Hurricane Harvey & Irma

[Montmorency]

https://www.bloomberg.com/news/featu...-everyone-else

Rich Texans want to sue the federal government because their properties were developed on a dam's flood plain, and this flood plain happened to be... flooded during the hurricane.

This situation, though, has two key differences. In New Orleans, economically disadvantaged communities, some of them historically black, bore the brunt of the loss, with hundreds, perhaps thousands, of deaths. The victims in West Houston include white, wealthy, Republican-voting energy executives.

The West Houston cases are unlike the Katrina cases in another way, too: Rather than make a legal argument about official neglect, they speak to what happened when the federal government intentionally flooded one of the richest areas of a city to save everyone else.

“Hell yeah, I’m pissed,” he spits. He says he’s still deciding whether to sue. “This was not an act of God, this was an act of man. They pushed us onto a grenade to save the rest of the city.” He crushes a beer can in one hand and tosses it aside, then picks up a sledgehammer and brings it down, hard, on a ruined cabinet.

Buzbee waves off such caution. “If you have your case on file and have litigated your case, you will always have better standing than someone who is sitting on the sidelines,” he says.
His approach to the West Houston suits is based on a fascinating legal argument, one that taps at a core Texan belief: The government should leave you the hell alone and pay you back if it doesn’t. The takings clause of the U.S. Constitution’s Fifth Amendment forbids the federal government from seizing citizens’ property without paying for it: “[N]or shall private property be taken for public use without just compensation.” Attendant case law holds that when a government “takes” property for the public good without going through eminent domain proceedings, the owner can claim that an “inverse condemnation” has taken place, arguing that property was unfairly taken, damaged, or destroyed, and that payment is due.

Until 2012 the government successfully argued that it wasn’t legally responsible for decisions made in response to temporary flooding. That year the Supreme Court laid out a new multifactor test that could establish government liability in such cases. The majority opinion, written by Justice Ruth Bader Ginsburg, held, for example, that the government should compensate a property owner for a taking if it has interfered with a “reasonable, investment-backed expectation.” That is, if it was reasonable to expect that a home you invested in wouldn’t flood, but it does, and a court finds the government responsible, then compensation could be due.

In some cities, developers are prohibited from building in these areas, but in Houston there are no such restrictions. Many homeowners west of the Barker dam claim they didn’t know they were in a flood pool, that they hadn’t spotted the fine print on the bottom of some of their subdivision maps. (“Who looks at a subdivision map?” one resident asks.)

Blais isn’t sure that even the 500-year flood plain homeowners will be able to make their case in court. “If you are close to the coast in hurricane country, and you build a house downstream from a reservoir and near a bayou, and everything around you is called ‘bayou’-something, what are your reasonable expectations of being flooded?” she asks. “You probably should have thought of that.”

There are also concerns that, if the cases succeed, they could create a daunting precedent for the government. Ginsburg’s 2012 opinion tried to assuage fears that a broader takings standard would lead to a “deluge” of claims, but Echeverria and Meltz write that this could be exactly what happens. The takings clause could, they say, become “a kind of social insurance program for risk associated with climate change.” The notion of “historic flooding” inscribed in the 500-year flood plain standard won’t mean much if climate change scrambles that math. What’s more, they write, “successful takings litigation may actually impede initiative to take steps to avoid the worst effects of climate change.” Why build a dam, after all, if operating it could cost you billions of dollars in lawsuit payouts?

It's unfortunate they lost homes and possessions (though they have security), and I'd rather blame unscrupulous developers over buyers, but I don't see how they can sue for beyond the normal federal disaster relief - and honestly these people have relatively little need for federal relief. I hope this fails in court.

“I’m 100 percent certain Robert died because of the dam releases,” Kyle says. “It was because of their irresponsibility that they didn’t force people to get out before they released the water. I think they should have busted doors down and said, ‘The reservoir’s going, you gotta get out now.’ ”

I am in full agreement that pre-emptive mandatory and compelled evacuation in such circumstances is appropriate. Unfortunately, I'm unsure that many Texans agree.

[Seamus Fermanagh]

I once attended a county board meeting in Virginia. One of the items of business was a pair of neighbors complaining about the noise and heavy truck traffic from a local quarry impinging on their enjoyment of their properties, despite the decorative berm put in by the quarry at its own expense to mitigate sightlines and sound pollution.

Both homes had been built, then purchased by these homeowners more than 15 years AFTER the quarry had begun operations. The county board ruled against them.

They attempted to jointly sue the county and the quarry.


So, if the dam was constructed AFTER the development of the property in question and over the written objections of that owner, then MAYBE they are owed some compensation. Absent that, go pound sand.

[Gilrandir]

So, if the dam was constructed AFTER the development of the property in question and over the written objections of that owner, then MAYBE they are owed some compensation. Absent that, go pound sand.

I wouldn't be so sure. Remembering the lawsuit against some restaurant concerning burns caused by hot coffee one might suppose they would claim no one EXPLICITLY told them that they MIGHT get flooded when they had bought the estates. And the court will rule in their favor.

[Seamus Fermanagh]

I wouldn't be so sure. Remembering the lawsuit against some restaurant concerning burns caused by hot coffee one might suppose they would claim no one EXPLICITLY told them that they MIGHT get flooded when they had bought the estates. And the court will rule in their favor.

The appeals judge in that now infamous case lowered the award dramatically. If I recall correctly, the judge didn't set aside the award entirely only because it was not allowed at the appellate level.

[Montmorency]

I wouldn't be so sure. Remembering the lawsuit against some restaurant concerning burns caused by hot coffee one might suppose they would claim no one EXPLICITLY told them that they MIGHT get flooded when they had bought the estates. And the court will rule in their favor.

The facts and claims of the coffee lawsuit don't seem to have any relevance to the legal aspects of this case, and the coffee case was perfectly sensible and worthwhile. Usually in our legal system negligence, if evident, produces liability The burns in the coffee case were directly associated with very high serving temperatures and flimsy containers:

The jury in this case decided that the coffee was a defective product and that McDonald's had breached implied warranties of merchantability and fitness for a particular purpose. The jury also decided that the lady did bear some responsibility for what had happened. The jury said that she was twenty percent at fault and that McDonald's was eighty percent at fault for the injury.

What you have to distinguish between is whether the hazard of hot liquid is obvious, and whether the hot liquid product is served, packaged, or conveyed in a risky manner. The second point is independent of the first.

McDonalds and other establishments serving coffee accounted for this ruling by improving the quality of the containers and lowering the serving temperature (sometimes): a good outcome.

Also I should note that in any legal system precedent (used broadly) is important, and one element of the coffee case only briefly hinted at in the link is that McDonalds was found to have settled out of court hundreds of similar coffee cases prior to this one, which went to trial because plaintiff and defendant could not agree on a settlement. The prior settlements helped to establish that McDonalds was conscious of potential liability and defect in the products yet did not act to amend this.

[Gilrandir]

The facts and claims of the coffee lawsuit don't seem to have any relevance to the legal aspects of this case, and the coffee case was perfectly sensible and worthwhile. Usually in our legal system negligence, if evident, produces liability The burns in the coffee case were directly associated with very high serving temperatures and flimsy containers:



What you have to distinguish between is whether the hazard of hot liquid is obvious, and whether the hot liquid product is served, packaged, or conveyed in a risky manner. The second point is independent of the first.

McDonalds and other establishments serving coffee accounted for this ruling by improving the quality of the containers and lowering the serving temperature (sometimes): a good outcome.

Also I should note that in any legal system precedent (used broadly) is important, and one element of the coffee case only briefly hinted at in the link is that McDonalds was found to have settled out of court hundreds of similar coffee cases prior to this one, which went to trial because plaintiff and defendant could not agree on a settlement. The prior settlements helped to establish that McDonalds was conscious of potential liability and defect in the products yet did not act to amend this.

I wasn't talking about legal aspect or serving potentially dangerous wares to the customers. EVERYTHING may eventually hurt people.

What I had in mind is that such weird charges and lawsuits lead to manufacturers growing attempts to "warn" the customers they may get hurt by their products if they are mishahdled or misused. Consequently, some of these warnings seem as weird as the abovementioned charges. For instance I heard that chainsaws have a warning not to touch the mechanism when it is on. Like a person in sober senses may do the opposite!

So, what I'm driving at: if the house owners who suffered from the flood complain that they were not EXPLICITLY warned of the danger (which is crystal clear to everybody when FLOOD PLAIN is mentioned) they may still win the case. They would say that the danger of flood wasn't mentioned in the ownership documents (don't know the correct name for them) and no boards with respective warnings had been spotted near the houses for sale.

[Seamus Fermanagh]

I always love the little desiccant packets with their "do not eat" label.

[Montmorency]

I wasn't talking about legal aspect or serving potentially dangerous wares to the customers. EVERYTHING may eventually hurt people.

What I had in mind is that such weird charges and lawsuits lead to manufacturers growing attempts to "warn" the customers they may get hurt by their products if they are mishahdled or misused. Consequently, some of these warnings seem as weird as the abovementioned charges. For instance I heard that chainsaws have a warning not to touch the mechanism when it is on. Like a person in sober senses may do the opposite!

So, what I'm driving at: if the house owners who suffered from the flood complain that they were not EXPLICITLY warned of the danger (which is crystal clear to everybody when FLOOD PLAIN is mentioned) they may still win the case. They would say that the danger of flood wasn't mentioned in the ownership documents (don't know the correct name for them) and no boards with respective warnings had been spotted near the houses for sale.

Not really. What you seized upon was that both cases involve liability, but so do most legal matters, and there are many different forms of liability. Lessons drawn from one case may not apply to another.

The one you invoked involved corporate business liability with respect to consumer goods and purchases. The Texas flooding suit involves, among other things, the liability of the federal government in its use, seizure, or destruction of private land and property (as a Constitutional issue).

These are just different cases and different kinds of law.

[Gilrandir]

Not really. What you seized upon was that both cases involve liability, but so do most legal matters, and there are many different forms of liability. Lessons drawn from one case may not apply to another.

The one you invoked involved corporate business liability with respect to consumer goods and purchases. The Texas flooding suit involves, among other things, the liability of the federal government in its use, seizure, or destruction of private land and property (as a Constitutional issue).

These are just different cases and different kinds of law.

Probably. I am no lawyer. But it seems to me this "we weren't explicitly told" may be used by the suitors.