In February, 2010, the United States Court of Appeals for the Fifth Circuit affirmed the lower court decision in Davis, et. al. v. USA which held that governmental immunity barred suit for a death that occurred during Hurricane Katrina rescue operations.
During the storm, a married couple escaped flood waters by climbing onto an elevated highway in New Orleans. A U.S. Navy helicopter offered to pick the stranded couple up, and Mrs. Davis was put into a "rescue strop", to be raised by winch approximately 40 feet to the hovering copter. During the lift, the hoist operator noticed that her arms had become free and she was sinking into the rescue strop. While personnel attempted to secure her from the helicopter, she fell back onto the highway. Soon after her fall she was raised in a "rescue basket" by a Coast Guard helicopter. The injuries from her fall during the Navy's rescue attempt resulted in her death.
Mr. Davis filed suit in U.S. District Court, alleging wrongful death, negligence and battery, under the Federal Tort Claims Act and the Louisiana Civil Code. The Government responded that the immunity provisions of the Federal Tort Claims Act and the Robert T. Stafford Disaster Relief and Emergency Assistance Act barred suit.
The appellate report of this case did not go into detail, however, it is clear that the suit alleged that the "rescue strop", used by the Navy, was not as safe or suitable for the purpose of hoisting a person into a hovering helicopter, as the "rescue basket" used by the Coast Guard.
The United States can only be sued with Congressional consent. Both US statutes named above preclude governmental liability for any claim based upon the exercise or performance of, or the failure to exercise or perform, a "discretionary function or duty" on the part of a federal agency.
In part, the Fifth Circuit held that because of the emergency situation left by Hurricane Katrina, the failed rescue of Mrs. Davis involved the exercise of discretion as to the means and timing of the attempted extraction.
Suit was accordingly barred by sovereign immunity.
