Supreme Court of Louisiana 

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #075

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 6th day of December, 2016, are as follows:

BY KNOLL, J.: 

2016-CA-0087 DANA JOHNO v. JOHN DOE, ET AL. (Parish of Plaquemines) 

Accordingly, we affirm the District Court's finding that La. R.S.

Section 9:2800.17 is unconstitutional as applied retroactively, 

because the plaintiff's causes of action accrued before effective

date of the statue. We remand this matter for further 

proceedings consistent with this opinion. 

AFFIRMED AND REMANDED.
12/06/16

SUPREME COURT OF LOUISIANA

NO. 2016-CA-0087

DANA JOHNO

VERSUS

JOHN DOE, ET AL.

ON APPEAL 

FROM THE TWENTY-FIFTH JUDICIAL DISTRICT COURT

FOR THE PARISH OF PLAQUEMINES

KNOLL, J.

In this appeal, the District Court declared the immunity statute at issue, La. 

R.S. § 9:2800.17, unconstitutional as applied retroactively to the facts of this case.

1

The plaintiff, Dana Johno, filed suit against Plaquemines Parish Government 

(“PPG”) and numerous other defendants alleging his house was unlawfully 

demolished by PPG and its agents after Hurricane Katrina. The plaintiff 

subsequently moved to have La. R.S. § 9:2800.17, which provided retroactive 

statutory immunity to the government and its agents for certain actions taken in the 

wake of Hurricane Katrina, declared unconstitutional. The District Court granted 

the plaintiff’s motion. Significantly, the issue of immunity was never raised or 

argued by PPG. Only one of the defendants, Hard Rock Construction, LLC (“Hard 

Rock”), one of the contractors for PPG, has appealed the District Court’s ruling. 

For the following reasons, we affirm. 

 1 Although originally designated as La. R.S. § 9:2800.16, the statute at issue in this case was later 

renumbered to La. R.S. § 9:2800.17, and will be referred to as such for the purpose of this 

opinion. Additionally, this statute expired in 2008 and the section number has been reassigned to 

a different provision. The pertinent text of La. R.S. § 9:2800.17 is contained below on page two. 
2

FACTS AND PROCEDURAL HISTORY

The plaintiff alleges he was the owner of a house located at 183 Foster Lane 

in Buras, Louisiana, which house was physically moved by floodwater to 220 

Perry Lane, an adjacent lot. He alleges he examined his house, was unable to 

remove valuable materials, and placed numerous signs on his house which stated 

“Do Not Demolish—Property of Dana Johno” with his phone number on the signs.

The plaintiff alleges, and the defendants do not contest, that this house was 

demolished by contractors acting on behalf of PPG before the June 15, 2006 

effective date of the act creating the immunity provision found in La. R.S. § 

9:2800.17.

2 After the plaintiff filed suit for claims related to this demolition, 

including negligence, gross negligence, conversion and trespass, one of the 

contractor defendants asserted immunity under La. R.S. § 9:2800.17, which 

provided in pertinent part:

A. (1) The state, or any political subdivision thereof, or any public 

entity, meaning and including the state and any of its branches, 

departments, offices, agencies, boards, commissions,

instrumentalities, officers, officials, employees, and their agents,

employees, contractors, volunteers, or representatives engaged in any 

operational decisions or activities in the aftermath of Hurricanes 

Katrina and Rita shall not be civilly liable for the death of, or any 

injury to, any person or damage to property as a result of such 

activity, except in the event of gross negligence or willful misconduct.

The statute’s implementing act, Act 402 of the 2006 Regular Legislative Session,

expressly states this provision applies retroactively:

Section 2. The provisions of this Act shall have both prospective and 

retroactive application and shall be applied retroactively to August 29, 

2005.

In turn, the plaintiff submitted a motion to declare La. R.S. § 9:2800.17 

unconstitutional, providing notice to the Attorney General as required pursuant to 

La. R.S. § 13:4448. Two of the contractor defendants submitted oppositions to 

plaintiff’s motion, and the Attorney General filed a memorandum in support of the 

 2 The plaintiff alleges he discovered the house had been destroyed on January 11, 2006. 
3

statute’s constitutionality. After oral argument, the District Court took the matter 

under advisement. The District Court, quoting at length this Court’s decision in 

Burmaster v. Plaquemines Parish Government, 07-2432 (La. 5/21/08), 982 So.2d 

795, granted plaintiff’s motion, stating in its Reasons for Judgment:

Based on the Supreme Court’s reasoning in Burmaster, it would be 

unconstitutional to retroactively apply La. R.S. 9:2800.17 as it existed 

from June 2006 to August 2008 to plaintiff’s claims. Plaintiff’s home 

was demolished prior to the effective date of the statute; thus, his 

cause of action accrued prior to the enactment of the statute. Because 

his cause of action accrued before the statute went into effect, it would 

be unconstitutional to apply the statute retroactively.

Hard Rock, alleged to be the supervising contractor in the demolition, filed 

supervisory writs to the Court of Appeal, which properly found it had no 

jurisdiction and transferred Hard Rock’s application to this Court pursuant to La. 

Const. art. V. § 5(D). No other defendant, including PPG, has joined in this appeal; 

neither is the Attorney General appearing before us. 

DISCUSSION

Defending the constitutionality of the retroactive application of La. R.S. § 

9:2800.17 to plaintiff’s claims, Hard Rock insists that Burmaster v. Plaquemines 

Parish Government, 07-2432 (La. 5/21/08), 982 So.2d 795 is “easily 

distinguishable” because it involved a claim regarding failure to maintain a levee 

rather than a debris removal issue. Hard Rock avers the statute at issue does not 

negate any cause of action the plaintiff may have, but that it merely prescribes the 

method of enforcement of plaintiff’s rights. We disagree.

We affirm the District Court’s finding that this Court’s decision in 

Burmaster is directly on point. The statute at issue in that case, designated as La. 

R.S. § 9:2800(H) and originating from La. Act 545 of 2006, provided in pertinent 

part:

(1) Notwithstanding any provision of law to the contrary, except 

for gross negligence or willful and wanton misconduct, no person 

shall have a cause of action based solely upon liability imposed for 
4

Civil Code Articles 2317 and 237.1 against a public entity for any 

damages arising from hurricanes Katrina or Rita, including 

aftereffects of either hurricane and post hurricane restoration, repair, 

cleaning, and construction.

Burmaster involved a different plaintiff who filed a suit against PPG, seeking 

damages for harm allegedly caused by PPG’s failure to properly maintain the 

hurricane protection levees in the parish. After noting that La. Act 454 of 2006 

clearly expressed the Legislature’s intent for its provisions to be retroactive, this 

Court looked to past precedent, finding:

When a party acquires a right to assert a cause of action prior to a 

change in the law, that right is a vested property right which is 

protected by the guarantee of due process. Walls v. American Optical 

Corp., 98–0455, p. 8 (La.9/8/99), 740 So.2d 1262, 1268. See also Cole

[v. Celotex Corp.], 599 So.2d [1058] at 1063 [(La.1992)]; Crier v. 

Whitecloud, 496 So.2d 305, 308 (La.1986); Faucheaux v. Alton 

Ochsner Medical Found. Hosp. & Clinic, 470 So.2d 878, 878–79 

(La.1985); Lott [v. Haley ], 370 So.2d [521]at 524 [(La. 1979)]; 

Burmaster v. Gravity Drainage Dist. No. 2, 366 So.2d 1381, 1387 

(La.1978). Thus, a cause of action, once accrued, cannot be divested by 

subsequent legislation....

Burmaster v. Plaquemines Par. Gov't, 982 So.2d at 807–08, quoting 

Bourgeois v. A.P. Green Indus., Inc., 2000-1528 (La. 4/3/01), 783 So.2d 1251 at 

58-59.

Accordingly, the Court in Burmaster found the plaintiff’s claim for 

negligence against PPG had already accrued at the time the immunity statute at 

issue was implemented; thus, plaintiff could not be constitutionally divested of its 

cause of action through retroactive application of the statute. Although the nature 

of defendants’ alleged actions in this case are different from those alleged by the 

plaintiffs in Burmaster, this distinction is without a difference. We find the 

demolition of the plaintiff’s house falls as squarely under the immunity provisions 

of La. R.S. § 9:2800.17 as the alleged failure to properly maintain the levees fell 

under the immunity provision applicable in Burmaster. Thus, as in Burmaster, the 

plaintiff in this case may not be retroactively deprived of causes of actions which 
5

vested when his house was demolished prior to the implementation of the 

immunity statute at issue.

Hard Rock cites to Ardoin v. Hartford Acc. & Indem. Co., 360 So.2d 1331 

(La. 1978) in support of its assertion that the statute at issue merely proscribes the 

burden of proof for plaintiff’s claim. We find Ardoin is distinguishable from the 

present case. In Ardoin, this Court approved the retrospective application of a 

statute which further defined the standard of care in medical malpractice cases for 

different types of physicians. Id. The plaintiff, representing a decedent who had 

passed away after heart by-pass surgery, sued the doctors who performed the 

surgery and who had held themselves out as specialists. Subsequent to the surgery, 

the Legislature specified that specialists would be held to the degree of care 

practiced by other specialists, even if not practicing in the same locality. Finding 

the lower courts erred in failing to apply the statute retroactively, this Court found 

it to be merely procedural and interpretative, more precisely determining the 

standard of care or skill required by certain classes of physicians. Id. at 1339. 

The Burmaster case, which followed this Court’s decision in Ardoin, 

declined to extend Ardoin’s holding, addressing at length the argument that the 

statute at issue merely heightened the burden of proof to require a showing of gross 

negligence or willful misconduct:

Black's Law Dictionary 209 (8th ed.2004) defines “burden of proof” 

generally as “[a] party's duty to prove a disputed assertion or charge.” 

Black's entry for “burden of proof” also includes this definition of 

“middle burden of proof”: “A party's duty to prove a fact by clear and 

convincing evidence. This standard lies between the preponderanceof-the-evidence standard and the beyond-a-reasonable-doubt 

standard.” Id. The following quote also appears in Black's “burden of 

proof” entry:

The expression “burden of proof” is tricky because it has 

been used by courts and writers to mean various things. 

Strictly speaking, burden of proof denotes the duty of 

establishing by a fair preponderance of the evidence the 

truth of the operative facts upon which the issue at hand 

is made to turn by substantive law. Burden of proof is 
6

sometimes used in a secondary sense to mean the burden 

of going forward with the evidence. In this sense it is 

sometimes said that a party has the burden of countering 

with evidence a prima facie case made against that party.

Id. (quoting William D. Hawkland, Uniform Commercial Code Series

§ 2A–516:08 (1984)).

Thus, even though the term “burden of proof” to [sic] is used to refer 

to “various things,” the term technically applies only to the three 

levels of burden of proof that are recognized by courts—i.e., (1) 

preponderance of the evidence, (2) clear and convincing evidence, and 

(3) beyond a reasonable doubt. These are the three levels of burden of 

proof recognized by Louisiana courts. Even though one might 

imprecisely refer to a plaintiff's burden of proving ordinary 

negligence, as opposed to proving gross negligence, as the plaintiff's 

“burden of proof,” that term does not technically apply.

Burmaster, 982 So.2d at 809.

The Burmaster Court further concluded: 

The fact that the statute provides an exception in cases where the 

plaintiff can prove gross negligence or willful and wanton misconduct 

does not mean that the only effect of 2006 La. Act 545 was a 

procedural change in the burden of proof under La. Civ.Code arts. 

2317 and 2317.1. Indeed, 2006 La Act 545 established a new rule, 

making it substantive under the definition set forth by this court in 

Manuel [v. La. Sheriff's Risk Mgmt. Fund, 95–0406 (La.11/27/95), 

664 So.2d 81)] and Sudwischer [v. Estate of Hoffpauir, 97–0785 

(La.12/12/97), 705 So.2d 724] Despite the existence of the exception, 

the effect of 2006 La. Act 545 is to eradicate a large portion of the 

liability that could otherwise have been imposed on public entities for 

damages caused by Hurricane Katrina. For the foregoing reasons, 

we find no merit to PPG's argument that 2006 La. Act 545 did not 

divest the plaintiffs of any vested rights, but merely changed the 

plaintiffs' burden of proof.

Id. at 810 (emphasis supplied).

Applying our analysis in Burmaster to this case, we find retroactive application of 

La. R.S. § 9:2800.17 does not merely change the plaintiff’s burden of proof but 

clearly deprives the plaintiff of his vested right to bring causes of action beyond 

those arising from the defendants’ gross negligence or willful misconduct.

DECREE

When a party acquires a right to assert a cause of action prior to a change in 

the law, that right is a vested property right which is protected by the guarantee of 
7

due process. Burmaster, 982 So.2d at 807–08 (citations omitted). Thus, a cause of 

action, once accrued, cannot be divested by subsequent legislation. Id.

Accordingly, we affirm the District Court’s finding that La. R.S. § 9:2800.17 is 

unconstitutional as applied retroactively, because the plaintiff’s causes of action

accrued before effective date of the statute. We remand this matter for further 

proceedings consistent with this opinion.

AFFIRMED AND REMANDED.