Petition for Writ of Certiorari — Ariyan Incorporated, dba Discount Corner, et al., Petitioners v. Sewerage & Water Board of New Orleans, et al.
Supreme Court briefJul 18, 2022
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Appendix A-1
United States Court of Appeals
Fifth Circuit
FILED
March 21, 2022
Lyle W. Cayce Clerk
United States Court of Appeals
for the Fifth Circuit
_____________
No. 21-30335
_____________
Ariyan, Incorporated, doing business as Discount
Corner; M. Langenstein & Sons, Incorporated;
Prytania Liquor Store, Incorporated; West Prytania,
Incorporated, doing business as Prytania Mail
Service/Barbara West; British Antiques, L.L.C.,
Bennet Powell; Arlen Brunson; Kristina Dupre; Brett
Dupre; Gail Marie Hatcher; Betty Price; Et Al.,
Plaintiffs—Appellants,
versus
Sewerage & Water Board of New Orleans; Ghassan
Korban, In his Capacity as Executive Director of
Sewerage & Water Board of New Orleans,
Defendants—Appellees.
_____________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:21-CV-534
_____________
Appendix A-2
Before Barksdale, Stewart, and Dennis, Circuit
Judges. James L. Dennis, Circuit Judge:
Plaintiffs who succeed in winning a money
judgment against a state governmental entity in state
court in Louisiana often find themselves in a
frustrating situation. Though they have obtained a
favorable judgment, they lack the means to enforce it.
The Louisiana Constitution bars the seizure of public
funds or property to satisfy a judgment against the
state or its political subdivisions. La. Const. art. XII,
§ 10(c). Instead, the Legislature or the political
subdivision must make a specific appropriation in
order to satisfy the judgment. Id.; La. R.S. 13:5109.
And since Louisiana courts lack the power to force
another branch of government to make an
appropriation, the prevailing plaintiff has no judicial
mechanism to compel the defendant to pay. See
Newman Marchive P’ship, Inc. v. City of Shreveport,
979 So. 2d 1262, 1265 (La. 2008). The “plaintiff who
succeeds in an action against a governmental unit
thus becomes a supplicant,” relying on the grace of the
government to appropriate funds to satisfy her
judgment. David W. Robertson, Tort Liability of
Governmental Units in Louisiana, 64 Tul. L. Rev. 857,
881 (1990).
Finding themselves in this position, the Plaintiffs
in this case, like others before them, have turned to
the federal courts to force payment on their state court
judgment. They claim that the Defendants’ failure to
timely satisfy a state court judgment violates the
Takings Clause of the Fifth Amendment. The district
court granted the Defendants’ motion to dismiss,
applying long-standing precedent that there is no
property right to timely payment on a judgment.
We agree and AFFIRM.
Appendix A-3
I.
In 2013, the United States Army Corps of
Engineers and the Sewerage and Water Board of New
Orleans (the “SWB”) began construction on a massive
flood control project across Uptown New Orleans as
part of the Southeast Louisiana Urban Flood Control
Program (“SELA”). The Uptown phase involved the
construction of underground box culverts that run the
length of several major thoroughfares. Plaintiffs are
seventy landowners, including both businesses and
private homeowners, who suffered property damage
and economic loss as the result of SELA construction.
The Plaintiffs filed suit in state court and obtained
final judgments against the SWB for a combined $10.5
million. Some of these judgments became final in early
2018 and 2019, others as recently as fall 2020.
As of January 2021, though, the Plaintiffs had not
received any payment from the SWB. So, in March
2021 they filed a § 1983 suit in district court under the
theory that the SWB’s failure to comply with the state
court judgments “creates a secondary Constitutional
violation of Plaintiffs’ Fifth Amendment rights,” more
specifically a violation of their due process rights and
their rights to just compensation for a taking. As
relief, the Plaintiffs requested a writ of execution
seizing the SWB’s property in order to satisfy the
judgments. Separately, the Plaintiffs’ complaint
sought a declaration that the SWB is contractually
obligated to seek reimbursement from the Army Corps
for the judgments via a procedure the two entities
agreed to, called the “Damages SOP.”
The SWB filed a motion to dismiss under Rule
12(b)(6) and the district court granted it. The court
sympathized with the Plaintiffs’ frustrations, but
noted that there were “centuries of precedent”
establishing that a state’s failure to timely pay a state
Appendix A-4
court judgment did not violate any federal
constitutional
right.
With
no
underlying
constitutional right at issue, Plaintiffs’ § 1983 claim
was “legally baseless.” The district court also declined
to exercise jurisdiction over Plaintiffs’ request for
declaratory relief as a standalone claim, citing the
“particularly local nature of this dispute.” Finally, the
court denied Plaintiffs’ generic request to amend their
complaint should a failure to state a claim be found,
holding that any amendment would be futile.
Plaintiffs appealed.
II.
We review dismissal of a case under Rule 12(b)(6) de
novo, accepting all well-pleaded facts as true and
viewing those facts in the light most favorable to the
plaintiff. Allen v. Walmart Stores, L.L.C., 907 F.3d 170,
177 (5th Cir. 2018). “In the context of a 12(b)(6) motion
in a section 1983 suit, the focus should be whether the
complaint properly sets forth a claim of a deprivation of
rights, privileges, or immunities secured by the
Constitution or laws of the United States caused by persons
acting under color of state law. If there is no deprivation
of any protected right the claim is properly dismissed.”
S. Christian Leadership Conf. v. Supreme Ct. of State
of La., 252 F.3d 781, 786 (5th Cir. 2001) (internal citation
omitted).
Ordinarily a district court’s denial of a motion to
amend a complaint is reviewed for abuse of discretion.
Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 872
(5th Cir. 2000). However, when denial is based on the
futility of amendment, we “apply the same standard of
legal sufficiency as applies under Rule 12(b)(6).” Id. at
873 (citation omitted). If the complaint, as amended,
would be subject to dismissal, then amendment is futile
and the district court was within its discretion to deny
leave to amend. Id.
Appendix A-5
III.
A.
The Plaintiffs’ claim is fairly discrete. They “do
not seek to re-litigate the legal or factual issues or
compensation awards decided in the state courts.”
Rather, their case “concerns an independent Takings
Clause violation—the failure to timely pay just
compensation once the compensation was determined
and awarded.” This nonpayment is, according to the
Plaintiffs, a “second taking,” and the only one at issue
in their case.1
More than a century ago, the Supreme Court
decided the case of a pair of litigants in a similar
situation as the Plaintiffs here. In Folsom v. City of
New Orleans, 109 U.S. 285 (1883), two relators had
obtained state court judgments against the City of
New Orleans for property damage caused by riots in
1873. In 1879, a new state constitution limited the
taxes New Orleans could levy to just enough to cover
the City’s budget. Id. at 287. The effect was that the
relators were prevented from collecting on their
judgments. Id. The relators argued that this state
constitutional change deprived them of property
without due process of law in violation of the
Fourteenth Amendment. Id. The Supreme Court
rejected the argument, agreeing that the judgments
were property, but holding that “the relators cannot
be said to be deprived of them so long as they continue
1 In their complaint, Plaintiffs asserted a separate due process
violation “because Defendants have treated them differently
than non-litigants merely because Plaintiffs have exercised their
constitutional right to file suit.” Plaintiffs did not argue this
claim in their briefs before the district court or in their briefs
before this Court. It is therefore deemed abandoned. Yohey v.
Collins, 985 F.2d 222, 224 (5th Cir. 1993).
Appendix A-6
an existing liability against the city.” Id. at 289. In
dissent, Justice Harlan wrote that an unenforceable
judgment is no judgment at all. “Since the value of the
judgment, as property, depends necessarily upon the
remedies given for its enforcement, the withdrawal of
all remedies for its enforcement, and compelling the
owner to rely exclusively upon the generosity of the
judgment debtor, is, I submit, to deprive the owner of
his property.” Id. at 295.
The Folsom majority’s notion of a judgment as an
“existing liability,” conceptually distinct from its
recovery, has only been reinforced in the intervening
years. In Minton v. St. Bernard Parish School Board,
this Court, citing Folsom, reiterated that “the
property right created by a judgment against a
government entity is not a right to payment at a
particular time but merely the recognition of a
continuing debt of that government entity.” 803 F.2d
129, 132 (5th Cir. 1986). Based on that principle, we
held that the government defendant’s “failure to
appropriate funds to pay the debt to the Mintons does
not constitute a taking in violation of the due process
clause.” Id.
Again, in Freeman Decorating Company v.
Encuentro Las Americas Trade Corporation, our
Court held that there was no Takings Clause violation
where the City of New Orleans failed to make timely
payment on a state court judgment because there had
been no taking of any property. “[T]he only property
right [the plaintiff] has is the recognition of City’s [sic]
continuing debt.” 352 F. App’x 921, 924 (5th Cir.
2009); see also Guilbeau v. Par. of St. Landry, 341 F.
App’x 974 (5th Cir. 2009); cf. Evans v. City of Chicago,
689 F.2d 1286, 1297 n.13 (7th Cir. 1982)
(distinguishing Folsom because Illinois Constitution
created property right to immediate payment on a
judgment). In short, “[a] party cannot be said to be
Appendix A-7
deprived of his property in a judgment because at the
time he is unable to collect it.” Folsom, 109 U.S. at
289. Thus, Plaintiffs’ claim that their property has
been taken by the SWB’s failure to timely pay must
fail under Folsom.
The Plaintiffs try to get around this precedent in
two ways. First, they argue that Folsom and its
progeny are distinguishable because the underlying
judgments in those cases sounded in state tort and
contract law, while the Plaintiffs’ judgments are based
on violations of a federal constitutional right. But
Plaintiffs’ underlying state court cases were not based
on any asserted federal right. As the SWB pointed out
in briefing, and as the record shows, Plaintiffs’ state
court judgments were for violations of Louisiana law,
not for violations of the Fifth Amendment Takings
Clause as the Plaintiffs have asserted to this Court.
But even if the underlying judgments were based on
violations of federal rights, we are not sure why that
distinction would make a difference. After all, under
Plaintiffs’ theory, the SWB’s failure to pay the
judgments constitutes an “independent” or “second”
Fifth Amendment taking of their property, namely the
purported property right to be paid timely on a
judgment. But since Folsom said there is no property
right to timely payment on a judgment, there must be
something special about a judgment based on federal
constitutional rights that confers this additional
property interest for the Plaintiffs’ argument to
succeed. Plaintiffs do not explain why the legal right
underlying a judgment would create this additional
property right for some judgments and not others, and
it remains unclear to us. It seems that a judgment
compensating someone for a breach of contract should
confer no less a property interest than a judgment
compensating someone for the police’s excessive force.
Appendix A-8
Vogt v. Board of Commissioners of Orleans Levee
District, 294 F.3d 684 (5th Cir. 2002), and Lafaye v.
City of New Orleans, No. 2:20-CV-41, 2021 WL 886118
(E.D. La. Mar. 9, 2021), also do not aid the Plaintiffs
in escaping Folsom’s holding. In Vogt, the Court
stated in dicta that the governmental defendant’s
refusal to satisfy a judgment could constitute a taking.
294 F.3d at 697. But the judgment in that case was, in
part, a declaratory judgment by the state courts that
mineral royalties in the government defendant’s
possession were the property of the plaintiff. Id. at
688. The government’s refusal to “pay over the
retained royalties constitutes a taking because the
governmental entity is withholding private property
from its owners.” Id. at 697. This situation, where the
judgment debtor is in possession of property
determined to belong to the creditor, is different from
a judgment wherein the debtor owes compensation to
the creditor. Lafaye turns on the exact same
distinction. As the district court wrote in that case,
“[b]oth Vogt and this case involve the government’s
refusal to return private property to its rightful
owner.” Lafaye, 2021 WL 886118, at *9. Plaintiffs’
judgments here are for compensation and damages,
not for the return of private property that “the
government has forcibly appropriated . . . without a
claim of right.” Vogt, 294 F.3d at 697.
Plaintiffs’ second argument is that two Supreme
Court cases—Williamson County Regional Planning
Commission v. Hamilton Bank of Johnson City, 473
U.S. 172 (1985) and Knick v. Township of Scott,
Pennsylvania, 139 S. Ct. 2162 (2019)—provide a
federal
forum
for
their
claim.
Plaintiffs
misunderstand those cases. They are right that Knick
and Williamson County discuss when a plaintiff may
file a Takings Clause claim in federal court, but the
cases say nothing about whether failure to timely pay
a state court judgment constitutes a taking or any
Appendix A-9
other deprivation of a federal right actionable under
§ 1983. Whether a claim is ripe for federal
adjudication, as Williamson County and Knick
decided, is very different from whether certain facts
state a claim at all. Amici’s citations to Supreme Court
dicta that the Fifth Amendment is “self-executing”
and that a property owner “acquires a right to
compensation immediately upon an uncompensated
taking” also fail to address the actual issue presented
by Plaintiffs’ appeal, namely whether a government’s
failure to timely pay a court judgment constitutes a
taking in the first place. Neither Williamson County
nor Knick speak to that question. Plaintiffs’ § 1983
claim remains foreclosed by Folsom.
B.
Plaintiffs invoked federal question jurisdiction,
relying on their Fifth Amendment claim, to bring this
suit. With that claim dismissed, the district court
declined to exercise jurisdiction over Plaintiffs’
separate claim for a declaration of the parties’ rights
and duties under the Damages SOP. The Declaratory
Judgment Act “does not of itself confer jurisdiction on
the federal courts.” Jolly v. United States, 488 F.2d 35,
36 (5th Cir. 1974). Without an underlying federal
claim, or any other basis for jurisdiction asserted by
the Plaintiffs, the district court properly declined to
hear Plaintiffs’ standalone claim to declaratory relief.
As a final matter, the district court also properly
declined to grant leave to Plaintiffs to amend their
complaint. Though Rule 15(a)’s mandate that leave to
amend must be “freely give[n] . . . when justice so
requires” significantly limits a district court’s
discretion, a district court still acts within its bounds
when it denies leave because amendment would be
futile. Fed. R. Civ. P. 15(a)(2). Futility here means
“that the amended complaint would fail to state a
Appendix A-10
claim upon which relief could be granted.” Stripling,
234 F.3d at 873. The Plaintiffs did not specify what
amendments they wished to make, or attach an
amended pleading. Rather they simply asked for leave
to amend “if their pleadings are found to be deficient
in any manner.” This failure to specify how
amendment would cure the fundamental deficiencies
in their pleading, especially when the core of
Plaintiffs’ claims is so clearly foreclosed by settled law,
supports the district court’s determination that
amendment would be futile. See Legate v. Livingston,
822 F.3d 207, 212 (5th Cir. 2016). We cannot say the
court abused its discretion.
IV.
Like the district court, we understand the
Plaintiffs’ frustration. They have succeeded in
winning a money judgment. Without any judicial
means to recover, they are compelled “to rely
exclusively upon the generosity of the judgment
debtor.” Folsom, 109 U.S. at 295 (Harlan, J.,
dissenting). But the Plaintiffs’ case before the district
court turned entirely on a purported property interest
not recognized in Fifth Amendment jurisprudence.
They therefore failed to state a claim for relief, and the
district court properly dismissed their case.
We AFFIRM the district court’s judgment.
Appendix B-1
United States Court of Appeals
for the Fifth Circuit
FILED
March 21, 2022
Lyle W. Cayce
Clerk
No. 21-30335
Ariyan, Incorporated, doing business as Discount
Corner; M. Langenstein & Sons, Incorporated;
Prytania Liquor Store, Incorporated; West Prytania,
Incorporated, doing business as Prytania Mail
Service/Barbara West; British Antiques, L.L.C.,
Bennet Powell; Arlen Brunson; Kristina Dupre; Brett
Dupre; Gail Marie Hatcher; Betty Price; Et Al,
Plaintiffs—Appellants,
versus
Sewerage & Water Board of New Orleans; Ghassan
Korban, In his Capacity as Executive Director of
Sewerage & Water Board of New Orleans,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:21-CV-534
Before Barksdale, Stewart, and Dennis, Circuit
Judges.
JUDGMENT
This cause was considered on the record on
appeal and the briefs on file.
Appendix B-2
IT IS ORDERED and ADJUDGED that the
judgment of the District Court is AFFIRMED.
IT IS FURTHER ORDERED that Appellants
pay to Appellees the costs on appeal to be taxed by the
Clerk of this Court.
Appendix C-1
Case 2:21-cv-00534-MLCF-JVM
Filed 06/09/21
UNITED STATES DISTRICT COURT EASTERN
DISTRICT OF LOUISIANA
ARIYAN, INC., ET AL.
CIVIL ACTION
v.
NO. 21-534
SEWERAGE & WATER BOARD
OF NEW ORLEANS, ET AL.
SECTION “F”
ORDER AND REASONS
Before the Court is the defendants’ Rule 12(b)(6)
motion to dismiss. For the reasons that follow, the
motion is GRANTED.
Background
When a flood-control project damaged their homes
and businesses in Uptown New Orleans, the 70
plaintiffs in this case took the defendant1 – the
Sewerage & Water Board of New Orleans (SWB) - to
Louisiana state court.2 In state-court actions
“specifically
not[ing]
that
‘any
substantial
interference with the free use and enjoyment of
property may constitute a taking of property within
the meaning of the federal and [Louisiana]
constitutions,” the plaintiffs secured monetary awards
1 In this case, the plaintiffs have also sued Ghassan Korban, “in
his [official] capacity as Executive Director” of the SWB. Aside
from prefatory language naming Korban as a defendant, the
plaintiffs’ complaint mentions Korban just once (with regard to a
written demand for payment the plaintiffs made upon the SWB).
See Compl., ¶ 54.
2 In their various state-court actions, the plaintiffs sought
compensation for property damages, losses of residential use and
enjoyment, and business losses occasioned by the project at issue.
Appendix C-2
for property damage and restrictions they sustained
in connection with the project at issue. See Opp’n at 3.
Acknowledging that those successful lawsuits
resulted in “state court judgments [that]
memorialized and quantified the just compensation to
which [they] are entitled,” the plaintiffs now bring §
1983 and declaratory judgment claims against the
SWB in this Court for the SWB’s allegedly “unlawful
refusal to pay” such compensation. See, e.g., id. at 6.
The plaintiffs make no bones about their intention in
bringing this federal action: as they put it, they “have
exhausted their state court remedies in seeking just
compensation from the [SWB], have not received the
just compensation that was awarded, and now are
seeking to enforce the payment of that just
compensation in this Court.” See id. at 8. The SWB
concedes that it has not yet made good on the
plaintiffs’ damages awards but insists that it does
plan to pay the plaintiffs in the future.
Thus, with unpaid state-court judgments in hand
and no “certainty at all that they will ever be paid just
compensation for their loss of property interests,” the
plaintiffs urge this Court to “recognize that a Section
1983 claim is available when state actors take private
property but fail to pay [a] state court judgment
establishing the amount of just compensation due.”
See id. at 6–7.
Rule 12(b)(6) allows a party to move for dismissal
of a complaint that fails to state a claim upon which
relief can be granted. “To survive a motion to dismiss”
under Rule 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To
demonstrate a facially plausible basis for relief, a
plaintiff must plead facts which allow “the court to
Appendix C-3
draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. In determining
whether a plaintiff has met this burden, a court must
“accept all well-pleaded facts as true and view all facts
in the light most favorable to the plaintiff,” but must
not accord an assumption of truth to conclusory
allegations and threadbare assertions. Thompson v.
City of Waco, 764 F.3d 500, 502 (5th Cir. 2014).
The foregoing presumptions are not to be applied
mindlessly, however. Thus, in considering a motion to
dismiss, the Court may review any documents
attached to or incorporated into the plaintiff’s
complaint by reference. Causey v. Sewell CadillacChevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004). In
addition, the Court may judicially notice matters of
public record and other facts not subject to reasonable
dispute. See United States ex rel. Willard v. Humana
Health Plan of Tex. Inc., 336 F.3d 375, 379 (5th Cir.
2003).
II.
With this standard in view, the Court proceeds to
evaluate whether the plaintiffs’ complaint states a
plausible claim for relief.
A. Count One: § 1983 Claims
1. The Plaintiffs Fail to State a Baseline Legal
Violation
The crux of the plaintiffs’ case is a § 1983 claim
for asserted violations of the Takings Clause3 and
The Takings Clause of the Fifth Amendment provides that
private property shall not “be taken for public use[] without just
compensation,” and is “made applicable to the States by the
3
Appendix C-4
constitutional due process and civil rights. See
Compl., ¶¶ 56–68. 42 U.S.C. § 1983 “provides injured
plaintiffs with a cause of action when they have been
deprived of federal rights under color of state law.”
Doe v. Dall. Indep. Sch. Dist., 153 F.3d 211, 215 (5th
Cir. 1998). To state a claim under § 1983, a plaintiff
must first allege a threshold violation of constitutional
or statutory rights. See, e.g., D.A. ex rel. Latasha A. v.
Hous. Indep. Sch. Dist., 629 F.3d 450, 456 (5th Cir.
2010).
Here, the plaintiffs assert that the SWB’s refusal
to pay their state-court judgments violates their Fifth
Amendment “right” “to be actually paid just
compensation for the taking of their property by
inverse condemnation” “without unreasonable
The Court
delay.”4 See Compl., ¶¶ 58, 62.
understands the plaintiffs’ frustrations, but this claim
is legally baseless. Courts have consistently observed
a distinction between a state’s taking of property
without just compensation and its temporary
retention of just compensation that has been fixed and
awarded by a state court. In this district specifically,
Judge Lemelle forcefully applied this principle in
Violet Dock, where he dismissed a similar § 1983
claim because a state’s temporary delay in paying a
state-court judgment does not give rise to a
Fourteenth Amendment.” U.S. CONST. amend. V; Kelo v. City of
New London, 545 U.S. 469, 472 n.1 (2005).
The plaintiffs also claim that their Fourteenth Amendment
“due process rights have been violated, because Defendants have
treated them differently than non-litigants merely because
Plaintiffs have exercised their constitutional right to file suit to
protect their rights and property interests.” See Compl., ¶ 64.
The plaintiffs’ claim in this regard has no basis in law.
4
Appendix C-5
constitutional violation.5 See 2019 WL 6307945, at *3.
As he aptly concluded there:
Plaintiff has failed to state a claim
under § 1983. Plaintiff’s complaint and
opposition demonstrate that it is not
seeking to bring a claim for the unlawful
taking of the property expropriated by
[the state agency defendant], because
final judgment has already been
rendered on that issue in state court.
Rather plaintiff only wishes to pursue its
entitlement to the state court’s
compensation award and is attempting
to use § 1983 as the vehicle for such
relief. However, the “property right
created by a judgment against a
government entity is not a right to
payment at a particular time, but merely
the recognition of a continuing debt of
that government entity.” Guilbeau v.
Par. of St. Landry, 2008 WL 4948836, at
*10 (W.D. La. Nov. 19, 2008), aff’d, 341
F. App’x 974 (5th Cir. 2009) (citing
Minton v. St. Bernard Par. Sch. Bd., 803
F.2d 129, 132 (5th Cir. 1986)); Davis v.
Cantrell, 2018 WL 6169255, at *5 (E.D.
La. Nov. 26, 2018). Thus, defendant’s
delay in paying . . . the state court’s
judgment has not given rise to a Fifth
Amendment violation. Additionally,
plaintiff’s attempt to distinguish Minton
and subsequent cases on the grounds
that the judgments in those cases did not
5 Recognizing the threat that Violet Dock poses to their case, the
plaintiffs make much of the fact that the pronouncements of a
sister section of this court do not bind the Court here. That is, of
course, true in the abstract.
Appendix C-6
involve takings of private property is
unavailing, because plaintiffs makes
clear in its opposition that it is not
seeking to relitigate the underlying
takings claim or the amount of just
compensation owed.
Id. Judge Lemelle’s holding was grounded in
centuries of precedent establishing that a state’s
temporary deprivation of damages does not violate
any constitutional right. See, e.g., Louisiana ex rel.
Folsom v. City of New Orleans, 109 U.S. 285, 289
(1883) (“A party cannot be said to be deprived of his
property in a judgment because at the time he is
unable to collect it.”); Minton, 803 F.2d at 132 (“[T]he
property right created by a judgment against a
government entity is not a right to payment at a
particular time but merely the recognition of a
continuing debt of that government entity.”). In
addition, the length of delay in paying the judgments
is not helpful to the plaintiffs. See, e.g., Guilbeau, 341
F. App’x at 975 (deeming plaintiff’s “constitutional
argument [] foreclosed by Minton” where state’s
refusal to pay plaintiff’s damages had persisted for
seventeen years).
This Court finds no reason not to follow the Violet
Dock Court’s lead in this nearly identical case. Here,
as in Violet Dock, the plaintiffs openly admit that they
are suing not to determine the just compensation to
which they are constitutionally entitled, but to enforce
the state courts’ determinations of that very amount.
That issue has been fully litigated in state court and
the plaintiffs repeatedly acknowledge as much in their
opposition. See, e.g., Opp’n at 8 (“Here, Plaintiffs are
not seeking to re-litigate any issue decided by the
state court. Plaintiffs recognize that the amount of
compensation that is due is binding here. Instead,
Appendix C-7
Plaintiffs are seeking to compel payment of the just
compensation judgments . . . .”).
In search of a way to do so, the plaintiffs turn to
the Supreme Court’s decision in Knick v. Township of
Scott, 139 S. Ct. 2162 (2019), which explicitly
overruled the Court’s prior decision in Williamson
County Regional Planning Commission v. Hamilton
Bank of Johnson City, 473 U.S. 172 (1985). In Knick,
the Court overruled the “state-litigation requirement
of Williamson County” and accordingly held that “[a]
property owner may bring a [federal] takings claim
under § 1983 upon the taking of his property without
just compensation by a local government.” Knick, 139
S. Ct. at 2179. The Justices said nothing, however,
about a plaintiff’s ability to bring a § 1983 suit to
enforce a state court’s judgment in a takings case that
has already been litigated in state court. To the
contrary, the question in Knick was limited to
whether Williamson County should have been
overruled, and thus, whether “a property owner whose
property has been taken by a local government has not
suffered a violation of his Fifth Amendment rights –
and thus cannot bring a federal takings claim in federal
court – until a state court has denied his claim for just
compensation under state law.” Id. at 2167.
In overruling Williamson County, the Supreme
Court left in place its decision in San Remo Hotel, L.P.
v. City and County of San Francisco, 545 U.S. 323
(2005), where it held that a “state court’s resolution of
a claim for just compensation under state law
generally has preclusive effect in any subsequent
federal suit.” Id. In fact, San Remo’s continued
application is a logical linchpin of the Knick decision.
Indeed, but for San Remo preclusion, the pre-Knick
Appendix C-8
“takings plaintiff [would not have found] himself in
[the] Catch-22” “preclusion trap” the Court took issue
with in Knick; he still could not have gone “to federal
court without going to state court first; but if he [went]
to state court and [lost], his claim [would not] be
barred in federal court.” See id. That was not the case
in the pre-Knick world of San Remo and Williamson
County.
Thus, the plaintiffs’ core argument – namely, that
“Knick Provides a Direct Legal Basis” for the
plaintiffs’ § 1983 claims – rests on a fundamental
misunderstanding of Knick and its interworking with
San Remo. To the contrary, the defendants are correct
that Knick makes “where to file a constitutional
takings suit [] an either/or proposition”; a plaintiff
who chooses to bring suit in state court cannot later
come to federal court to relitigate issues the state
court already decided. See Mot. at 12; see also San
Remo, 545 U.S. at 341–48.
That is precisely what the plaintiffs wish to do
here.
2. Practical and Structural Considerations Also
Compel Dismissal
Apart from the flaws in the plaintiffs’ claims that
have already been discussed, consider the
implications of blessing the plaintiffs’ transparent
attempt to use § 1983 to collect a state- court judgment
in federal court. Doing so would likely run afoul of the
full faith and credit statute, encourage forum
shopping, and erode the comity federal courts are to
diligently maintain with state courts, who are
Appendix C-9
certainly capable of enforcing their own judgments.6
This predictable parade of confusion has led
countless federal courts, including this one, to resist
calls to enforce judgments rendered in state court.
See, e.g., Bennett v. City of New Orleans, 2004 WL
60316, at *3 (E.D. La. Jan. 9, 2004) (“Plaintiffs’ claims
impinge on comity principles that operate in the area
of federal-state relations. To hold that every unpaid
state court judgment provides a would-be plaintiff
with a cognizable due process claim ‘would assign the
federal courts the role of ombudsmen in monitoring
the execution of state court judgments,’ a role that
would surely be destructive of federal-state relations.”
(quoting Biser v. Town of Bel Air, 991 F.2d 100, 105
n.2 (4th Cir. 1993) (Wilkinson, J.)). Under no
constitutional guise should federal courts “become
embroiled in a party’s attempt to enforce state court
judgments . . . against states and municipalities.” See
Williamson v. Chicago Transit Auth., 185 F.3d 792,
795 (7th Cir. 1999).
As in Bennett, the plaintiffs’ “reliance on Vogt v.
Board of Commissioners of the Orleans Levee District,
294 F.3d 684 (5th Cir. 2002) . . . is misplaced.” While
the plaintiffs are correct in noting that “Bennett
expressly distinguished Vogt [] because the Vogt
plaintiffs had stated a ‘federal takings claim,’” Vogt is
nonetheless no help to them here. For starters, the
plaintiffs in this case have not stated a federal takings
claim; to the contrary, they have disclaimed any
It might also, in this particular case, violate the Louisiana
Constitution’s prohibition on seizures of public property or public
funds to pay judgments. See LA. CONST. art. XII, § 10(C). The
Court need not, and accordingly does not, address this issue here.
6
Appendix C-10
intent to relitigate the takings claims they advanced
in state court. Moreover, the bottom-line conclusion
the plaintiffs draw from Vogt is incorrect: Vogt did not,
as the plaintiffs suggest, create a free-floating rule
that a state’s “failure to pay a state court judgment
awarding just compensation for a taking itself effected
an unconstitutional taking that could be remedied via
a Section 1983 action,” but merely declared, in a factspecific manner, that the state’s retention of mineral
royalties made the minerals themselves the object of
a constitutional taking since the judgment at issue
was “just an accounting or quantification of the
mineral royalties” flowing from ownership of the
minerals. See Vogt v. Bd. of Comm’rs of Orleans Levee
Dist., 2002 WL 31748618, at *3 (E.D. La. Dec. 5, 2002).
In other words, royalties flowing from ownership of
property can perhaps be “taken” by a state which
refuses to remit such property-linked royalties to a
plaintiff, but a state-court damages award that itself
becomes property of the plaintiff is not “taken” by a
state’s temporary failure to make good on the award.
See id. at *2 (drawing “crucial” “distinction” between
earlier taking already “adjudicated in the state
courts” and ongoing taking of “mineral royalties
themselves” alleged before the court).
* * *
42 U.S.C. § 1983 provides a cause of action to
parties subjected to a “deprivation of any rights,
privileges, or immunities secured by the Constitution
and laws” of the United States, but the plaintiffs
allege no such deprivation here.
Appendix C-11
B.
Claims
Count Two: Declaratory Judgment
That leaves the plaintiffs’ second and final cause
of action. There, the plaintiffs seek a judicial
declaration of the parties’ rights and duties with
regard to a so-called “‘Damages SOP,’7 specifically
created in anticipation” of the kind of damages the
plaintiffs suffered as a result of the flood-control
construction at issue. See Compl., ¶¶ 69–75.
There is no “per se rule requiring a district court
to hear a declaratory judgment action”; rather, “the
Declaratory Judgment Act has been understood to
confer on federal courts unique and substantial
discretion in deciding whether to declare the rights of
litigants.” Wilton v. Seven Falls Co., 515 U.S. 277, 286
(1995); Sherwin-Williams Co. v. Holmes County, 343
F.3d 383, 394 (5th Cir. 2003).
Here, there is little reason to – and perhaps
abundant reason not to – allow the plaintiffs’ largely
conclusory declaratory judgment allegations to
proceed as standalone claims in federal court. In 2017,
then-District Judge Engelhardt remanded a previous
iteration of this litigation to state court in light of this
7 The “Damages SOP” is a claims process established by the SWB
and the U.S. Army Corps of Engineers “to identify properties
subject to damage as a result of the [] Project [at issue] and to
investigate and resolve [related] property damage.” See Compl.,
¶ 70. In the second count of their complaint, the plaintiffs seek
judicial declarations that they are third-party beneficiaries to the
Damages SOP and that the SWB’s alleged failures to follow
through on its commitments thereunder have violated the
plaintiffs’ contractual and constitutional rights. See id. ¶¶ 72–
75.
Appendix C-12
Court’s “limited jurisdiction and in light of the
particularly local nature of this dispute with the
Sewerage and Water Board.” See Sewell v. Sewerage
& Water Bd. of New Orleans, 2017 WL 5649595, at *1
(E.D. La. Jan. 5, 2017), aff’d, 697 F. App’x 288 (5th
Cir. 2017). The plaintiffs’ dispute with the SWB is no
less local now, and for the reasons discussed at length
with regard to the deficient § 1983 claims at the heart
of this case, dismissing this action in favor of further
state-court proceedings – with state- court judges,
state-court judgments, state-resident plaintiffs, and a
state-agency defendant – is the best use of this Court’s
“unique and substantial discretion.” Cf. Wilton, 515
U.S. at 286.
* * *
State courts can enforce their own judgments.
Accordingly, IT IS ORDERED: that the
defendants’ motion to dismiss is GRANTED. The
plaintiffs’
claims
are
DISMISSED
WITH
PREJUDICE.8
New Orleans, Louisiana, June 9, 2021
s/ Martin L. C. Feldman
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
8 The plaintiffs’ request for leave to amend their complaint is
denied as futile. See, e.g., Stripling v. Jordan Prod. Co., 234 F.3d
863, 872–73 (5th Cir. 2000) (“It is within the district court’s
discretion to deny a motion to amend if . . . the amended
complaint would fail to state a claim upon which relief could be
granted.” (citations omitted)).
Appendix D-1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ARIYAN, INC., ET AL
VERSUS
CIVIL ACTION
NUMBER: 21-534
SECTION: "F" (1)
SEWERAGE & WATER BOARD OF
NEW ORLEANS, ET AL
JUDGMENT
Considering the Court's Order and Reasons
granting defendants’ Rule 12(b)(6) motion to dismiss,
record document no. 22; accordingly,
IT IS ORDERED, ADJUDGED AND
DECREED that there be judgment in favor of
defendants, Sewerage and Water Board of New
Orleans and Ghassan Korban and against plaintiffs.
The plaintiffs’ claims are DISMISSED WITH
PREJUDICE.
2021.
New Orleans, Louisiana, this 9th day of June
s/ Martin L.C. Feldman
Martin L.C. Feldman
District Court Judge
Appendix E-1
Case: 21-30335 Document: 00516284628 Page: 1
Date Filed: 04/19/2022
United States Court of Appeals for the Fifth Circuit
No. 21-30335
Ariyan, Incorporated, doing business as Discount
Corner; M. Langenstein & Sons, Incorporated;
Prytania Liquor Store, Incorporated; West Prytania,
Incorporated, doing business as Prytania Mail
Service/Barbara West; British Antiques, L.L.C.,
Bennet Powell; Arlen Brunson; Kristina Dupre; Brett
Dupre; Gail Marie Hatcher; Betty Price; Et Al,
Plaintiffs—Appellants,
versus
Sewerage & Water Board of New Orleans; Ghassan
Korban, In his Capacity as Executive Director of
Sewerage & Water Board of New Orleans,
Defendants—Appellees.
_
Appeal from the United States District Court for the
Eastern District of Louisiana
USDC No. 2:21-CV-534
_
ON PETITION FOR REHEARING EN BANC
Before Barksdale, Stewart, and Dennis, Circuit
Judges. Per Curiam:
Appendix E-2
Treating the petition for rehearing en banc as a
petition for panel rehearing (5th Cir. R. 35 I.O.P.), the
petition for panel rehearing is DENIED. Because no
member of the panel or judge in regular active service
requested that the court be polled on rehearing en
banc (Fed. R. App. P. 35 and 5th Cir. R. 35), the
petition for rehearing en banc is DENIED.
Appendix F-1
LSA-Const. Art. 12, § 10
§ 10. Suits Against the State
Section 10. (A) No Immunity in Contract and
Tort. Neither the state, a state agency, nor a political
subdivision shall be immune from suit and liability in
contract or for injury to person or property.
(B) Waiver in Other Suits. The legislature may
authorize other suits against the state, a state agency,
or a political subdivision. A measure authorizing suit
shall waive immunity from suit and liability.
(C) Limitations;
Procedure;
Judgments.
Notwithstanding Paragraph (A) or (B) or any other
provision of this constitution, the legislature by law
may limit or provide for the extent of liability of the
state, a state agency, or a political subdivision in all
cases, including the circumstances giving rise to
liability and the kinds and amounts of recoverable
damages. It shall provide a procedure for suits against
the state, a state agency, or a political subdivision and
provide for the effect of a judgment, but no public
property or public funds shall be subject to seizure.
The legislature may provide that such limitations,
procedures, and effects of judgments shall be
applicable to existing as well as future claims. No
judgment against the state, a state agency, or a
political subdivision shall be exigible, payable, or paid
except from funds appropriated therefor by the
legislature or by the political subdivision against
which the judgment is rendered.
Appendix G-1
CIVIL DISTRICT COURT FOR THE PARISH OF
ORLEANS
STATE OF LOUISIANA
NO. 15-10789
Trial Flight I
Commercial Plaintiffs
Div. “D.”
Sec.12
ARIYAN, INC., d/b/a DISCOUNT CORNER
v.
SEWERAGE & WATER BOARD OF NEW
ORLEANS
FILED:
DEPUTY CLERK
CONSENT JUDGMENT
NOW INTO COURT, jointly come, Plaintiffs, Ariyan,
Inc., d/b/a Discount Comer (“Discount Corner”), M.
Langenstein & Sons, Inc. (“Langenstein’s”), Prytania
Liquor Store, Inc. (“Prytania Liquor”), West Prytania,
Inc., d/b/a Prytania Mail Service/Barbara H. West
(“Prytania
Mail”),
and
British·Antiques,
L.L.C./Bennett
Powell
(“British
Antiques”)
(collectively, “the Commercial Plaintiffs”), and
Defendant, the Sewerage & Water Board of New
Orleans (“SWB”). The following is made a judgment of
the Court:
Appendix G-2
IT IS HEREBY ORDERED, ADJUDGED AND
DECREED that the SWB shall pay the sum of two
million one-hundred and twenty-five thousand dollars
and no cents ($2,125,000.00) to the Commercial
Plaintiffs, which signifies compensation for all claims
in the suit, including claims for physical property
damages, any other damages, attorneys’ fees, and
costs.
IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that the SWB shall pay judicial interest on
the above-amount from December 18, 2015, until paid.
New Orleans, Louisiana this FEB 27 2018 day of
______________ 2018.
Sgd Nakisha Ervin-Knott
Judge, Division “D”
A TRUE COPY
_______________________________
HON. NAKISHA ERVIN-KNOTT
Civil District Court
Parish of Orleans, State of La.
Appendix G-3
FILED
2018 FEB 26
CIVIL DISTRICT COURT
CIVIL DISTRICT COURT FOR THE PARISH OF
ORLEANS
STATE OF LOUISIANA
NO. 15-10789
Trial Flight I
Commercial Plaintiffs
Div. “D.”
Sec.12
ARIYAN, INC., d/b/a DISCOUNT CORNER
v.
SEWERAGE & WATER BOARD OF NEW
ORLEANS
Approved as-to form and content:
Dated: February 26, 2018
s/
CRAIG MITCHELL (#24565)
MITCHELL &ASSOCIATES, APLC
615 Baronne Street, Suite 300
New Orleans, Louisiana 70113
Telephone: (504) 527-6433
Facsimile: (504) 527-6450
-and-:
Appendix G-4
ANTHONY J. STEWART (#02128)
SEWERAGE & WATER BOARD OF
NEWORLEANS
625 St. Joseph Street, Room 201
New Orleans, LA 70165
Telephone: (504) 585-2236
Facsimile: (504) 585-2426
Attorneys for Defendant,
Sewerage & Water Board of New Orleans
Approved as to form and content:
Dated: February 26, 2018
s/
RANDALL A. SMITH, T.A. (#2117)
SARAH LOWMAN (#18311)
TIFFANY DAVIS (#20855)
MARY NELL BENNETT (#32339)
Of
SMITH: & FAWER
201 St. Charles Avenue, Suite 3702
New Orleans, Louisiana 70170
Telephone: (504) 525-2200
Facsimile: (504) 525-2205
Attorneys for the Commercial Plaintiffs
Appendix H-1
CIVIL DISTRICT COURT FOR THE PARISH
OF ORLEANS
STATE OF LOUISIANA
CASE NO: 15-4501 DIVISION: D
SECTION: 12
ELIZABETH SEWELL, ET AL.
VERSUS
SEWERAGE & WATER BOARD OF NEW
ORLEANS
FILED:__________
________________________
DEPUTY CLERK
RESIDENTIAL TRIAL GROUP A
JUDGMENT
This matter came before the Court for trial on
the 12th day of March, 2018.
Present:
Joseph M. Bruno (La. Bar# 3604)
Daniel A. Meyer (La. Bar# 33278)
Alexis A. Butler (La. Bar# 32376)
Michael T. Whitaker (Pro Hac Vice)
Counsel for Sewell Plaintiffs
Craig B. Mitchell (La. Bar# 24565)
Chris D. Wilson (La. Bar# 27142)
Joseph B. Morton, III (La. Bar # 19072)
Counsel for Sewerage and Water Board of New
Orleans
Appendix H-2
This Judgment concerns the following group of
plaintiffs known as Residential Trial Group A:
Plaintiffs:
George and Beth Deussing -5626 Prytania St.
David Epstein-5617 Prytania St.
Faye Lieder -731 Napoleon Ave.
Thomas Ryan and Judith Jurisich -1106 Napoleon
Ave.
Dorothy White -8833 South Claiborne Ave.
In consideration of the law and the evidence, the
Court hereby renders the following:
IT IS ORDERED, ADJUDGED AND
DECREED that plaintiffs suffered an inverse
condemnation.
IT IS FURTHER ORDERED, ADJUDGED
AND DECREED the Sewerage and Water Board of
New Orleans (“'SWB”) is liable for damages owed to
plaintiffs under the theory of inverse condemnation.
IT IS FURTHER ORDERED, ADJUDGED
AND DECREED that SWB is the owner of the SELA
Project.
IT IS FURTHER ORDERED, ADJUDGED
AND DECREED the SELA Project construction
activities caused new damage to, or exacerbated preexisting damage within, the plaintiffs’ properties. The
SELA Project caused plaintiffs to suffer a loss of use
and enjoyment of their properties.
Appendix H-3
IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that SWB is strictly liable under La. C.C.
art. 667 for ultrahazardous pile driving that occurred
at the White residence, 8831-8833 South Claiborne
Ave., during Claiborne Phase I. The Court does not
find that ultrahazardous activity occurred at any
other property.
IT IS FURTHER ORDERED, ADJUDGED
AND DECREED that SWB is strictly liable under
La. C.C. arts. 2317 and 2317.1.
IT IS FURTHER ORDERED, ADJUDGED
AND DECREED that SWB failed to demonstrate
that fault should be allocated to a separate entity
pursuant to the comparative fault statutes.
IT IS FURTHER ORDERED, ADJUDGED
AND DECREED the Court finds that the SELA
Project did not cause damage to the foundations of the
plaintiffs’ homes such that they need replacing or
reinforcing.
IT IS FURTHER ORDERED, ADJUDGED
AND DECREED the Court does not find that
plaintiffs are entitled to relocation damages or
damages to cover the cost moving and storing the
contents of their homes during repairs.
IT IS FURTHER ORDERED, ADJUDGED
AND DECREED that SWB owes damages to
plaintiffs in the following amounts:
1. George and Beth Deussing - 5626 Prytania St.
Property Damage:
$46,660.95
Appendix H-4
Loss of Use and Loss of Enjoyment:
Total:
$19,225.00
$65,885.95
2. David Epstein - 5617 Prytania St.
Property Damage:
Loss of Use and Loss of Enjoyment:
Total:
$56,088.05
$23,887.50
$79,975.55
3. Faye Lieder - 731 Napoleon Ave.
Property Damage:
Loss of Use and Loss of Enjoyment:
Total:
$126,048.71
$38,016.00
$164,064.71
4. Thomas Ryan and Judith Jurisich - 1106
Napoleon Ave.
Property Damage:
Loss of Use and Loss of Enjoyment:
Total:
$91,094.55
$23,751.75
$114,846.30
5. Dorothy White - 8831-8833 S. Claiborne Ave.
Property Damage:
Loss of Use and Loss of Enjoyment:
Total:
$65,726.57
$28,154.00
$93,880.57
IT IS FURTHER ORDERED, ADJUDGED
AND DECREED that pursuant to the above
calculations, plaintiffs in Residential Trial Group A
are hereby awarded a money judgment against SWB
in the amount of FIVE HUNDRED EIGHTEEN
THOUSAND, SIX HUNDRED FIFTY-THREE
DOLLARS AND EIGHT CENTS ($518,653.08).
Appendix H-5
IT IS FURTHER ORDERED, ADJUDGED
AND DECREED that pursuant to La. C.C.P. art.
1920, La. R.S. § 13:3666, La. R.S. § 13:4533, and La.
R.S. § 13:5111, the Court awards reasonable attorney
fees to plaintiffs, and SWB is taxed with the costs
associated with the prosecution of this matter, all to
be determined pursuant to a rule to show cause.
RENDERED, READ AND SIGNED this 25th
day of April, 2018, in New Orleans, Louisiana.
S/
HONORABLE NAKISHA
ERVIN-KNOTT
JUDGE, CIVIL DISTRICT
COURT
Appendix H-6
CIVIL DISTRICT COURT FOR THE PARISH
OF ORLEANS
STATE OF LOUISIANA
CASE NO: 15-4501
12
DIVISION: D
SECTION:
ELIZABETH SEWELL, ET AL.
VERSUS
SEWERAGE & WATER BOARD OF NEW
ORLEANS
FILED:_________ DEPUTY CLERK
REASONS FOR JUDGMENT
I. FACTS AND EVIDENCE
A. Background
Homeowners filed suit against the Sewerage and
Water Board of New Orleans (“SWB”) asserting
property and other related damages allegedly caused
by the installation of drainage canals in the Uptown
and Carrolton neighborhoods of New Orleans.
The installation of the canals form part of the
Southeast Louisiana Urban Drainage Program
(“SELA”), which consists of several federally
sponsored projects aimed at improving the local
drainage system. The project at issue consists of seven
phases: Claiborne I, Claiborne II, Jefferson I,
Jefferson II, Napoleon II, Napoleon III, and Louisiana
I (the “SELA Project”). Approximately three hundred
homeowners have joined the Sewell lawsuit. The
Appendix H-7
plaintiffs in the instant matter, referenced as
Residential Trial Group A, include five sets of
homeowners above the age of seventy: George and
Beth Deussing, David Epstein, Faye Lieder, Thomas
Ryan and Judith Jurisich, and Dorothy White
(hereinafter the “plaintiffs”).
Plaintiffs seek to hold SWB liable for damages
pursuant to multiple theories of recovery including
inverse condemnation, strict liability, and negligence.
SWB has denied any and all liability. SWB asserts
defenses of comparative fault, denial of negligence and
strict liability, and that inverse condemnation is
inapplicable. In the event the Court finds SWB liable,
SWB asserts plaintiffs’ recovery should be limited to
just compensation under the Fifth Amendment to the
United States Constitution.
SWB has maintained that the project was
constructed under the administration of the project's
federal sponsor, the United States Army Corps of
Engineers (“USACE”), and that USACE and the
contractors who performed construction work on the
project should be held liable. SWB filed multiple thirdparty claims against the contractors selected by
USACE for the SELA Project. The third-party
contractors effectively removed these claims to the
United States District Court for the Eastern District
of Louisiana. There, the presiding judge dismissed
SWB’s third-party claims upholding the contractors’
defense of government contractor immunity.
1. Contractual Agreements Establishing the SELA
Project
Appendix H-8
In 1997, the Army (referred to in the contracts as
the “Government”) and SWB entered into a Project
Cooperation Agreement (“PCA”) for the construction
of certain work to improve the interior drainage
system and reduce flood-related damage in Orleans
Parish.
On January 16, 2009, the Army and the Coastal
Protection and Restoration Authority of Louisiana
(“CPRA”) entered into an agreement called the Project
Partnership Agreement (“PPA”). The PPA defines
CPRA as the “non-federal sponsor” and identifies the
multiple phases of the SELA Project. The PPA
outlines the “65/35” cost share arrangement between
the Army and the non-federal sponsor. The agreement
authorizes the Army to allocate money to fund 65% of
the cost of the project and states the non-federal
sponsor would share 35% of the cost. Additionally, the
PPA provides that the non-federal sponsor would
enter into a Cooperative Endeavor Agreement with
SWB for the performance of the non-federal sponsor's
obligations under the PPA.
Also on January 16, 2009, SWB and CPRA
entered into the Cooperate Endeavor Agreement
(“CEA”). This agreement would form the basis upon
which SWB operated in conjunction with the State of
Louisiana and the USACE for the performance of all
SELA projects.
The CEA provides in parts:
WHEREAS, JP (Jefferson Parish] and
SWBNO [SWB] have been solely
responsible, as between JP and SWBNO
Appendix H-9
and
the
Government
for
any
responsibilities
and/or
obligations
undertaken under the PCAs, including
the providing of funding, land,
easements, and right of way acquisition,
and various types of in-kind work for the
Project;
WHEREAS, CPRA and JP and SWBNO
are entering into this Agreement for the
purpose of having CPRA sign the SELA
PPA as the Non-Federal Sponsor, as
required by the Government, but to
continue to recognize JP’s and SWBNO’s
jurisdiction and primary participation as
the non-federal local entities that
will be directly partnering with the
Government in carrying out the
design and construction of the
Project and as the entities that will
undertake and be responsible for
the operation, maintenance, repair,
replacement, and rehabilitation of
their respective portions of the
Project once it or functional
portions thereof are completed;
WHEREAS, CPRA will in fact
delegate in whole or in part its
responsibilities of the Non-Federal
Sponsor under the SELA PPA to JP
and SWBNO, which responsibilities fall
within the respective constitutional and
statutory
purposes,
duties,
and
authorities of JP and SWBNO, and JP
Appendix H-10
and SWBNO desire to accept and
perform their respective purposes,
duties, authorities, and responsibilities;
and
WHEREAS, CPRA, and JP and SWBNO
intend for this Agreement to provide for
the
respective
obligations
and
responsibilities of each party in
relationship to each other and in
relationship to the Government relative
to the obligations and responsibilities
assumed under the SELA PPA to be
signed between CPRA and the
Government ...
IV. Hold Harmless and Indemnify
....
B. As to those portions of the Project
under its authority and jurisdiction and
care, custody, and control, SWBNO
agrees and obligates itself and its
successors and assigns to defend,
indemnify, save, protect, and hold
harmless CPRA and its successors,
officers and employees against any and
all claims, demands, suits, actions,
judgments, attorney’s fees, or costs
arising or allegedly arising out of its
responsibilities
enumerated
and
undertaken herein, or any violation of
Louisiana or Federal law or regulations,
or any negligent act, omission, operation,
Appendix H-11
or work by SWBNO or its employees,
agents, representatives, or contractors,
except for damages due to the fault or
negligence of CPRA, its employees, or its
contractors.
C. To the extent required by CPRA as the
Non-Federal Sponsor under the SELA
PPA, JP and/or SWBNO shall hold and
save the Government free from all
damages
arising
from
design,
construction, operation, maintenance,
repair, rehabilitation, and replacement
of the Project, except for damages due to
the fault or negligence of the
Government or its contractors.
(Emphasis added). These agreements show that
CPRA executed the PPA as the non-federal sponsor for
and on behalf of SWB so SWB could assume all of
CPRA's contractual responsibilities and obligations in
order to execute the SELA Project. Moreover, the
agreements show that SWB would indemnify CPRA
and the Government from damages arising out of the
construction of the project, excluding damages due to
negligence of the CPRA, and the Government or its
contractors.
2. The SELA Project: USACE and SWB Roles and
Responsibilities
SWB and USACE shared a number of
responsibilities with regard to the design and
execution of the SELA Project. Deposition transcripts
and testimony from representatives of USACE and
Appendix H-12
SWB were admitted into evidence. SWB was
responsible for the conceptual designs of the different
phases of the SELA Project. John Fogarty Deposition
42, Aug. 10, 2016. SWB retained consultants, known
as designers of record, who developed all of the plans
for the project. Id. SWB maintained a Network and
Drainage Engineering Department that acted as the
department lead for SELA. Melvin Spooner
Deposition 58, Nov. 7, 2017. The consultants who
designed the SELA projects reported to the
department head of the Network and Drainage
Engineering Department. Id. at 58-59. SWB had the
ability to make recommendations to the design
consultants. Id. at 62. During the preliminary design
stages, USACE goes through a review process of the
plans and specifications and provides comments back
to SWB’s designers of record. Fogarty Dep. 42-43, Aug.
11, 2016.
SWB employed a SELA Project manager who was
responsible for the oversight of the engineering firms
and was there to resolve or take appropriate
measures. Id. SWB coordinated with USACE on the
actual construction of the project and reviewed the
progress of the project. Fogarty Dep. 1317, Aug. 15,
2016. USACE performed daily inspections to ensure
that contractors built the box culverts in accordance
with the plans and specs. Id. at 66. At times, SWB and
USACE performed walk-throughs together. Id. SWB
had review and acceptance authority over aspects of
the SELA Project construction. Spooner Dep. 59.
In certain instances, SWB performed construction
work. Fogarty Dep. 254, Aug. 10, 2016. SWB
performed an emergency valve repair, sewer main
Appendix H-13
replacement, and parking lane repair. Id. at 254-255.
SWB provided access to the lands, easements, and
rights-of-way to build the drainage system. Spooner
Dep. 88. SWB tied in the SELA drainage system with
the existing drainage system. Id. at 89. At times, SWB
coordinated with the contractors to relocate or install
new water mains. Fogarty Dep. 722, Aug. 12, 2016.
SWB did not select contractors for the work. Id. at
259. USACE was responsible for the award and the
administration of the construction contracts. Id. SWB
could not directly instruct the contractors to do
something but had to go through USACE because
USACE had the contract with the contractors. Id. at
261. USACE required contractors to submit a Quality
Control Plan. Id. at 960. SWB was not involved in
drafting the contractor’s quality control plans. Id. at.
958.
SWB hired a forensic contractor, Leonard Quick
of Quick and Associates, to perform pre-construction
inspections of the properties and to install
piezometers and inclinometers.1 Fogarty Dep. 168,
Aug. 10, 2016; Spooner Dep. 56. SWB maintained a
SELA Project Hotline whereby complaints were
logged with the SWB. Fogarty Dep. 270, Aug. 10,
2016. SWB received the complaints through their
consulting firm and then passed along the complaints
to the project manager for USACE who would act on
the complaints. Id. Additionally, USACE maintained
its own separate hotline. Id. at 272.
1 A piezometer measures groundwater. An inclinometer
measures incline.
Appendix H-14
3. Anticipated Consequences of the SELA Project:
Vibrations and Adverse Effects
Prior to the start of construction, SWB and
USACE were aware that vibrations were a concern.
Spooner Dep. 52; Fogarty Dep. 1125-1126, Aug. 15,
2016. USACE anticipated there would be vibrations
due to pile driving, the operating of heavy equipment,
excavations, and other construction activity. Fogarty
Dep. 108, Aug. 10, 2016.
A SELA Brochure, made available on the SELA
website and to patrons at SWB's public meetings,
acknowledges the potential for impacts to the
surrounding areas due to SELA Project construction.
Pls.’ Ex. P-19. The Brochure explains that noise and
vibrations from moving and operating heavy
construction equipment could have an impact on
structures located within close proximity to the Zone
of Impact (“ZOI”).2 Id. The Brochure explains that
scientific research has established the most
significant factor to best indicate the potential for
damage is peak particle velocity (“PPV”), which is
measured in inches per second (“ips”). Id. The
Brochure states that a limit of 0.25 ips PPV is “very
conservative.” Id.
In April of 2010, SWB signed a Programmatic
Agreement (“PA”). The PA recognized that SELA
Project construction posed a risk of adverse effects to
2 “The construction ZOI is defined is defined as the area in which
it is more likely than not that damages will occur. Based on
scientific data obtained to date, the ZOI’s outer boundary is at
the line formed upon the surface at a forty-five (45) degree angle
from the bottom tip depth of driven sheet pile.” Pls.’ Ex. P-19.
Appendix H-15
properties located in the Uptown and Carrolton
neighborhoods. Pls.’ Ex. P-5. The PA mapped out
structures within the Area of Potential Effects
(“APE”) that were susceptible to indeterminate
damage as a consequence of construction vibrations.
Id. Additionally, the PA mapped out areas within the
Construction Impact Zone (“CIZ”) where the potential
existed for soil vibration associated with projectrelated activities. Id. The PA provided that USACE
would require contractors to perform work within a
manner limiting vibrations at the structure nearest to
the site of construction activity to a maximum of 0.25
inches per second. Id.
During construction, vibration monitoring was
accomplished by a monitor hired by the USACE.
Fogarty Dep. 110, Aug. 10, 2016. The contracts
required contractor’s operations to remain under the
.25 inches per second particle velocity as detected by
vibration monitoring. Id. at 110. If a vibration
exceeded .25 ips PPV, the vibration monitor was
instructed to report it to the USACE inspector, and
the USACE inspector was to report it to the
contractor. Id. at 116.
As illustrated by the deposition testimony, the
PA, and the SELA Brochure, SWB and USACE
anticipated adverse consequences due to construction
related vibrations.
B. Fact Witnesses
1. Plaintiff: George Deussing
Appendix H-16
Dr. George Deussing is a seventy-one year old
retired pediatric dentist who resides at and owns the
property located at 5626 Prytania St. with his wife
Beth Deussing. Dr. Deussing and his wife purchased
the property in 2012. As he was retiring, Dr. Deussing
testified that he and his wife wanted to relocate to
New Orleans to be closer to their two daughters.
After the purchase, the couple hired a home
construction company, Guillot Building, to perform a
complete renovation. The couple spent just under
$560,000.00 on the renovation. The only thing that
was not renovated, according to Dr. Deussing, was the
electrical system. Dr. Deussing stated he was satisfied
with the renovation and there were no defects in the
home.
Dr. Deussing testified that the construction
activities caused cracks to appear that were not
present at the conclusion of the renovation. He
testified that the crown molding began separating
from the base boards and cracks appeared in the
crown molding, among other damages.
Both roads bordering his property, Prytania St.
and Arabella St., were tom up for construction
activities. He testified there was no room for a
personal vehicle. He stated they lived at “ground-zero”
and there was always pounding of some nature
occurring outside of the home. He complained that he
constantly heard a generator, and he and Mrs.
Deussing sometimes had to take sleep medication in
order to fall asleep. He described hearing a “clacking”'
sound on regular basis and often times smelled diesel
fumes emitting from the construction equipment. Dr.
Appendix H-17
Deussing declared he and his wife spent three years
next to a “demo derby”' and the project was beyond an
annoyance. He testified that when they moved to the
neighborhood they looked forward to being social with
the new neighbors; however, after construction began,
they did not want to socialize. Dr. Deussing testified
they now wish to sell their Prytania St. home.
2. Plaintiff: David Epstein
David Epstein is seventy-five years old and owns
and lives at the property located at 5617 Prytania St.
When he purchased the property in 1978, it was a
double. He later converted the property into a single
family unit. He stated he has never performed
foundation work on the home. In 2011, he performed
a renovation where he put in a new kitchen, stripped
the floors, and replaced the molding. Prior to the
SELA construction, Mr. Epstein testified his home
was in “'pristine” condition. He admitted that there
were cracks in the mortar but not in the bricks of the
foundation. Other than hairline cracks, Mr. Epstein
testified no major work needed to be done.
According to Mr. Epstein, the construction began
in February of 2014, when workers began to operate
jackhammers outside his home. Mr. Epstein testified
that the construction activities caused cracks to form
along the sheet rock, along the baseboards and in the
molding. He claimed the construction work caused his
kitchen cabinets to fall off of the wall.
Mr. Epstein testified his porch sat eighteen feet
from the construction site. He constantly felt
vibrations. He testified that workers were active every
Appendix H-18
day from early morning until 4:00 P.M. He complained
that at times he could not work from home, as a day
trader, because the noise was too loud. The SELA
Project caused Mr. Epstein to stop entertaining guest
as much as he preferred. He was unable to get to his
property by car and could not access his driveway
during construction. He further testified that SWB
held public meetings but they became a joke because
nothing SWB said ever came true. Mr. Epstein
testified that the SELA Project was the second worst
thing to happen to him next to losing his son.
3. Plaintiff: Faye Lieder
Faye Lieder is seventy-six years old and lives and
owns the three-story home located at 731 Napoleon
Ave. Ms. Lieder testified when she acquired the
property, in 1973, it was in terrible condition. She
testified she spent $300,000.00 on renovations. Prior
to construction, she testified that there were
"hairline" cracks in some rooms, but there was zero
damage to the plaster work. She claimed that the
construction work caused cracks to open up and the
natural plaster started to fall. Even though she
recently refurbished the front porch and porch
columns, she contended that the construction work
caused the porch steps to separate from the buttresses
and the porch to separate from the home. Ms. Lieder
further stated that cracks formed around her three
fireplaces.
Ms. Lieder complained that construction caused
“constant dust everywhere.” She testified to hearing
constant noise. She complained no one could come
over to visit. She recalled that trucks and backhoes
Appendix H-19
were outside her home all day and blocked access to
her driveway.
In June of 2016, Ms. Lieder made a Hotline
Complaint to report that a backhoe was pounding
metal sheeting into the ground and causing her home
to shake. Pls.’ Ex. P-11. Additionally, she reported
that there was no vibration monitor on site. Id.
4. Plaintiff: Thomas Ryan
Thomas Ryan is seventy-one years old and lives at
1106 Napoleon Ave. with his wife, Judith Jurisich,
who co-owns the property. Prior to SELA, Mr. Ryan
said his home was in “good” condition. He admitted
there were minor cracks in the home but no major
work needed to be done. He recalled there being small
cracks within certain piers. Mr. Ryan stated his
property did not suffer Hurricane Katrina related
damage but he did replace the shingles after the
storm. He renovated the kitchen right before SELA
construction began. He further testified he performed
shoring work under the kitchen and both bathrooms.
He admitted that no foundation reinforcement was
done as part of a renovation but he did clarify that he
had the foundation checked and the piers repointed.
Mr. Ryan stated construction began in June of 2014.
Mr. Ryan complained that he witnessed backhoes
tear up the street and break up concrete and both
activities caused his home to shake, shift, and jump.
He said that his porch started pulling away from his
home. He testified that on a normal day, construction
crews worked from 6:00 A.M. or 7:00 A.M. until 3:00
P.M.
Appendix H-20
In December of 2014, Mr. Ryan placed multiple
calls to the Hotline and complained that cracks began
appearing inside his home, activities caused his home
to shake violently, and he did not see a vibration
monitor on site. Pls.’ Ex. P-6, P-7, and P-8.
Mr. Ryan testified that construction related
vibrations from the construction caused stucco on
brick piers to fall off and caused cracks in the bricks
to open up. Each room in his home, Mr. Ryan declared,
incurred some type of damage and the cracks and
damages worsened overtime.
He complained of a tremendous amount of dust
and noise and stated that his porch was unusable for
the duration of construction. Mr. Ryan and his wife
had to park on side streets and could not park in front
of their property. Construction workers, Mr. Ryan
stated, exacerbated the problem by taking up parking
spots with their construction trucks. Mr. Ryan
recalled that construction ended around Mardi Gras
in 2017.
5. Plaintiff: Dorothy White
Dorothy White is eighty-five years old and lives at
the property located at 8831-8833 South Claiborne
Ave. (hereafter referred to as “8833 S. Claiborne
Ave.”), which she owned with her husband Donald
White, who sadly passed away last December.
She and Mr. White purchased the home in 1969.
She testified her husband did a good bit of renovation
after moving in. Her property suffered damage from
Appendix H-21
Hurricane Katrina. After the storm her husband tore
out the walls and put up sheetrock.
As to physical damage, Ms. White stated that the
construction caused cracks to appear in the floor,
cracks in the wall and down the window sill.
Additionally, she said her hardwood floors “opened
up.” Ms. White claimed she could not rest during the
day and could not rest at night. She too complained
about the noise. She would hear piles being driven
down into the ground and the pounding down of “tin”
sheets. She stated the machines would shake her out
of bed and she felt her whole home shift. She
complained about the amount of dust, explaining she
had to clean her property constantly.
Ms. White testified the SELA Project was right in
front of her home. She further testified that access to
her home was blocked off and she had to park blocks
away from her property and walk with grocery bags.
Ms. White testified the construction ended in 2017.
6. Brenda Lackings
Brenda Lackings is not a plaintiff in this case;
however, she testified to the condition of Ms. White’s
neighborhood during construction. Ms. Lackings lives
at 8817 South Claiborne Ave. and operates a daycare
business nearby. She is friends with Ms. White.
Ms. Lackings testified that before SELA the
neighborhood was wonderful and peaceful. She
testified that SELA construction began in 2011, which
is the time she noticed workers bringing in equipment
and materials. Ms. Lackings captured two videos that
Appendix H-22
were presented during trial. The videos showed large
construction machines operating outside of the White
property and noises and disturbances during a
“typical day” of construction.
She complained of noise in addition to dust and
dirt. At times, Ms. Lackings stated she could barely
see from one end of the street to the other due to the
dust. She witnessed vibration monitoring but at one
time she had to wake a worker up who had fallen
asleep while he was supposed to be monitoring. When
asked about the overall effect of construction on the
neighborhood she testified that it was “horrific” and
she felt like she and her neighbors were “sacrificial
lambs.”
7. Donald White
Donald White did not testify at trial but his
deposition transcript from November 3, 2017, was
admitted into evidence. Mr. White indicated, as to
shoring, that around the time that he bought the
property, in 1969, he performed work on the
foundation, but only on one side of the home.
Additionally, Mr. White did subsequent foundation
work ten to twelve years ago. Mr. White reported that
his home suffered roof damage, flooding, and mildew
damage from Hurricane Katrina. He completely
renovated the home after Katrina by putting in
sheetrock walls, a new roof, and eventually new
windows.
Mr. White recalled during construction that he
saw pile driving and “big iron track Caterpillars” that
appeared to run “a hundred miles an hour.” He stated
Appendix H-23
he could not park at his property and had to park
around the comer and on the sidewalk. Mr. White
attested the construction caused nervous problems.
He reported plumbing issues, cracks in the walls, and
unlevel windows. When asked about pre-existing
cracks, Mr. White stated, “We had a few minor cracks.
Now we have a bunch of major cracks.”
When asked why he believed such damages were
caused by the construction projects, Mr. White
responded, “Because there was no damage before the
construction projects, and all that vibration, that’s my
reason for believing it and knowing that it was caused
by the construction.”
C. Expert Testimony-General Findings on
Causation
1. Plaintiffs’ Expert: Dr. Rune Storesund
Plaintiffs called Dr. Storesund to testify on
whether the SELA construction activities caused
plaintiffs’ alleged damages. Dr. Storesund is a
licensed civil engineer in multiple states including
Louisiana, California, Hawaii, and Washington. He
has seventeen years of experience as a civil engineer.
He is also a licensed geotechnical engineer in
California with twelve years of forensic engineer
experience in the areas of geotechnical, water
resource, and environmental engineering. He has a
Doctorate of Engineering in Civil Systems and a
Masters in Geotechnical Engineering from the
University of California, Berkeley. Dr. Storesund was
admitted as an expert in forensic geotechnical
engineering.
Appendix H-24
Dr. Storesund testified to two opinions that
applied to all five properties. First, he found that the
SELA construction activities were a “substantial
factor of harm” to all subject properties. He relied on
pre-construction and post-construction photos,
Hotline
Complaints,
contractual
agreements
pertaining to the SELA Project, vibration monitoring
reports, maps, project specs, and other pieces of data.
Dr. Storesund testified that the .25 PPV threshold
was exceeded on several occasions during all project
phases. The SELA construction, he concluded, was the
“but for” cause of physical damage to the subject
properties.
2. Plaintiffs’ Expert: Frederick Gurtler
Frederick Gurtler (“F. Gurtler”) is a licensed civil
engineer and a licensed home inspector specializing in
residential properties. He and his brother, Michael
Gurtler, operate Gurtler Bros. Consulting, Inc.
(“Gurtler Bros.”), a licensed Louisiana engineering
company. F. Gurtler claimed to have inspected five to
seven thousand properties in the Uptown area. He
was admitted as an expert in civil engineering, field
structural integrity, vibration analysis, and distress
in residential structures.
Similar to Dr. Storesund, Mr. Gurtler opined that
all five homes exhibited ground vibration distress. Mr.
Gurtler was struck by the “'widespread cracking”
common to all five properties. He compared the
subject properties to thousands of properties he has
inspected in different area codes throughout New
Orleans. While discussing ground vibrations, F.
Appendix H-25
Gurtler opined that 0.12 PPV, not 0.25 PPV, would be
the appropriate threshold for the subject properties
because they are historic. F. Gurtler found that
considering the “commonality”' of damages not
present in homes not along the SELA Project, the
SELA construction was a “substantial cause” of the
damage to the properties and the “but for”' cause of
the damage.
3. Plaintiffs’ Expert: Michael Gurtler
Michael Gurtler (“M. Gurtler”) of Gurtler Bros. is
a licensed general contractor. He has testified in two
dozen or more cases and in hundreds of depositions on
issues
including
engineering,
construction
management, moisture management, and wind
versus flood damage. M. Gurtler was admitted as an
expert in home building and general contractor
inspection.
M. Gurtler visited the subject properties multiple
times and took over a thousand photographs for his
engagement. M. Gurtler did not rely on vibration
monitoring, but said it was possible that every
exceedance over .25 PPV could cause damage. When
comparing the subject properties to the “body of
evidence” – thousands of homes without comparable
damages – M. Gurtler opined that SELA was the
cause of the alleged damages. M. Gurtler noted that
the properties in the present action differ from the
other properties he has inspected because they show
“block after block after block” of similar damage.
4. Defendant’s Expert: Dr. David W. Sykora
Appendix H-26
SWB called Dr. David Sykora to opine on whether
the SELA Project caused the alleged property
damages. Dr. Sykora is a licensed professional
engineer in Louisiana. He earned his Masters in
Geotechnical Engineering and his Doctorate in Civil
Engineering from the University of Texas. Dr. Sykora
works for Exponent, an engineering and scientific
consulting finn that specializes in analyzing accidents
and failures. The Court accepted Dr. Sykora as an
expert in geotechnical engineering.
Dr. Sykora testified that all of the properties have
significant age to them. He declared that no
ultrahazardous activity – blasting or pile driving –
occurred at Jefferson II or Napoleon III, but testified
that pile driving occurred at Claiborne I. Dr. Sykora
concluded there was no structural or foundational
damage to any of the properties. Moreover, he found
that there was no architectural or cosmetic damage to
the Deussing, Epstein, and Lieder properties. He did,
however, find that the Ryan and White properties
suffered some cosmetic damage on account of the
SELA Project. In explaining his findings, Dr. Sykora
stated he considered the age of the homes (one
hundred years or more), the conditions the homes
experienced over their lifespan, the “soft clay” soils on
which the homes rest, and the fact that each beam and
pier of the foundation performs differently.
5. Defendant’s Expert: Dr. James R. Bailey
Dr. James Bailey is a licensed professional
engineer who has been practicing for thirty-six years.
Like Dr. Sykora, he works for Exponent. Dr. Bailey
received his Masters in Civil Engineering and his
Appendix H-27
Doctorate in Civil Engineering from Texas Tech
University. His primary area of expertise is with
structures, failures, and property damage related
claims. Dr. Bailey was admitted as an expert in
structural engineering.
Dr. Bailey explained that structural engineering
is a field where science and physics are applied to
understand load carrying ability. Dr. Bailey testified
that renovations can have an impact on loads within
a building. He stated that wood frame structures, like
the homes at issue, are inherently flexible. When
evaluating the properties, Dr. Bailey stated Exponent
looked at the homes inside and out to determine the
causes of stress, performed laser levels, and floor
surveys. He did not agree that commonalities existed
between the homes noting that each property was
unique in terms of design, soil, age, and experience
with different loads.
Dr. Bailey concluded that the foundations of all
five properties were sound. He opined there was no
SELA related damage done to the Deussing, Epstein,
and Lieder homes. He concluded there was
“exacerbation” to the White and Ryan properties as a
result of the SELA Project construction activities.
D. The SELA Project Phases and Property
Specific Evidence
1. Deussing - 5626 Prytania St.
The Deussing property was affected by Jefferson
Phase II (SELA (22)). The selected contractor was
Cajun Constructors. Pls.’ Ex. P-28. The general
Appendix H-28
construction activities that took place on Jefferson
Phase II consisted of jet grouting,3 excavation for the
drainage culvert (installation of bracing and removal
of soil with dump trucks), and culvert backfilling
(rebar installation and pouring of concrete). Id. Water
mains were relocated, catch basins and drain lines
were installed, sewer mains replaced, and roadways
had to be tom up and restored. Fogarty Dep. 11421143, Aug. 15, 2016. Dr. Storesund found the
purported ZOI could not be validated due to a lack of
data, but based on the depth of jet grout columns, the
Deussing property fell within the ZOI. Pls.’ Ex. P-28.
Moreover, he found that based on the vibration
monitoring reports for SELA 22, vibration levels
exceeded the .25 PPV threshold on 44% of the days of
construction. Id.
There are no pre-construction photographs or
videos available for the Deussing property. M. Gurtler
testified that the wood flooring developed separations,
a gap developed in the walkway, and a slope developed
in the home, among other damages. F. Gurtler
testified the Deussing property, being one of the
properties with a chimney, showed signs of vibration
Jet grouting essentially replaces the requirement of driving
timber piles to support the foundation for a box culvert. Fogarty
Dep. 719, Aug. 12, 2016. The jet grout operation involves a soil
mixing type operation with a cement slurry that blends with the
soils in the ground below the box culvert foundation. Id. The jet
grout subcontractor augers a hole into the ground, blends a
slurry of cement and soil together, makes a circular column, and
starting at the invert depth of that column, works up towards the
bottom of the box culvert. Id. Once a column is filled, the
subcontractor moves over and continues the operation for onehundred percent coverage underneath the box culvert
foundation. Id. at 719-720.
3
Appendix H-29
distress at the fireplace in the form of a vertical crack.
Contrastingly, Dr. Bailey explained that since
chimneys carry highly concentrated loads, cracks at
fireplaces are common and not necessarily tied to the
SELA Project. Dr. Bailey found that by adding walls,
closets, and doorways during the renovation, these
renovations affected the loads on the foundation. Dr.
Sykora testified that he would have expected the
stucco, a brittle material, in the foundation, to have
cracked if the property suffered construction related
damages.
2. Epstein - 5617 Prytania St.
The Epstein property was affected by Jefferson
Phase II (SELA (22)). As stated above, the general
construction activities that took place on Jefferson
Phase II consisted of jet grouting, excavation for the
drainage culvert, culvert backfilling, water main
replacement, and road destruction and restoration.
Pls.’ Ex. P-28. Dr. Storesund found that the property
fell within the ZOI. Id. Construction related
vibrations from Jefferson Phase II exceeded the .25
PPV threshold numerous times.
Defendants
presented
preconstruction
photographs dated April 2, 2013, and a
pre-construction video dated April 22, 2013. The
photographs depict a noticeable horizontal crack
running across the railing on the front porch as well
as a “stair-step” crack in the front porch foundation.
Additionally, the photographs show cracks in the
mortar (piers) and a vertical crack beneath a window.
The video shows cracks in the ceiling, the den walls,
and in various rooms of the home.
Appendix H-30
F. Gurtler and M. Gurtler testified that the SELA
Project caused new damages or exacerbated preexisting damages inside the home, at the foundation,
and outside of the home, at the front porch and gate.
M. Gurtler opined the SELA Project caused the
kitchen cabinets to fall off the wall. Additionally, M.
Gurtler noted that at one pier in the foundation, the
home was resting on half of a brick. M. Gurtler further
testified that cracks within the home were not
consistent with normal settlement because they were
not at a forty-five degree angle. He found the cracks
were attributable to construction activities.
Dr. Sykora testified that cracks in mortar are
common. Moreover, Dr. Sykora claimed that damages
allegedly occurring further away from the
construction site, such as in the back deck, were not
related to the SELA Project. Dr. Bailey testified that
the video shows cracks along the molding and those
cracks were not caused by the construction activities.
3. Lieder - 731 Napoleon Ave.
The Lieder property was affected by Napoleon
Phase III (SELA (23a)). The construction work was
performed by Boh Bros. Construction Co., LLC (“Boh
Bros.”). The general construction activities that took
place on Napoleon Phase III consisted of excavation
and installation of a temporary retaining system
("TRS") and jet grout column installation. Pls.’ Ex. P28. Dr. Storesund found, however, that the Lieder
property was not located next to an excavation area
but was adjacent to a “soilcrete” test column area,
which would later become a staging and laydown area.
Appendix H-31
Id. Dr. Storesund further found that due to a lack of
documentation, the purported zone of influence could
not be validated. Id.
The “pre-construction” photos are dated October
1, 2014. The photographs show cracking and
separation of the steps on the front porch. The photos
also show a crack above decorative plaster on the
walls in one of the rooms on the first floor. The
photographs show cracking and separation of the
steps on the front porch. The photos also show a crack
above decorative plaster on the walls in one of the
rooms on the first floor. Ms. Lieder testified that by
the time these photos were taken, construction had
started and heavy damage had already been done. Dr.
Storesund testified that in April of 2014, six months
before the alleged pre-construction photos were taken,
workers installed jet grout test columns.
Dr. Storesund testified that there were numerous
exceedances of the .25 PPV threshold on Napoleon III.
On cross-examination, however, Dr. Storesund
admitted no vibrations were recorded directly in front
of the Lieder property. Rather, Dr. Storesund testified
the closest vibration readings were collected across
Napoleon Ave., about 100 feet away. Even so, Dr.
Storesund opined the disparity of vibration data
evidences “underreporting,” suggesting there were
exceedances that went unaccounted, and there were
locations that should have been monitored but were
not.
Regarding the front porch, Dr. Bailey testified
that a porch is a much heavier load and it was not
surprising to see settlement there. Dr. Sykora opined,
Appendix H-32
after looking at the photos, the construction activity,
the level data, and considering the age of the cracks,
that the damages were not caused by SELA.
4. Ryan/Jurisich - 1106 Napoleon Ave.
The Ryan property was affected by Napoleon
Phase III (SELA (23a)) As explained above, the
general construction activities that took place on
Napoleon Phase III consisted of excavation,
installation of the TRS, jet grout column foundation
installation, installation of the culvert, replacement of
dirt and sod, and road repair. Pls.’ Ex. P-28. Dr.
Storesund found that due to a lack of documentation,
the purported zone of influence could not be validated.
The “pre-construction” photographs are dated
October 21, 2014. Mr. Ryan testified that the photos
were not taken prior to construction because crews
started working months earlier, in June of 2014. F.
Gurtler admitted that cracks in sheetrock may be
attributable to the age of a home. Dr. Bailey testified
that inside the home, he noted that a crack behind a
bookcase, which was reported as damage in 2017, was
the same one that existed in 2014.
Dr. Sykora did not find any .25 PPV exceedances
at the Ryan property. Even so, Dr. Sykora agreed that
some damage was attributable to the SELA Project.
The Exponent experts testified that near a fireplace,
an adjacent wall showed some cracking that was not
recorded prior to SELA. Therefore, Exponent
concluded that there was exacerbation to the Ryan
property from SELA.
Appendix H-33
5. White - 8833 S. Claiborne Ave.
The White property was affected by Claiborne
Phase I (SELA (24)). The selected contractor was
Cajun Constructors. The general construction
activities that took place during Claiborne Phase I
consisted of the installation of test piles, removal of
test piles, installation of foundation piles, sheet pile
installation, excavation, backfill and compaction, and
sheet pile removal. Pls.’ Ex. P-28. Dr. Storesund found
that in 2012, five timber piles were installed
immediately across from 8833 S. Claiborne Ave., and
workers installed additional piles adjacent to the
property between 2012 and 2014. Id. Work crews
utilized large cranes ranging in weight from 50-60
tons to drive the piles. Id. Dr. Storesund found that
timber piles extended to a typical depth of 71 feet at
the subject property and as such, the property fell
within the ZOI.
Pre-construction photographs of the White
property were taken on January 3, January 5, and
January 6, of 2012. Dr. Sykora commented that the
photographs show cracks in the brick and mortar on
the front porch foundation, a horizontal crack above a
door frame, and vertical cracks in the kitchen, among
others damages. Dr. Bailey testified that the condition
of the front porch appeared the same in 2017 when
compared to the photographs from 2012.
M. Gurtler opined that chimney cracking at the
White property was related to and caused by the
effects of construction. M. Gurtler discussed
“foundation shifting” and observed the “separation of
joints.” He noted cracking on the walls adjacent to the
Appendix H-34
chimney and within the chimney, wall to ceiling
separations, and differential movement of piers. M.
Gurtler found that the front porch would need to be
scrapped and a new porch built.
When asked about the back addition to the home,
which slopes down, Dr. Bailey testified that the
workers should have added another pier and the
workers simply failed to provide enough support. Dr.
Bailey declared that vibrations could not have caused
the tilt to the back addition. Dr. Sykora testified that
dewatering occurred at the White property. Dr.
Sykora believed that the White property experienced
shaking and damage from SELA.
II. CAUSATION AND CAUSES OF ACTION
A. SELA Project Caused
Plaintiffs,
Properties
or
Pre-Existing Damages
Damage to
Exacerbated
It is impossible for this Court to perform a crackby-crack analysis in order to determine precisely
which cracks existed prior to or formed as a
consequence of SELA construction. In some instances,
such as at the Epstein property, pre-construction
photos offer better evidence of pre-existing conditions.
In most instances, however, there were either no preconstruction photographs at all or there was a delay
between the start of the project and the date when
pre-construction photographs were purportedly
taken.
The evidence shows that once construction began,
all of the subject properties experienced vibrations
Appendix H-35
due to construction activity. This activity included
timber pile driving, excavation, sheet pile insertion,
soil testing, jet grouting, backfill paving, among other
activities. These acts required the use of backhoes,
jackhammers, sky-scraping 60-ton cranes, and the
constant loading and movement of dump trucks. All of
this created constant noise, dust, dirt, blocked access,
and what felt like a never-ending nuisance for all of
the homeowners. The plaintiffs were misled into
thinking the project would take several months when
in reality it lasted from two to five years.
The Court finds the fact witnesses to be very
credible. All fact witnesses had first-hand knowledge
of the condition of their homes before and after
construction. They experienced the disturbances firsthand by electing to remain in their homes during the
project. All plaintiffs complained that they could feel
their homes shake or jump due to vibrations emitted
from the construction activities. Though the extent of
damage varied property-to-property, the evidence
shows a consistency and commonality of damage
shared by all. All homes displayed cracks in the
molding, separations between walls and ceilings, and,
where applicable, gaps adjacent to chimneys and
porches. Gurtler Bros. was struck by the “widespread
cracking” throughout the homes. Moreover, they
pointed out that the commonality of damages was
distinct from thousands of properties they inspected
in areas away from the SELA Project.
Just as it is impossible for this Court to perform a
crack-by-crack analysis, it is impossible for the Court
to perform a vibration-by-vibration analysis. The
vibration monitoring evidence presented by plaintiffs
Appendix H-36
did not tie a specific activity or spike to a specific
damage. The only way to determine what act caused
what damage, M. Gurtler explained, would be to
monitor each property every day. M. Gurtler noted,
however, this would be very difficult.
Dr. Storesund plotted vibration activity for all
three phases where exceedances of the .25 PPV
threshold occurred. These plots show that the .25 PPV
threshold was exceeded numerous times on an almost
daily basis. Dr. Storesund admitted on cross that the
data points did not identify the exact location of the
occurrences. SWB attempted to show that this data
was unreliable. SWB’s expert, Dr. Sykora, even opined
that he believed analysis of the vibration logs would
be a “misapplication of science.” Importantly,
however, the Court agrees with the plaintiffs' experts
that the disparity of vibration data, and lack of
monitoring locations, shows “underreporting.” Dr.
Storesund opined that a number of vibration
exceedances occurred that went unreported. This
Court agrees. Such underreporting, or rather, absence
of reporting, was evident with other pieces of data as
well.
SWB hired a forensic contractor, Quick and
Associates, and paid it hundreds of thousands of
dollars to collect piezometer and inclinometer data for
purposes of claims resolution. Interestingly, though,
when it became time to resolve claims (this lawsuit),
SWB was unable to produce piezometer and
inclinometer readings. This information, Dr.
Storesund opined, could have provided the experts
with valuable data about the soil conditions before,
during, and after the SELA Project. SWB’s failure to
Appendix H-37
present this data shows disorganization on behalf of
SWB and the Court questions how SWB could have
paid so much money for data only to never use it.
SWB’s experts, Exponent, admitted that two of
the properties incurred SELA related damages. The
Court finds some of Exponent’s findings to be reliable,
namely with regard to the strength and integrity of
the foundations. The evidence, however, simply does
not support Exponent’s conclusions that three of the
properties incurred no damage related to SELA.
Dr.
Deussing
testified
that
he
spent
approximately $560,000.00 on a renovation. The
property was renovated to excellent condition.
Importantly, the renovation was completed just
months before the project began. Shortly after
construction started, Dr. Deussing testified that
cracks began to form in the crown molding and the
baseboards began separating. The only significant
activity that took place following the renovation was
the SELA Project.
The facts show that Mr. Epstein’s property
experienced vibrations from large scale construction
activities at close proximity. Mr. Epstein’s front porch
rested eighteen feet from the construction site.
Prytania St. was completely excavated and a TRS was
put in place for the jet grouting operation and
installation of the box culvert. Dr. Storesund’s
vibration logs show that vibrations recorded on
Jefferson Phase II exceeded the .25 PPV threshold
44% of the time.
Appendix H-38
Pre-construction photographs, and a video, show
a number of pre-existing damages at the Epstein
home. There were, however, a number of damages
reported by Mr. Epstein and Gurtler Bros. that were
not depicted in the pre-construction footage. For
example, M. Gurtler and Mr. Epstein testified that the
SELA Project construction activities caused Mr.
Epstein’s cabinets to fall from the wall. Given the
recency of Mr. Epstein’s kitchen renovation, the Court
finds the kitchen cabinets would not have fallen off the
wall but for the SELA Project and related vibrations.
Both Ms. Lieder and Mr. Ryan objected to the
assertion that someone took pre-construction
photographs at their homes. SWB argues it is
unreasonable for the homeowners to claim that
damages to their homes occurred in the months prior
to when the photographs were taken because no major
construction activity had taken place yet. As
previously stated, the Court finds the testimony of Ms.
Lieder and Mr. Ryan credible. The evidence shows
that both properties experienced vibrations, dust, and
noise from construction related activity. Even though
Ms. Lieder’s property was not adjacent to an
excavation site, the Court finds that the staging, soil
testing, and movement of heavy equipment outside of
her property emitted vibrations that caused damage
to her home.
Mr. Ryan’s property was adjacent to an
excavation site where the road was broken up and
pieces of concrete were hauled off in dump trucks.
Workers operated large multi-ton cranes for
installation of the TRS system and the jet grouting.
The Court finds that these activities emitted
Appendix H-39
vibrations that exacerbated pre-existing or created
new damages at the Ryan property. SWB’s experts
acknowledged one instance of SELA related damages
at the Ryan property, but the Court finds that SELA
caused more damages than those reported by SWB’s
experts.
The White property experienced the most
vibration producing activity for the longest period of
time. The evidence shows that construction activities
began in 2011 and concluded in 2016. The White
property was adjacent to where timber pile driving
occurred, an activity that is ultrahazardous and
known to emit vibrations that can cause physical
damage. The Court finds that there were preconstruction photographs for the White home, but
these photographs do not show all of the asserted
damages. The Court finds that SELA was not the
cause of the slope in the back addition of the home.
The experts agreed that this addition was not properly
supported by the installers. The evidence does show,
however, cracked walls and separations in all rooms
of the home, within the exterior, and within the front
porch. The Court finds that some of these cracks were
pre-existing, but based on the evidence presented by
Gurtler Bros. and Dr. Storesund, the construction
activities, which were ultrahazardous and lasted up to
five years long, caused physical damage to the White
home.
For these reasons, and ,pursuant to the findings
of fact and evidence stated above, the Court finds that
the SELA Project caused new or exacerbated preexisting damage at all of the subject properties. As it
relates to the foundations of the homes, however, the
Appendix H-40
Court finds the evidence supports the opinions of
SWB’s experts that the foundations of the homes were
structurally sound and as such, do not need repair or
reinforcement.
B. Plaintiffs’ Causes of Action
1. Control and Ownership of the SELA Project
SWB has consistently argued that it is not the
owner of the SELA Project. The USACE, SWB argues,
is the administrator of the SELA projects and
assumes full and complete control the SELA Project
in this case. SWB claims it did not perform any
construction activities and did not select the
contractors, subcontractors, or equipment for the
work. Thus, SWB maintains it did not have the care,
custody or control of the SELA Project.
SWB made identical arguments in the Holzenthal
case. There, the Fourth Circuit addressed SWB’s
position: “underlying all of SWB’s arguments with
respect to liability is its repeated assertion ... that the
[SELA Project] is not SWB’s project because the
construction was directly supervised by entities other
than SWB. It asserts it was merely a “local sponsor’’
of the project and that it contracted away to third
parties any responsibility it otherwise would have had
for damages.” Holzenthal, 950 So.2d at 61. The
Holzenthal Court agreed with the trial court’s ruling
and rejected SWB’s argument finding SWB could not
and did not contract away the duties it owed the
plaintiffs. Id.
Appendix H-41
In so finding, the appellate court reviewed a
cooperation-agreement between [the Army Corps of
Engineers] and SWB noting: (1) the project was
connected to SWB’s infrastructure and existed as
SWB’s property on SWB servitudes and easements;
(2) SWB had the final right of approval over the
contractors’ activities; (3) a project coordination team
was made up of representatives from the government
and SWB to oversee the project; (4) SWB’s
requirement to contribute 25% to 50% of the total
project costs; and (5) SWB was required to hold and
save USACE free from project damages, among others
reasons. Id. at 67-68.
All of these same facts exist in the present matter.
The SELA Project is owned and maintained by SWB.
Spooner Dep. 22. SWB was in charge of the
engineering and design of the project. Id. at 51. SWB
was always involved with the design consultants. Id.
at 61. SWB owns the lands, rights of way, and
easements, and SWB provides USACE access to them.
Id. at 88. The Project Coordination Team consisted of
SWB and USACE representatives. Id. at 78-79.
Pursuant to the PPA and CEA, SWB must cover 35%
of the cost of the SELA Project. Joint Exhibits J-1 and
J-2. Pursuant to those agreements, SWB must hold
harmless and indemnify USACE from damages
related to the design, construction, and maintenance
of the project. Id.
Accordingly, if there were any doubt, this Court
finds that SWB is the owner and controller of the
SELA Project and SWB should be considered as such
under plaintiffs’ theories of recovery.
Appendix H-42
2. Inverse Condemnation
Louisiana Constitution Article I, Section 4,
provides, “Property shall not be taken or damaged by
the state or its political subdivisions except for public
purposes and with just compensation paid to the
owner or into the court for his benefit.” La. Const., Art.
I, Section 4. The Constitution requires compensation
even in those cases in which the State has not
initiated expropriation proceedings in accordance
with the statutory scheme set up for that purpose.
Holzenthal, 950 So.2d 55, 62, citing State, Through
Dept. of Trans. and Dev. v. Chambers Investment
Company, Inc., 592 So.2d 598, 602 (La. 1992). As the
Louisiana Supreme Court noted in Chambers, it is
now hornbook law that any substantial interference
with the free use and enjoyment of property may
constitute a taking of property within the meaning of
federal and state constitutions. Id. at 62-63. The
action for inverse condemnation provides a procedural
remedy to a property owner seeking compensation for
land already taken or damaged against a
governmental or private entity having the powers of
eminent domain where no expropriation has
commenced. Chambers, 592 So.2d 598, 602 citing
Reymond v. State, Dept. of Highways, 255 La. 425, 231
So.2d 375, 383 (1970). The action for inverse
condemnation is available in all cases where there has
been a taking or damaging of property where just
compensation has not been paid, without regard to
whether the property is corporeal or incorporeal. Id.
[Citations omitted].
The Louisiana Supreme Court developed a threepart test to determine whether a claimant is entitled
Appendix H-43
to eminent domain compensation: (1) whether a
person’s legal right with respect to a thing or object
has been affected; (2) if a property right is involved,
whether the property has been taken or damaged in a
constitutional sense; and (3) whether the taking or
damage is for a public purpose. See Holzenthal, 950
So.2d at 63.
In Holzenthal, the trial court applied this test and
found SWB committed inverse condemnation. Id. The
Holzenthal court declared, “[t]his is clearly a case in
which a valid and vital public purpose, improved
drainage of our city-below-sea-level was served ...
[d]espite the best efforts of the SWB and [Army Corps
of Engineers] and the contractors, dewatering and
vibration damage to these neighboring interests was
the natural consequence of the Project.” Id. at 85. For
reasons similar to those articulated in Holzenthal,
applying the Chambers test, this Court finds that
plaintiffs suffered an inverse condemnation of their
property. First, plaintiffs have a legal right in their
properties because they are owners. Moreover, their
testimony, as well as the expert testimony, shows that
property rights were adversely affected by
construction activities. Second, plaintiffs’ damages
were an integral consequence of the SELA Project,
which was specifically carried out to improve the
drainage system and to reduce flood-related damage
in the New Orleans area. Last, the Court finds that
providing
drainage
improvement
to
the
neighborhoods of New Orleans certainly serves a
public purpose. As such, the Court finds SWB
committed inverse condemnation.
Appendix H-44
3. Strict Liability for Ultrahazardous Pile Driving
Under Article 667
Pursuant to La. C.C. art. 667, ‘‘the proprietor is
answerable for damages without regard to his
knowledge or his exercise of reasonable care, if the
damage is caused by an ultrahazardous activity. An
ultrahazardous activity as used in this Article is
strictly limited to pile driving or blasting with
explosives.” La. C.C. art. 667.
In Vicknair v. Boh Bros. Construction Co., the
Fifth Circuit found that the installation of steel
sheeting with a vibratory hammer, and the driving
wood sheeting with a backhoe (for an emergency
sewer repair) was not ultrahazardous. 2003-1351 (La.
App. 5th Cir. 3/30/04); 871 So.2d 514. In Suire v.
Lafayette City-Parish Consol. Gov’t., the Louisiana
Supreme Court cited Vicknair approvingly and found
that the driving of metal sheets with backhoes did not
constitute pile driving under article 667. 2004-1459
(La. 4/12/05), 907 So.2d 37. In Holzenthal, the Fourth
Circuit distinguished Suire and found that driving of
metal sheets into the ground with a crane and
vibratory pile-driving hammer, opposed to a backhoe,
constituted “pile driving.” 950 So.2d 55. The court
relied on vibration monitoring evidence, which
showed that the highest levels of vibrations would
have been caused by crane movement regardless of
the type of pile driving. Id.
In the instant case, there is no dispute that timber
pile driving occurred adjacent to the White property
as part of Claiborne Phase I. The Court finds that
ultrahazardous pile driving occurred at the White
Appendix H-45
property and that such activity caused damage.
Additionally, regarding the Lieder property, Ms.
Lieder’s property was not adjacent to an excavation
area rather it was across from a staging area. Pls.’ Ex.
P-28. Thus, unlike the other properties, there were no
sheet or timber piles inserted by Ms. Lieder’ s
property.
At the Deussing, Epstein, and Ryan properties, no
timber pile driving occurred and no sheets were
installed with a vibratory hammer. Fogarty Dep. 844,
Aug. 12, 2016. Contractors installed metal sheet piles
into the ground as part of the TRS. In contrast to
Holzenthal, the metal sheet piles were not installed
with a crane and vibratory hammer, they were
installed with a crane and a piece of equipment known
as a Giken Silent Piler (“Giken”). Fogarty Dep. 842,
Aug. 12, 2016. According to Mr. Fogarty, ‘‘the steel
sheet pile for the retaining structure system is
installed with the press-in machine only [Giken].” Id.
at 722. Similarly, as explained by Dr. Sykora, the
sheet piles are “pressed” into the ground, not driven.
The Court finds that the definition of
ultrahazardous activity should not be expanded under
these facts. The Louisiana Supreme Court in Suire
explained, “In light of the 1996 amendment, Louisiana
courts are relieved of the responsibility to decide
whether a certain activity is ultrahazardous for
purposes of deciding whether the absolute liability
standard applies. Suire, 901 So.2d 37, 48-49, citing
Mossy Motors, Inc. v. Sewerage and Water Bd. of City
of New Orleans, 1998–0495 (La. App. 4th Cir. 5/12/99);
753 So.2d 269 (discussing the 1996 amendment and
noting that “[t]he new definition by amendment
Appendix H-46
defines an ultrahazardous activity legislatively’’).
“Any other activities besides the two the article
specifically lists are not ultrahazardous for purposes
of article 667. Thus, to qualify for the absolute liability
standard, the plaintiff must show that the activity
complained of is either ‘pile driving’ or ‘blasting with
explosives.’” Suire, 901 So.2d at 49. Following the
Louisiana Supreme Court’s analysis in Suire, this
Court does not find that the installation of metal sheet
piles into the ground with a Giken constitutes the
ultrahazardous activity of pile driving. Even though
the contractors utilized a crane with the Giken, the
evidence shows that a Giken is a piece of equipment
that emits less vibrations than other types of
equipment traditionally used for driving timber or
sheet piles. Thus, SWB is not strictly liable for an
ultrahazardous activity at the Deussing, Epstein,
Ryan, or Lieder property.
4. Strict Liability and Negligence Under articles
La. C.C. arts. 2315, 2317 and 2317.1
Plaintiffs’ strict liability claims arise pursuant to
La. C.C. arts. 2317, and 2317.1. Article 2317 reads,
“[w]e are responsible, not only for the damage
occasioned by our own act, but for that which is caused
by the act of persons for whom we are answerable, or
of the things which we have in our custody. This,
however, is to be understood with the following
modifications.” La. C.C. art. 2317. Those modifications
are contained in article 2317.1:
The owner or custodian of a thing is
answerable for damage occasioned by its
ruin, vice, or defect, only upon a showing
Appendix H-47
that he knew or, in the exercise of
reasonable care, should have known of
the ruin, vice, or defect which caused the
damage, that the damage could have
been prevented by the exercise of
reasonable care, and that he failed to
exercise such reasonable care. Nothing
in this Article shall preclude the court
from the application of the doctrine of res
ipsa loquitur in an appropriate case.
La. C.C. art. 2317.1.
As a threshold matter, to prevail under articles
2317 and 2317.1, a plaintiff must establish custody or
garde. The owner of a thing is the presumed guardian
of its structure. Doughty v. Insured Lloyds Ins. Co.,
576 So.2d 461, 464 (La. 1991). The test for
determining custody or garde is twofold: (1) whether
the entity has control or authority over the thing; and
(2) whether the person receives a substantial benefit.
Id. Here, SWB has control and authority over the
SELA Project because SWB is responsible for the
city’s public drainage system and it contracted with
the USACE to engineer and execute the project. See
supra Section I.A.2; Section 11.B.1. SWB derives a
benefit because the SELA Project’s purpose is to
improve the public drainage system, for which SWB is
responsible.
With custody and garde established, a plaintiff
must also prove: (1) the project presented an
unreasonable risk of harm; (2) the owner could have
prevented the harm had it exercised reasonable care;
Appendix H-48
and (3) the owner’s failure to exercise such care caused
the plaintiffs’ damages. La. C.C. arts. 2317 and 2317.1
First, SWB was well aware the project presented
a risk of harm to plaintiffs’ properties pursuant to the
terms of the PA and its understanding from USACE
that properties could experience vibration related
damages, especially those properties located within
the ZOI and APE. Second, SWB had notice that
construction was adversely impacting the properties.
The evidence shows that SWB received vibration data,
showing exceedances over .25 PPV, on a regular basis.
Additionally, the evidence shows SWB received
numerous complaints on the Hotline. Yet, there is no
evidence that SWB exercised care to prevent further
damage. Last, the evidence shows that the
construction activities, which lasted several years,
caused physical damage to plaintiffs’ homes in the
form of cracks and separations and caused
disturbances that interfered with plaintiffs’ use and
enjoyment of their properties. For these reasons, the
Court finds that plaintiffs presented sufficient
evidence to hold SWB strictly liable under La. C.C.
arts. 2317 and 2317.1.
As this Court understands, the essential
difference between the strict liability and negligence
theories is knowledge of a defect. See Pool v. City of
Shreveport, 601 So.2d 861, 863-64 (La. App. 2nd Cir.
1992). Knowledge of a defect gives rise to a
corresponding duty to act. See Soccorro v. City of New
Orleans, 519 So.2d 931 (La. 1991). Under article 2317,
knowledge of the defect is unnecessary. Id.; see also
Loescher v. Parr, 324 So.2d 441, 446 (La. 1976). Given
that this Court found SWB strictly liable under
Appendix H-49
articles 2317 and 2317.1, the Court does not find that
a negligence analysis is necessary.
III. CONCLUSIONS AND DAMAGES
A. Quantum
The Court accepts the testimony of, and finds that
the evidence supports, Exponent’s opinion that all of
the homes’ foundations were structurally sound and
not damaged by SELA construction activities.
Accordingly, the Court is not awarding damages for
foundation or shoring repair. Since the homes will not
receive new foundations, this Court finds that the
homeowners will not incur an expense to have their
“contents” moved, stored, and returned to their
homes.
Plaintiffs’ expert, Dr. Wade Ragas, was admitted
as an expert in real estate evaluation, real estate
market analysis, comparable sales, externalities, and
loss of use of property rights. Dr. Ragas rendered
opinions on what he described as ‘‘negative externality
damages.” These damages would compensate
plaintiffs for the loss of the use and loss of the
enjoyment of their properties during the construction
phases. Additionally, Dr. Ragas provided estimates on
damages that would compensate plaintiffs for having
to move into a comparable home for the duration of
repairs to their homes.
SWB did not provide its own expert to refute Dr.
Ragas’ numbers. Dr. Ragas’ calculations, specifically
with regard to the duration of phases, contained
inaccuracies. Nevertheless, the Court recalculated Dr.
Appendix H-50
Ragas’ estimates using timelines derived from the
testimony and expert reports.
As it relates to Dr. Ragas’ estimates to cover the
cost of relocation to a house of comparable rental, the
Court does find that plaintiffs are entitled to such
damages. As previously stated, the Court does not find
that repairs will require plaintiffs to move out of their
homes. The Court’s duty is not to provide plaintiffs
with new homes. Rather, the Court’s duty is to make
the plaintiffs whole as best it can. The following
damage awards are based on the expert opinions and
provide plaintiffs with compensation to make repairs
to their homes for conditions created or exacerbated
by the SELA Project.
1. Deussing - 5617 Pzytania St.
M. Gurtler testified that the property damage
repair would cost $100,382.25.4 The Court finds this
number excessive and reduces it according to
estimates provided by Gurtler Bros.
Property Damage
Estimate:
$100,382.25
Foundation/Shoring Repair: ($32,292.47)
Contents:
($21,428.83)
Total:
$46,660.95
Dr. Deussing’s testimony regarding the start of
construction was unclear. Mr. Epstein, however, who
4 M. Gurtler rendered opinions on the costs of repairs using the
insurance-approved software called Xactimate.
Appendix H-51
lives a couple doors down, testified that the
construction activities began in February of 2014. As
to the end date, Dr. Storesund’s report states the
project was "largely completed" in March of 2016. Dr.
Ragas opined that $769.00 per month for forty-six (46)
months represents the value of the Deussings’ loss of
use and loss of enjoyment. The Court calculates
twenty-five (25) months based on the evidence that
the construction work began in February of 2014 and
was largely completed in March of 2016.
Loss of Use and Loss of Enjoyment
Total (25 months):
$19,225.00
Damages Total
Property:
$46,660.95
Loss of U/E:
$19,225.00
Total:
$65,885.95
2. Epstein - 5626 Prytania St.
M. Gurtler testified that the property damage
repair would cost $124,463.42. The Court finds this
number excessive and reduces according to estimates
provided by Gurtler Bros.
Property Damage
Estimate:
$124,463.42
Foundation/Shoring Repair: ($49,220.86)
Appendix H-52
Contents:
($19,154.51)
Total:
$56,088.05
Mr. Epstein testified that construction activities
began outside of his home in February of 2014. This
date is corroborated by a Hotline Complaint, made on
his behalf, dated January 30, 2014. Pis.’ Ex. 30. As to
the end date, Dr. Storesund’s report states that the
project was largely completed in March of 2016.
Dr. Ragas opined that $955.50 per month for
forty-six (46) months represents the value of Mr.
Epstein’s loss of use and enjoyment. The Court
calculates twenty-five (25) months based on the
evidence that the construction work started in
February of 2014 and was largely completed in March
of 2016.
Loss of Use and Loss of Enjoyment
Total (25 months):
$23,887.50
Damages Total
Property:
$56,088.05
Loss of U/E:
$23,887.50
Total:
$79,975.55
3. Lieder - 731 Napoleon Ave.
M. Gurtler testified that the property damage
repair would cost $308,998.63. The Court finds this
Appendix H-53
number excessive and reduces according to estimates
provided by Gurtler Bros.
Property Damage
Estimate:
$308,998.63
Foundation/shoring Repair: ($154,954.57)
Contents:
($27,995.35)
Total:
$126,048.71
Construction activities outside the Lieder home
began in April of 2014 as this was the time, according
to Dr. Storesund, that workers installed jet grout test
columns. Ms. Lieder’s testimony corroborates this
date. Ms. Lieder testified that the alleged “pre-con”
photos, taken in October of 2014, were not actually
pre-construction photos because construction began
months earlier. As to the construction end date, Dr.
Storesund’s report states the project was largely
completed in November of 2016.
Dr. Ragas opined that $1,188.00 per month for
forty-three (43) months represents the value of Ms.
Lieder’s loss of use and loss of enjoyment. The Court
calculates that construction lasted thirty-two (32)
months based on the evidence that workers installed
jet grout test columns in April of 2014 and that
construction was completed in November of 2016.
Loss of Use and Loss of Enjoyment
Total (32 months):
$38,016.00
Appendix H-54
Damages Total
Property:
$126,048.71
Loss of U/E:
$38,016.00
Total:
$164,064.71
4. Ryan/Jurisich - 1106 Napoleon Ave.
M. Gurtler testified that the property damage
repair would cost $137,902.87. The Court finds this
number excessive and reduces it according to
estimates provided by Gurtler Bros. Note, Gurtler
Bros.’ estimates did not contain a figure for the
contents.
Property Damage
Estimate:
$137,902.87
Foundation/Shoring Repair ($46,808.32)
Total:
$91,094.55
Mr. Ryan testified that construction activities
began outside of his home in June of 2014 and ended
around the time of Mardi Gras 2017, which would
have been in February of 2017. Dr. Storesund’s report
states that Napoleon Phase III was largely completed
in November of 2016. Finding Mr. Ryan’s testimony
credible, the Court uses February of 2017 as the end
date for calculation purposes.
Appendix H-55
Dr. Ragas estimated that $719.75 per month for
forty-one (41) months represents the value of Mr.
Ryan’s loss of use and loss of enjoyment. The Court
calculates thirty-three (33) months based on the
testimony that the construction work started in June
of 2014 and concluded in February of 2017.
Loss of Use and Loss of Enjoyment
Total (33 months):
$23,751.75
Damages Total
Property:
$91,094.55
Loss of U/E:
$23,751.75
Total:
$114,846.30
5. White - 8833 S. Claiborne Ave.
M. Gurtler provided two different estimates for
the cost of repair to the White home, explaining that
there was a code compliance issue: Ms. White’s home
is not at base flood elevation. M. Gurtler testified
there is a provision in the building code that states if
a home has incurred damages that amount to 50% of
its value and a repair is done to the home, the entire
home must be upgraded to the current code. M.
Gurtler further testified that if Ms. White’s
foundation were to be fixed it would need to be
elevated to the current base flood elevation. To replace
the foundation entirely and make the home code
compliant, M. Gurtler estimated a $244,072.72 cost of
repair. In the alternative, M. Gurtler estimated a
Appendix H-56
$128,515.82 cost of repair that would repair the
foundation but not repair the home to code
compliance. This Court uses the second estimate and
reduces it according to figures provided by Gurtler
Bros.
Property Damage
Estimate:
$128,515.82
Foundation/Shoring Repair:
($47,389.53)
Moving:
($15,399.72)
Total:
$65,726.57
Brenda Lackings, Ms. White’s neighbor testified
that construction activity began in the neighborhood
in 2011. Dr. Storesund’s report corroborates this
testimony. His report reads that SELA(24)
construction began in October of 2011. Though Ms.
White testified that the construction ended in 2017,
Dr. Storesund’s report shows that all phases of work
were completed in May of 2016.
Dr. Ragas estimated that $502.75 per month for
fifty-nine (59) months represents the value of Ms.
White’s loss of use and loss of enjoyment. The Court
calculates fifty-six (56) months based on the evidence
that the work SELA(24) work began in October of
2011 and concluded in May of 2016.
Loss of Use and Loss of Enjoyment
Total (56 months):
$28,154.00
Appendix H-57
Damages Total
Property:
$65,726.57
Loss of U/E:
$28,154.00
Total:
$93,880.57
B. Just Compensation and Comparative Fault
1. Just Compensation
SWB argues in its post-trial brief that any
damages assessed against SWB must be limited to
that allowable under the Fifth Amendment to the
Unites States Constitution, which precludes recovery
of consequential damages, including for loss of use and
enjoyment. Moreover, SWB argues that this Court
should apply South Lafourche v. Jarreau, 16-0788 (La.
3/31/17); 217 So.3d 298, to limit plaintiffs’ potential
damage awards. This Court finds the facts of this case
distinct from South Lafourche v. Jarreau.
Furthermore, the Court finds SWB‘s just
compensation argument without merit.
2. Comparative Fault
SWB argues in its post-trial brief this Court must
assess a portion of fault on USACE and other
nonparties under Louisiana Civil Code articles 2323
and 2324. Contrastingly, plaintiffs argue that the
burden was on SWB to prove that another party was
at fault and SWB failed to meet its burden. Plaintiffs
contend none of the witnesses testified to an allocation
Appendix H-58
of fault and none of the deposition excerpts identify
any of the nonparties at fault. This Court agrees with
plaintiffs.
The issue of contractor liability was discussed in
Holzenthal. 950 So.2d at 68. As a matter of law, a
contractor on a state or federal project who complies
with the project’s plans and specifications is not liable
for damages to the property of third parties.
Holzenthal, 950 So.2d 55, 80-81, citing Yearly v. W.A.
Ross Construction Co., U.S. 18, 60 S.Ct. 413, 84 L.Ed.
554 (1940); La. R.S. § 9:2771. This Court does not
recall hearing testimony that the contractors deviated
from the SELA Project specifications. Nevertheless, a
party asserting comparative fault bears the burden of
proof by a preponderance of the evidence that the
other party’s fault was a cause in fact of the. damage
complained of. Pruitt v. Nale, 45, 483 (La. App. 2nd
Cir. 8/11/2010), 46 So.3d 780, 783; [citations omitted].
This Court finds SWB has failed to carry its burden of
proving that another party was at fault.
READ AND SIGNED this 25th day of April, 2018, in
New Orleans, Louisiana.
S/
HONORABLE NAKISHA
ERVIN-KNOTT
JUDGE, CIVIL DISTRICT
COURT
A TRUE COPY
S/
Appendix H-59
DEPUTY CLERK, CIVIL
DISTRICT COURT
PARISH ORLEANS
STATE OF LA.
Appendix I-1
CIVIL DIST CT FOR THE PARISH OF ORLEANS
STATE OF LOUISIANA
NO. 15-11971 c/w
Div. “D.”
SECTION 12
15-11394
Trial Flight 2 - Commercial Plaintiffs
M. LANGENSTEIN & SONS, INC., ET AL.
VERSUS
SEWERAGE & WATER BOARD OF NEW
ORLEANS
Consolidated With
K & B LOUISIANA CORPORATION d/b/a RITE AID
CORPORATION
VERSUS
SEWERAGE AND WATER BOARD OF NEW
ORLEANS
FILED:__________
_______________________
DEPUTY CLERK
CONSENT JUDGMENT
NOW INTO COURT, jointly come Plaintiffs, Fine
Arts Management, L.L.C. d/b/a Prytania Theatre,
Superior Seafood & Oyster Bar, L.L.C., The Magic
Box, Ltd. d/b/a Magic Box Toys, and Pascal-Manale
Restaurant, Inc., and Defendant, the Sewerage &
Appendix I-2
Water Board of New Orleans (“SWB”). The following
is made a judgment of the Court:
IT IS HEREBY ORDERED, ADJUDGED AND
DECREED that the SWB shall pay the sum of two
million ninety-six thousand three hundred four
dollars and 60/100 ($2,096,304.60) to the above
Commercial Plaintiffs, which signifies compensation
for all claims due the above Commercial Plaintiffs in
the suit, including claims for physical property
damages, any other damages, attorneys’ fees, and
costs.
IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that the SWB shall pay judicial interest
on the above amount from December 18, 2015, until
paid.
New Orleans, Louisiana this day of JAN 02
2019.
Sgd Nakisha Ervin-Knott
Judge, Division D
__S/_____________________________
HON. NAKISHA ERVIN-KNOTT
Civil District Court
Parish of Orleans, State of La.
Chelsey Richard Napoleon
CLERK OF CIVIL DISTRICT COURT
INST #: 2019-01455 01/10/2019 01:03:23 PM
TYPE: C JDGMT 3 pg(s)
Appendix I-3
Approved as-to form and content:
Dated: December 20, 2018
s/_________________________
CRAIG MITCHELL (#24565)
JOSEPH B. MOARTON, III (#19072)
CHRIS WILSON (#27142)
MITCHELL & ASSOCIATES, APLC
615 Baronne Street, Suite 300
New Orleans, Louisiana 70113
Telephone: (504) 527-6433
Facsimile: (504) 527-6450
-and-:
ANTHONY J. STEWART (#02128)
SEWERAGE & WATER BOARD OF NEW
ORLEANS
625 St. Joseph Street, Room 201
New Orleans, LA 70165
Telephone: (504) 585-2236
Facsimile: (504) 585-2426
Attorneys for Defendant,
Sewerage & Water Board of New Orleans
Appendix I-4
Approved as to form and content: .
Dated: December 19, 2018
s/_________________________________________
RANDALL A. SMITH, T.A. (#2117)
SARAH LOWMAN (#18311)
MARY NELL BENNETT (#32339)
Of
SMITH & FAWER
201 St. Charles Avenue, Suite 3702
New Orleans, Louisiana 70170
Telephone: (504) 525-2200
Facsimile: (504) 525-2205
Attorneys for the Commercial Plaintiffs
Appendix J-1
CIVIL DISTRICT COURT FOR THE PARISH OF
ORLEANS
STATE OF LOUISIANA
CASE NO. 2016-621 DIVISION “D” SECTION 12
ANNE LOWENBURG, ET AL.
VERSUS
SEWERAGE & WATER BOARD OF NEW
ORLEANS
&
CASE NO. 2015-11971 DIVISION “D” SECTION 12
c/w 2015-11394
M. LANGENSTEIN & SONS, INC., ET AL.
VERSUS
SEWERAGE & WATER BOARD OF NEW
ORLEANS
Consolidated with
K&B Louisiana Corporation d/b/a RITE AIDE
CORPORATION
VERSUS
SEWERAGE & WATER BOARD OF NEW
ORLEANS
Appendix J-2
FILED:__________
_______________________
DEPUTY CLERK
JUDGMENT FOR RESIDENTIAL TRIAL GROUP C
& WATSON MEMORIAL SPIRITUAL TEMPLE OF
CHRIST
This matter came before the Court for trial on the
28th, 29th, 30th, and 31st of January,2019.
*****
This Judgment concerns the following group of
plaintiffs:
Plaintiffs:
Elio, Charlotte and Benito Brancaforte
–1201 Jefferson Avenue/ 5351 Coliseum
Avenue
Dr. Josephine Brown–5224 Prytania
Street
Robert Parke and Nancy Ellis–5419
Prytania Street
Mark.Hamrick–1300-1302 Jefferson
Avenue
Dr. Robert and Charlotte Link–5534-36
Prytania Street
Ross and Laurel McDiarmid-5429
Prytania Street Jerry Osbome-5518
Prytania Street
Jack Stolier-1408 Jefferson Avenue
Dr. William Taylor-5432-34 Prytania
Street
&
Appendix J-3
Watson Memorial Spiritual Temple of
Christ d/b/a Watson Memorial Teaching
Ministries-4400 St. Charles Avenue·
In consideration of the law and evidence, the
Court hereby renders the following:
IT IS ORDERED, ADJUDGED, AND
DECREED that the plaintiffs suffered an inverse
condemnation.
IT IS FURTHER ORDERED, ADJUDGED,
AND DECREED that the Sewerage and Water Board
of New Orleans (“SWB”) is liable for damages owed to
plaintiffs under the theory of inverse condemnation.
IT IS FURTHER ORDERED, ADJUDGED,
AND DECREED that SWB is the owner of the SELA
Project.
IT IS FURTHER ORDERED, ADJUDGED,
AND DECREED that the SELA Project construction
activities caused new damage to, or exacerbated preexisting damage within, the plaintiffs’ properties. The
SELA Project caused plaintiffs to suffer a loss of use
and enjoyment of their properties.
IT IS FURTHER ORDERED, ADJUDGED,
AND DECREED that SWB failed to demonstrate
that fault should be allocated to a separate entity
pursuant to the comparative fault statutes.
IT IS FURTHER ORDERED, ADJUDGED,
AND DECREED that SWB owes damages to
plaintiffs in the following amounts:
Appendix J-4
1.
Elio, Charlotte, and Benito Brancaforte1201 Jefferson Avenue/5351 Coliseum Street
Property Damage:
Loss of Use and Enjoyment:
Out-of-Pocket Expenses
Lost Rents
Total:
2.
$35,000.00
$48,589.10
$1,300.00
$22,300.00
$107,189.10
Dr. Josephine Brown-5524 Prytania Street
Property Damage:
Loss of Use and Enjoyment:
Out-of-Pocket Expenses.·
Total:
$22,000.00
$57,785.40
$0.00
$79,785.40
Appendix J-5
3.
Robert Parke and Nancy Ellis - 5419
Prytania Street
Property Damage:
Loss of Use and Enjoyment:
Out-of-Pocket.Expenses:
Total:
4.
Mark
Avenue
Hamrick
-
$25,000.00
$63,892.35
$3,900.00
$92,792.35
1300-1302
Property Damage:
Loss of Us and Enjoyment:
Lost Rents: ·
Out-of-Pocket Expenses
Total:
Jefferson
$23,000.00
$29,901.30
$0.00
$0.00
$52,901.30
5.
Dr. Robert and·Charlotte Link–5534-36
Prytania Street
Lost Rents:
Loss of Use and Enjoyment:
Lost Rents:
Out-of-P9cket Expenses:
Total:
6.
Ross
and
Prytania Street
Laurel
Property Damage:
Loss of Use and Enjoyment:
Total:
$41,838.00
$44,198.00
$18,500.00
$425.17
$104,961.17
McDiarmid-5429
$28,000.00
$46,967.55
$74,967.55
Appendix J-6
7.
Jerry Osborne--5518 Prytania Street
Property Damage:
Loss of Use and Enjoyment:
Out-of-Pocket Expenses
Total:
8.
$30,000.00
$54,480.00
$ 5,400.00
$89,880.00
Jack Stolier–1408 Jefferson Avenue
Property Damage:
Loss of Use and·Enjoyment:
Total:
9.
Dr.
Street
William
$13,000.00
$61,992.00
$74,992.00
Taylor–5432-34
Property Damage:
Loss of Us .and Enjoyment:
Out-of-Pocket Expenses
Total:
Prytania
$24,000.00
$63,615.60
$0.00
$87,615.60
10.
Watson Memorial Spiritual Temple of
Christ–4400 St. Charles Avenue
Property Damage:
Lost Profits:
Total:
$135,000.00
$ 98,788.00
$233,788.00
IT IS FURTHER ORDERED, ADJUDGED,
AND DECREED that pursuant to the above
calculations,·the plaintiffs in Residential Trial Group
C are hereby awarded a money judgment against
SWB in the amount of SEVEN HUNDRED SIXTYFIVE THOUSAND EIGHTY-FOUR DOLLARS AND
FORTY-SEVEN CENTS ($765,084.47).
Appendix J-7
IT IS FURTHER ORDERED, ADJUDGED,
AND DECREED that pursuant to the above
calculations, Watson Memorial Spiritual Temple of
Christ is hereby awarded a money judgment
against·SWB in the amount of TWO HUNDRED
THIRTY-THREE THOUSAND SEVEN HUNDRED
EIGHTY-EIGHT DOLLARS AND ZERO CENTS
($233,788.00).
IT IS FURTHER ORDERED, ADJUDGED,
AND DECREED that pursuant to Louisiana Code of
Civil Procedure article 1920, Louisiana Revised
Statute § 13:3666, Louisiana Revised Statute §
13:4533, and Louisiana Revised Statute§ 13:5111, the
Court awards reasonable attorney fees to plaintiffs,
and SWB is taxed with the costs associated with the
prosecution of this matter, all to be determined
pursuant a rule to show cause.
RENDERED, READ, AND SIGNED this 21st
day of March, 2019, in New Orleans, Louisiana.
s/ Sgd Nakisha Ervin-Knott
Judge, Division “D”
A TRUE COPY
HONORABLE NAKISHA
ERVIN-KNOTT JUDGE,
CIVIL DISTRICT COURT
Civil District Court Parish
of Orleans, State of La.
Appendix J-8
CIVIL DISTRICT COURT FOR THE PARISH OF
ORLEANS
STATE OF LOUISIANA
CASE NO. 2015-11971 DIVISION “D” SECTION 12
c/w 2015-11394
M. LANGENSTEIN & SONS, INC., ET AL.
VERSUS
SEWERAGE & WATER BOARD OF NEW
ORLEANS
Consolidated with
K&B Louisiana Corporation d/b/a RITE AIDE
CORPORATION
VERSUS
SEWERAGE & WATER BOARD OF NEW
ORLEANS
REASONS FOR JUDGMENT
I.
FACTS AND EVIDENCE
A.
Background
This is the fourth trial that this Court has heard
regarding the claims made by various homeowners
and businesses against the Sewerage & Water Board
of New Orleans ("SWB") for damages allegedly caused
Appendix J-9
by the South Louisiana Urban Drainage Program
(“SELA”). However, this is the first judgment
rendered under the above captions. For reasons
similar to the ones rendered in the Court’s previous
judgments1, the Court finds SWB liable for the
damages suffered by the current plaintiffs. As it
pertains to the general structure and control of the
SELA project, the Court will rely on evidence
submitted at this trial and take judicial notice of facts
established in the Sewell trials.
The SELA project involved the installation of
canals and consisted of several federally sponsored
projects aimed at improving the local drainage
system. The project consisted of seven phases:
Claiborne I, Claiborne II, Jefferson I, Jefferson II,
Napoleon II, Napoleon III, and Louisiana I (the “SELA
Project”). The homeowner plaintiffs in this trial were
all affected by the Jefferson II phase of the project, and
Watson Memorial Spiritual Temple of Christ d/b/a
Watson Memorial Teaching Ministries (“Watson
Memorial”") was affected by the Napoleon III phase.
The plaintiffs in the instant matter, referenced as
Residential Trial Group C, include nine sets of
homeowners: Elio, Charlotte, and Benito Brancaforte;
Dr. Josephine Brown; Robert Parke and Nancy Ellis;
Mark Hamrick; Dr. Robert and Charlotte Link; Ross
and Laurel McDiarmid; Jerry Osborne; Jack Stolier;
and Dr. William Taylor.2 Watson Memorial, a
commercial plaintiff, had its claims heard in
1 See Case No. 2015-4501: Elizabeth Sewell v. Sewerage & Water
Board of New Orleans.
2 Residential Trial Group C is a part of Case No. 2016-621: Anne
Lowenburg, et al v. Sewerage & Water Board, et al.
Appendix J-10
conjunction with the residential plaintiffs.3 Plaintiffs
seek to hold SWB liable for damages pursuant to
multiple theories of recovery, including inverse
condemnation, strict liability, and negligence. SWB
has denied any and all liability. SWB asserts a defense
of comparative fault, denies negligence or strict
liability, and argues that inverse condemnation is
inapplicable.
SWB has maintained that the SELA project was
constructed under the administration of the project’s
federal sponsor, the United States Army Corps of
Engineers (“USACE”), and that USACE and the
contractors who performed construction work on the
project should be held liable. SWB filed multiple thirdparty claims against the contractors selected by
USACE for the SELA Project. The third-party
contractors effectively removed these claims to the
United States District Court for the Eastern District
of Louisiana. There, the presiding judge dismissed
SWB’s third- party claims upholding the contractors’
defense of government contractor immunity.
1.
Contractual Agreements Establishing the
SELA Project
In 1997, the Army (referred to in the contracts as
the “Government”) and SWB entered into a Project
Cooperation Agreement (“PCA”) for the construction
of certain work to improve the interior drainage
3 Watson Memorial is part of Case No. 2015-11971: M
Langenstein & Sons, Inc., et al v. Sewerage & Water Board of New
Orleans.
Appendix J-11
system and reduce flood-related damage in Orleans
Parish.
On January 16, 2009, the Army and the Coastal
Protection and Restoration Authority of Louisiana
(“CPRA”) entered into an agreement called the Project
Partnership Agreement (“PPA”). The PPA defines
CPRA as the “non-federal sponsor” and identifies the
multiple phases of the SELA Project. The PPA
outlines the “65/35” cost share arrangement between
the Army and the non-federal sponsor. The agreement
authorizes the Army to allocate money to fund 65% of
the cost of the project and states that the non-federal
sponsor would share 35% of the cost. Additionally, the
PPA provides that the non-federal sponsor would
enter into a Cooperative Endeavor Agreement with
SWB for the performance of the non-federal sponsor’s
obligations under the PPA.
Also on January 16, 2009, SWB and CPRA
entered into the Cooperative Endeavor Agreement
(“CEA”). This agreement would form the basis upon
which SWB operated in conjunction with the State of
Louisiana and the USACE for the performance of all
SELA projects.
The CEA provides in parts:
WHEREAS, JP [Jefferson Parish] and
SWBNO [SWB] have been solely
responsible, as between JP and SWBNO
and
the
Government
for
any
responsibilities
and/or
obligations
undertaken under the PCAs, including
the providing of funding, land,
Appendix J-12
easements, and right of way acquisition,
and various types of in-kind work for the
Project;
....
WHEREAS, CPRA and JP and SWBNO
are entering into this Agreement for the
purpose of having CPRA sign the SELA
PPA as the Non-Federal Sponsor, as
required by the Government, but to
continue to recognize JP’s and SWBNO’s
jurisdiction and primary participation as
the non-federal local entities that
will be directly partnering with the
Government in carrying out the
design and construction of the
Project and as the entities that will
undertake and be responsible for
the operation, maintenance, repair,
replacement, and rehabilitation of
their respective portions of the
Project once it or functional
portions thereof are completed;
WHEREAS, CPRA will in fact
delegate in whole or in part its
responsibilities of the Non-Federal
Sponsor under the SELA PPA to JP
and SWBNO, which responsibilities fall
within the respective constitutional and
statutory
purposes,
duties,
and
authorities of JP and SWBNO, and JP
and SWBNO desire to accept and
perform their respective purposes,
Appendix J-13
duties, authorities, and responsibilities;
and
WHEREAS, CPRA, and JP and SWBNO
intend for this Agreement to provide for
the
respective
obligations
and
responsibilities of each party in
relationship to each other and in
relationship to the Government relative
to the obligations and responsibilities
assumed under the SELA PPA to be
signed between CPRA and the
Government ...
....
IV.
Hold Harmless and Indemnify
....
B.
As to those portions of the Project
under its authority and jurisdiction and
care, custody, and control, SWBNO
agrees and obligates itself and its
successors and assigns to defend,
indemnify, save, protect, and hold
harmless CPRA and its successors,
officers and employees against any and
all claims, demands, suits, actions,
judgments, attorney’s fees, or costs
arising or allegedly arising out of its
responsibilities
enumerated
and
undertaken herein, or any violation of
Louisiana or Federal law or regulations,
or any negligent act, omission, operation,
or work by SWBNO or its employees,
Appendix J-14
agents, representatives, or contractors,
except for damages due to the fault or
negligence of CPRA, its employees, or its
contractors.
C.
To the extent required by CPRA as
the Non-Federal Sponsor under the
SELA PPA, JP and/or SWBNO shall hold
and save the Government free from all
damages
arising
from
design,
construction, operation, maintenance,
repair, rehabilitation, and replacement
of the Project, except for damages due to
the fault or negligence of the
Government or its contractors.
(Emphasis added).
These agreements show that the CPRA executed
the PPA as the non-federal sponsor for and on behalf
of SWB so that SWB could assume all of the CPRA’s
contractual responsibilities and obligations in order to
execute the SELA Project. Moreover, the agreements
show that SWB would indemnify the CPRA and the
Government from damages arising out of the
construction of the project, excluding damages due to
negligence of the CPRA, the Government, or its
contractors.
2.
The SELA Project: USACE and SWB Roles
and Responsibilities
SWB and USACE shared a number of
responsibilities with regard to the design and
execution of the SELA Project. Deposition transcripts
Appendix J-15
and testimony from representatives of USACE and
SWB were admitted into evidence.
SWB was responsible for the conceptual designs
of the different phases of the SELA Project. John
Fogarty Deposition p. 42, Aug. 10, 2016.4 SWB
retained consultants, known as “designers of record”,
who developed all of the plans for the project. Id. SWB
maintained a Network and Drainage Engineering
Department that acted as the department lead for
SELA. Exs. P16 & D3-4, p. 58. The consultants who
designed the SELA projects reported to the
department head of the Network and Drainage
Engineering Department. Id. at 58-59. SWB had the
ability to make recommendations to the design
consultants. Id. at 62.
During the preliminary design stages, USACE
went through a review process of the plans and
specifications and provided comments back to SWB’s
designers of record. Fogarty Dep. pp. 42-43, Aug. 11,
2016.5 USACE’s process was known as BCOE, which
stands for Biddability, Constructability, Operability,
and Environmental Review. Id. at 42. There was an
extensive comment process where USACE generated
BCOE related opinions. Id. at 46.
4 Referenced in Case No. 2015-4501: Elizabeth Sewell, et al v.
Sewerage & Water Board of New Orleans - Reasons for Judgment
Trial Groups A, B, and D.
5 Referenced in Case No. 2015-4501: Elizabeth Sewell, et al v.
Sewerage & Water Board of New Orleans - Reasons for Judgment
Trial Groups A, B, and D.
Appendix J-16
SWB employed a SELA Project manager who was
responsible for the oversight of the engineering firms
and was there to resolve or take appropriate
measures. Id. SWB coordinated with USACE on the
actual construction of the project and reviewed the
progress of the project. Ex. D15, p. 1317.6 USACE
performed daily inspections to ensure that contractors
built the box culverts in accordance with the plans and
specifications. Id. at 66. At times, SWB and USACE
performed walk-throughs together. Id. SWB had
review and acceptance authority over design aspects
of the SELA Project construction. Exs. P16 & D3-4, p.
59.
In certain instances, SWB performed construction
work. Fogarty Dep. p. 254, Aug. 10, 2016.7 SWB
performed an emergency valve repair, sewer main
replacement, and parking lane repairs. Id. at 254-255.
SWB provided access to the lands, easements, and
rights-of-way to build the drainage system. Exs. P16
& D3-4, p. 88. SWB tied in the SELA drainage system
with the existing drainage system. Id. at 89. At times,
SWB coordinated with the contractors, for example to
relocate or install new water mains. Fogarty Dep. p.
722, Aug. 12, 2016.8 SWB did not select contractors for
the work. Id. at 259. USACE was responsible for the
award and the administration of the construction
6 Referenced in Case No. 2015-4501: Elizabeth Sewell, et al v.
Sewerage & Water Board-Reasons for Judgment Trial Groups A,
B, and D.
7 Referenced in Case No. 2015-4501: Elizabeth Sewell, et al v.
Sewerage & Water Board-Reasons for Judgment Trial Groups A,
B, and D.
8 Referenced in Case No. 2015-4501: Elizabeth Sewell, et al v.
Sewerage & Water Board-Reasons for Judgment Trial Groups A,
B, and D.
Appendix J-17
contracts. Id. SWB could not directly instruct the
contractors to do something; instead, SWB had to go
through USACE because USACE held the contract
with the contractors. Id. at 261.
USACE established a Quality Assurance team
that included Quality Assurance representatives on
site at any time to monitor the contractor’s operations.
Id. at 948-49. SWB was not involved in the drafting of
a Quality Assurance plan. Id. at 1810. USACE
required contractors to submit a Quality Control plan
that addressed the provisions in the contract. Id. at
960. SWB was not involved in drafting the contractor’s
Quality Control plans; those were drafted by the
contractors. Id. at 958.
SWB hired a forensic contractor, Leonard Quick
of Quick and Associates, to perform background preconstruction inspections of the properties, install
piezometers and inclinometers, and settlement
reference points.9 Fogarty Dep. 168, Aug. 10, 2016;10
Exs. P16 & D3-4, p. 56. SWB maintained a SELA
Project Hotline whereby complaints were logged with
the SWB. Fogarty Dep. p. 270, Aug. 10, 2016.11 SWB
received the complaints through their consulting firm
and then passed along the complaints to the project
manager for USACE who would then act on the
A piezometer measures groundwater. An inclinometer
measures incline.
10 Referenced in Case No. 2015-4501: Elizabeth Sewell, et al v.
Sewerage & Water Board-Reasons for Judgment Trial Groups A,
B, and D.
11 Referenced in Case No. 2015-4501: Elizabeth Sewell, et al v.
Sewerage & Water Board-Reasons for Judgment Trial Groups A,
B, and D.
9
Appendix J-18
complaint. Id. Additionally, USACE maintained its
own separate hotline. Id. at 272.
3.
Anticipated Consequences of the SELA
Project: Vibrations and Adverse Effects
Prior to the start of construction, SWB and
USACE were aware that vibrations were a concern.
Bxs. P16 & D3-4, p. 52; Exs. P17 & DI, pp. 1125-26.
USACE anticipated there would be vibrations due to
pile driving, the operation of heavy equipment,
excavations, and other construction activity. Fogarty
Dep. 108, Aug. 10, 2016.12
A SELA brochure, made available on the SELA
website and to patrons at SWB’s public meetings,
acknowledges there would be impacts to the
surrounding areas due to construction of the SELA
Project. See Ex. P8(f). The brochure explains that
noise and vibrations from moving and operating heavy
construction equipment could have an impact on
structures located within close proximity to the Zone
of Impact (“ZOI”). Id.13 The brochure explains that
scientific research has established the most
significant factor to best indicate the potential for
damage is peak particle velocity (“PPV”), measured in
12 Referenced in Case No. 2015-4501: Elizabeth Sewell, et al v.
Sewerage & Water Board-Reasons for Judgment Trial Groups A,
B, and D.
13 “The construction ZOI is defined as the area in which it is more
likely than not that damages will occur. Based on scientific data
obtained to date, the ZOI’s outer boundary is at the line formed
upon the surface at a forty-five (45) degree angle from the bottom
tip depth of driven sheet pile.” Ex. P8(f).
Appendix J-19
inches per second (“ips”). Id. The brochure stated that
a limit of 0.25 ips PPV was “very conservative.” Id.
In April of 2010, SWB signed a Programmatic
Agreement (“PA”), which recognized that the SELA
Project construction posed a risk of having adverse
effects to properties located in the Uptown and
Carrollton neighborhoods. Ex. P5. The PA mapped out
structures within the Area of Potential Effects
(“APE”) that were susceptible to indeterminate
damage as a consequence of construction vibrations.
Id. Additionally, the PA mapped out areas within the
Construction Impact Zone (“CIZ”) where the potential
existed for soil vibration associated with projectrelated activities. Id. The PA provided that USACE
would require contractors to perform work within a
manner that would limit vibrations at the structure
nearest to the site of construction activity to a
maximum of 0.25 inches per second. Id.
During construction, vibration monitoring was
accomplished by a monitor hired by the USACE.
Fogarty Dep. 110, Aug. 10, 2016.14 The contracts
required the contractor’s operations to remain under
the .25 inches per second peak particle velocity as
detected by vibration monitoring. Id. at 110. If a
vibration exceeded .25 ips PPV, the vibration monitor
was instructed to report it to the USACE inspector,
and the USACE inspector was to report it to the
contractor. Id. at 116.
14 Referenced in Case No. 2015-4501: Elizabeth Sewell, et al v.
Sewerage & Water Board of New Orleans - Reasons for Judgment
Trial Groups A, B, and D.
Appendix J-20
As illustrated by the deposition testimony, the
PA, and the SELA brochure, SWB and USACE
anticipated adverse consequences due to construction
related vibrations.
B. Fact Witnesses
1. Residential Group C Plaintiffs and Watson
Memorial
Each of the plaintiffs offered testimony regarding
their experiences throughout the SELA construction
and the damages they have observed to their
properties. Their testimony will be covered in detail in
Section III.
2. Mubashir Magbool
Mubashir Maqbool did not testify at trial, but his
deposition testimony was submitted into evidence in
this trial and in past Sewell trials. Ex. D5. Mr.
Maqbool is an engineer with SWB, and his
department primarily worked with the designs and
specifications for the SELA project. He would respond
to Request for Information (“RFI”) submitted by
USACE to SWB and worked to resolve the issues
presented in the RFI. He would also attend monthly
meetings regarding the progress of the SELA project.
Mr. Maqbool testified that the SELA project was
a collaborative effort between SWB, USACE, the
designers, and the contractors. One of the goals of the
project was for the construction to be conducted in a
manner that had the least amount of effect on the
environment and was the least disruptive to the
Appendix J-21
residents and businesses of the area. He also admitted
that SWB knew that the quality of life for nearby
residents would be disrupted because of limited access
to their properties and traffic conditions.
3. Melvin Spooner
Melvin Spooner did not provide live testimony at
trial, but his deposition was submitted into evidence
in this trial and in past Sewell trials. Exs. P16 & D34. Mr. Spooner is the Chief Engineer for SWB. He
testified that SWB and USACE worked in conjunction
on the SELA project. SWB was mostly involved during
the design phase of the project. SWB hired
independent consultants to create the design for the
project, and then SWB would ultimately approve
these designs. USACE was in charge of overseeing the
actual construction of the project and hiring
contractors to perform the construction. Mr. Spooner
admitted that there was a potential for damage from
the SELA construction activities. SWB created a
hotline for residents to call regarding issues they
experienced with the construction, and public
meetings were held with the residents in the affected
neighborhoods. Further, Mr. Spooner admitted that
vibrations, noise, and dust were associated with the
SELA construction.
4. John Fogarty
John Fogarty did not provide live testimony at
trial, but his deposition was submitted into evidence
in this trial and in past Sewell trials. Exs. P17 & D1.
Mr. Fogarty works as a civil and residential engineer
for the United States Army Corp of Engineers and was
Appendix J-22
the administrative contracting officer for the SELA
construction. While the SELA project was a joint effort
between USACE and SWB, Mr. Fogarty testified that
the USACE handled the majority of the project. SWB
designed the project and then handed it over to the
USACE to implement the project. SWB was not
responsible for overseeing the construction or the
contractors.
Mr. Fogarty testified that Cajun Constructors,
LLC (“Cajun”) performed the construction for the
Jefferson II phase of the SELA project. SWB was not
a party to the contract between the USACE and
Cajun, and SWB did not have the authority to order
Cajun to stop working on the project. Cajun did not
use an excavator to insert sheet piles for the box
culvert or retaining structures on Jefferson II. The
Giken was used to install all of the sheet piles for the
TRS installation, but an excavator may have been
used to press in piles for the installation of utilities,
storm drainage pipes, manholes, and catch basins.
During Jefferson II, a drainage box culvert was
installed that extended along Jefferson Avenue to
Constance Street and another box culvert extended
along Prytania Street to Nashville Street. The two
culverts tied into each other. During the construction,
water mains were relocate catch basins and drain
lines were installed, sewer mains replaced, and
roadways tom up and restored.
Mr. Fogarty testified that Boh Bros., LLC (“Boh
Bros.”) performed the construction for the Napoleon
III phase of the SELA project SWB was not a party to
the contract between the USACE and Boh Bros., and
SWB did not have the authority to order Boh Bros. to
Appendix J-23
stop working on the project. He testified that Boh
Bros. performed its work in accordance with the plans
and specifications for the project. He also stated that
USACE had the requisite knowledge of the potential
for damage to occur during the construction. During
the Napoleon III phase of the project, jet grout
columns were installed to create a jet grout foundation
and permanent sheet piles were placed into the
ground. The jet grouting replaced the need for timber
piles that were used in other phases of the project. As
a result, pile driving did not occur during the
Napoleon III phase. USACE approved the use of a
vibratory hammer to install the sheeting at the corner
of St. Charles and Napoleon Avenue with the
condition that additional monitoring would be placed
in the area.
5. Paul Nola
Paul Nola did not provide live testimony at trial,
but his deposition was submitted into evidence in this
trial and in past Sewell trials. Ex. D2 (Case No. 2016621). Mr. Nola testified as the representative for
Cajun Constructors, LLC. Mr. Nola worked as the
project manager for the Jefferson II phase of the SELA
project and was a point of contact between Cajun and
the USACE. Mr. Nola testified that Cajun overall
performed its work in compliance with the plans and
specifications for Jefferson II During the construction,
there were times when streets, intersections, and
driveways would be blocked. Whenever residents in
the area complained about the construction, they were
directed to send their complaints to the SELA hotline.
6. Stephen Switzer
Appendix J-24
Stephen Switzer did not provide live testimony at
trial, but his deposition was submitted into evidence
in this trial and in past Sewell trials. Exs. P18 & D6
(Case No. 2016-621). Mr. Switzer was Cajun’s area
superintendent for the Prytania Street portion of the
Jefferson II phase of the SELA project from December
2014 until June 2016. His testimony was similar to
Paul Nola’s in that the construction required streets
to be closed and driveways to be blocked. Whenever
homeowners complained about the construction or
property damage, he would direct them to the SELA
hotline. Further, Mr. Switzer testified that SWB did
in fact have the authority to stop construction work
and would supervise Cajun’s work regarding water
line tie-ins, pressure tests, and chlorination.
7. Kevin Vanderbrook
Mr. Kevin Vanderbrook testified at trial
regarding the alleged roof damages at Watson
Memorial. Mr. Vanderbrook testified that he
investigated the roof of the sanctuary at Watson
Memorial on three separate occasions. The first time
he investigated the roof was in connection with
Watson Memorial’s claim for damages resulting from
a March 2011 hail storm. He returned to inspect the
property again after the church filed a claim for roof
damages that resulted from Hurricane Isaac, and he
returned yet again in 2016 after Watson Memorial
made another claim for roof damages. Each time he
visited the property, Mr. Vanderbrook found that the
claimed damages arose from a lack of maintenance of
the property, and he provided his reports with these
findings at trial. See Exs. D6-D9 (Case No. 2015-
Appendix J-25
11971). During these inspections, Mr. Vanderbrook
also had the opportunity to observe the interior and
exterior of the church building. He specifically noted
that the he observed the same damages each time he
visited the property. Specifically, Mr. Vanderbrook
noted the signs of widespread water intrusion
throughout the sanctuary, and he provided pictures of
these damages at trial.
8 Kevin Stolzenthaler
Mr. Kevin Stolzenthaler did not provide live
testimony at trial, but his deposition was submitted
into evidence. Ex. D2 (Case No. 2015-11971). Mr.
Stolzenthaler was the project manager for Boh Bros.
during the Napoleon III phase of the SELA project. He
testified that a Giken Silent Piler had been used to
insert the sheet piles during Napoleon III. However, a
traditional vibratory hammer had also been used at
the intersection of St. Charles and Napoleon Avenue,
at the intersection of Coliseum Street, and at the Pitt
Street lateral tie-in.
Mr. Stolzenthaler testified that if an exceedance
of the .25 ips limit ever occurred, the protocol required
that the incident be reported to the Quality Control
representative for the project. Such exceedances
typically occurred as a result of excavation operations
and trucking activities. The noise limit for Napoleon
III was eighty-five decibels. Boh Bros. defined hours
of operations were from 7:00 A.M. until 9:00 P.M., but
Mr. Stolzenthaler admitted that no extra measures
taken to control noise if work extended into the night
hours.
Appendix J-26
C. Expert Testimony-General Findings on
Causation
1. Plaintiffs’ Expert: Dr. Rune Storesund
Dr. Rune Storesund is a licensed civil engineer in
multiple states including Louisiana. He is an expert
in geotechnical engineering and provides services
regarding construction impact. He has testified
during all phases of the Sewell trial that have come
before this Court. His role in the SELA litigation is to
review SELA documents, provide needed geotechnical
input, and evaluate the possibility of the types of
damages that could arise from the SELA construction.
Dr. Storesund testified that the vibration
monitoring data gathered during the construction was
incomplete and unreliable. There were many
instances when the construction activities were not
monitored at all, or if they were being monitored, the
monitoring equipment was not at a location closest to
the construction site. Despite this lack of reliable
monitoring, the vibration monitoring charts Dr.
Storesund studied showed exceedances of the .25 PPV
threshold.
Dr. Storesund also opined that the plaintiffs were
potentially exposed to prolonged, excessive noise that
exceeded the specified limit. The same equipment that
was used to monitor vibrations also had the capability
to monitor noise levels. His understanding from
reading the contracts provided is that the SWB was
responsible for monitoring the noise levels at the
construction site, but SWB failed to do so.
Appendix J-27
Dr. Storesund testified that there is no scientific
basis or analysis for the USACE’s ZOI and that the
ZOI is not a proper threshold to determine whether a
property is likely to suffer damages from the SELA
construction. He found numerous instances where
vibrations extended outside of the defined ZOI.
Further, Dr. Storesund opined that there were
numerous inconsistencies between the boundaries of
the ZOI, APE, and CIZ.
Dr. Storesund also offered a new opinion in this
trial that has not been considered by the Court in any
of the previous trials. During the course of the SELA
construction, a sinkhole formed in the 5500 block of
Prytania Street. Dr. Storesund opined at trial that the
TRS system used on the Jefferson II phase acted as a
barrier and dammed up the natural subterranean
water flow from the Mississippi River towards St.
Charles Avenue, thus creating the sinkhole. Although
French drains and weep holes were installed in the
Prytania box culvert to alleviate the water flow, Dr.
Storesund asserted that the solution is not a
permanent one and does not equilibrate the two sides
of the box culvert. Dr. Storesund opined that, because
the box culvert and sheet piles remain in place, the
ground water modification is a permanent condition
and that there is a future susceptibility of damages to
the homes on Prytania Street as a result of the
groundwater modification created by the SELA
construction.
2. Plaintiffs’ Expert: Stradford Goins
Stradford Goins is an expert in civil and
structural engineering. He owns his own consulting
Appendix J-28
business and has been an engineer for thirty-five
years. This trial was the first time that this Court has
heard from Mr. Goins in any of the SELA project
cases. Mr. Goins testified that he inspected each of the
plaintiffs’ properties. Overall, he concluded that the
vibrations generated from the various construction
activities during the SELA construction damaged the
plaintiffs’ properties. He testified that although it is
normal for properties uptown to have hairline cracks,
the homes he inspected have already finished the
majority of their settling. Mr. Goins also testified that
he saw similar damages throughout the properties
such as cracking in the interior and signs of movement
and separation on the exterior. For each of the
properties in this trial, he prepared a cost repair
estimate for the damages th
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