish leaders feared they might be, he said, but they made the prudent call and avoided the problems experienced by residents of Atlanta, where he said officials didn’t make crucial tough decisions.
“This case, and this post-storm criticism of the decision to evacuate, including the pump operators, is classic Monday morning quarterbacking,” he said.
Phayer described an emergency operations center getting steady reports of a storm with winds as high as 165 miles per hour as Katrina neared Louisiana.
“You have to judge (Broussard’s) conduct, not based on what we know now,” Phayer said. “You have to judge him on what he knew at the time they pulled the trigger on the doomsday plan.”