- Associated Press - Thursday, February 6, 2014

NEW ORLEANS (AP) - Two of the lawyers who sued Jefferson Parish over the disaster “doomsday plan” that evacuated drainage pump operators as Hurricane Katrina approached say some of the jurors’ questions indicate they were confused, while some of the judge’s answers may be grounds for a possible appeal.

The verdict handed down late Wednesday exempts both Jefferson Parish and parish President Aaron Broussard from being held financially responsible for the damage 40,000 home and business owners say they incurred from the deadly August 2005 storm.

Plaintiffs’ attorneys Darleen Jacobs and Richard M. Martin Jr. both said they want to appeal, but doing so requires agreement by all eight members of the plaintiffs’ steering committee. Jacobs said one other member she spoke with favored an appeal, but that she had not been able to reach the other five.

Jurors found that the parish government was negligent in the way it drafted and enacted its disaster plan. But the 9-3 verdict also found that the parish was not responsible for subsequent flooding and that Broussard’s actions did not amount to willful misconduct.

The complex class-action civil decision came after 7½ hours of deliberation. The jury ruled that the flooding in Jefferson Parish was not an act of God and that the parish was negligent in evacuating pump workers, but that the negligence did not cause the flooding, leaving the parish not liable.

They also ruled that Broussard and parish employees did not act willfully or recklessly when implementing the “doomsday” plan that included evacuating pump operators.

Edward P. Richards III, who teaches administrative law at Louisiana State University, called the verdict “the right result.” He said he gathered from news accounts he had read that incorrect legal reasoning was used to define the lawsuit as a negligence case.

Both Jacobs and Martin called the negligence finding a victory.

“I’ve won trials and I’ve lost trials. Generally, when you lose them the defendant is not found negligent,” Martin said.

In the future, Jacobs said, “they’re going to dot their ‘i’s and cross their ‘t’s to make sure … that everything is planned correctly and properly distributed and has input from the community.”

The parish had no record of when and by whom the pump operator evacuation plan was approved or when it was put into the parish’s emergency operations binders, Martin said.

He and Jacobs said one possible basis for an appeal is Judge John Peytavin’s response to repeated requests for clarification of “willful misconduct.”

The original jury charge included a 150-word definition taken from a Louisiana court ruling, Martin said, but when the jurors asked for clarification, Peytavin sent back a definition found in an online dictionary “entirely different than the instruction under state law,” and that omitted important parts, Martin said.

Richards said that in administrative law the question isn’t whether people make mistakes but whether they violate their legal duties.

“You don’t want to have decision-makers paralyzed in making important decisions because they’re worried about being sued or second-guessed” if something goes wrong, he said.

Richards said the only real legal question about Broussard’s decision was whether he exceeded his legal authority. “There’s no question that what he did was within his authority,” he said.

The decision to evacuate pump operators was also legally justifiable, he said. “There was no law saying pump operators had to stay in pump houses. And … they weren’t violating any legal decisions. They had legal authority to make a choice to evacuate. They made that choice,” he said.

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