No "willful misconduct" Found in Katrina Wrongful Death case - State Immune from Liability
/AP News A state appeals court has upheld the dismissal of a wrongful death lawsuit filed by the son of an elderly woman who died in her wheelchair outside the city's convention center during Hurricane Katrina's aftermath.
The government is entitled to immunity from liability in the case that Herbert Freeman, Jr., brought against the state of Louisiana, the city of New Orleans and several public officials, a five-judge panel of the 4th Circuit Court of Appeal in New Orleans ruled Wednesday.
Ethel Mayo Freeman, 91, died at the Ernest N. Morial Convention Center while waiting for help to arrive after the Aug. 29, 2005, hurricane. Photos of her lifeless body, slumped in a wheelchair and covered by a poncho, were widely published and became an iconic symbol of the government's slow response to Katrina.
Orleans Parish Civil District Judge Robin Giarrusso tossed out Freeman's case in September 2007, and the 4th Circuit judges voted 4-1 to uphold that ruling.
Freeman and his attorneys failed to meet a legal burden of showing "willful misconduct" by the government in its response to Katrina, the appeals court concluded.
"These allegations may state a cause of action for negligence, but the immunity statute allows a finding of liability only upon a showing of willful misconduct," the majority's option stated.
Judge Charles R. Jones, who cast the lone dissenting vote, said he believes Freeman "set forth the facts necessary to state a cause of action" against the defendants, including former Gov. Kathleen Blanco and New Orleans Mayor Ray Nagin. Jones also said it was premature to decide if the government was entitled to immunity.
Freeman also sued the federal government, but a federal judge dismissed that case and two other Katrina wrongful death suits in October 2007. John Paul Massicot, one of Freeman's lawyers, said they are appealing the federal case's dismissal and plan to ask the Louisiana Supreme Court to review the 4th Circuit's ruling.
"I think we owe that to Mrs. Freeman," he added.
Massicot said he expected the 4th Circuit's ruling to be "a little more sympathetic" to his client's case.
"Maybe that was asking too much. I don't know," he said.
Lawyers for the state and city praised the appeals court's ruling.
"While we are pleased with the court's ruling, we're still very sensitive to the loss of the family. It was a very tragic situation and we grieve with the Freeman family," said Tammi Arender Herring, spokeswoman for Attorney General James "Buddy" Caldwell.
Freeman and his mother rode out the storm in New Orleans. When their home flooded, they joined thousands of others in seeking refuge at the convention center, where Ethel Freeman died on Sept. 1, 2005.
Freeman's lawyers accused the state and city of failing to provide adequate shelter or medical care and claimed state officials "blockaded" aid to people trapped in the city. However, the 4th Circuit said none of the acts alleged in the suit amount to willful misconduct.
"Rather, the petitions name the players, describe what their respective responsibilities are under the (state's) Emergency Operations Plan, and allege that these parties failed to perform their duties," the judges wrote in their seven-page ruling. [MORE]
The government is entitled to immunity from liability in the case that Herbert Freeman, Jr., brought against the state of Louisiana, the city of New Orleans and several public officials, a five-judge panel of the 4th Circuit Court of Appeal in New Orleans ruled Wednesday.
Ethel Mayo Freeman, 91, died at the Ernest N. Morial Convention Center while waiting for help to arrive after the Aug. 29, 2005, hurricane. Photos of her lifeless body, slumped in a wheelchair and covered by a poncho, were widely published and became an iconic symbol of the government's slow response to Katrina.
Orleans Parish Civil District Judge Robin Giarrusso tossed out Freeman's case in September 2007, and the 4th Circuit judges voted 4-1 to uphold that ruling.
Freeman and his attorneys failed to meet a legal burden of showing "willful misconduct" by the government in its response to Katrina, the appeals court concluded.
"These allegations may state a cause of action for negligence, but the immunity statute allows a finding of liability only upon a showing of willful misconduct," the majority's option stated.
Judge Charles R. Jones, who cast the lone dissenting vote, said he believes Freeman "set forth the facts necessary to state a cause of action" against the defendants, including former Gov. Kathleen Blanco and New Orleans Mayor Ray Nagin. Jones also said it was premature to decide if the government was entitled to immunity.
Freeman also sued the federal government, but a federal judge dismissed that case and two other Katrina wrongful death suits in October 2007. John Paul Massicot, one of Freeman's lawyers, said they are appealing the federal case's dismissal and plan to ask the Louisiana Supreme Court to review the 4th Circuit's ruling.
"I think we owe that to Mrs. Freeman," he added.
Massicot said he expected the 4th Circuit's ruling to be "a little more sympathetic" to his client's case.
"Maybe that was asking too much. I don't know," he said.
Lawyers for the state and city praised the appeals court's ruling.
"While we are pleased with the court's ruling, we're still very sensitive to the loss of the family. It was a very tragic situation and we grieve with the Freeman family," said Tammi Arender Herring, spokeswoman for Attorney General James "Buddy" Caldwell.
Freeman and his mother rode out the storm in New Orleans. When their home flooded, they joined thousands of others in seeking refuge at the convention center, where Ethel Freeman died on Sept. 1, 2005.
Freeman's lawyers accused the state and city of failing to provide adequate shelter or medical care and claimed state officials "blockaded" aid to people trapped in the city. However, the 4th Circuit said none of the acts alleged in the suit amount to willful misconduct.
"Rather, the petitions name the players, describe what their respective responsibilities are under the (state's) Emergency Operations Plan, and allege that these parties failed to perform their duties," the judges wrote in their seven-page ruling. [MORE]
