Potential Liability of Environmental Health Agencies (and Inspectors) for Inspections

Liability

Financial responsibility for another person’s injuries or damages

If you are going to be held liable, it will be for:

NEGLIGENCE!

What is negligence?

The failure to exercise reasonable care under the circumstances

Elements of a negligence claim

• Duty

• Breach

• Causation

• Damages

Duty

• Legal obligation to act for the benefit of another person

• Sources of this duty:– Statute or regulation– Contract– Common law

Other elements of NEGLIGENCE

• Breach

• Causation

• Damages

Is this in the future for food inspectors?

Public Duty

A legal doctrine that shields state and local governments from liability

Government Immunity

Governments can choose to be protected from liability for its tortious conduct

Public Duty Doctrine and Government Immunity

Whether an inspector is potentially liable in any given state depends on whether the courts apply the public duty rule, governmental immunity, or a combination of both

Public Duty Doctrine

The “public duty doctrine” shields almost all public officials and the agencies they work for from liability for tortious conduct

“A duty to all is a duty to none”

Public Duty Doctrine Applied

• Inspector conducts on-site inspection at sandwich shop. From previous inspections he knows that cooked deli meat used in sandwiches is prepped in a separate area out of public view. He leaves without inspecting the deli meat prep area.

• Twenty days later there is a large Hepatitis A outbreak among sandwich shop patrons. An investigation attributes illness to an ill employee who sliced meats and did not wear gloves.

• Is the inspector liable to patrons who become ill?

Answer… It Depends

Even in states that apply the public duty doctrine, there are always exceptions

Governmental immunity

The King can do no wrong

Governmental immunity

• Sovereign immunity protected federal and state governments and their employees from being sued without their consent

• Starting in the mid-1900s, the trend toward government accountability began

• In 1946, the federal government passed the Federal Tort Claims Act (28 U.S.C. §2674), waiving immunity to suit and liability for certain actions. Many state legislatures followed by enacting statutes to define the limits of immunity for state governmental entities and employees

Can a health inspector in be sued?

The answer is…

I’m not going to tell you…yet

Gregor v. Argenot Great Central Ins. Co.

• In 1991, Louisiana Dept. of Health and Hospitals (DHH) published a rule requiring restaurants to post a warning to customers about the risk of eating raw oysters.

• State law required that the warning be placed at all points of sale.

Gregor v. Argenot Great Central Ins. Co.

• Restaurant posted a warning in its oyster bar, but not in the dining room.

• Dining room customer with pre-existing Hepatitis C consumed oysters, became infected with V. vulnificus, and died.

• Family sued restaurant AND state health department.

Outcome

• $450,000 verdict– Restaurant 25% at fault– Louisiana Department of Health and Hospitals 75% at fault

On appeal

The health department appealed, arguing that it had discretionary immunity since the display over the oyster bar was deemed sufficient by the inspector

Louisiana Supreme Court

• Dining room tables were points of sale

• Statute requiring displays at points of sale left no discretion—displays had to be at dining room tables too, and inspector negligently failed to enforce this.

• Apportionment amended: 50% restaurant; 50% Department of Health and Hospitals

So, what about California?

In California…

• The tort liability of a public entity is wholly statutory pursuant to code section 815.

• Under the Tort Claims Act, injuries stemming from the issuance, denial, revocation, or suspension of licenses, permits are excluded from the scope of tort liability.

• A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or public employee.

• A pubic entity is not liable for an injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection.

Therefore, in California…

• You likely won’t be liable for a negligent inspection because of protection provided by:– Governmental immunity– California Tort Claims Act

Then just don’t worry about it, right?

• Wrong• Just because you will probably escape liability does

not mean you can’t be sued• But the good news … it’s very unlikely to occur

Some points to remember

• If you do your job, you’ll be fine• Approach it like the business and customers were your

family—what would you do?• Educate, educate, educate• Document, document, document• Photograph if possible• Work cooperatively with other agencies• Do as complete of an investigation as resources allow

Questions?