New Orleans Flooding Part II: City May be Liable for Violating Servitudes
Written by Kristin Lausten
As has been widely reported, New Orleans suffered serious flooding in early August 2017 as a result of broken and faulty pumps and loss of power to pumping stations. As we know, the citizens of the New Orleans can sue the state, the city, and any other governmental subdivision for negligence under the Louisiana Constitution (Art. XX, § 10) and the Governmental Claims Act (La. R.S. §§ 13:5101-5113). In this article, I discuss liability based on violation of servitudes — a cause of action that does not require proof of negligence. The leading case is Sharon v. Connecticut Fire Insurance Co., 270 So. 2d 900 (La. App. 1st Cir. 1973).
Sharon v. Connecticut Fire Ins. Co.
In Sharon, the plaintiff homeowner sued the City of Plaquemine claiming various property damage and personal injury that resulted from several episodes of sewage flooding into their home up from under the toilet. In each instance the sewage backup occurred around heavy or prolonged rains when the streets were flooded or there was considerable water in the drainage ditches.
The homeowners were unable to provide evidence showing negligence. That is, there was no evidence that the City of Plaquemine failed to keep the pumps in good repair or that there was some design or construction flaw.
Nonetheless, the Court held the City to be liable on the basis of violation of servitudes.
Louisiana Civil Code, Articles 660 and 667
In general, under the Louisiana Civil Code, landowners owe certain servitudes, or obligations, to neighboring landowners. If you violate these obligations, you will be sued and your neighbor can recover damages to compensate him or her for various losses and injury.
Two servitudes are pertinent. The first is Article 660 which says:
- “It is a servitude due by the estate situated below to receive the waters which run naturally from the estate situated above, provided the industry of man has not been used to create that servitude.
- “The proprietor below is not at liberty to raise any dam, or to make any other work, to prevent this running of the water.
- “The proprietor above can do nothing whereby the natural servitude due by the estate below may be rendered more burdensome.”
The second relevant servitude is Article 667, which says:
- “Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.”
The servitudes that are codified in the Civil Code apply to the State, to cities, to municipalities and to all other political subdivisions. Such can be, and are, landowners and, as such, the servitudes constrain them in the same manner as private landowners.
In the Sharon case, the court held that the servitudes in Articles 660 and 667 were violated by the City even though there was no proof of negligence by the City or its employees. In reference to Article 667, for example, the court noted that the City required homeowners to connect to the city sewer system. Once done, Article 667 then required the City to dispose of the sewage properly. Failing to do was a breach of the obligations under the servitude and the homeowners were able to sue to recover for their losses. Negligence was not required.
Application to the August 5th Flooding
In reference to the August 5th flooding in New Orleans, there is a strong case that the city and its subdivisions violated the Article 660 and 667 servitudes. Many parts of New Orleans are below sea level. Consequently, properly functioning pumps and water removal systems are necessary. The city has taken upon itself the obligation — the servitude — to keep the various parts of the city from flooding. As such, just like in the Sharon case, the city has an obligation to remove the excess water correctly and competently.
Given the flooding and what has been reported, the city breached that obligation. When the August 5th rains began, many of the city pumps were out of service or operating at less than 60% of capacity. City employees admitted that “more than a dozen pumps” were out of service. Mayor Mitch Landrieu admitted that “Three of the five generators were already out of service, [which] contributed to several feet of flooding over the weekend.” Then, on August 10, there was a fire which took out a fourth power generator. Without power, pumps do not function. All of this arguably violates the servitudes that are codified in the Civil Code.
As with claims based on negligence, landowners may sue for violation of the servitudes and recover money damages for their losses such as damage to buildings, damage to personal property (such as furnishings, automobiles, etc.) and personal injury losses (if causally connected). As with the negligence claims, New Orleans businesses and landlords may be able to claim lost profits and lost rents not otherwise covered by business-interruption insurance. Other types of damages may also be available such as pain and suffering, inconvenience, mental anguish, worry, inconvenience and loss of use.
The author may be contacted at:
Kristin M. Lausten
This article is provided as an educational service for general informational purposes only. The material does not constitute legal advice or rendering of professional services.