Spector v. USAA Casualty Insurance Company, 2:18-cv-08806

Plaintiff Matthew Spector alleges flood damage to his New Orleans home in August 2017, and that nearby street/drainage repairs (performed by or for the Sewerage & Water Board of New Orleans (SWB) and the City) negligently exacerbated the flooding.
Plaintiff also alleges his flood insurer (USAA entities) improperly adjusted and refused to re-evaluate his claim under the National Flood Insurance Act and related regulations.
SWB moved to dismiss under Fed. R. Civ. P. 12(b)(6), arguing it is a "public entity" entitled to discretionary-function immunity under La. R.S. § 9:2798.1 for the decision to perform street/ drainage repairs.
Plaintiff contends the suit alleges operational-level negligence in carrying out repairs (and negligence of contractors), which is not protected by the discretionary-immunity statute; he also argues exceptions apply where conduct is not reasonably related to a legitimate government purpose or is malicious/willful.
The Court found SWB’s decision to perform street repairs is discretionary and generally protected by § 9:2798.1, but the statute does not bar claims alleging negligent conduct in carrying out those repairs; however, Plaintiff’s complaint lacks factual allegations plausibly pleading duty, breach, and causation.
The Court denied SWB’s motion without prejudice and granted Plaintiff 14 days to amend the complaint to plead the elements of negligence with sufficient factual detail.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether SWB is immune under La. R.S. § 9:2798.1 for alleged damage from street/drainage work	Spector: claims negligent operational conduct in performing repairs (and contractor negligence) — not protected by discretionary immunity; exceptions apply for non-legitimate purpose or malicious/willful misconduct	SWB: decision to perform and maintain drainage is a discretionary policymaking act immune under § 9:2798.1; no allegations of malicious/willful conduct; August 2017 rain event caused damage	Court: Decision to perform repairs is discretionary and generally immune, but immunity does not cover negligent operational conduct; complaint fails to plead duty, breach, causation sufficiently; dismissal denied without prejudice and leave to amend granted

McCloud v. Parish of Jefferson, 383 So.2d 477 (La. App. 4 Cir. 1980) (parish could be liable for negligent improvement/repair to drainage system)
Mitter v. St. John the Baptist Parish, 920 So.2d 263 (La. App. 5 Cir. 2005) (governmental authority not immune where drainage improvements harmed other citizens)
Fowler v. Roberts, 556 So.2d 1 (La. 1989) (government liable when negligent for reasons unrelated to public policy)
Hebert v. Adcock, 55 So.3d 1007 (La. App. 3 Cir. 2011) (discretionary immunity does not shield negligent operational conduct)
Franatovich v. St. Bernard Parish Government, 88 So.3d 1169 (La. App. 4 Cir. 2012) (operational decisions in maintenance/repairs can be non-discretionary and give rise to liability)