Opinion
Civ. No: 97-775, c/w 97-803, SECTION: "R"(4).
August 28, 2000.
ORDER AND REASONS
Before the Court is defendant City of New Orleans's motion for summary judgment dismissing plaintiffs's claims against it. The City argues that the actions undertaken by the New Orleans Fire Department ("NOFD") are protected by the discretionary function exception pursuant to Louisiana Revised Statute Section 9:2798.1, or, alternatively, by the public emergency exception articulated in Section 9:2793.1. For the following reasons, defendant's motion is granted.
I. Background
On March 21, 1996, WCL employees discovered a fire in the portable storage racks located at the far eastern end of MacFrugal's warehouse. Merchandise was stored on the racks at a height of 25 to 30 feet. Overhead sprinklers were approximately 50 feet above the storage racks. NOFD received notice of the fire at approximately 5:32 a.m., and the first fire engine arrived at the scene at 5:40 a.m. Three fire engine companies responded and undertook to extinguish the fire, which was declared under control at 8:44 a.m. and extinguished at 11:54 a.m. NOFD commanders at the scene then ordered the sprinkler system turned off to prevent needless water damage to warehouse merchandise and ordered all overhead shipping and receiving bay doors opened to ventilate the warehouse and facilitate the activities of firefighting personnel. NOFD also began overhaul procedures to locate any smoldering materials. At noon, NOFD surrendered the warehouse to WCL personnel, leaving one engine and its company of three or four firefighters as a fire watch.
At approximately 2:20 p.m. that day, a second fire broke out in the high, fixed-bay racks located about 275 feet from the site of the first fire. Although NOFD responded to this fire, the flames swiftly spread beyond control, consuming the entire warehouse and its contents. Arson caused the first fire, but there is dispute about the cause of the second fire. Some attribute the second fire to a rekindling of materials ignited by the first fire; others attribute it to faulty electrical power rails that WCL employees re-energized.
On March 18, 1997, plaintiffs filed suit against, inter alia, the City, alleging that NOFD's negligence caused or contributed to the destruction of the warehouse and its contents. The City now moves for summary judgment, arguing that it cannot be held liable for NOFD's discretionary acts, or, alternatively, for actions undertaken in response to a public emergency.
II. Discussion
A. Summary Judgment Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. See FED. R. Civ. P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986). Accordingly, a court must be satisfied that no reasonable trier of fact could find for the nonmoving party. In other words, "if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the nonmoving party to carry its burden." Beck v. Texas State Bd. of Dental Exam'rs, 204 F.3d 629, 633 (5th Cir. 2000).
Initially, the moving party bears the burden of establishing that there are no genuine issues of material fact. If the dispositive issue is one for which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325, 106 S.Ct. at 2554; see also Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. Summary judgment is mandated if the nonmovant fails to make a showing sufficient to establish the existence of an element essential on which it bears the burden of proof at trial. See id. at 322, 106 S.Ct. at 2552. The nonmovant may not rest upon the pleadings but must identify specific facts that establish a genuine issue exists for trial. See id. at 325, 106 S.Ct. at 2553-54; Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 505 (5th Cir. 1999).
B. Discretionary Function Immunity
In order to shield city employees, such as firefighters, from civil suits based on negligence for actions undertaken in the course of their duties, the Louisiana legislature enacted Louisiana Revised Statute Section 9:2798.1(B), which provides immunity for discretionary decisions. It states in pertinent part:
Liability shall not be imposed on public entities or their, officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.
LA. REV. STAT. § 9:2798.1(B). Section 9:2798.1 is essentially the same as the discretionary function exception to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2680 (a). See Fowler v. Roberts, 556 So.2d 1, 15 (La. 1989) ("The discretionary function exception to state governmental liability established by the statute is essentially the same as the exception in the Federal Tort Claims Act."). See also Louisiana v. Public Investors, Inc., 35 F.3d 216, 220 (5th Cir. 1994) (same). Thus, in interpreting the scope of the state exception, Louisiana courts have relied on federal FTCA precedent. See, e.g., Hardy v. Bowie, 744 So.2d 606, 613 (La. 1999). In doing so, Louisiana courts have adopted the two-pronged inquiry articulated by the United States Supreme Court in Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954 (1988). See Hardy, 744 So.2d at 613; Fowler, 556 So.2d at 15. Under this two-pronged inquiry a court must consider: (1) whether the challenged conduct involves an element of judgment or choice; and (2) whether the judgment at issue is the kind the discretionary function exception was designed to shield, that is, whether it is grounded in social, economic, or political policy. See Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958-59; Fowler, 556 So.2d at 15. The requirement of judgment or choice is not satisfied if a "statute, regulation, or policy specifically prescribes a course of action for an employee to follow," because the employee has no choice "but to adhere to the directive." Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958-59. See also Rick v. State, Dept. of Transp. Devel., 630 So.2d 1271, 1276 (La. 1994). In determining whether an employee's actions are immune from suit, "[t]he focus of the inquiry is not on the agent's subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis." Public Investors, Inc., 35 F.3d at 221 (interpreting Section 9:2798.1) (quoting United States v. Gaubert, 499 U.S. 315, 325, 111 S.Ct. 1267, 1275 (1991)).
In Gaubert, the United State Supreme Court held that if a court finds that an agent's acts are discretionary, it may presume that those acts are grounded in policy in the exercise of that discretion, even if those acts are implemented at the "operational" or day-to-day level. See Gaubert, 499 U.S. at 324-26, 111 S.Ct. at 1274-75. Although plaintiffs assert that Louisiana courts have not adopted the Gaubert rule (Pls.' Supp. Mem. at 5-6), the Louisiana Supreme Court has cited Gaubert for the proposition that "[d]ecisions at an operational level can be discretionary if based on policy." Rick, 630 So.2d at 1276. Accord Public Investors, 35 F.3d at 221; Bedford v. City of Mandeville, 1997 WL 543103, at *4 (E.D. La. Sept. 4, 1997); Thornhill v. State, Dept. of Trans. Devel., 676 So.2d 799, 808 (LA. App. 1st Cir. 1996). Accordingly, characterizing an employee's actions as "operational" is not fatal to an immunity defense under Section 9:2798.1.
1. Element of Judgment or Choice
Although the City argues that the only statutes or regulations controlling NOFD's firefighting activities are the general provisions of Sections 4-601 and 4-602 of the City of New Orleans Charter, plaintiffs posit both a regulation and a statute, which they claim prescribe specific NOFD courses of action while fighting a fire, thereby eliminating the required element of judgment or choice. First, plaintiffs argue, NOFD violated various fire safety standards promulgated by the National Fire Protection Association ("NFPA"), which the Louisiana State Fire Marshall's Office adopted. (Pls.' Supp. Mem. at 3.) Second, they argue NOFD violated Articles 5019 and 5026 of the New Orleans Building Code when it attempted to restore electrical power before obtaining a permit or allowing a licensed electrician to examine the scene. ( Id. at 4.)
Section 4-601 provides:
The Department of Fire, headed by a Superintendent of Fire, shall:
(1) Organize, administer, supervise and discipline the fire force of the City.
(2) Extinguish fires and investigate their causes.
(3) Operate and maintain communication systems either separately or in conjunction with others.
(4). Administer and enforce ordinances, regulations, and all state and municipal laws relating to fire prevention and safety of persons.
(5) Respond either separately or in conjunction with others to situations involving hazardous materials and to other emergency situations involving the safety of persons or property.
(6) Perform such other duties as are required by this Charter or assigned in writing by the Mayor.
Section 4-602 provides:
The Superintendent of Fire or the Superintendent's representative shall have the powers of a police officer while going to or attending any fire or alarm of fire. The Superintendent or acting Superintendent shall have the authority in an emergency to cause to be demolished any structure when such demolition is essential to the extinguishment or control of fire or other emergency situation in the judgment of the Superintendent or Acting Superintendent.
City of New Orleans Charter, Chapter 6, §§ 4-601, 4-602.
Article 5019 states that no repair or alteration of electrical equipment shall be done without obtaining a permit. Article 5026 requires all electrical work to be done under the supervision of a certified electrician and that work to be inspected by the Director of Code Enforcement.
As a threshold matter, while the City correctly notes that its Charter provides NOFD with broad discretion to fight fires, that broad grant of authority does not necessarily exist in a vacuum. As plaintiffs posit, other statutes or regulations may limit NOFD's discretion. The regulation and statute that plaintiffs present, however, do not restrict NOFD's discretion.
First, as plaintiffs' expert John O'Rourke explained in his deposition testimony, the NFPA handbook may be the "bible of fire protection," but it merely recommends courses of action in dealing with fires. (Mot. Summ. J. Ex. BI at 20, 25.) However thoughtful or compelling those recommendations may be, they are just that, recommendations. Accordingly, the NFPA handbook is not a specific directive that removes NOFD's actions from the ambit of the state discretionary function exception.
Second, the Building Codes, which plaintiffs cite, have not been in force for over six years. While there are comparable provisions in the current Building Code, common sense suggests they are not applicable to fire emergencies. Indeed, it would be nonsensical for NOFD, while engaged in its firefighting efforts, to wait 48 hours to secure a permit to restore electrical power. The provisions obviously are limited to routine wiring and electrical work.
Therefore, the Court finds that NOFD's actions undertaken in response to the MacFrugal's warehouse fire involved elements of judgment or choice. Accordingly, the City satisfies the first prong of the discretionary function test.
2. Grounded in Policy
The second prong considers whether NOFD's actions were grounded in policy. The City articulates a number of policy considerations animating Chapter 6 of the Charter and the discretionary decisions undertaken during the fire. For example, in deciding how to respond to and extinguish a fire and to complete overhaul procedures, NOFD must balance concerns for public safety and the protection of private property with concerns for the protection of firefighting personnel, efficiency of operations, and the need to allocate personnel and equipment according to anticipated requirements. The City further notes that the language of the charter itself reveals that the need for discretion is based on competing concerns for the preservation of life and safety and the protection of private property. In particular, Section 4-601 expressly mentions concerns for "fire prevention" and "safety of persons or private property." Charter at § 4-601(4), (5). Moreover, Section 4-602 grants the superintendent of fire or his representative police powers to respond to emergency situations, and, if necessary, "to cause to be demolished any structure . . . in [his] judgment." Id. at § 4-602. As the City explains, such discretion requires the superintendent to assign priorities to public safety and property, and contemplates situations in which concerns for the preservation of human life and/or safety outweigh the concerns for the preservation of property.
Plaintiffs, however, contend that any policy considerations shielding the City from liability on the planning level do not extend to the mere "operational" implementation of procedures by firefighting personnel. ( See Pls.' Supp. Mem. at 5-6.) They argue:
The actions by the NOFD in turning off the sprinkler system, not manning the valves, opening all the bay doors in the face of 21 mph wind, removing all but one engine from the scene, leaving only three firefighters to contain a potential rekindle, and re-energizing the building contrary to written policy and statutory provisions were not generalized policy decisions or actions done for social or policy consideration.
( Id. at 6.) Rather, plaintiffs assert they "were operational decisions, calculated to address operational circumstances." ( Id.) As already discussed, however, after Gaubert, characterizing NOFD's actions as "operational" does not automatically exclude them from the protection of the discretionary function exception. See Rick, 630 So.2d at 1276.
Plaintiffs also cite Industrial Risk Insurers v. New Orleans Public Service, Inc., 735 F. Supp. 200, 203 (E.D. La. 1990), for the proposition that the discretionary function exception will not shield operational acts undertaken to facilitate the continued suppression of a fire. In denying the City's motion to dismiss, the court in Industrial Risk observed that the "City and the NOFD have not submitted any evidence that their allegedly negligent actions were decisions based upon the exercise of policy judgment, as opposed to merely operational decisions based on objective standards." Id. Industrial Risk, however, predates Gaubert and Rick, which eliminated the rigid operational/discretionary dichotomy. Furthermore, Industrial Risk is distinguishable from this case, because there the City failed to articulate any policy considerations motivating its actions. See Industrial Risk, 735 F. Supp. at 205. Here, the City articulates ample policy considerations.
Plaintiffs also attempt to distinguish Kniepp v. City of Shreveport, 609 So.2d 1163 (La.App. 2d Cir. 1992), from this case. Their argument is not convincing. In Kniepp, the Louisiana Second Circuit Court of Appeal found that the police chief's seemingly operational decisions were grounded in policy concerns for the protection of life and private property. See id. at 1168. Plaintiffs contend that here, by contrast, "the decisions were based on the circumstances and exigencies of the fire and were therefore premised on objective analysis of the situation." (Pls.' Opp'n. at 6.) The Court finds that plaintiffs's characterization of this case only bolsters the City's position. Indeed, it is difficult to imagine how the decision in Kniepp to withdraw forces from an angry and violent crowd in front of a burning building was based any less on the "circumstances and exigencies" of the moment than the decisions of NOFD in this case.
Here, the City advances legitimate policy concerns similar to those articulated by the City of Shreveport in Kniepp. Plaintiffs, however, fail to raise a genuine issue of material fact that the decisions made by NOFD regarding the MacFrugal's fire are not susceptible to the policy considerations animating the broad grant of authority conferred on NOFD by the charter. See Public Investors, 35 F.3d at 221. Cf. Baldassaro v. United States, 64 F.3d 206, 212 (5th Cir. 1995) (granting summary judgment in FTCA case when plaintiff failed to present specific facts sufficient to rebut presumption that discretionary decision was grounded in policy). In so concluding, this Court observes that "[t]he sovereign authorities ought to be left free to exercise their discretion and choose the tactics deemed appropriate without worry over possible allegations of negligence." Kniepp, 609 So.2d at 1166 (citing Wong v. City of Miami, 237 So.2d 132, 134 (Fla. 1970)). Therefore, the Court finds that NOFD's actions were grounded in policy.
3. Whether Discretion Is a Question of Fact
Even if the City satisfies both prongs of the discretionary function test, plaintiffs argue that "the question of discretion is almost always a question of fact that should not be decided by summary proceedings." (Pls.' Supp. Mem. at 4.) To bolster this proposition, plaintiffs cite Harris v. Godwin, 671 So.2d 1278, 1285 (La. 2d Cir. 1996), wherein the state court found that the determination of whether the sheriff's actions were operational as opposed to discretionary were so fact sensitive as to normally preclude summary judgment. Asserting that the proposition was "well established," the court cited two cases that predate Gaubert. As already explained, the Louisiana Supreme Court in Rick embraced Gaubert and found that operational decisions may be discretionary if based on policy. As the Court has determined that NOFD's firefighting actions were grounded in policy considerations, the Court finds there are no issues of material fact precluding summary judgment. Accordingly, it is unnecessary to consider the application of public emergency immunity conferred by Section 9:2793.1.
III. Conclusion
For the foregoing reasons, the City's motion is granted.