Lawyers plan to appeal verdict in Jefferson flooding lawsuit

Jury says damage not caused by faulty planning

Attorneys who brought a class-action lawsuit against Jefferson Parish say they will appeal a 9-3 jury verdict that found the parish was negligent in its emergency response planning but that the negligence didn’t cause the flooding suffered by tens of thousands of Jefferson property owners during Hurricane Katrina.

Attorney Richard Martin said the plaintiffs’ legal team is still working out the details and may even go back to Judge John Peytavin’s court with a post-trial motion first, but that an appeal is a virtual certainty given the mixed verdict returned by the jury late Wednesday night.

With an estimated 40,000 flooded homes and businesses and a verdict the plaintiffs consider contradictory and confusing, Martin said, “It’s not over.”

“Did we really lose? I don’t think so,” he said.

The suit sought to find the parish, its drainage district, an insurer and former Parish President Aaron Broussard liable for the flooding because pump-station operators were evacuated 110 miles away to Mount Hermon as part of the parish’s so-called “doomsday plan” for dealing with an approaching hurricane.

When the jury left the courtroom to deliberate Wednesday afternoon, it was given instructions on the applicable law and a three-page form — agreed to by both sides — consisting of 11 yes-or-no questions to be answered in order.

Certain questions were to be skipped depending on the answer to the preceding question. For example, the first question asked jurors if the flooding “was due directly and exclusively to natural causes and that no negligent behavior by the defendants contributed to the harm.”

Had the jury answered yes, deliberations would have ended and the parish would have been completely off the hook.

The fourth question asked whether employees of the parish and its drainage district acted negligently in “drafting, implementing, distributing and/or reviewing” the plan, to which the jury answered “yes.”

But the next question asked whether the flooding was caused by that negligence, and the jury answered “no.”

Martin said the plaintiffs contend that because the jury decided the flooding wasn’t exclusively an act of God, that means “the hand of man” was at play, and that by finding the parish was negligent in making Mount Hermon the evacuation point without proper public review and approval by the Parish Council, the jury’s verdict means the parish has lost the discretionary immunity that normally covers the actions of public officials.

Public officials enjoy blanket immunity in emergency situations under state law, which is why Broussard’s actions had to be found to have amounted to “willful misconduct.” The jury, in question 10, found his actions during the storm did not meet that test.

But the parish administration’s decision to send pump operators so far away was made long before Katrina struck, meaning it enjoyed only discretionary immunity, which the plaintiffs claim was lost when the parish was found to be negligent in the way it created the evacuation plan.

As for the jury’s decision that the negligence didn’t cause the flooding, Martin said the plaintiffs read the answer to the first question as ruling out an act of God as the cause, leaving only the actions of the parish.

“If it’s not the surge, the rainfall or the wind, it’s got to be leaving the pumps unmanned,” Martin said. “Nothing else explains what happened.”

Parish attorneys would not speak about the verdict, citing the potential for appeals.

Whatever happens, nothing goes forward until the judge issues a ruling based on the jury’s verdict. Once that happens, the plaintiffs have seven business days to file any post-trial motions in 24th Judicial District Court.

If the plaintiffs don’t go that route, or if they do and are unsuccessful, they have 67 calendar days from the date of the ruling to file an appeal to the state 5th Circuit Court of Appeal.