20 Nat. Resources & Env't 31 (2005-2006)
Katrina's Tort Litigation: An Imperfect Storm

handle is hein.journals/nre20 and id is 257 raw text is: John P. Manard, Jr., Patrick O'Hara, and Kelly R. Blackwood

ort suits? This was an act of nature, just furious
and destructive nature, was it not? People should
just pick themselves up by their bootstraps, per-
.   haps with a helping hand from government and
not go to court to point an accusing finger at others, should
they not? The tort system is for something else, is it not?
In his 1998 landmark book, Rising Tide: The Great
Mississippi Flood of 1927 and How it Changed America, John
Barry describes the momentous social and political changes
brought about by a natural disaster that displaced some seven
hundred thousand Americans and flooded more than 27,000
square miles of land. Republican Secretary of Commerce
Herbert Hoover's leading role in the response effort helped
put him in the White House in 1928. More important for
our discussion of toxic torts, the Great Flood accelerated a
shift away from individual self-reliance in the face of natural
disasters, as more and more people came to believe that gov-
ernment was responsible for protecting individual citizens. In
extreme circumstances where state resources were inade-
quate, people would look to the federal government for that
protection. This was a sea change in the public's understand-
ing of an individual's relationship with government.
Although concepts regarding self-reliance and individual
responsibility may have been knocked askew by that natural
disaster, the idea that one might recover in tort from indi-
viduals, companies, and even government entities for losses
suffered in a natural disaster would have been almost as for-
eign to a 1927 flood victim as the idea that a helicopter
might pluck him from his rooftop. Most cases from the
1927 flood involved claims against a state Reparations
Committee established to provide compensation for proper-
ty damages incurred when state officials intentionally dyna-
mited the levee in St. Bernard Parish to relieve the pressure
on the New Orleans levee and prevent flooding in the city.
Clearly, much changed during the interim between
America's two greatest natural disasters.
Indeed, in those intervening years, the role of govern-
ment in responding grew far larger-FEMA being the obvi-
ous example. After Katrina, there was a large, although at
times awkwardly functioning, helping hand from govern-
ment. In those same intervening years, the tort system
expanded to occupy a larger place in the country's responses
Mr Manard is a partner in the New Orleans office, Mr O'Hara
is counsel in the Baton Rouge offlce, and Ms. Blackwood is an
associate in the Jackson Mississippi, office of Phelps Dunbar
LL. They can be reached at manardj@phelps.com,
oharap@phelps.com, and blackwok@phelpscom, respectively

to many situations and perceived ills in society. Not sur-
prisingly then, tort suits emerged as one of the immediate
responses to Katrina, including suits contending that the
government failed in the helping-hand role it had assumed
and, therefore, was liable for damages.
Within days of Hurricane Katrina's landfall in August
2005, numerous lawsuits were filed seeking tort recovery
under several theories of liability. Suits continue to be filed
for claims related to the immediate impact of the hurricane,
and potential new causes of action arise out of the response
and ongoing recovery efforts. Suits have been filed in spite
of the destruction or closure of courthouses. Flooded
offices, power outages, and displacement have not prevent-
ed advocates from asserting claims, even when forced to
resort to hand-written petitions.
The term natural disaster implies the absence of a
human cause. Mother Nature causes hurricanes, tornados,
and earthquakes. Nevertheless, at the time of the Great
Flood of 1927, Pennsylvania Governor Gifford Pinchot
declared, This isn't a natural disaster. It's a man-made dis-
aster, referring to the flawed river control policies of the
Army Corps of Engineers. Governor Pinchot's comment
recognizes that humans influence the effects of nature, both
positively and negatively. The power to control nature to
the extent that millions of people can live in a hurricane-
prone coastal area at or below sea level necessarily entails
mutual obligations among citizens and between citizens and
the government. Some argue that tort law is one method
of enforcing those obligations. How does that theory apply
in this instance?
Mississippi's southern counties directly abut the sea, with
no man-made barriers to separate them from the 30 foot
storm surge that moved ashore. Residential areas, gambling
barges, hotels, and small towns simply collapsed under the
blow. Primary litigation issues there involve who will pay
to repair the damage caused by an act of nature alone-
largely disputes with insurers over coverage.
Louisiana presented different geography and industries.
Man, not nature, played a far larger role. Consequently, the
tort system occupies a far greater role in sorting out the
question of who will pay. Louisiana's primary southern pop-
ulation center, the Metropolitan New Orleans area, sits
many miles back from the sea, behind a natural barrier of
marshes built by the meandering of the Mississippi River
over centuries. Man has modified this natural barrier mate-
rially through flood control (levees on the Mississippi elimi-
nate sediment deposits that sustain and build the marshes),

NR&E Spring 2006

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