106 So. 3d 125
La. Ct. App.2012Background
- Farone operates a nonprofit Christian center in Bastrop and laid a parking lot in 2003 over a natural drainage path.
- A drain runs under the parking lot, is connected to the city's storm system on North Vine Street, and has periodically eroded the surface, causing sinkholes.
- The city previously repaired the drainpipe in 2005, 2006, and 2007; since then no other party maintained the pipe.
- In 2008, Farone sought repairs to the drain due to erosion and a growing sinkhole; the Mayor refused, citing ownership and scope concerns and indicating replacement would be required.
- Farone sued for damages and injunctive relief; the trial court granted involuntary dismissal under discretionary immunity; Farone appeals, and the appellate court reverses and remands.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 9:2798.1 immunity applies to the City’s refusal to repair the drain | City undertook maintenance, creating liability; immunity does not apply. | Discretionary immunity shields the City’s policymaking decisions regarding repairs. | Immunity not applicable; dismissal reversed. |
| Whether the City’s maintenance of the drain defeats discretionary immunity | City historically maintained the drain and assumed responsibility. | Drain under private property; no obligation to repair beyond discretionary acts. | City’s past maintenance and public drainage purpose negated immunity; remand required. |
| Whether the trial court should remand for further proceedings rather than enter judgment on the merits | With immunity inapplicable, the case must proceed on the merits. | Judgment based on discretionary immunity was appropriate if misapplied. | Remand for further proceedings consistent with the opinion. |
Key Cases Cited
- McCloud v. Parish of Jefferson, 383 So.2d 477 (La. App. 4th Cir. 1980) (drainage duties; immunity not absolute when undertaking drainage improvements)
- Mitter v. St. John the Baptist Parish, 920 So.2d 263 (La. App. 5th Cir. 2005) (discretionary immunity not absolute in drainage-related cases)
- Lasha v. Olin Corp., 625 So.2d 1002 (La.1993) (deference to trial court but standard of review for misapplication of law)