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England v. Fifth Louisiana Levee District

Court of Appeal of Louisiana, Second Circuit

June 3, 2015

ROOSEVELT ENGLAND, SR., ET AL, Plaintiffs
v.
FIFTH LOUISIANA LEVEE DISTRICT, ET AL, Defendants

Page 1106

Appealed from the Sixth Judicial District Court for the Parish of Madison, Louisiana. Trial Court No. 06-116. Honorable John D. Crigler, Judge.

AFFIRMED.

ANTHONY J. BRUSCATO, RAYMOND LEE CANNON, Counsel for Plaintiffs-Appellants.

LUGENBUHL, WHEATON, PECK, RANKIN & HUBBARD, By: Ralph S. Hubbard, III, Celeste D. Elliott, Anne E. Briard, Counsel for Second Appellant, St. Paul Fire and Marine Ins. Co.

PUGH, ACCARDO, HAAS, RADECKER & CAREY, LLC, By: Francis P. Accardo, Shelley L. Thompson, Counsel for Third Appellant, Fifth Louisiana Levee District.

Before CARAWAY, MOORE and GARRETT, JJ.

OPINION

Page 1107

[49,795 La.App. 2 Cir. 1] CARAWAY, J.

In this case, the trial court ruled that separate acts by two tortfeasors at different locations combined simultaneously to contaminate a rural water system with a chemical herbicide. The trial court found the owner of the water system and the user of the herbicide jointly at fault in a class action involving plaintiff customers of the water system whose use of water was interrupted for 8 days. These plaintiffs, fortunately, were upstream from the contamination site so that their water was ultimately shown to have not been contaminated. The trial court found the two tortfeasors jointly liable and apportioned fault. The plaintiffs were awarded economic damage only for the loss of use of their water. All sides appeal, and for the following reasons, we affirm.

Facts

On February 16, 2006, Walnut Bayou Water Association, Inc. (" Walnut Bayou" ), employees were making repairs to its rural public water supply system near Delta, Louisiana, in Madison Parish. The company gave no notice to its customers that the

Page 1108

water would be shut off. At the same time, and unbeknownst to Walnut Bayou, Fifth Louisiana Levee District (" Levee District" ) employees were attempting to draw water from a Walnut Bayou customer's nearby home located on Willow Glen Plantation to mix with a tank of acid (2,4-D) primarily used to prevent and kill weeds. As Walnut Bayou began to empty the water lines for the repairs, the water pressure dropped to nearly zero. As a result, the drop in water pressure in the water lines inadvertently pulled from the Levee District's tank of concentrated 2,4-D, and the acid was released into the Walnut Bayou water [49,795 La.App. 2 Cir. 2] system. Neither the customer meter nor the faucet was equipped with devices to protect against backflow into the Walnut Bayou water lines. Likewise, the Levee District's tank was not equipped with a backflow preventer.

As a result of this event, the Walnut Bayou drinking water supply was contaminated with the weed killer. Walnut Bayou supplies water to approximately 1,300 customers in Madison and East and West Carroll Parishes. The contamination was not discovered until five days after the event, on February 21, 2006. Some customers became alarmed when they saw foam in their drinking water. Subsequently, customers were instructed by the Office of Public Health to cease using the water until further notice, as the water they had been using during the 5-day period had been dangerously contaminated. State officials also told customers to not use the water for drinking, cooking, washing, doing laundry, etc. until the lines were completely cleaned. The entire system was effectively shut down for eight days, from February 21 to March 1, 2006. On March 1, 2006, tests for contamination came back negative, and Walnut Bayou's customers were informed that the water was safe to use.

This mass tort action was subsequently filed, and numerous customers joined to sue the Levee District and Walnut Bayou. St. Paul Fire and Marine Insurance Company (" St. Paul" ), the alleged insurer for the Levee District, was also named in the suit. The plaintiffs alleged that the defendants were liable for negligence in failing to take precautionary measures, and Walnut Bayou was liable for breach of its contract to supply potable water.

Several years after the contamination, experts discovered that the [49,795 La.App. 2 Cir. 3] water lines had not been completely contaminated. Accordingly, the plaintiffs were divided into two groups: the " downstream" plaintiffs who had actually received and likely consumed the contaminated water, and the " upstream" plaintiffs who initially believed they had been using contaminated water, but whose lines were not contaminated.

Prior to trial, Walnut Bayou settled with all downstream, as well as upstream, plaintiffs. The Levee District settled with all downstream plaintiffs. The only remaining claims were those of the upstream plaintiffs against the Levee District. In all, there were 141 remaining plaintiffs (hereinafter the " Plaintiffs" ).

The Plaintiffs dropped their claims for personal physical injury in light of the experts' reports. They continued to assert claims for: (1) economic loss resulting from the water being unusable for eight days, i.e., the cost of bottled water and restaurant meals, (2) inconvenience from not being able to use water at home and, more precisely, compensation for time and energy to go other places to shower, do laundry and cook, (3) mental anguish from fear over their health and their families' health, which caused them ...


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