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Hat Tip to Oyster.
A commenter @ Oyster's site recommended that we read pages 148-150 of the Judge's opinion (pdf alert) for some choice excerpts:
On page 148 of the 189 page pdf:
It is the Court's opinion that the negligence of the Corps, in this instance by failing to maintain the MRGO properly, was not policy, but insouciance, myopia and shortsightedness. For over forty years, the Corps was aware that the Reach II levee protecting Chalmette and the Lower Ninth Ward was going to be compromised by the continued deterioration of the MRGO, as has been exhaustively discussed in this opinion. The Corps had an opportunity to take a myriad of actions to alleviate this deterioration or rehabilitate this deterioration and failed to do so. Clearly the expression "talk is cheap" applies here.
In the event the gross negligence of the Corps in maintaining the MRGO would be regarded as policy, then the discretionary function exception would swallow the Federal Torts Claim Act leaving it an emasculated statute applying to automobile accidents where government employees are involved or medical malpractice where a government physician is involved. This was clearly not the intent of Congress.
Safety concerns are not a talisman in deciding whether to apply the discretionary function exception, but certainly are a very significant consideration. Here, there was no balancing or weighing of countervailing considerations. The failure to maintain the MRGO properly compromised the Reach 2 Levee and created a substantial risk of catastrophic loss of human life and private property due to this malfeasance. Nothing the Corps has introduced into evidence tips the balance in its favor.
On pages 149-150:
As to the second inquiry, here it is manifestly evident that the Corps had a duty not to negligently expose the levee system along Reach II to harm, and it is likewise quite evident that if that levee system were harmed that there was great risk or harm to both people and property. In answer to the third question, such duty was obviously breached as extensively set forth in the findings of fact and conclusions of law set forth herein. Clearly, as to the fourth question, the risk of harm was within the scope of protection afforded by the duty breached as levees are designed to protect persons and property. The fifth question is like-wise manifestly evident in that there were catastrophic damages that resulted from the breach. Therefore, this Court finds that the Corps of Engineers was negligent under the La. Civ. Code arts. 2315 and 2316 and is thus liable for damages arising from the destruction of the Reach 2 Levee.
The Judge damns the Army Corps of Engineers for its' malfeasance, negligence, breach, shortsightedness, and failure to properly maintain MRGO, which led to a breach of the levees. The vast majority of the damage in New Orleans from Hurricane Katrina came from the Federal Flood, not the hurricane itself, which is why it has been next to impossible for homeowners to get the money needed to repair their homes.
Now the question becomes - will the federal government finally pay up for their negligence in protecting New Orleans? |
