Fault Not Attributable to US Army Corps of Engineers in Hurricane Katrina Death: A Lesson in Apportionment


By: Cheryl H. Shaw
82-year old Frances Robinette died in a New Orleans nursing home four days after Hurricane Katrina struck. Robinette had been a resident of the facility for two years and suffered a host of medical issues including congestive heart failure and dementia.  Shortly after Katrina made landfall, water entered the nursing home and the facility lost all electrical power. Temperatures soared to over 100 degrees with no running water or working toilets. Staff moved residents to the second floor and attempted to keep them cool with damp washcloths and cardboard fans, but efforts were unsuccessful. Robinette died of heat stroke and dehydration.
Robinette’s family filed a wrongful death action against the nursing home, alleging the facility violated a mandatory evacuation plan by leaving Robinette and more than 100 other residents behind in “extreme conditions.” Following a two-week trial, the jury found the nursing home 100% at fault for Robinette’s death and awarded the family over $1.3M in damages.
On appeal, the nursing home argued the US Army Corps of Engineers (who was not named as a defendant in the lawsuit) should have been listed on the verdict form and the jury should have been allowed to assign a percentage of fault to the Corps for negligent design, construction, and maintenance of the city’s hurricane protection system. It was wrong, the nursing home argued, for the trial court to exclude evidence of the Corps’ alleged negligence and to refuse to allow the jury to assign fault to the Corps for the role it played in Robinette’s death.
Noting Louisiana’s pure comparative fault system creates a mandatory right to quantify the fault of “all persons” who caused or contributed to a plaintiff’s damages, the Court agreed with the nursing home that evidence of the Corps’ alleged fault should have been admitted at trial. However, the Court went on affirm the jury’s verdict, concluding that any negligence by the Corps was not the “cause in fact” of Robinette’s death. The Court reasoned that Robinette did not die because storm water flooded the building, but because of sweltering heat caused by the nursing home’s failure to evacuate and the inadequacy of its back-up generators: “We cannot say that but for the conduct of the Corps of Engineers, Mrs. Robinette would not have died from heat stroke on the second floor of the [nursing home] five days after the City of New Orleans had issued a mandatory evacuation order.” Robinette v. Lafon Nursing Facility of the Holy Family, 223 So. 3d 68 (2017).
Georgia’s apportionment rules are different from Louisiana’s and do not contemplate a “cause in fact” standard, but Robinette serves as a good reminder of some basic principles. In Georgia, a notice of non-party fault must be filed at least 120 days before trial and state why the non-party is believed to be at fault. O.C.G.A. § 51-12-33.  Additionally, a defendant seeking to apportion fault to a non-party must be prepared to shoulder the burden of proof regarding the applicable standard of care. If the non-party is a professional (like an architect or an engineer), expert testimony may be required. See Union Carbide Corp. v. Fields, 315 Ga. App. 554 (2012).
Apportionment is an important tool in a defendant’s arsenal.  Every percentage of fault the jury attributes to another entity is a percentage of damages you do not have to pay. FMG’s team of experienced Construction Law litigators can help you in defending—and avoiding—liability claims.  If you have questions or would like more information, contact Cheryl H. Shaw at [email protected].