.....

- 1i

STATE OF LOUISIANA

FIFTH CIRCUIT COURT OF APpEAL

F'lFTH CIr~CUIT
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COURT OF APPEAL

FILED J rj.t~ 2 i 2014

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CIVIL ACTION NUMBER: 13-CA-954 '-' ;'oc' I 'i ' " ~! , l! If; .. Ct. " . "

MONICA HAAB, ET AL.

VERSUS

EAST BANK CONSOLo SPEC. SERVo FIRE PROT. DIST. OF JEFF. PAR.,
ETAL.

ON APPEAL FROM THE

24TH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON
HONORABLE HENRY G. SULLIVAN PRESIDING

ORIGINAL BRIEF ON BEHALF OF

MONICA HAAB WIFE OF/AND GARREIT HAAB, ET AL.
PLAINTIFF-APPELLANTS

JOHN A. VENEZIA (# 23963)

VENEZIA AND ASSOCIATES (APLC)
757 St. Charles Avenue, Suite 303
New Orleans, Louisiana 70130
(504) 486-3910 voice
(504) 486-3913 fax
john@venezialaw.net

AITORNEYSFOR
MONICA HAAB WIFE OF/AND
GARREIT HAAB, ET AL.
PLAINTIFFS-APPELLANT
 ¥
"

TABLE OF CONTENTS

Table of Contents 1

Index of Authorities " " " 2

Statement of Jurisdiction " " " 4

Syllabus " " " "" " " 5

Statement ofth.e Case " " " " 6

Facts " 5

Actions by the Trial Court " "." 16

Assignment of Errors .."" " " " " "." "."." ".." ".".. 17

Issues Presented for Review " " " "..".."18

Argument." " "." "." " ".." " " " ".""." ".." " " 19

Summary Judgment " " " " "".. 19

Substantive Law " " " ".. " 20

Conclusion " " "" " " ".." 25

Certificate " " " " " " " "26

Judgment of July 23, 2013 Exhibit 1

Written Reasons for Judgment of August 22, 2013 Exhibit 2

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 INDEX OF AUTHORITIES

Constitutional Provisions

La. Const. Art. 5 4

Statutes

La. Rev. Stat. 9:2798.1 6, 16, 20, 22, 23

La. Rev. Stat. 29:735 6, 16, 20, 21, 25

La. C.C.P. art. 966 19

La. Code ofEvid. Art. 702 22

La. Code ofEvid. Art. 704 22

Cases

Banks v. Parish ofJefferson

990 So.2d 26, 30, (La. Ct. App. 5th Cir. 6/19/08) 20

Banks v. Parish ofJefferson

108 So.3d 1208 (La. App. 5th Cir., 2013) 19

Bordelon v. Gravity Drainage Dist. No.4 ofWard 3 ofCalcasieu Parish

74 So.3d 766 (La. Ct. App. 3rd Cir. 10/5/11) 21

Brown v. ANA Ins. Group

965 So.2d 902, 2006-0626 (La.App. 1 Cir. 7/18/07), (rev'd on other
grounds by 994 So.2d 1265,2007-2116 (La. 10/14/08), 17 (La.,2008) 23

Chicago Property Interests, L.L. C v. Broussard

08-1210 (La. App. 5 Cir. 3/6/09) (unpublished grant of writ), writ denied,
09-758 (La. 5/22/09) 9 So.3d 150 21

Cusimano v. Port Esplanade Condo. Ass'n Inc.

55 So.3d 931 (La. App. 4th Cir., 2011) 19

Hawkins v. State, Dept. ofHealth and Human Resources

543 So.2d 1052, 1055 (La. App. 4th Cir., 1989) 23

Independent Fire Ins. Co. v. Sunbeam Corp.

755 So.2d 226 (La., 2000) 24, 25

Judson v. Davis, 916 So.2d 1106 19

S.J. v. Lafayette Parish Sch. Bd., 959 So.2d 884, 887 (La. 2007) 19

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Smith v. Our Lady ofthe Lake Hospital, Inc.
639 So. 2d 730, 751 (La. 1994) 19

State v. La. Land & Exploration Co.

No. 2012-C-0884 (La., 2013) 19

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 STATEMENT OF JURISDICTION

This Court has original appellate jurisdiction of this matter, a fmal Judgment

of a district court within this circuit, pursuant to Article 5 of the Louisiana

Constitution of 1974.

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 SYLLABUS

This is an appeal of a district court's granting of a summary judgment

dismissing based on the defendant-appellees affirmative defense of immunity under

two statutes. The defendant-appellees are the Parish of Jefferson and those it

charged with responding to fires and responding to emergencies. The plaintiff­

appellants home was destroyed in a fire that the defendant-appellees refused to

respond to. The defendant-appellees claim they were acting in accordance with an

emergency plan and as such, they are immune from liability.

As discussed in detail herein, the lower court should never have granted

summary judgment after admitting affidavits of the plaintiff-appellants' expert

witness, the former fire superintendent for the defendant-appellees themselves.

This expert opined facts about the defendant-appellees conduct that remove their

actions from being immune. Accordingly, the district court's decision should be

reversed.

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 STATEMENT OF THE CASE

A. FACTS

The plaintiff-appellants are Monica and Garrett Haab, who lived with their

children at a home on Dorrington Drive in Old Metairie.' The defendant-appellees

are the Parish of Jefferson, certain of its subdivisions, and several individuals

responsible for fire protection and emergency responses for the Parish during the

relevant time period. 2 On September 1, 2008, the Haabs' home caught fire on

September 1, 2008. The defendant-appellees did not respond to this fire for two

hours after notification and the home was utterly destroyed with all the Haabs'

contents.'

The Haabs sued the defendant-appellees for failing to timely respond to the

fire, who in turn answered asserting the affirmative defenses of immunity under

Louisiana Revised Statutes 9:2798.1 and 29:735. 4 The defendant-appellees moved

for summary judgment claiming there were no issues of fact that they were entitled

to immunity under these statutes. 5 Plaintiff-Appellants admitted into evidence,

with no objection, 32 exhibits with their opposition memorandum. These exhibits

included numerous depositions, several of the defendant-appellees' discovery

responses, fact witness affidavits, and, most notably, expert witness affidavits. 6

This evidence establish several facts.

In early 2006, the then Parish President, Aaron Broussard, appointed Deano

Bonano to become Jefferson Parish's first Homeland Security Chief, which

1 Petition for Damages, Rec. p. 13.

2 Id., Rec. pp. 14-15.

3 See exhibits in separate box, Ex. P26.

4 Consolidated Answer to Petition for Damages and First Supplemental and Amending Petition, Rec. p. 30.

5 Motion for Summary Judgment, Rec. p. 86.

6 Memorandum in Opposition to Motion for Summary Judgment, Rec. p. 176 (exhibits in separate box); Supplemental

Opposition to Motion for Summary Judgment, Rec. p. 242 (exhibits in separate box); and Transcript of Proceedings

of July 17,2013, Rec. p. 317.

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controlled the East Bank Consolidated Fire Department and the Parish's Emergency

Management Department. 7 At that time, Mr. Bonano had two years of experience

as a volunteer fire fighter, but had never commanded even a fire truck, much less a

whole department," Shortly after his appointment, Mr. Bonano helped develop a

plan for all of the Parish's fire departments called the Jefferson Parish Fire Service

Disaster Response Plan (the "Plan").9 Mr. Bonano denied that he authored the

Plan, but admitted that he assisted the heads of the various fire departments write it

and gave them advice on what should be in it.!" The Interim Director of the Fire

Department, David Saunders, voted to adopt this Plan,II but believed either Mr.

Bonano or his Emergency Management Director, Kenneth Padgett, was the author.P

Mr. Bonano was the direct superior ofDir. Saunders and Mr. Padgett.'!

Mr. Bonano, Mr. Padgett, and/or Interim Director Saunders included the

following in the Plan:

STAGE 5.) The Emergency Management Director will notify all

essential duty fire fighters, through their respective departments; when
the Parish begins to experience sustained winds of 50 miles per hour.

A. Actions

• All essential duty fire fighters shall immediately move to their pre­
assigned Essential Duty Employee Safe Shelter (EDE).

See attached list

• All responses to calls shall cease

• While sustained winds are in excess of 50 miles per hour and weather
conditions are hazardous all essential fire fighters located in an EDE
shelter, shall remain secured inside the facility until the EDE managers
are notified by the Emergency Management Director that the sustained
winds have fallen below 50 miles per hour and conditions are safe for

7 Ex. P4, Bonano Depo. pp. 15-20,

8 Ex. P4, pp. 23-25.

9 Ex. P5, Jefferson Parish Fire Service Disaster Response Plan (3/2006), JP212~219.

10 Ex. P4, pp. 40-45.

11 Ex. P3, p. 61 and Ex. P4, p41.

12 Ex. P3, p. 46.

13 Exs. P3, P4, and P32.

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 travel around the Parish and perform their duties. Essential duty fire
fighters shall be dispatched from their EDE shelter to perform their
emergency duties until such time as it is safe for each to return to their
stations.

STAGE 6.) The Emergency Management Director shall notify each

EDE Coordinator when sustained winds have fall below 50 miles per
hour. 14

This Plan completely removed the discretion from the members of the Fire

Department to determine for themselves when they should respond to a fire. Dir.

Saunders voted to give up his own control over the Fire Department's response to

fires in Stage 5. According to the way the plan was written, Dir. Saunders, and Mr.

Bonano, all fire service in Jefferson Parish was going to be completely controlled by

what the Emergency Management Department determined were the sustained wind

speeds. 15 Mr. Padgett contradicted his co-defendants saying lower level people

actually had discretion to decide whether to respond or not."

Although not part of the written Plan, the defendants claim that the Parish'

Supervisory Control and Data Acquisition System ("SCADA") was the sole way

that it was going to determine what the sustained winds were.!? SCADA is the

network of sensors that the Parish uses to measure water levels that also has eight,

wind measuring devices, called anemometers, which send data to computers in the

Parish's Emergency Operations Center." Four are on the Eastbank and four are on

the Westbank. These devices had been used by the Parish's Emergency

Management Department before, just never to determine the sustained winds for the

purpose of shutting down the fire departments. Mr. Bonano's Emergency

14 Ex. P5, JP215-216. [Emphasis original]

15 Exs. P3, p. 214, and P4, p. 85.

16 Ex. P32, pp. 90-91.

17 Exhibit P6, the Parish of Jefferson's Answers to Second Set ofInts. and Req. for Prod. ofDocuments, Ans. 14 To

Int. #2. See also Ex P4 and exhibit P7, Philips Depo (Really 1442 of Jefferson Parish), pp. 139-142.

18 Ex. P7, pp. 52-54.

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Operations Department planned to make one decision for the Eastbank and one for

the Westbank, realizing the wind conditions could be different on each side of the

River. 19 Again, Mr. Padgett's testimony contradicted his former superior. Mr.

Padgett said they made one decision for the entire parish."

In setting the 50 mph sustained wind benchmark for shutting down, Mr.

Bonano testified that he solely relied on Research Based Guidelines for Decision

Making in Hurricane Conditions: When Do We Stop Responding? Executive

Analysis ofFire Service Operations in Emergency Management, Elaine A. Fisher

July 2004. 21 Ms. Fisher defined sustained wind as "the mean average wind speed

during the previous 60 seconds,"22 which is the common definition and that used by

the National Hurricane Center.P

Despite Ms. Fisher's article being "part ofthe foundation offormulating Stage

5" of the plan.i" the Parish did not have the SCADA system set up to measure

sustained wind speeds." Dr. Patrick Fitzpatrick, a Ph.D. in atmospheric science,

plotted the SCADA's wind speed readings the against those from an anemometer

that is part of the National Oceanographic and Atmospheric Administration

("NOAA") network of weather platforms and determined that the SCADA system

was actually measuring gusts wind speed." A wind gust is a sudden, brief increase

in the speed of the wind. Wind gust speeds report usually 20-30% higher values

19 Ex. P7, pp. 52-54, Ex P4, 81-82, 92.

20 Ex. P32, p. 90.

21 Ex. P10, Full version of Research Based Guidelines for Decision Making in Hurricane Conditions: When Do We

Stop Responding? Executive Analysis of Fire Service Operations in Emergency Management, Fisher, E.. (July 2004)

JP277-318 and Ex. P11, Deano Bonano's Answer to Second Sent of Interrogatories and Requests for Production of

Documents, Ans. to Int. # 3.

22 Ex. PIO, JP293-294.

23 Ex. P8, Fitzpatrick Affidavit, '6.

24 Ex. P 11, Deano Bonano's Answer to Second Sent of Interrogatories and Requests for Production of Documents,

Ans. to Int. # 3.

25 Exhibit P12, Response to Plaintiffs' Second Set ofReq. for Adm. to All Defendants, Rsp. to Req. #2.

26 Ex. P8, "20-21.

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than sustained wind speeds with magnitudes double the sustained not uncommon.

Gusts are also much more variable than sustained. Gusts are measured in intervals

ranging from less than one second to 20 seconds. 27 Mr. Bonano and his co­

defendants devised the Plan to remove all discretion to respond to a fire from the

actual fire fighters and instead put the fate of the entire Parish with the SCADA

anemometers and computers. However, they did not setup their anemometers and

computers to do what the Plan called for, i.e., determining the sustained winds.

The Parish did not have any atmospheric scientist help them setup their

SCADA system. Accordingly, they did not account for their anemometers different

heights and locations near water. They were also under the false belief that they

could simply take an average of the wind speed readings to determine sustained

winds.i"

There was also no clear direction as to how to use the different anemometers.

The SCADA operator, Jason Philips, said that Mr. Padgett told him to take

somewhere around 15 to 30 minutes averages of the wind during the hurricane and

that he knew nothing about the 50 mile per hour threshold.i? Mr. Padgett says that

he had nothing to do with the formula for determining the wind speeds and the

determination ofwhen the threshold was met was handled by SCADA, with him just

disseminating information. 30 Mr. Bonano says that if the anemometers showed

mixed readings ofsome above 50 and some below, ajudgment call would be made.'!

Mr. Padgett says if even one was above 50, then shut down the everywhere. 32

27 Ex. P8, '7.

28 Ex. P8, ft 17-20 and 27; Ex. P7, pp. 11-19, 52-59, 64-67, 91-96, and 168-169

29 Ex. P7, pp. 165-166 and 177.

30 Exs. P31, pp. 95-98, 115-116, and P32, p. 24

31 Ex.P4,pp. 172-173.

32 Ex. P31, pp. 108-109.

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 Mr. Padgett was tasked with reviewing the Plan annually, but made no

changes in 2007 or 2008. 33 The first and only time that this Plan was ever

implemented it was in September 1, 2008 at approximately 5:20 a.m. At that time,

either Mr. Bonano, Mr. Padgett, and/or a SCADA operator, depending on whose

testimony you believe, decided to shut down fire service for the entire Eastbank of

Jefferson Parish based on wind speeds."

Whomever made this decision, they were wrong. Dr. Fitzpatrick has

determined that the sustained wind speed affecting Jefferson Parish at 5:30 a.m. did

not exceed 50 miles per hour, using NOAA, the Weather Underground, or even

properly calculating SCADA's data. 35 In fact, only one of the four Eastbank

SCADA anemometers shows readings over 50, which is the Bonnabel anemometer

on the water that is 45 to 50 feet in the air and is actually showing gusts. 36

Averaging the speeds ofthe four anemometers, like Mr. Bonano claims the SCADA

operators were instructed to do, still does not arrive at the 50 threshold. The wind

speeds never gave any reason to shut down the fire services.

At approximately 8:30 a.m., a tree branch fell and hit the exterior electrical

box attached to the plaintiffs' home at 412 Dorrington Boulevard in Old Metairie.

The Haas had previously evacuated as the Parish President ordered. Dr. Edward J.

Martin, the next door neighbor, who had not evacuated because he was on call at

Tulane Hospital in Metairie, saw the branch strike the box, causing it to glow blue

and catch fire. Dr. Martin and his family immediately called 911, but were told no

33 Ex. P5.

34 Ex. P4, pp. 19,48-53, 73-74, 79, 100; Ex. P7, pp. 174-178; Ex. PI 1, ADs.to Int. #5; Exhibit P23, Ans. to First Set

of ints. and Req. for Prod. of Docs., Ans. to Ints. # 17 and 18; Exhibit P24, Supplemental Rsps. to First Set of Ints.

and Req. for Prod. Of Docs., ADs. to Ints. # 17 and 18; and Ex. PI2, Rsps, to Reqs. 8, 9, 10, and 11.

35 Ex. P8, W23-24 and 27-28.

36 Ex. P8, ~21.

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fire services were coming and that they should have evacuated." Dr. Martin and

his family went outside and felt that the wind was not blowing hard. Even Dr.

Martin's 75-year hold mother could stand outside safely. He considered using a

garden hose on the box but chose not to because of fear of electrocution. These lay

people tried to stop the fire from spreading spraying water with garden hoses on Dr.

Martin's home. Even the 75-year-old woman participated. They continued to call

911, continuing without success."

The heads of the Fire Department, including Dir. Saunders, heard about the

fire over the radio from the fire fighters talking about it. 39 The younger fire fighters

wanted to respond, but were not allowed."

In his affidavit supporting the defendants' motion, Dir. Saunders says that the

Fire Department, under his direction, was still under orders to remain in the shelters

due to the weather conditions. In his deposition, the Director distanced himself

from giving any "direction" to the men under his command, repeatedly saying that

he was just following orders and had no discretion to allow a response. Dir. Saunders

was especially clear that he had no part in determining the wind speeds."

He has good reason to distance himself. The actual sustained wind speeds at

8:30 a.m. were nowhere close to exceeding sustained 50 miles per hour. The wind

speeds from NOAA's New Canal, at 39 feet on Lake Pontchartrain, were 41 miles

per hour. Accounting for the anemometer's height and maritime location, the actual

condition for the suburban Eastbank was as low as 25 miles per hour. Dr.

Fitzpatrick's calculations are corroborated by the Weather Underground platforms.

37 Ex. P26, Aff. Of Dr. Martin, mll-3 and Ex. P20.

38 Ex. P26, ml4-5; Ex. P20; Ex. P21, C2 412 Dorrington Bv.; and Ex. P6, Ans. to Int. #4.

39 Ex. P22, pp. 66-67; Ex. P15, pp. 83-84; Ex. 5 ofDeL's motion, '13, Ex. P3, pp. 118-120.

40 Ex. P15, pp. 85-86. See also, Ex. PI, '16.

41 See Exhibit E to defendants' motion, '14, and Ex. P3, pp. 61-62, 66,68-69, 80-81, 133-142, 154, and 204-205.

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Plaintiffs' expert's calculations are confirmed by the 75-year old woman being able

to stand outside and fight the fire with a garden hose.f

Jefferson Parish's various governmental communications systems are replete

with discussions about this fire. Dr. Martin, other civilians, Jefferson Parish

Sheriffs deputies, and Constable Civello, the former fire chief, called numerous

times on the telephone and radio. These calls reported that civilians were safely,

but ineffectively, trying to put out the fire with garden hoses. They reported that

the lives elderly people who lived nearby were being put at risk by the fire. 43

Sheriff Newell Normand himself became aware of the fire and had his top

deputies try to get a response to no avail." He personally went to the scene and

joined the garden hose firefighting." When his subordinates reported that they

could not get a response, he became quite emotional, calling the lack of response,

"ridiculous?" using rather aggressive language and demanding to speak with Dir.

Saunders.

The Sheriffspoke with Dir. Saunders and Mr. Bonano, telling them that it was

safe to respond."? This did not matter to Dir. Saunders because he was under orders

to stay no matter." Mr. Padgett testified differently. Mr. Padgett claims that after

he heard about the fire, he spoke with the member ofthe fire department at the Yenni

Building, perhaps Dir. Saunders himself, and said, "[y]ou're on the East Bank;

maybe you have a better picture of what was going on than what we have; you need

42 Ex. P8, 1125 and 27; Ex. P26, '14-5.

43 Ex. P21, R412 Dorrington Bv; C3 412 R412 Dorrington Bv; 09 05 28, 091310 C6 412 Dorrington Bv; C8 412

Dorrington Bv; C9 412 Dorrington Bv; C10 412 Dorrington Bv; C11 412 Dorrington Bv; Ex. P27, JPSO Incident HX

Rpt; Ex. P6, Ans. to Int. #4; Ex. Pl,~~ 7-10, Ex. P26, 16; and Ex. P2, '25.

44 Ex. P21, C4 412 Dorrington Bv (location 1:09); R 412 Dorrington Bv (location 4:28); Ex. P27; Ex. P14, pp. 28­

31, 46-50, and 55; Ex. P6, Ans. to Int. #4.

45 Ex. P21, C7 412 Dorrington Bv; i7 412 Dorrington Bv; and Ex. P14, pp. 50-54.

46Id.
47 Ex. P14, pp. 33-35.
48 Ex. P3, pp. 134-135.

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to make the decision.T" Dir. Saunders was emphatic that had no authority to make

such a decision as he was afraid that he would lose his job as he was not elected like

the Sheriff. 50

Both Dir. Saunders and Mr. Bonano felt that Sheriff Normand and Constable

Civello saying that it was safe for the firefighters to respond was not sufficient for

them to order a response, even though civilians were fighting the fire with garden

hoses." Instead of ordering a response, they decided to go to the scene themselves.

Mr. Bonano was all the way by the Harvey Canals on the Westbank. 52 Dir.

Saunders saw that the wind did not make the conditions dangerous during the drive

to the fire, but still did not order a response during the 12 minute ride. 53 When they

arrive, they quickly realize it is safe and order a response to the fire." Mr. Bonano

and Dir. Saunders do not agree on whether they allowed the fire department to

respond to all fires on the entire Eastbank at that time. 55

According to Dr. Martin, over two hours passed between when he first

reported the fire and when the response arrived and at no time was the wind high. 56

A normal response would have prevented the house from being destroyed. 57 Within

a month after this fire, the Plan was revised so that the firefighters once again had

the authority to decide whether to respond to a fire or not. 58

Constable Civello reviewed the Plan and several of the depositions in this

case.'? The former fire chief offered very detailed opinions, which he discussed at

49 Ex. P32, p. 76.

50 Ex. P3, pp. 138 and 141-142.

51 Ex.P3,pp. 134-135, 154-177;Ex.P4, 126,128,131-132.

52 Id., p. 132.

53 Ex.P3,pp. 154-177.

54 Ex. P4, p. 143 and Ex. P3, p. 166.

55 Ex. P23, Ans to Int, #15; Ex. P24, Ans to Int, #15, Ex. P3, pp. 169-170 and 238-242.

56 Ex. P26, '11.

57 Ex. P2, '2.

58 Ex. P30, Jefferson Parish Fire Service Disaster Response Plan (9/2008) JP123-130 and Ex. P4, p. 189.
59 Ex. P2, '9.

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length in his supplemental affidavit that plaintiff-appellants introduced as exhibit P2.

He concluded that the decision to use the Plan "was criminal, willful, outrageous,

reckless, and flagrant misconduct.v'" Constable Civello described how a structure

fire is extremely dangerous because it can spread and start what is known as a

"conflagration." A conflagration is a large fire that spreads uncontrollably. Such

an event puts thousands of lives at risk. Not putting out a structure fire increases

the risk of a conflagration, increases the threat to lives, in particularly the lives of

firefighters."

The former fire chiefopined that removing the firefighters from their stations,

including two in Old Metairie that were designed specifically to withstand

hurricanes and not allowing them to decide whether it was safe or not based on local

conditions was "criminal, willful, outrageous, reckless, and flagrant misconduct."

Further, he believed that it was wrong to shut down fire service down for the entire

parish based entirely on wind speeds because they are too variable from place to

place. The decision to shut down fire service for the entire parish is a very extreme

thing to do and is never done in the ordinary course because of the risk of

conflagration. Such a big decision should have been made at the highest level with

the best information. The defendants' implementation of the Plan put this huge

decision in the hands of computers and incorrectly setup anemometers.f

Constable Civello further opined on the conduct of Mr. Bonano and Dir.

Saunders on September 1, 2008. The expert believes that it was "wilful

misconduct" for these two defendants to refuse order an immediate attack on this

fire once they knew that Sheriff Normand and the former fire chief were there and

60 Ex. P2, '21.

61 Id., "17-21.
62 Id., "10-16.

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said it was safe to respond.63 The former fire chief was clear that it was never even

close to being too dangerous to respond to this fire and that it was completely absurd

for the fire department not to respond. Had the Sheriffnot personally contacted Mr.

Bonano, a conflagration would have occurred and many people would have died."

The defendants did not, because they could not, object to Constable Civello's

ability to offer opinions in these areas/" The former fire chief reviewed this matter

and offered the opinions in his affidavits, without compensation, because he felt

"very strongly that what occurred regarding the Dorrington fire was reckless,

outrageous, and absurdly risked lives without any just cause.,,66

B. ACTION OF THE TRIAL COURT

After the original judge recused himself because of his relationship with

Constable Civello/" the case was reassigned to the Hon. Henry G. Sullivan, Jr.

Judge Sullivan heard defendants' summary judgment motion on July 17, 2013 and

granted it in open court. 68 The court signed a judgment and provided written

reasons for judgment." Judge Sullivan found that the defendants' conduct in using

the Plan was "reasonable" and the actions of the individual defendants were not

wilful misconduct, thus entitling them all to immunity under R.S. 9:2798.1 and

29:735. 70 The lower court did not address the laws pertaining to summary judgment

motions or Constable Civello's opinions in his written reasons." Plaintiffs appeal

this ruling.

63 Id., "23-24.
64 Id., '24-25.
65 Ex. PI and its exhibit; Ex. P2, '27; and Rec. p. 317.

66 Ex. P2, '28.

67 Rec. p. 249.

68 Rec. p. 327-328.

69 Exhibits 1 and 2; Rec. pp. 272 and 278.

70 Exhibit 2; Rec. p. 278.

71Id.

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 ASSIGNMENT OF ERRORS

1. The lower court did not accept as true and, frankly, wholly disregarded

Constable Civello's affidavit.

2. Judge Sullivan viewed the evidence as though a trial was before him, rather

than a summary judgment.

3. The district court did not give inferences of fact in favor of non-mover.

4. The lower court failed to recognize the genuine issues of fact that precluded

summary judgment.

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 ISSUES

1. How does an appellate court review a lower court's grant of summary judgment?

2. What is the appropriate way for a court to decide a summary judgment?

3. Can ajudge disregard the conclusions of an expert's opinions that have been admitted into

evidence?

4. Can an expert offer an opinion on an ultimate issue of fact?

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.

ARGUMENT

Summary Judgment

It is very well settled that appellate courts review summary judgments de

novo. 72 In Banks v. Parish ofJefferson, this Court noted:

Appellate courts review summary judgments de novo under the same

criteria that govern the district court's consideration of whether
summary judgment is appropriate. An appellate court must ask the
same questions as does the trial court in determining whether summary
judgment is appropriate: whether there is a genuine issue of material
fact remaining to be decided, and whether the appellant is entitled to
judgment as a matter of law."

A summary judgment is only appropriate where the pleadings, depositions,

answers to interrogatories, admissions on file, and affidavits show that there are no

genuine issues of material fact and that mover is entitled to judgment as a matter of

law. 74 The mover has the burden of affirmatively and clearly proving that there are

no material issues offact." A fact is material ifit is essential to the claimant's cause

of action under the applicable theory of recovery and without which the claimant

would not prevail." It is the applicable substantive law that determines whether a

particular fact in dispute is material. 77 Though summary judgment is favored, it

cannot be used as a substitute for trial and it is often "inappropriate for judicial

determination of subjective facts, such as motive, intent, good faith or knowledge

that call for credibility evaluations and the weighing of the testimony.v" Viewing

the evidence, particularly Constable Civello's affidavit, under these standards, the

72 State v. La. Land & Exploration Co. No. 2012-C-0884 (La., 2013); Judson v. Davis, 916 So.2d 1106 (La., 2005);

Banks v. Parish ofJefferson, 108 So.3d 1208 (La. App. 5th Cir., 2013); Cusimano v. Port Esplanade Condo. Ass'n

Inc., 55 So.3d 931 (La. App. 4th Cir., 2011).

73 Banks v. Parish ofJefferson, 108 So.3d 1208 (La. App., 2013), citing, Gray v. Am. Nat'l Prop. & Cas. Co., 07­
1670, p. 6 (La.2/26/08), 977 So.2d 839, 844.

74 La. C.C.P. art. 966(8).

75 La. C.C.P. art. 966(C)(2).

76 Smith v. Our Lady ofthe Lake Hospital, Inc., 639 So. 2d 730, 751 (La. 1994).

77Id.

78 S.J. v. Lafayette Parish Sch. Bd., 959 So.2d 884, 887 (La. 2007).

-19­
lower court should not have granted the summary judgment. Although Judge

Sullivan may have disagreed with Constable Civello, a reasonable jury may have

agreed with the former fire chief: Applying the correct rule, the lower court should

have denied the summary judgment and allowed this matter to proceed to trial.

Substantive Law

Judge Sullivan found the defendants were immune under R.S. 9:2798.1 and

29:735. Each of these statutes offers immunity under different circumstances and,

according to this Court's holdings, at different times."? It appears from his reasons

for judgment that the trial court may have applied 29:735 during the development of

the plan from 2006 through 2008, but prior to any storm threatening the area. 80 This

and other courts' holdings show that 29:735 does not apply to decisions made absent

the threat of an impending emergency.

Louisiana Revised Statutes 29:735 is part of the Homeland Security Act.

This Court has ruled that 29:735 "applies only when the activities complained of are

taken to address a discreet or specific condition or event." In Banks v. Parish of

Jefferson, homeowners sued the Parish for acting grossly negligent in constructing

a canal. The Parish won a summary judgment under 29:735 asserting that purpose

of the canal was to curtain the effects of hurricanes. After an extensive analysis of

the statutory language and legislative history of the entire body of the Homeland

Security Act, the court concluded that the intention ofthe act was to protect activities

taken in response to particular emergency."

The Third Circuit reached the same result analyzing §735 against a failure to

79 Banks v, Parish ofJefferson, 990 So.2d 26,30, (La. Ct. App, 5 Cir. 6/19/08), citing, Reed v. Employers Mut. Cas.
c«, 32,257 (La. App. 2 Cir. 9/22/99), 741 So.2d 1285, 1287,writs denied, 752 So.2d 864 (La.2000), citing, Monteville
v. Terrebonne Parish Consolidated Gov't, 567 So.2d 1097, 1101 (La.1990).

80 Rec. p, 278.

81 Banks at 34.

-20­
, ~

properly plan for hurricane. In Bordelon v. Gravity Drainage Dist. No. 4 of Ward

3 ofCalcasieu Parish,82 several homeowners sued a drainage district for failing to

have an appropriate plan in effect to operate pumps during a hurricane. Hurricane

Rita struck, the pumps did not operate, and the plaintiffs' homes flooded. The Third

Circuit cited the unpublished Fifth Circuit Opinion in Chicago Property Interests,

L.L. C v. Broussard's which is the case involving the infamous Doomsday Plan in

Jefferson of evacuating the pump operators. According to the Bordelon court, the

Fifth Circuit reversed because the immunity was not applicable for "the failure 'to

properly draft, implement, distribute, andlor review the 'doomsday policy,' which it

had been adopted many years prior to the hurricane. '" The Third Circuit adopted

this reasoning and held §735 inapplicable to the claims against the drainage district

for insufficient hurricane plans.

In the present case, the Haabs complain about the defendants' activities in two

separate time periods. The first, is the planning stage from March of 2006 until

Hurricane Gustav threatened. During this time, the defendants were under no

duress and they failed to devise an appropriate plan. The Plan was not intended for

any discreet or specific condition or event. Like the Doomsday Plan that caused

Katrina flooding or the drainage district hurricane pump operator plan, the Parish

and the individual defendants failed to properly draft, implement, distribute, andlor

review the Plan and its use of SCADA, which it had been adopted many years prior

to Gustav. Under Banks, Bordelon, and Chicago Property Interests, LLC, 29:735

is inapplicable to the Plan's and SCADA's shortcomings.

The discretionary immunity statute, 9:2798.1, is applicable at all times.

82 74 So.3d 766 (La. Ct. App. 3rd Cir. 10/5/11).

83 08-1210 (La. App. 5 Cir. 3/6/09) (unpublished grant of writ), writ denied, 09-758 (La. 5/22/09) 9 So.3d 150.

-21­
, ...

However, this immunity is not allowed for "acts or omissions which constitute

criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant

misconduct." 84 The former fire chief, whose credentials and methods were

unquestioned, reviewed this matter in detail, and concluded that the defendants' use

ofthe Plan was criminal, outrageous, reckless, and flagrant misconduct. Given this

evidence, the only way for Judge Sullivan to grant the summary judgment was to

disregard Constable Civello. That is not appropriate in a summary judgment

proceeding.

If specialized knowledge can aid the trier of fact, a witnessed qualified as an

expert by knowledge, skill, experience, training, or education may testify in the form

of an opinion. 85 Expert witnesses are allowed to offer opinions on ultimate issues

of fact.86 There can be no serious doubt that Constable Civello is qualified to offer

expert testimony. He has decades of fire fighting experience, extensive education,

years of experience teaching fire science, and prior approval of courts to testify as

an expert. His field of expertise, fire science, certainly encompasses making plans

for fire departments in anticipation of hurricanes.

After pointing out its numerous failings, Constable Civello concluded that the

Plan put Jefferson Parish at significant risk ofa conflagration, which would result in

enormous loss oflife, as well as tremendous property damage. Because ofthis risk,

the decision to use the Plan was "criminal, willful, outrageous, reckless, and flagrant

misconduct." Although the former fire chiefs affidavit is sufficient by itself, the

Sheriff cursing profusely that the Fire Department's failure to respond to this fire

was "ridiculous" helps characterize the actions as willful, outrageous, reckless, and

84 La. Rev. Stats, 9:2798. 1(C)(2).

85 La. Code of Evid. Art. 702.

86 La. Code ofEvid. Art. 704.

-22­
, ,~

flagrant misconduct.

Cases show that this evidence is sufficient to create a genuine issue ofmaterial

fact that preclude summary judgment. In Brown v. ANA Ins. Group." an appeals

court upheld a trial court's finding that an insurance commissioner's failure to

supervise investment advisers that he appointed to manage an insolvent insurer was

excluded under the exceptions to discretionary immunity. Likewise, in Hawkins v.

State, Dept. of Health and Human Resources,88 a lower court ruling that a state

agency's failure to supervise and train its employees fell into the exceptions to

9:2798.1 (C)(2).

Mr. Bonano's, Dir. Saunders's, Mr. Padgett's, and the Parish's action were

far more egregious that just failing to supervise and train investors and employees.

Their Plan took discretion away from the firefighters who were the best suited to

decide whether they should respond or not. They moved these firefighters away

from where they could assess the conditions and would not allow them to even drive

to the areas. They enslaved the fire service for half of a million people to

anemometers that were supposed to be reading sustained winds, but did not bother

to setup the anemometers to show sustained winds. As a result, the parish had able-

bodied, well-equipped, and well-trained firefighters locked up in shelters, begging

to respond to this fire, when it was so safe for them to actually respond a 75-year old

lady was fighting the fire with a garden hose. The defendants' foolish Plan put

thousands of lives at risk for no reason whatsoever.

Whether the foolishness of this Plan rose to the level of criminal, willful,

87 965 So.2d 902, 917,2006-0626 (La.App. 1 Cir. 7/18/07),20 (La.App. 1 Cir.,2007), rev'd on other grounds by 994

So.2d 1265,2007-2116 (La. 10/14/08), 17 (La.,2008).

88 543 So.2d 1052, 1055 (La. App. 4 th Cir., 1989).

-23­
. '"

outrageous, reckless, and flagrant misconduct is a question offact. It is a legal error

to ignore Constable Civello's conclusion about the use of this Plan. The Louisiana

Supreme Court succinctly held in Independent Fire Ins. Co. v. Sunbeam Corp., that

automatically excluding expert opinion evidence at the summary judgment stage is

not allowed. 89 The high court reinforced several principals, 1) always assume the

affiants are credible, 2) focus on the principals and methodologies, not on the

conclusions, 3) draw inferences of fact in favor of the party opposing the motion,

and 4), most importantly, "summary judgments deprive the litigants of the

opportunity to present their evidence to a jury and should be granted only when the

evidence presented at the motion for summary judgment establishes that there is no

genuine issue of material fact in dispute.T"

The defendants did not object to the admission of Constable Civello's

affidavits and Judge Sullivan admitted them into evidence at the hearing." Judge

Sullivan did not write anything suggesting that he thought poorly of Constable

Civello's principals or methodologies.F The former fire chiefs credentials to offer

his opinions are impeccable. Several courts have allowed him to offer such

opinions. His review the facts ofthis matter and his experiences that serve the basis

of his opinion are thoroughly shown ill the affidavits. Constable Civello's

conclusions are well supported. The lower court admitted these conclusions into

evidence, but then apparently ignored them entirely. This is squarely prohibited

under Independent Fire Ins. Co.

Likewise, the expert's conclusions regarding the actions ofthe individuals on

89 755 So.2d 226 (La., 2000).

90Id.
91 Rec. p. 317.

92 Rec. p. 278.

-24­
• ,t ,

September 1, 2008 also create issues of fact. R.S. 9:735 applies to actions taken

during an emergency, which existed on that date. But this immunity does not apply

to willful misconduct of individuals. Mr. Bonano and Dir. Saunders knew about

the fire, knew about civilians' garden hose fighting, and knew the Sheriff and

Constable Civello said it was safe to respond, but did not order a response. The

former fire chief opined, without objection, that this was wilful misconduct. This

warrants a trial on this issue for the reasons stated above.

CONCLUSION

In summary judgment proceedings, courts must resolve all credibility disputes

in favor ofthe non-mover and make all inferences of fact in favor ofthe non-mover.

The 32 exhibits admitted exhibits contain sufficient evidence, when viewed with

these principals in mind, which prohibit summary judgment.

Courts are not allowed to automatically disregard expert affidavits unless the

opinions are inadmissible. Judge Sullivan admitted Constable Civello's affidavits,

but then disregarded it. This is specifically prohibited under Independent Fire Ins.

Co. This is a legal error that this Court should correct. Accordingly, plaintiff-

appellees ask the Court to reverse the lower court's granting the summary judgment.

Respectfully Submitted:

Attorneys for Monica Haab wife

of/and Garrett Haab, et ale

~
A. VENEZIA (#2396
Venezia & Associates (APLC)
757 St. Charles Avenue, Suite 303
New Orleans, Louisiana 70130
(504) 486-3910 voice
(504) 486-3913 fax
iohn@venezialaw.net

-25­
, ~r r

CERTIFICATE

I certify that my office emailed the foregoing to all counsel of record on

January 27, 2014.

~~

-26­
,. ...

j'/~llllfIlliilll lil il l l ~I~ i

" I

730-/3 @
1 "1 1 "1 1I1~ 11111 1/111 1I1!llIllIlIllffflliffl '
,

(304) Notice of Judgment: ISSUE NOTICE OF FINAL JUDGMENT; 130724-0950-4

24TH JUDICIAL DISTRICT COURT

PARISH OF JEFFERSON
STATE OF LOUISIANA

': MONICA HAAB ET AL

"'. versus Case: 677-006 Div: "M"
EAST BANK CONSOLIDATED SPECIAL SERVICE FIRE D 2 PARISH OF JEFFERSON
PROTECTION DISTRICT OF JEFFERSON PARISH ET AL

To: MONICA HAAB

ETAL
through
GOVERNMENT
JOHN A. VENEZIA
757 ST CHARLES AVE STE 301
NEW ORLEANS LA 70130

PARISH OF JEFFERSON

You are hereby notified that on the 23rd day of July, 2013 , judgment was rendered in the above
numbered and entitled matter, a certified copy of said judgment being annexed hereto and made
a part hereof. (" _ / \~
'. ' '-' / //~

---
Issued by the Clerk Of Court on the 24tH day,of-july, '2013. , -J

/s/ Marilyn Guidry .

Marilyn GU jdry ~ : D~eut¥ Clerk of Court for
Jon A. Gegenheimer,
. \ ' ..Clerk
,
Of Court ..
_ _ _ _ _ _ _ _ _ _SERVICE INFORMATION_
· _
,
(304) Notice of Judgment: ISSUE NOTICE OF FINAL JUDGMENT; 130724-0950-4

Received: _ Served: _ Returned: _

Service was made:

Personal _ Domicilary _

unable to serve:
'. Not at this address _ Numerous attempts times
Vacant Received too late to serve
Moved _ No longer works at this address
No such address Need apartment I building number
Other _

Service: $ _ Mileage : $ _ Total : $. _

Completed by: ----=-----,-=-= # _

Deputy Sheriff
Parish of: _

EXHIBIT

I l
.". <4 ~.

I • )

ci

24TH JUDICIAL DISTRICTCOURTFOR THE PARISH OF JEFFERSON

STATE OF LOUISIANA
NO. 677-006 DMSION"M"
MONICA HAAB, ET.AL.
VERSUS

FINAL JUDGMENT

This matter came for hearing on July 17, 2013 on the Motion for Summary

Judgment filed on behalf of Defendants, the Parish of Jefferson, et ale

APPEARING FOR RECORD:

JOHN VENEZIA, on behalf of Plaintiffs, Monica Haab, et al.;

CRAIG R. WATSON, on behalf of Defendants, East Bank Consolidated Special

Service Fire Protection District of Jefferson Parish, Louisiana, the Parish of
Jefferson, Jefferson Parish Department of Homeland Security, Jefferson Parish
Department of Emergency Management, David Saunders, Deana Bonano,
Kenneth L. Padgett,Sr., and Michael Joseph.

Considering the record, evidence, law, and arguments of counsel, and for the
reasons orally assigned in open Court;

IT IS HEREBY ORDERED that the Motion for Summary Judgment filed on

behalf of Defendants is GRANTED, and that Plaintiffs' claims are hereby dismissed,

with prejudice, and at Plaintiffs' cost.

Signed on the <JJJtd. day of Q=4~ , 2013 in Gretna,

Louisiana.

S/ l~r;-I'-taY G ~UL.!...l'//..::. Jl\.

Honorable Henry G. Sullivan, Jr.

Judge, Division "M"
PLEASE SERVE:

Plaintiffs Monica Haab, et al.,

Through their attorney of record:

John A. Venezia

Venezia & Associates(APLC)

757St. Charles Ave., Suite 301

New Orleans, LA 70130

~
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•

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Respectfully submitted:
I/)
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f • t,.,...<::..L..._•.• ..-;'" _r' •.• _ ,.

STEPHEN M. PIZZO (#10801) - - (,: R.iJ.le\Q,s/Certificate of Service

CRAIG R. WATSON (#29473) I certify that I circulated this proposed
3421 N. Causeway Blvd., Suite 900 judgment/order to counsel for all parties
Metairie, Louisiana 70002 and/or to self-represented parties by email
Telephone: (504) 831-4091 on July 19, 2013; the language was approved
Facsimile: (504) 849-3057 by plaintiffs' counsel.
E-mail: c\,vatsoll(iv bltle\villianlS.C0111
Counsel/or Defendants

p.~ ~rl< (]f~ corv (IF ·rl'l~ (}l~ tt~lNAL

()N..-l;lI~J~ IN 'rIlL\) ()f;J·I(~l:.

[!(iL:rri{J~!LeMv

24"r1L J{}()f(IIAI, I)IS'rRI(~T COURT

PAHISH C)F JEFFERSON. LA,
." ,

11111111111111111 11/1111111 Illll 11111 1111I 11111111 1111111 \\111111\\ 11\1\ \11\111111 \\111111\\ \11\1\11\\ II11I IIII \11\

(305) Notice of Signing of judgment in Compliance with Article 1913 of The

Louisiana Code of Civil Procedure : ISSUE NOTICES OF SIGNING WRITTEN 130822-5797-6
REASONS FOR JUDGMENT ON THE PARISH OF JEFFERSON 'S MOTION
FOR SUMMARY JUDGMENT;

24TH JUDICIAL DISTRICT COURT

PARISH OF JEFFERSON
STATE OF LOUISIANA

MONICA HAAS, GARRET HAAS , AlDEN HAAS, AMELIA

HAAS, SOPHIE HAAB
versus
EAST SANK CONSOLIDATED SPECIAL SERVICE FIRE
PROTECTION DISTRICT OF JEFFERSON PARISH,
Case: 677-006 Div: "M"
LOUISIANA, PARISH OF JEFFERSON, JEFFERSON
P 1 MONICA HAAS
PARISH DEPARTMENT OF HOMELAND SECURITY,
JEFFERSON PARISH DEPARTMENT OF EMERGENCY
MANAGEMENT, DAVID SAUNDERS, DEANO BONANO,
KENNETH L PADGETT SR, M JOSEPH, ABC
INSURANCE COMPANY

To: JOHN A. VENEZIA

757 ST CHARLES AVENUE
SUITE 303
NEW ORLEANS LA 70130

PARISH OF JEFFERSON

You are hereby notified that WRITTEN REASONS FOR JUDGMENT was signed on
the 22nd day of August, 2013, in the above entitled and numbered cause, and the attached is
a true copy of said WRITTEN REASONS FOR JUDGMENT.

Issued by the Clerk Of Court on the 22nd day of August, 2013.

Mailed by the Clerk Of Court on the 23rd day of August, 2013.

lsI Colinda H Quarrella

Colinda H Quarrella, Deputy Clerk of Court for
Jon A. Gegenheimer, Clerk Of Court

EXHIBIT

I 2
~ f f l,

TWENTY-FOURTH JUDICIAL DISTRICT COURT

PARISH OF JEFFERSON

STATE OF LOUISIANA

No: 677-006 DIVISION: M

~l MONICA HAAB, ET AL.

vs.

EAST BANK CONSOLIDATED SPECIAL SERVICE FIRE PROTECTION

DISTRICT OF JEFFERSON PARISH, LOUISIANA, Et Al

4C'.

FILED: Q,~ CX~, ~O/3 '~tv~~

DEPUTY CLERK

WRITTEN REASoNS FOR JUDGMENT

On July 17,2013, this mattercamebefore the Courton the Parish of Jefferson's Motionfor

Summary Judgment. The Court rendered judgment in open court, GRANTING the Motion for

Summary Judgment. The written judgment was signed on July 23, 2013. On July 30, 2013,

Plaintiff's filed a Requestfor Findingsof Factand Reasons for Judgment.

Plaintiffsfiled suit againstthe Jefferson ParishFire Department and certainparish officials

and employees for fire damage to their personal belongings that occurred during HurricaneGustav.

Plaintiffs claim that the fire department is liablefor failing to properly draft a Fire ServiceDisaster

Response Plan, and for failing to respond to calls for fire service at their Old Metairie home on

September 1, 2008.

Jefferson Parish filed for summary judgment on two grounds. First, the Parish claims that

the Louisiana Homeland Security and Emergency Assistance and Disaster Act provides immunity

to municipalities and their employees who are engaged in emergency preparedness activities.

Second, the Parish claims that the Discretionary Immunity Doctrine provides immunity for any

alleged negligence in connection with drafting the Fire Service Disaster Response Plan.

I. FACTS

Hurricane Gustav struck the Greater New Orleans area on September 1, 2008. Prior to the

Page 1 of 9
• '1 "

No: 677-006 DIVISION: M

storm, on August 27, 2008, Governor Bobby Jindal declared a state of emergency for the State of

Louisiana. On August 30, 2008, Jefferson Parish declared a state of emergency. On August 31,

2008, Jefferson Parish ordered a mandatory evacuation for East Bank residents. At 4:30pm on

August 31, 2008, Jefferson Parish residentswere informedthat a 24-hour curfew would be enforced

throughout the parish beginningat 9pm. Residents were instructednot to leave their property until

the curfew was lifted, and that they should expect no govenunent, law. fire. or Emergency Medical

services during thattimeperiod.

During an event such as a hurricane, all parish public safety departments have in place a

disasterresponse plan. The JeffersonParish Fire ServiceDisaster Response Plan in place at the time

of Hurricane Gustav was drafted in 2006. ThePlanwasdesigned "to establish a unified command

response by theJefferson ParishFireService to natural andmanmadedisasters." Plaintiff'sExhibit

5, p.l. In the hours prior to a hurricane making landfall, firefighters would transport equipment to

a safe location, ensure that adequate manpower would be available during the storm, and aid in

coordinatingpublicly assisted evacuations- all while continuingto provide the parish with standard

Ute services. Plaintiffs Exhibit 5, pp. 3-5. Fire department personnel would continue to provide

standard and emergency services until such timeas conditions became dangerous to the safetyand

lives offire personnel, i.e, once theparish begantoexperience sustained winds ofSOmph. Plaintiff's

Exhibit5, p.S. At that timet fire fighters were to remain sheltered until notified by the Emergency

Management Director that sustained winds had fallen below SOmph.Plaintiff's Exhibit 5, p.5.

At approximately 5:30am on September 1, 2008, Jefferson Parish Director of Emergency

Management, Kenneth L. Padgett, informed all public safety departments that winds had reached

SOmph and instructed the departments to implement their disaster response plans. At 8:50am, a

structure fire was reported at the house Plaintiffs' were renting in Old Metairie. Plaintiffs had

evacuated to Mississippi. While they were gone, a tree branch had fallen and hit the exterior

electrical box. SheriffNewell Normand arrived on the scene, as well as Constable Dan Civello, a

former Fire Department Chief who lived in the neighborhood. The Sheriff and Constable Civello

madenumerouscalls requesting fire service. No firefighters were deployed becausethe FireService

DisasterResponsePlan did not allow it. The Sheriffandbystandersattemptedto control/contain the

fire with garden hoses.

Page 2 of 9
·

No: 677-006 DMSION:M

At approximately 9:25am, the Director of Jefferson Parish Homeland Security, Deano

Bonano, and Interim Director of the Jefferson Parish East Bank Consolidated Fire Department,

David Saunders, arrived on the scene to assess the situation. As Director of Homeland Security,

Bonano had the authority to deviate from the Fire Service Disaster Response Plan based on the

circumstances. Plaintiff' s Exhibit 4, p. 169. Bonanofeltthat the winds were declining, and allowed

Saunders to send Engine 118 to respond to the fire. Plaintiffs Exhibit 3, p. 150 and Plaintiffs

Exhibit 4, p 152

When Engine 118arrived on the sceneat 9:43am,Saundersdirected firefightersnot to enter

the residence due to the high winds, compromised structure, and frequent sound of exploding fire

and ammunition. Plaintiffs Exhibit 4, P 150. The fire fighters commenced an exterior attack only.

The fire was extinguished at approx 11 :42am.

II. LAW ANDANALVSIS

A. LOUISIANA HOMELAND SECURITY AND EMERGENCY ASSISTANCE

AND DISASTER ACT

The LouisianaHomelandSecurityand Emergency Assistanceand DisasterAct was enacted

to ensure that the State and its political subdivisions are adequately prepared to deal with

emergenciesand disasters and generallyto preservethe lives and property ofthe people ofthe state

of Louisiana. La. R.S. § 29:722. The Act provides qualified immunity for certain "emergency

preparedness" activities:

Neither thestatenoranypolitical subdivision thereof, nor otheragencies, nor,except

in case of willfulmisconduct,the agents' employees or representativesof any ofthem
engaged in any homeland security and emergency preparedness activities, while
complying with or attempting to comply with this Chapter or any rule or regulation
promulgated pursuant to the provisions of this Chapter shall be liable for the death
of or any injury to persons or damage to propertyas a result of such activity.

La. R.S. § 29:735(A)(1). "Emergency preparedness" is defined by the Act as " the mitigation of,

preparationfort responseto, andthe recoveryfrom emergencies or disasters." La. R.S. § 29:723(4).

Having reviewed the Jefferson Parish Fire ServiceDisaster Response Plan, the Court finds

that all activities outlined therein fall within the Act's definition of "emergency preparedness"

activities. That Plan was implemented and adheredto in response to Hurricane Gustav while both

the state and the parish were under declared states of emergency. Thus, as a matter of law, any

actions taken pursuant to the Plan, including not responding to a fire while sustained winds were in

Page 3 of 9
 ,# 'J ,

No: 677-006 DIVISION: M

excess of 50mph, are entitledto immunity.

Plaintiffs argue that although the Parish may be entitled to immunity, individual employees

are not entitled to immunity for acts of willful misconduct. Plaintiffs suggest that Deano Bonano,

Kenneth Padgett, and David Saunders engaged in willful misconduct in deciding to shut down fire

services; in ignoring alternate sources of information concerning wind speed; and in lying about

wind speed and sounds of exploding ammunition comingfrom inside the Old Metairie residence.

First, there is no evidence that anyone engaged in willful misconduct in ignoring alternate

sources of information concerning wind speeds. The Planrelied on wind speeds as reported by the

Emergency Management Department, and it wastheDepartment's practice to relyon winds speeds

as reported by the Supervisory Control and Data Acquisition System (USCADA") - a network of

water level sensors and wind measuring devices located in Jefferson Parish. Plaintiff's Exhibit 4,

p. 54. SCADA had been usedby the parishto determine wind speeds since 1995. Plaintiff's Exhibit

4, p. 66. Othersources, such as the National WeatherServiceand WeatherBug, were not relied upon

because they were not specific to Jefferson Parish, and because internet connectivity was not

guaranteed during a storm. Plaintiffs Exhibit 4, p. 59-60.

Also, there is no evidence that anyone lied about wind speeds during Hurricane Gustav.

Plaintifrs Exhibit 29 reflects wind speeds as reported by SCADA on September 1, 2008. That

exhibit reveals that thewindspeeddidinfactreach SOmph between the hours of3 :OOam and 1:OOpm

on September 1, 2008. Whetheror not that data was interpreted correctlyby the SCADAoperator

(reporting gusts instead of sustained winds) is an issue of negligence for which the parish has

immunity during the declared state of emergency.

The only role Keith Padgett played in thiscasewasinformingpublic safetydepartments that

winds had reached 50rnph. Padgett was not involved in determining wind speed. A SCADA

operator in the Emergency Management Department monitors SCADA readings and reports to the

Director of Emergency Management, i.e. Padgett. Plaintiffs Exhibit 4, p. SO. The Director "then

instructs everybody to followtheir planas to whattheir specificplan saysto do at the point in time."

Plaintiff's Exhibit 4, p. 53. There is absolutely no evidence indicating that Keith Padgett engaged

in any sort of willful misconductin reporting wind speeds to the public safety departments.

David Saunders, the Interim Director of the Jefferson Parish East Bank Consolidated Fire

Page 4 of 9

------------------------------------------~-~ _-------~ .. _. ---~~~----

~ ·l ~

No: 677-006 DIVISION: M

Department, was absolutely beholden to the Fire Service Disaster Response Plan. He had no

discretion or authority to shut down fire services. The Plan mandated thatfire services cease once

sustained winds reached 50mph. When Keith Padgett reported to himthat sustained winds wereat

SOmph, Saundershad no choice but to implement the Plan. Plaintiff's Exhibit 3, pp. 61-62. There

is no evidence indicating that Saunders engaged in any willful misconduct in shutting down fire

services. Moreover, Saunders testified: "There was not an intent to anyone for loss of property,or

endangeranybody, from the fire department - from our perspective, at all. But my main source is

to protect the safety of my folks, and I've got to go by on the information that I'm given, and to

respond accordingly, react accordingly." Plaintiffs Exhibit 4, p. 176.

Similarly, Deano Bonano did not make the decisionto shut down fire services. Again, the

Plan mandated that fire services cease once sustained winds reached 50mph. As Director of

Jefferson Parish Homeland Security, Bonano was theonlyperson with authority to deviate from the J

Plan, and he did so once he arrived at the scene and had the opportunity to personally assess the

situation. Plaintiff's Exhibit4, p. 169. It would beunreasonable to expect Bonano to deviate from

the plan beforeit was even implemented. See, Plaintiff's Exhibit 4, p. 52.

Plaintiffs suggest that either Dean Bonano or Dave Sauders lied about hearing exploding

ammunitioninside the Old Metairie residence to preventfire fightersfrom enteringthe home. The

affidavit of former fire chief,Constable DanCiveIlo, statesthat he was on the scene and that he did

not hear any exploding ammunition. Plaintiffs Exhibit 2, 1 1. Civello also stated that "[p]opping

sounds are quite normal during structurefires, and are never a reason to stop fighting a fire, even in

the interior of a structure." Plaintiff's Exhibit 2, .~ 1. The Court notes that Dan Civello no longer

works forthefiredepartment, was notinvolved in drafting the FireService Disaster Response Plan,

and did not know the details of the plan. Plaintiff's Exhibit 4, p.134-13S.

Regardless ofwhether anyone heard exploding ammunition inside the Old Metairie home,

Banana testified that fire fighters were also held back because the structural integrity of the house

was in question due to the wind conditions. Plaintiffs Exhibit 4, p. 139. The wind "makes it

dangerous to fight the fire on the inside of a structure ... it's likely to collapse a lot easier under

wind conditions than non..wind conditions. There is no external stress factors on it without the

wind."Plaintiffs Exhibit4, p. 139. Moreover, no liveswereat risk, onlyproperty. Bonanotestified

Page 5 of 9
 ,.,. ..
).,

.... ...

No: 677·006 DIVISION: M

that he would not "place the lives ofa firefighter at risk over property on any day." Plaintiff's Exhibit

4, p. 204. Given the testimony of Bonano, the Court finds that there was no willful misconduct in

withholding an interior attack on the fire.

For all these reasons, the Court finds that Jefferson Parish, Deano Bonano, David Saunders

and Keith Padgett are all entitled to immunity under the Homeland Security Act for any acts taken

or not taken on September 1, 2008, during the declared state of emergency.

B. DISCRETIONARY IMMUNITY DOCTRINE

Plaintiffs argue that the immunity provided by the Homeland Security Act does not apply

to the failure to properly draft, implement, distribute, and/or review a disaster response plan which

is adopted prior to the particular emergency. Bordelon v, Gravity Drainage Dist. No.4 ofWard 3

of Calcasieu Parish, 2010-1318 (La. App . 3 Cir. 10/5111),74 So. 3d 766, 771 writ denied,

2011-2438 (La. 1/13/12), 77 So. 3d 971, discussing, Chicago Property Interests, L.L.e. v,

Broussard, 08-1210 (La.App. 5 Cir. 3/6/09), writ denied, 09-758 (La.5/22/09), 9 So.3d 150.

Jefferson Parish seeks summary judgment for any negligence in drafting the Fire Service

Disaster Response Plan under the Discretionary Immunity Doctrine. The Discretionary Immunity

Doctrine provides public entities and their officers and employees with immunity for the "exercise

or performance or the failure to exercise or perform their policymaking or discretionary acts when

such acts are within the course and scope oftheir lawful powers and duties." La. R.S. 9:2798.1. The

Supreme Court defines "discretionary acts" as conduct that:

involves an element ofjudgment or choice. Thus, discretionary immunity will not

apply when a specific course of action is prescribed by statute, regulation, or policy,
as the employee has no rightful option but to adhere to the directive. On the other
hand, when discretion is involved, the court must then determine whether that
discretion is the kind shielded by the exception: one grounded in social, economic,
or political activity.

Cormier v. T.H.E. Ins. Co., 98·2208 (La. 9/8/99), 745 So. 2d 1,6-7. Immunity is not available for

"acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous,

reckless, or flagrant misconduct." La. R.S. 9:2798.1 .

This Court finds that drafting a Fire Service Disaster Response Plan falls within the purview

of the discretionary immunity doctrine. Fire Department chiefs and volunteer presidents met

regularly following Hurricane Katrina to determine how to properly respond during disasters and to

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protect the lives of firefighters. Plaintiffs Exhibit 4, p. 44. There is no evidence that the department

was required to draft the plan by statute or legislation.

Plaintiffs claim that the Parish is exempt from immunity because the plan constituted willful ,

outrageous, reckless and flagrant misconduct in that it failed to give local fire chiefs the discretion

to respond to calls based on their personal assessment ofconditions; it allowed a low level employee

to interpret SCADA data as opposed to a meteorologist; and it relied only on data reported by

SCADA. Plaintiffs claim that it was reckless to designate one individual to make parish wide

decisions based on wind speeds reported by SCADA, instead oftrusting the experience oflocal fire

chiefs who were better able to assess conditions in their local neighborhoods. Plaintiffs also assert

that SCADA sensors are not set up to measure sustained wind speeds - only actual wind speeds; and

that the individual sensors are all located near water, and are 5-] Oftoffthe ground, which means the

sensors record much higher winds speeds than those occurring in suburban neighborhoods. Plaintiffs

claim that Jefferson Parish should have hired someone experienced in analyzing weather conditions,

such as a meteorologist, to review and interpret SCADA data.

Jefferson Parish Fire Department chiefs and volunteer presidents met regularly following

Hurricane Katrina to develop the Fire Service Disaster Response Plan. Plaintiff's Exhibit 4, p. 41.

In preparing that plan, the fire chiefs and presidents relied on a study conducted by the Miami-Dade

Fire Department for a class at the National Fire Academy. Plaintiff's Exhibit 4, p. 46-47 . They

chose to rely on the study because it was the only study they found to be "the most detailed study

[they'd] seen thus far specific to fire services. There were other wind studies that were just relative

to human beings, but this was the only one [they] could find specific to fire departments." Plaintiffs

Exhibit 4, p. 46. Based on that study, all fire chiefs and presidents voted to stop responding to calls

once winds reached 50mph. Plaintiffs Exhibit 4, p. 41. " [T[he 50 miles an hour was discussed

simply because at 50 miles an hour sustained winds, you're dealing with debris flying around,

streams are not being effective in firefighting, as far as reach goes, and things ofthis nature. So, that

number came about as that - on that discussions. It's just too much, you know, blown around and

what not. So, we look at the that as a good number, not to respond any longer." Plaintiffs Exhibit

3, p. 53. The Court finds that the decision to shut down fire services once sustained winds reached

50mph was reasonable.

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No: 677-006 DIVISION: M

As discussed earlier, SCADA had been used to determine wind speeds since 1995. Plaintiff's

Exhibit 4, p. 66. "It was a practice by emergency management to use SCADA, again, not just for

wind speeds, but for all our important criteria. That's why we developed it." Plaintiffs Exhibit 4,

p.54. Other sources, such as the National Weather Service and WeatherBug, were not specific to

Jefferson Parish, and internet connectivity was not guaranteed during a storm. Plaintiff's Exhibit

4, p. 59-60 ... [A]s long as we have electricity, we can maintain SCADA." Plaintiff's Exhibit 4, p.

59-60. Clearly, the decision to rely upon SCADA data had been made long before the Fire

Department drafted the disaster response plan in place at the time of Hurricane Gustav.

Jason Phillips was responsible for monitoring the data reported by SCADA. At the time of

Hurricane Gustav, he had approximately ten years of experience working with SCADA. Plaintifrs

Exhibit 7, p. 12-13. He had an intimate working knowledge of all the hardware and software

comprising the system. See, Plaintiff's Exhibit 7. He was in charge of"pretty much every facet of

the SCADA division." Plaintiff's Exhibit 7, p. 14. He programmed the logic controllers that were

out in the field, and was responsible for maintaining the software that reports the data collected.

Plaintiffs Exhibit 7, p. 14.

Phillips testified that although the system does not itselfmeasure sustained wind speeds, that

information can be deduced from the actual wind speeds reported at 60-90 second intervals.

Plaintiffs Exhibit 7, pp. 64, 105-06, 154. Although Phillips could not remember the specific request

made during Hurricane Gustav, typically the Director of Emergency Management would request a

report of sustained winds speeds over specific period of time, perhaps 15 or 30 minutes. Plaintiff's

Exhibit 7, pp. 175,189. Phillips would then calculate the sustained winds by averaging the actual

wind speeds reported over that specific time period. Plaintiff's Exhibit 7, p. 189. Phillips had

calculated sustained wind speeds during prior storms. Plaintiff's Exhibit 7, p. 168-175. Given

Phillips experience with the SCADA system, and his ability to calculate sustained wind speeds based

on the parameters given to him by the Director of Emergency Management, the Court finds that it

was not unreasonable to have the SCADA operator monitor and calculate the sustained wind speeds

as opposed to a meteorologist.

The Court finds no evidence that drafting the Fire Service Disaster Response Plan in place

at the time of Hurricane Gustav was negligent, much less willful, outrageous, reckless or flagrant

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No: 677-006 DIVISION: M

misconduct. Nevertheless, the Court finds that Jefferson Parish, its officers and employees, are all

entitled to immunity for drafting the plan under the Discretionary Immunity Doctrine .

Given this Court's findings, Jefferson Parish's Motion for Summary Judgment was

GRANTED, dismissing Plaintiffs claims with prejudice.

Gretna, Louisiana, this,J.J. ,1~ay of a~, 2013.

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