Federal and State Flood Control Agencies May be Liable in Deaths During Floods
Although the number of “fair weather” drowning accident deaths by far exceeds the number of deaths caused by floods, it remains a fact that many flooding deaths are preventable. In this post, our drowning accident lawyer will review some of the legal issues that may come into play in a potential drowning death due to flooding lawsuit.
The Problem of Drowning Deaths Caused by Floods
Many are unaware of the number of deaths caused by flooding. To understand this problem, our drowning lawyer invites you to consider the following facts:
- According to the Louisiana Department of Health, 40% of all deaths caused by Hurricane Katrina (2005) were directly caused by drowning.
- For 2016, the National Weather Service estimates that the number of drowning deaths during floods exceeded the number of non-drowning deaths caused by hurricanes, lightning strikes, and tornadoes combined.
It is also a fact that many of these deaths could have been prevented by a combination of 1) timely and available evacuation and 2) effective flood control measures such as levees, dams, and/or natural resource planning.
Responsibility and Liability in Flooding
Prior to the last century, flood control was viewed as a local issue. This meant that it was each community or, in some cases, the individual property owner that was responsible for local flood control. This view changed after a series of floods, such as the Johnstown (PA) Flood of 1889 and the Great Ohio Floods of 1913 caused significant property damage and loss of life in areas that were located downstream of the rainfall that initiated the flooding events.
During the New Deal Era (1932 to ~ 1940) the federal government directly assumed responsibility for major flood control projects “by default” since its rural electrification program involved the construction of dams that were used to generate electricity (e.g. the Columbia River Project in Washington and Oregon and the Tennessee Valley Authority) also provided storage reservoirs to contain excessive rainfall.
It is an established principle of law that once an individual or government agency is granted control over some activity, that entity becomes responsible for any failures that occur in its area of responsibility. It could therefore be argued that since a flooding disaster occurred, the agency responsible for flood control could be held liable if it could be shown that the agency had been negligent in the performance of its duties and that a loss was directly caused by that agency's negligence.
While there are many that would claim such a lawsuit would be “frivolous,” it must be recalled that the merits of a lawsuit are decided by a jury and not by the opinions of casual observers.
“Acts of God,” sovereign immunity, and flood control liability
As we end our brief discussion of the issue of liability for property damage and wrongful death due to flooding, we must consider two of the most likely defenses that a municipal, state, or federal government agency will raise: “Acts of God” and sovereign immunity from civil lawsuits.
Traditionally, “acts of God” have been defined as any event that is beyond human control, unexpected, and random. Under this definition, practically any weather-related disaster such as a tornado, a blizzard, a hurricane, or a flood are considered acts of God and cannot be cited as proof of negligence. However, if the historical record suggests that such an event has occurred in the past and an event could reasonably be expected to occur again (e.g. hurricanes striking the Atlantic or Gulf coastline or a tornado in Oklahoma), the failure to have at least an emergency action plan in place could be seen as negligence.
Sovereign immunity is best described as the long-standing legal doctrine that “the King can do no wrong.” If we substitute “the state” for “the King,” we arrive at the American principle that the government cannot be sued for damages unless it agrees to be sued. In the past, sovereign immunity allowed local and federal government agencies to “pretty much do as they damned well pleased.” Fortunately, the federal government has waived at least some of its protection by enacting the Federal Tort Claims Act of 1946 and its later amendments. State and local governments have retained most of their immunity from lawsuits although this is gradually changing.
To recap our review of this topic we have seen that, despite the many technological advances made in the fields of civil engineering and meteorology, the potential for catastrophic flooding remains a threat in many parts of the country. Since many flood control projects date from the, it is reasonable to assume that many of these projects have been subjected to years of physical stress with only minimal repairs. This leads us to conclude that if a government flood control agency has failed to regularly inspect for (and repair) damage to flood control structures, then that agency could be held liable for any direct consequences of a failure involving such a structure.
The legal issues that could arise in a lawsuit over losses of property and life during a flooding event are complex and, not surprisingly, there have been very few cases in the past that have dealt with these issues. For this reason, as well as others mentioned earlier on this page, it is strongly advised that anyone who is considering a lawsuit related to flooding consult with a drowning accident lawyer who is also experienced in liability claims made against a government agency.