Preview:

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 36 FROM : CLERK OF SUPREME COURT OF LOUISIANA The Opinions handed down on the 21st day of May, 2008, are as follows:

BY CALOGERO, C.J.: 2007-CA-2432 MELVIN J. BURMASTER v. PLAQUEMINES PARISH GOVERNMENT (Parish of Plaquemines) The district court correctly found that La. Rev. Stat. 9:2800(H), adopted by 2006 La. Act 545, applies to the causes of action under La. Civ. Code arts. 2317 and 2317.1 asserted in this case. The district court also correctly found that La. Rev. Stat. 9:2800(H), adopted by 2006 La. Act 545, is unconstitutional if made applicable to the pending, accrued, vested causes of action asserted by plaintiff and the class he represents. Accordingly, we affirm the district court judgment denying the PPG's exception of no cause of action. The case is remanded to the district court for further proceedings. DENIAL OF EXCEPTION OF NO CAUSE OF ACTION AFFIRMED; CASE REMANDED. VICTORY, J., dissents and assigns reasons. TRAYLOR, J., dissents and assigns reasons.

5/21/08

SUPREME COURT OF LOUISIANA No. 2007-CA-2432 MELVIN J. BURMASTER VERSUS PLAQUEMINES PARISH GOVERNMENT ON APPEAL FROM THE TWENTY-FIFTH JUDICIAL DISTRICT COURT, PARISH OF PLAQUEMINES CALOGERO, Chief Justice This case involves the direct appeal of a district court judgment that declared unconstitutional as applied to plaintiff's individual and class actions, La. Act 545 of 2006, incorporated into the Louisiana Revised Statutes as 9:2800(H), which provides, in pertinent part, as follows: (1) Notwithstanding any provision of law to the contrary, except for gross negligence or willful and wanton misconduct, no person shall have a cause of action based solely upon liability imposed under Civil Code Articles 2317 and 2317.1 against a public entity for any damages arising from hurricanes Katrina or Rita, including aftereffects of either hurricane and post-hurricane restoration, repair, cleaning, and construction. We find that application of 2006 La. Act 545 to plaintiffs' claims that accrued, became vested, and were pending prior to June 22, 2006, the effective date of the act, would divest plaintiffs of their due process rights in violation of the Louisiana and United States Constitutions. Accordingly, we affirm the district court judgment denying the defendant's exception of no cause of action and remand the case to the district court for further proceedings.

1

FACTS AND PROCEDURAL HISTORY This case was initiated on April 7, 2006, when plaintiff, Melvin J. Burmaster, filed an individual suit against defendant, Plaquemines Parish Government ("PPG"), in which he sought damages to his property, located on the east bank of the Mississippi River in Plaquemines Parish, Louisiana. Plaintiff alleged that his damages were caused by PPG's failure to maintain, or its improper maintenance, of its hurricane protection levee on the east bank in Plaquemines Parish. Plaintiff's petition further asserted that "PPG's failure to maintain the levee resulted in a breach of the levee which, but for PPG's negligence, would have been adequate to hold against the storm surge occasioned by Hurricane Katrina." Plaintiff asserted that PPG was "strictly liable"1 under La. Civ. Code arts. 660, 2317, 2317.1, 2322, 2692, 2693 and 2695.2 Finally, plaintiff asserted that PPG is liable in negligence. On May 8, 2006, plaintiff filed his "First Amended and Supplemental Petition for Damages," in which he alleged that he was filing individually, and in addition "as representative of the class of all others similarly situated with respect to claims for damages sustained by them and others similarly situated." Plaintiff also amended his claims against PPG to allege "fault within the intent and meaning of [La. Civ. Code art. 2315]3 in the negligent design, construction, manufacture, operation, repair,
1

Although the plaintiff alleged that PPG is "strictly liable" under La. Civ. Code arts. 2317 and 2317.1, inter alia, this court has recognized that, with its adoption of La. Civ. Code art. 2317.1 to require knowledge or constructive knowledge, "the Legislature effectively eliminated strict liability under Article 2317, turning it into a negligence claim." Lasyone v. Kansas City Southern R.R., 00-2628, p. 6 (La. 4/3/01), 786 So.2d 682, 689, fn. 9 (quoting Frank L. Maraist & Thomas C. Galligan, Louisiana Tort Law

Download 2007-CA-2432 MELVIN J. BURMASTER v. PLAQUEMINES PARISH GOVERNMENT.pdf

Louisiana Law