United States District Court, E.D. Louisiana
ORDER AND REASONS
MARTIN L. C. FELDMAN, District Judge.
Before the Court are two motions by the defendants, the United States and the United States Army Corps of Engineers: (1) motion to dismiss the property damage and negligence claims for lack of subject matter jurisdiction; and (2) motion for summary judgment as to the trespass claim. For the reasons that follow, the motions are GRANTED.
This case arises from property damage allegedly caused by the poor workmanship and oversight of the United States Army Corps of Engineers in completing the Hurricane & Storm Damage Risk Reduction System at the Lakefront levee around the 17th Street Canal. Some of the work occurred at or near the Sailboat Bay Apartment complex, located at 8600 Pontchartrain Boulevard. Sailboat Bay has brought claims for negligence, property damage, and trespass resulting from that construction work.
The project included a contract that the Corps awarded to Tetra Tech EC, Inc., for new T-wall and floodgates from the 17th Street Canal to Topaz Street along West Marine Avenue and Lakeshore Drive in the Lakeview area of New Orleans. The defendants used the plaintiff's parking garage to demolish the existing floodwall adjacent to the apartment complex, along with a ten-foot strip of parking paving adjacent and parallel to the floodwall. The defendants also demolished the existing drainage underneath the parking lot pavement, and new drainage lines were installed.
Sailboat Bay Apartments holds its property under a lease with the Orleans Levee District (OLD). In that lease, the OLD reserved some of its right to the property; the parties dispute the extent of the reservation. Sailboat Bay contends that the OLD retained the rights to only a twelve-foot strip of property, and because the Corps's work crossed that line, the Corps worked outside of its easement with the Corps and trespassed onto Sailboat Bay's property. The Corps contends that the lease, when viewed in full, contemplates Sailboat Bay's control over its apartment building and the OLD's control over the lands affecting flood-control structures nearby. The lease states in part:
This lease also includes the use of that portion of ground measuring approximately twelve (12) feet between equal and parallel lines, located between the leased premises and Lake Avenue for ingress and egress to the herein described and leased premises. LESSEE herein takes cognizance of the fact that said portion of ground may be used to accommodate the installation of a floodwall in connection with the Hurricane Protection Protect... and Lessee's means of ingress and egress shall be over the floodwall, not through it.
The Orleans Levee Board reserves all rights of use within said area for underground servitudes and utilities....
The Orleans Levee Board will have unobstructed access for maintenance and repair to the existing steel sheet pile bulkhead, tie rods and deadmen as well as unobstructed access to any proposed modification to the existing tie rods and deadmen to fulfill its responsibility for the bulkhead....
Whenever, and in connection with the construction or modification of, alternations, repairs, or additions to, or changes in any building or buildings now situated or hereafter erected on land adjoining or adjacent to the leased premises, the consent, approval or permission of lessor is required under any laws, ordinances, rules or regulations of public authorities, lessee shall have the sole right to grant such consent, approval or permission in the same manner and to the same extent as if it were the owner of the leased premises.
The OLD granted the Corps a signed Authorization for and Right of Entry for Access, Construction, Operation, Maintenance, Repair, Rehabilitation, and Replacement. The Authorization states that the OLD, as the property owner, "grants a partial right of entry to existing Orleans Levee District rights-of-way, servitudes and properties under its jurisdiction." The OLD attested that it was "vested with sufficient ownership interests in these immovable property interests or rights of use thereof to support the Right of Entry granted, " and the grant was "expressly limited to the descriptions of the immovable property interests and their extents, with regard to property descriptions and boundaries, which are owned by the Orleans Levee District."
The Corps's contract with Tetra Tech states that upon completion of the Contractor's work, "rights-of-way furnished by the Government shall be returned to its original condition prior to construction unless otherwise noted." It also states:
The Contractor shall be responsible for the preservation of all public and private property, and shall use every precaution necessary to prevent damage thereto. If any direct or indirect damage is done to public or private property by or on account of any act, omission, neglect, or misconduct in the execution of the work on the part of the Contractor, such property shall be restored by the Contractor, at his expense, to a condition similar or equal to that existing before the damage was done, or he shall make good the damage in another manner acceptable to the Contracting Officer.
The project was completed in summer 2011, and shortly thereafter Tetra Tech began repairing or replacing the damaged portions of the parking lot, building, and concrete wall using drawings that the Corps had produced. The plaintiff alleges that the replacement plans and the resulting work were grossly inadequate, incomplete, deficient, and defective.
The United States and the Corps contend that this Court lacks subject matter jurisdiction to hear the property damage and negligence claims, because the Federal Tort Claims Act's limited waiver of sovereign immunity does not include acts of independent contractors and discretionary functions. The plaintiff responds that the independent contractor exception does not apply, because the Corps had daily operational control over the project; Corps approval was required for the Work Plan and placing of pipe and trench drains in the drainage construction. The plaintiff contends that the Corps's negligent deviation below industry standards in approving the Work Plan does not fall under the independent contractor or discretionary function exceptions.
The United States and Corps also move for summary judgment as to the trespass claim, contending that the Corps had the OLD's consent to be on the property and a valid right-of-use servitude. The plaintiff responds that any servitude granted by the OLD did not extend beyond a narrow strip of property and that the Corps's work exceeded that limitation; it also contends that Corps personnel were seen physically present on the Sailboat Bay property. In their reply, the United States and the Corps submit that to the extent that there was any physical intrusion beyond the bounds of the servitude, the independent contractor exception bars suit, because any such trespass would have been done by Tetra Tech employees. The plaintiff has filed a sur-reply in which it submits that the Corps ...