Saden v. Kirby

635 So. 2d 277, 93 La.App. 4 Cir. 0735, 1994 La. App. LEXIS 580, 1994 WL 79986
CourtLouisiana Court of Appeal
DecidedMarch 15, 1994
DocketNos. 93-CA-0735, 93-CA-1013
StatusPublished
Cited by1 cases

This text of 635 So. 2d 277 (Saden v. Kirby) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Saden v. Kirby, 635 So. 2d 277, 93 La.App. 4 Cir. 0735, 1994 La. App. LEXIS 580, 1994 WL 79986 (La. Ct. App. 1994).

Opinion

WARD, Judge.

This is a class action suit by residents and property owners of the lower coast of Algiers in New Orleans whose homes were damaged after torrential rains flooded the lower coastal area. They contend that they suffered damages to their property, emotional distress and false imprisonment when the Plaque-mines Parish Government blocked the natural drainage of the lower coast by constructing a temporary levee. They claim damages from the New Orleans Sewerage & Water Board because it did not have all of its [279]*279pumps working at the Algiers pumping station when the torrential rains indicated flooding was imminent. They also contend the Orleans Parish Levee District built the Donner Canal and its’ levees which operated as a trap for the rainwater, and that the Louisiana Department of Transportation and Development permitted the Plaquemines Parish Government to block the highway.

Plaintiffs have settled their claims with the Orleans Parish Levee District, and the trial court held the Louisiana Department of Transportation and Development not liable. This appeal concerns only the claims against the Sewerage & Water Board and the Plaquemines Parish Government.

By consent of the parties, the trial was bifurcated and questions of liability were considered by the trial court before questions of damages, since questions of damages would be moot if none of the defendants were liable. The question of liability was before the court without a jury, and the judge ad-hoc found that the Plaquemines Parish Government was liable for its intentional blocking of drainage and that the Sewerage & Water Board was liable for damages because of its negligence. Questions of damages, the amount and kind, were deferred to allow Plaquemines Parish and the Sewerage and Water Board an opportunity to appeal the finding of liability.

On appeal, Plaquemines Parish and the Sewerage & Water Board argue that the trial court’s ruling, which found the defendants caused an additional five inches of flooding, is manifestly erroneous because the evidence does not show that any act of defendants was the “cause in fact” of any flooding nor of any of plaintiffs damages. They contend the evidence showed that the flood damage would have occurred notwithstanding any act or omission on their part. They also deny responsibility for an unforeseeable “act of God.”

The Lower Coast of Algiers is part of a peninsula bordered by the Intereoastal Waterway, the Mississippi River, and the Donner Canal. The Donner Canal and its levee cut through the peninsula and divides the area almost equally, more or less tracking the boundary line between Plaquemines and Orleans Parishes. Thus, on one side is a part of Orleans Parish known as the Lower Coast of Algiers and on the other is Plaque-mines Parish.

Historically, Lower Coastal Algiers was a sparsely populated low, flat area. It is surrounded on three sides by the Mississippi River and its levees, and on the fourth side by the Intercoastal waterway and its levee. These levees more or less create a bowl-like effect, preventing drainage into the surrounding waters. To provide some drainage, the Donner Canal was built in 1930, and later a pumping station was built, designed and owned by the U.S. Corps of Engineers, but operated and maintained by the New Orleans Sewerage and Water Board by virtue of a contract with the Corps.

To improve drainage, in the 1970s, lateral canals perpendicular to the Donner Canal were constructed in Orleans Parish to drain the interior of the Lower Coast toward the Donner Canal and thence to the Sewerage & Water Board pumping station, DPS No. 11, located at the foot of the Donner Canal. As it was planned, drainage of the Lower Coast was accomplished by water entering the lateral canals and flowing into the Donner Canal which would . carry it to Sewerage & Water Board pumping stations which would in turn pump water out of the “bowl” and into the Intercoastal waterway.

By the 1970s, the Donner Canal and levee were in such bad shape that they required complete reconstruction. The canal and levee were rebuilt, again tracking the Parish lines, separating Orleans Parish from Plaquemines Parish, but the levee was constructed entirely on the Plaquemines Parish side. The canal was deepened, and the levee raised to a height of 25 CD1 on the Plaque-mines Parish side. Thus, the Donner Canal and its levee when rebuilt cut off the Lower Coast of Algiers from the rest of the peninsula except for two large culverts and Louisi[280]*280ana Highway 406, a ground level crossing of the levee. On April 6, 1983, rain began falling heavily, causing flooding on the lower coast in the early afternoon. At 3:07 on the morning of April 7, the Sewerage & Water Board pump A began operating. The pumping station located at the foot of the Donner Canal, DPS No. 11, had two main pumps and a smaller one. Pumps A and B each had the capacity to move 250 cubic feet of water per second. The third is a small constant duty pump with thirty cubic feet per second capacity. Although it was apparent that flooding would occur because of the deluge, the Sewerage & Water Board was unable to use pump B because the feeder line that supplied power to it was out of service, and as a matter of fact, the service had been out almost three months, since January 9, 1983.

On the morning of April 7 various Plaque-mines Parish officials and Drainage Department workers monitored the rising water at the Highway 406 gap in the Donner Levee. Sometime around 3:00 in the afternoon of April 7, the Plaquemines Parish Government through one of its Commissioners decided to build a temporary levee across Highway 406 on the Orleans Parish side of the gap to block any flood water from coming into Plaquemines Parish. Plaquemines Parish workers used dump trucks and bulldozers to close the highway, and to fill the ditches on the levee sides with sandbags or sacks of clam shells. Thus flooding was averted for the most part in Plaquemines, but not in Orleans where plaintiffs resided or owned property, and the plaintiffs contend that they suffered damages because of additional flooding caused by Plaquemines Parish and the Sewerage & Water Board.

The resolution of this dispute turns largely on findings of fact. Only recently the Supreme Court has severely limited appellate review of facts, applying that limitation most stringently in situations where, as in this case, those findings represent a reasoned choice between one of either two or several different theories, all supported by expert testimony. In those situations, findings of fact are almost never manifestly erroneous. Rosell v. ESCO, 549 So.2d 840 (La.1989), Stobart v. State Through DOTD, 617 So.2d 880 (La.1993).

In this case, as the trial court observed, the most controversial issue is that of “cause in fact.” This issue is almost always a factual issue that must be left to the finder of fact, in this case, the trial judge.

Both defendants produced expert testimony to support various defenses going to the issue of “cause-in-fact.” One argument of both defendants centers on claims that this storm is one that occurs once every hundred or so years, and as such, it is an act of God which no one can prevent, and which no one caused. The trial court found that the crucial issue was whether either defendants’ acts or negligence was a “concurring” and “significant” cause. Relying on Brantley v. Tre-mont and Gulf Railway Company, 226 La.

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Related

Saden v. Kirby
660 So. 2d 423 (Supreme Court of Louisiana, 1995)

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Bluebook (online)
635 So. 2d 277, 93 La.App. 4 Cir. 0735, 1994 La. App. LEXIS 580, 1994 WL 79986, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saden-v-kirby-lactapp-1994.