BATON ROUGE – A judge has ruled the City-Parish of East Baton Rouge will continue as a defendant in a civil lawsuit brought by the mother of a 4-year old boy who drowned in a flooded, muddy sewer hole that had been left unmarked and unsecured. 

After hearing brief arguments, 19th Judicial District Court Judge Michael R. Caldwell ruled July 13 that the City/Parish of East Baton Rouge must continue as defendant in the case.

East Baton Rouge asserted it isn't liable in 4-year old Jassiah Clark's death because it didn't carry out any of the work associated with filling the sewer hole or demolishing the pumping station that once stood there. The task of demolishing the pumping station had been contracted out to Grady Crawford Construction of Baton Rouge, while CH2M Hill Inc. of Englewood, Colorado was contracted to manage upgrading of the city's pumping stations. Both construction companies are listed as defendants in the case.

The 4-year old boy's body was recovered Dec. 20, 2014, two days after the launch of a massive search that involved about 100 law enforcement officers, including FBI agents.

Parish inspectors first notified city government agencies of the abandoned, unsecured sewer hole in October 2014, according to attorneys for Jassiah Clark's mother, Brittni Clark. Other inspectors filed a second report two weeks prior to Jassiah Clark's death.

One of Clark's attorneys, Lewis Unglesby, said the size and, more specifically, the depth, of the sewer hole and the public hazard it posed was hidden and unknown to residents and passersby because it was flooded and on the surface resembled a mud puddle. No signs, barricades or fencing surrounded or secured it at the time of the fatal accident.

East Baton Rouge has tried at least twice to be dismissed as a defendant in the case.

¨Generally speaking, judges are very hesitant to dismiss defendants at such an early stage [of a lawsuit], before the discovery process has been completed,¨ Gretna-based attorney Paul Russell told the Louisiana Record. 

Municipalities' liabilities in such cases are strictly limited by federal and Louisiana law, at times to the extent they have immunity, Russell noted. That said, they cannot waive certain responsibilities.

Any decision will hinge on the specific aspects of the parish's contract with the construction companies that are common to all tort law. These include the parties' intent and consent when they enter into contracts, Russell noted. 

¨It's a complicated area of civil tort law," Russell said. ¨It's possible that East Baton Rouge specified, and the contractors agreed, that they would be wholly responsible and assume any and all liabilities associated with the work to be done. In this case, that could include liability for creating what's known as an attractive nuisance -- the abandoned sewer hole.¨

Even if the construction companies assumed all responsibilities and liabilities in their contracts, in all likelihood there's some language relating to city's oversight and its obligation to ensure that all work is done in compliance with regulations.

¨They can limit their liability to specific work tasks but it's very likely there's language in there regarding oversight," Russell said. "Even if they waive their responsibilities, the city has a duty to make subcontractors comply."

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