Liability of Environmental Health Agencies (and Inspectors) for Allegedly Negligent Inspections

Transcription

1 New Jersey Environmental Health Association 8 th Annual Educational Conference and Exhibit March 6, 2012 Liability of Environmental Health Agencies (and Inspectors) for Allegedly Negligent Inspections

2 Liability Financial responsibility for another person s injuries or damages

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

4 What is negligence? The failure to exercise reasonable care under the circumstances

5 Elements of a negligence claim Duty Breach Causation Damages

6 Duty Legal obligation to act for the benefit of another person Sources of this duty: Statute or regulation Contract Common law

7 Other elements of NEGLIGENCE Breach Causation Damages

8 Is this in the future for food inspectors?

9 Public Duty A legal doctrine that shields state and local governments from liability

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

11 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, sovereign immunity, or a combination of both

12 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

13 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?

14 Answer It Depends Even in states that apply the public duty doctrine, there are always exceptions

15 Governmental immunity then The King can do no wrong

16 Governmental immunity then 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

17 Governmental immunity now Actually, the King is occasionally wrong

18 Can a health inspector in NJ be sued for failing to find a food-safety issue? The answer is I m not going to tell you yet

19 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.

20 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 preexisting Hepatitis C consumed oysters, became infected with V. vulnificus, and died. Family sued restaurant AND state health department.

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

22 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

23 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

24 So, what about New Jersey?

25 States that apply the public duty doctrine Connecticut Illinois Michigan Massachusetts Missouri Rhode Island Washington States that do not apply the public duty doctrine Alaska Arizona Colorado Florida New Jersey Oregon Wisconsin

26 In New Jersey The NJ legislature enacted the Tort Claims Act, N.J.S.A. 59:11 to 13-10, to provide some relief from the doctrine of sovereign immunity: The Legislature recognizes the inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity. On the other hand the Legislature recognizes that while a private entrepreneur may readily be held liable for negligence within the chosen ambit of his activity, the area within which government has the power to act for the public good is almost without limit and therefore government should not have the duty to do everything that might be done. Consequently, it is hereby declared to be the public policy of this State that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein.

27 In New Jersey Thus, the Tort Claims Act provides that a public entity is generally not liable for an injury except in certain situations. A public entity is not liable for an injury resulting from the exercise of judgment or discretion vested in the entity. N.J. Stat. 59:2-3(a). A public entity is not liable for any injury caused by adopting or failing to adopt a law or by failing to enforce any law. N.J. Stat. 59:2-4.

28 Governmental immunity in New Jersey Exceptions: Nothing in this act shall exonerate a public employee from liability if it is established that his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct. Nothing in this act shall exonerate a public employee from the full measure of recovery applicable to a person in the private sector if it is established that his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct. N.J. Stat. 59:3-14

29 Hypotheticals Negligent failure to discover obvious violations that thereafter cause an E. coli outbreak? Punch the coach of your child s basketball team who happens to be dining at the site of your inspection?

30 Therefore, in New Jersey You likely won t be liable for a negligent inspection because of protection provided by: Governmental immunity New Jersey Tort Claims Act

31 Then just don t worry about it, right? Wrong Just because you will probable escape liability does not mean you can t be sued But the good news it s very unlikely to occur

32 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

33 Questions? Colin Caywood 1301 Second Avenue Suite 2800 Seattle, WA (206)