TORT IMMUNITY;UPDATES FOR THE LOUISIANA LAWYER
By Michael C. Palmintier
A credentialed diplomat from a Middle-Eastern country runs a red light on the streets of Washington at three in the morning. A police officer witnesses the event and quickly pulls him over. Approaching the offending vehicle, he is preparing to issue the appropriate citation, when the driver brandishes his diplomatic papers at the window. The officer waives him on and returns to his early morning patrol. There has been a serious breach of the laws of the District of Columbia. The offense has actually been witnessed by an officer of the law. Under ordinary circumstances, society would demand that the offense be accounted for. Yet, in this case, diplomatic immunity eliminates the enforcement of the laws of the land and lets the culprit drive off, free to ignore those laws on another morning in D.C..
Something in this dramatization sticks in the craw. It just doesn’t seem right. No one is above the law. We are all responsible for our own conduct. We should all answer for the harm occasioned by our actions. We are a nation of the people, by the people and for the people. No person is immune to this sovereign, which is the genius of our enlightened revolution B power is in the people of our great democracy.
However, despite our strongly held beliefs and instincts to the contrary, immunities of various kinds do exist on both a national and a local level. They can be seen to fall into three or four basic categories, and they effect both the criminal and the civil judicial systems. Despite this diversity, immunities have one thing in common B the elimination of the selected individual or group from the application of law.
For the practitioner engaged in civil litigation, the implications of immunity are immense. It can mean the difference between access to the court at trial and the immediate dismissal of a client’s case in the early stages of the proceedings. It can mean the difference between full recovery and the total rejection of any award. Where civil immunity exists, the party injured by covered conduct faces a wasteland in which the voices of the parties are not heard, the nature of the conduct is not explored and damages are not redressed. Avoidance of immunity by potential plaintiffs is, therefore, crucial to potential success.
In this brief presentation, we will explore this counterintuitive area of the law by considering the history of one of its forms, evaluating recent developments of significance in Louisiana case law and reviewing recent cases on the federal level. Throughout this analysis, the prejudice the writer holds for any form of tort immunity will, unavoidably, manifest itself. For this transgression, apologies are provided here in advance.
A BRIEF HISTORY OF IMMUNITY
This brief history focuses on:
- Origins of sovereign immunity, generally
- Sovereign immunity in the United States
- Sovereign immunity in Louisiana
- Origin of Sovereign Immunity
Sovereign Immunity (or crown immunity) descends from early English law. In
constitutional monarchies, the sovereign (the monarch) is the historical origin of the authority which created the courts. Thus, the courts had no power to compel the sovereign to be bound by them, because they were established by the sovereign for the protection of his/her subjects.
During the middle ages, Pope Gelasius I established sovereign immunity as a political principle, a means to both protect the sovereign pontiff and the Holy See from trials and persecutions and also to build political alliances with kings and emperors.
- Origin of State Sovereign Immunity
In the United States, the Eleventh Amendment was adopted in 1798 as part of the Bill of Rights to our constitution. Among other things, this amendment was designed to protect the states from being sued in federal court. It did not refer to suits against a state by a citizen of that state, but was concerned only with suits against states by citizens of other states, or by foreign nationals. In Alden v. Maine the U.S. Supreme Court describes the origins of sovereign immunity in the United States at the ratification debates and the events leading to constitutional ratification. Almost as foreshadowing, the Court tackled the question of the power of Congress to enact legislation forced on the states through the Commerce Clause as the supreme law of the land.
Quoting the Federalist No. 33, the Court instructed that legislation enacted through the
commerce clause is unconstitutional if it Aoverrides the sovereign immunity of the states@. In that paper, Hamilton argued that such a law would be an act of usurpation and should be treated as such. The Court further opined A(w)e reject any contention that substantive federal law by its own force necessarily overrides the sovereign immunity of the states.
Alden also held that only States and arms of the State possess immunity from suits authorized by federal law. Thus, cities, municipalities and counties lacked sovereign immunity.
- Origins of Louisiana Governmental Tort Law Immunity
Board of Commissioners of the Port of New Orleans v. Splendour Shipping & Enterprises Company first recognized the modern concept of waiver of sovereign immunity in Louisiana. The case contains an exhaustive account of the history of sovereign immunity in Louisiana. In it, the Court points out that, prior to the 1854 Supreme Court pronouncement in Stewart v. City of New Orleans, 9 La. Ann. 461, (1854), such immunity from tort liability did not exist. In Stewart the Court reversed itself, citing common law cases and recognizing the sovereign immunity doctrine. Stewart implicitly overruled a long line of appellate level cases upholding judgments against state agencies. From then on, the state and its agencies received this newly created immunity. In Splendour Shipping, which was a suit by a governmental Board against a private company, the Court demonstrated that the origin of the doctrine was jurisprudential, not constitutional. Holding that the 1960 amendment to Article 3, ‘ 35 of the Louisiana Constitution of 1921 is a clear indication of the legislative policy to waive that immunity , it stated:
Considering the source of the doctrine and its history, there are three reasons which move us to withdraw from the Board the immunity with which the court has previously insulated it from tort suits. It is unfair. It tends toward governmental irresponsibility. It is an unnecessary exception to the policy of the State of Louisiana as expressed in two articles of our Constitution.
Here the Board sues, and when Splendour reconvenes on a claim arising from the same accident, the Board cries, “King’s X! You can’t sue me.” Not even the Board claims that its immunity is fair and just-only legal and traditional. The injustice may not be shocking to lawyers, accustomed to the frequent forfeiture of private advantage for public good. But when an unfair doctrine does not function for the public good, but only for the administrative convenience of a State agency, the court should do whatever it can to infuse justice in the relationship between the State agency and the private person.
Governmental responsibility is needed more today than ever. There is hardly any sector of private life and activity free from governmental intervention. The myriad State agencies and their employees almost defy inventory, to say nothing of control by the people whom they purport to serve. It has not been the policy of the legislature to permit employees of agencies to injure, intentionally or carelessly, private citizens. It is and should be the policy of the State, enforced through its courts, to require boards and agencies to act responsibly, or be subject to answer in court.
The 1960 amendment to Article 3, s 35 of the Louisiana Constitution of 1921 is a clear indication of the legislative policy. If any legislative authorization has ever been given for suit against any public body, it constitutes an effective waiver of immunity from suit and liability. It is now and has been since 1864 the policy of this State that “every person for injury done him . . . shall have adequate remedy by due process of law and justice administered without denial, partiality or unreasonable delay.” Louisiana Constitution, art. I, ‘ 6; Louisiana Constitutions of 1864, art. 110; 1868, art. 10; 1879, art. 11; 1898, art. 6; 1913, art. 6. Board of Shipping, supra, at page 26
So it was, until efforts to limit the waiver of immunity began to take shape in Louisiana statutory law. The waiver was finally limited in 1995 by a constitutional amendment to limit the liability of the state, a state agency, or a political subdivision.
Immunity can be refuted in some cases by attacking the constitutionality of the statutes.
The constitutional debates in the Federalist, while not law in and of themselves, provide an excellent source of constitutional interpretation. Interestingly, Federalist 10 is a commentary on the principle inherent in the constitution, that the concentration of all power in one place is the very definition of tyranny, while Federalist 78 holds that no legislation contrary to the Constitution can be valid and the Constitution must be preferred above the statutes.
23:1032 (A) immunity; the intentional act exception.
Of course, the harsh realities created by immunities are not limited to state law. Nor are they limited to the state or its subdivisions. In fact, in Louisiana, we might be said to have recently experienced the Agolden age of private immunities, with dispensations being legislatively granted to everything from the recreational use of private land to the inadvertent misdirection Mardi Gras throws. When it comes to state-based tort, the immunity which is most often exercised is, of course, that which is extended to an employer for injuries to employees occurring on the job. By virtue of La. R.S. 23:1032 (A), the direct employer of such an injured person is granted immunity against tort suits.
It is the occupation of many plaintiff lawyers to attempt to find ways to circumvent this obstruction to full recovery. While Athird party claims against co-contractors or product manufacturers may provide a remedy, suits directly against the employer for Aintentional acts represent a very narrow corridor of recovery, requiring a careful finding of either active desire for or substantial certainty of injury. This area has been the subject of previous presentations. Suffice it so say that, although the cause of action is alive and well, it is available in only a small percentage of cases. Nonetheless, counsel should exhaust these potential ways of avoiding immunity when assisting clients injured on the job.
Simoneaux v. Excel, 936 So2d 1246 (La.2006) Plaintiff was injured on the job and sued his employer, arguing intentional act under 23:1032 (B). He was hurt while working as an electrician’s helper, when a co-worker operating a man-lift ran over his foot with the machine. Employer’s MSJ was denied in the trial court and appellate court denied writs. In a per curiam, the Supreme Court reversed and granted the summary judgment. Citing the usual cases, the court found that, even though the conduct of the defendant was clearly unsafe, negligence alone is not enough.
Broussard v. Smith, 999 So 2d 1171, (3rd Cir. 2008) Bar worker injured when robbery occurred sued under intentional act exclusion. Facts were strong that employer had every reason to believe that a robbery might occur, but removed the security cameras and took no action for security. The third circuit upheld summary judgment. The dissent is interesting:
One has to wonder if the legislature intended a social policy which encourages employers to neglect the safety needs of its workers by placing their workers in unnecessary extremely high‑risk dangerous situations, knowing that they will receive the full protection of the law in worker’s comp.
In this case, the Player’s Club had one petite woman in charge of a bar equipped with three video poker machines. It was commonly known that the safe located in the bar and in full view of the patrons contained large amounts of money in order to be able to pay out winnings from the video poker machine. Gary kept the key to the safe on her person which was also in full view of all of the patrons in the bar. Moreover, what little security did exist, the owner removed. The two security cameras, which may have deterred someone from committing a crime, were taken out of the bar. Additionally, there was evidence to suggest that the area was poorly lit and was a known crime area. Finally, Gary’s own manager, Charlene Boudreaux, testified that she told the owner that she was fearful for her and the other employees’ safety due to the lack of security measures at the Player’s Club and that a robbery was inevitable.
Nichols v. Horseshoe Casino, 999 So 2d 1255, (2nd Cir. 2009) Casino worker died of Asthma while on the job. Plaintiffs alleged purposeful refusal to help decedent despite requests. Summary judgment was granted. Affirmed. The case is interesting because, if plaintiff had produced evidence of the conduct alleged, the implication is that the motion would have been denied. The court meticulously covers the deposition testimony in which the co-employees’ evidence is that they were aware of his difficulties, but that they thought he was ok. Against this, plaintiffs didn’t present testimony.
Flood Control, Katrina and the MR-GO.
The Great Flood of 1927 nearly did in the City of New Orleans. What’s more, it devastated the entirety of the lower Mississippi River Valley, flooding towns, wiping out farms and leaving a wake of unparalleled human suffering B unparalleled, that is, until the summer of 2005. It can be said that the reaction to this crisis was the beginning of an increase in Federal involvement in public works which changed our country and has continued to this day. The engine of most of that involvement has been the United States Army Corp of Engineers, which is responsible for the building, operation and maintenance of all such projects, including Flood Control.
In reaction to the 1927 flood, congress passed the Flood Control Act of 1928 ( 33 USC 702) in which the congress had worked out a massive effort to control the devastation caused by the overflow of the Mississippi River and its tributaries. The levee systems designed to protect New Orleans and the River Parishes fell under this protection.
An important aspect of that law was ‘702c, which provides a blanket immunity for all of the work contemplated in the Act:
“no liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place.”
In the years which followed, courts applied the immunity with vigor.
On August 29th, 2005, Hurricane Katrina ( by then a Category 3 storm) made landfall in South Louisiana, below the City of New Orleans. As is now widely known, the great city was flooded and what followed was the worst loss of life and treasure in the history of the United States as a result of natural disaster. The flood was caused by the failure of the levee systems and by the failure to maintain navigational projects built by the USACE in the area.
Numerous law suits were filed against the Corps, under the Federal Tort Claims Act
28 U.S.C. ” 1346(b), 2671-2680. Among those, two are significant to our consideration of tort immunity. The first, In Re Katrina Canal Breaches, sought recovery from the government for the failures of various levees in the N.O. area. The second, Robinson v. U.S., sought recovery by representative plaintiffs for damages caused by the effects of the Mississippi River Gulf Outlet (MR-GO) upon these areas as a result of the storm:
1) In Re Katrina Canal Breaches Consolidated Litigation (Levees)
AWhile the United States government is immune for legal liability for the defalcations alleged herein, it is not free, nor should it be, from posterity’s judgment concerning its failure to accomplish what was its task. This story 50 years in the making is heart-wrenching. Millions of dollars were squandered in building a levee system with respect to these outfall canals which was known to be inadequate by the corps’s own calculations.
2) Robinson v. U.S. (MR-GO)
On November 19, 2009, the Judge Stanwood Duval of the U.S. District Court for the Eastern District of Louisiana, found the USACE responsible for the flooding by not properly maintaining the MR- GO. Judge Duval said that the ACorps had an opportunity to take a myriad of actions to alleviate this deterioration or rehabilitate this deterioration and failed to do so. In his decision, Duval wrote that the Corps was aware that the deteriorating conditions of the canal would affect the levees in St. Bernard Parish and the Lower Ninth Ward neighborhoods.
At the time of this writing, the first case has been dismissed on Summary Judgment as a result of ‘702 (c). The second has survived motions based on immunity, has gone to trial in the district court and awaits post trial motions and appeal. As will be discussed, the distinction between the two cases rests upon the application of statutory immunities.
Federal Preemption; a form of immunity;
Finally, it should be noted that certain immunities created by law are indirect or implicit in the language of the statutes or case law. Although the word may not be expressed, the effect is to create a de facto immunity. An example of this can be found in the U.S. Supreme Court’s recent holding in Riegel v. Medtronic, 552 U. S. 312, 128 S.Ct. 999 (U.S. 2008). In this products liability case involving a FDA pre-market approved heart catheter, the patient sued under state tort law. Medtronic moved for summary judgment, arguing that federal law expressly preempted the plaintiffs= state-law claims. Specifically, the Medical Device Amendments to the Food, Drug, and Cosmetics Act (AMDA) contain an express preemption provision.
Medtronic argued that because its catheter had received pre-market approval from the FDA, it could not be held liable for any alleged defect in the design of the product. The district court granted summary judgment and the Second Circuit affirmed. The Supreme Court agreed that federal law preempted state law under these circumstances. Justice Scalia wrote that pre-market approval by the FDA establishes federal Arequirements that are specific to the approved device. He concluded that the pre-market approval process is Arigorous, Afocused on safety and Aprovides a reasonable assurance of safety and effectiveness. The Court found that the plaintiffs’ common-law claims relied on Arequirements of state law. Previously, in Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996), the Court had agreed that common-law claims could amount to Arequirements for purposes of the MDA preemption provision, and the Court here followed the same approach. AAbsent other indication, the Court wrote, Areference to a State’s “requirements” includes its common-law duties. Because the Medtronic catheter had been granted pre-market approval by the FDA, it was subject to federal requirements that could not be altered or supplemented by those created under state law.
The opinion does allow that state based requirements are preempted under the MDA only to the extent that they are different from, or in addition to the requirements imposed by federal law. For example, a state remedy for claims premised on a violation of FDA regulations; the state duties in such a case parallel, rather than add to, federal requirements. Parallel requirements were not argued in Riegal.
It is submitted that this case creates a qualified immunity against the entire body of products liability law as it applies to medical devices in each of the 50 states of the Union. The conduct of medical device manufacturers is immunized by one swipe of the pen of the colorful Justice Scalia. Any FDA, pre-market approved medical device gets the AKing’s X from evaluation by the common law and codal remedies. Thus, plaintiffs have no remedy B neither federal nor state B when injured by an FDA pre-approved device.
As these three areas of focus clearly demonstrate, immunities abound in both state and federal law. To the layman, the notion that he has no remedy under the law is incomprehensible. To the trial lawyer charged with guiding a client through the legal wasteland which is immunity, the ability to find the narrow path through that desert can make all the difference.