Monday, March 05, 2007


Let's just say:

You wake up one day, and the building you live in collapses. You miraculously survive, but are gravely injured. You face astronomical bills because of the injuries themselves, lost wages, plus you can't work at 100% and will require years of physical therapy before you can get back to your old productivity. Later, but within the statute of limitations, it comes to light that the construction company who built the building you lived in didn't build the building to code and didn't even follow their own company rules for construction projects, but when you moved in they assured you that the building was safe because they built it.*

Do you sue the construction company?

Hell yes, you do. So does everyone else. If Granny Butterfingers can squeeze McDonalds for serving hot coffee, you can sue the construction company the injuries, lost wages, and rehabilitation that they caused you to deal with, right?

I reckon we'll find out soon.

Like it or not, we like to call this the Petition Clause, that little discussed but very important right included in the very First Amendment to the United States Constitution by our Founding Fathers; who obviously thought it an appropriate check on the power of an un-accountable government.

*This analogy made by Garland Robinette on the radio.


liberalandproud said...

I wonder how that would be resolved. Could the Corps argue that FEMA had already disbursed recovery funds to citizens? I don't argue their right to petition. I just wonder what kind of actual settlement might be worked out.

dadvocate said...

Perhaps, the Corps should give notice that the levies will no longer be built or maintained in order to avoid future lawsuits. No system of flood prevention is fail safe. Sounds like a money grab to me.

Cousin Pat from Georgia said...

L&P: they could try, but that would be a bad call. While the Washington spin keeps talking about $110 billion dollars to assure the American public they are doing something, lawyers and judges can pick apart that nonsense on an itemized basis if need be.

Moving money from one organization to another organization in the same organization does not recovery money make.

DADV: The Corps is in an uncomfortable position being that this lawsuit (as I understand it currently) isn't based off their flood control projects failing. If it were just a flood control project, no one would be able to sue them, based on the law passed in 1928 giving them control of national flood control policy and releasing them from accountability based on the fact that no system of flood prevention can, by definition, be fail safe.

This particular lawsuit, as I understand it, is based on their navigational projects failing, and contributing to flood the city, cause loss of life, property and revenue, damage to vital infrastructures etc. Which is why the Federal judge allowed the original litigation to stand.

The ACoE's best legal defense would be to prove beyond a shadow of a doubt that everything that failed was flood control, thereby legally reducing their liability according the letter of the law. But I wonder how well that line will play in the post Walter Reed Hospital world.

On that note, does the Walter Reed situation with US Veterans pose a litigation threat to the US Federal Government as well? If it does, should that mean the DoD should give notice that they will no longer cover injured members of the armed service in order to avoid possible future litigation?

These analogies just write themselves, because such situations are two peas in the same pod. This is why we have a Constitutionally protected right to bring litigation against the government if need be.

dadvocate said...

Once again, lawyers appear to have hound a loophole which will make them rich(er). I've been told that every dam on the Ohio River is a navigational dam. Judging for the height of the dams I've seen and the dams' lack of performance for flood control in 1997, I'd have to agree.

Towns flooded all along the Ohio River in 1997. People had kayak races around Riverfront Stadium in Cincinnati. Millions in damages, but I don't remember anyone suing the Corp or anyone else. Seems to me they are looking for a sympathy ruling.

Cousin Pat from Georgia said...

Sometimes one's distaste for litigation and torts must be put aside so that some things can be heard in court. Sometimes it doesn't matter how much the lawyers make, so long as they make the case to the best of their abilities.

The Cincinnati link is telling, on many levels, especially for reading this. It reminds me that every river community and every coastal community, every community in tornado alley, every community sitting underneath the shadows of western volcanoes and built over time-bomb fault lines, every community whose lines of defense are built on the dotted lines of government contracts - everywhere should be with New Orleans on this one.

Money grab? Hardly. Try accountability. Try vindication. Try justice. This is why we should all want it in the court - so they can take the time and review the evidence. It is easy to say 'floods happen,' and hope to get over such tragedy. It is harder when the flood should not have happened, and may have only done so because someone cut corners illegally.

Say that storm hits the Ohio valley, and all the floodwalls and levees hold the river. Then those navigational dams upstream break because someone wasn't on their job when they were built. The water released from the breaking of those dams causes the flood as a result, and destroys Falmouth, killing 27.

Not a natural disaster, a man made disaster.

Think there wouldn't be a lawsuit if that had been the case in 1997?

I think there would have been.

You can't legislate or litigate true accidents or natural disasters, you can only pick up. But when there's a chance that someone not being on their job caused the disaster, it is worth a long hard look.

New Orleans deserves that day in court.

dadvocate said...

Sorry, don't buy it. It should be abundantly obvious that the government, nor anyone else, can guarantee your safety from the power of mother nature. New Orleans is a city built in a bad spot, like Pompeii, I've known since I was a kid in the Sixties that NOLA could be devastated by a hurricane. It could, and eventually will be, much worse.

If I live on a flood plain, I can expect floods. If I live on the Gulf Coast or East Coast I can expect hurricanes. Who's to blame for that. No system is failsafe. They found that out on the Titanic.

patsbrother said...

Pat: as this is a civil case, the likely burden of proof is by a preponderance of the evidence, not beyond a shadow of a doubt (which, unless I am incorrect, is exclusively a burden for criminal cases).

Also, the moving party bears the burden, so depending on whether NOLA needs to plead this as the failure of a navigational project (if your assessment of the law is correct), NOLA may carry this burden, and not the Corps. If however, asserting this is part of a flood control policy is a defense, then the Corps will have the burden of proving that.

However, please note that proving something by a preponderance standard is simply proving X is more likely than Y. This is not a high burden.