Title: Liability of Environmental Health Professionals for Alleged Negligent Inspections William D. Marler
1Liability of Environmental Health Professionals
for Alleged Negligent InspectionsWilliam D.
Marler
2Foodborne Illnesses
- 54 billion meals served at US restaurants each
year - Between 1993 and 1997 over 40 of outbreaks
occurred at businesses
3Foodborne Illnesses Cost U.S. An Estimated 3-7
Billion Each Year
- 76 million cases annually in the US
- 325,000 hospitalized
- 5,000 deaths
- Medical Expenses
- Lost Wages
- Lost Productivity
4Liability
- Financial responsibility for another persons
injuries or damages
5If you are going to be held liable, it will be
for
NEGLIGENCE
6Elements of NEGLIGENCE
- DUTY
- BREACH
- CAUSATION
- DAMAGES
7DUTY
- Legal obligation to act for the benefit of
another person - Sources
- 1. Statute or Regulation
- 2. Contract
- 3. Common Law
8The other elements
9Is this in the future for food inspectors?
10Public Duty and Immunity
- Whether an inspector is liable in your state is a
function of whether the Courts apply the public
duty rule, sovereign immunity, or a combination
of both
11A Summary of Immunities and Public Duty in
Minnesota
- Abolished total governmental immunity Minn.
Stat. 466.02 - Retained a comprehensive set of immunities
Minn. Stat. 466.03 - Retained the judicially created public duty
doctrineCracraft v. City of St. Louis Park, 279
N.W.2d 801 (1979)
12Immunity
- Governments can choose to not be liable for
tortious conduct
13Governmental immunity then
The king can do no wrong
14Governmental immunity now
- The king is occasionally wrong
Minn. Stat. 466.02Waives Governmental
Immunity
15Minn. Stat. 466.03
- No Immunity When
- Tax claims
- Snow or ice on a public way
- Injuries caused by an official executing a valid
or invalid statute - Injuries on unimproved property owned by
municipality - Injuries on logging roads
- Injuries resulting from Emergency Medical Dispatch
16Minn. Stat. 466.03 (6)
- Immunity When
- The performance or failure to perform any
discretionary act - Discretionary actan act or omission done on
the inspectors judgment
17Public Duty
- A legal doctrine that shields state and local
governments from liability
18PUBLIC DUTY DOCTRINE
- The public duty doctrine shields almost all
public officials and the agencies they work for
from liability
A duty to all is a duty to none
19Public Duty Doctrine Applied
- City fire inspector does not notice a barrel of
flammable liquid on a loading dock at a high
school, which is a clear violation of the citys
fire code. Two students are killed in a
subsequent explosion. - The fire inspectors duty to conduct inspections
was owed to the public at large, not the
individual students who were injured. - Therefore, the public duty doctrine applies, and
the City is not liable.
20The Plaintiffs Burden
- A plaintiff suing a municipality, or any of its
agencies, must show that the government assumed a
special duty i.e. a duty to the plaintiff,
individually, and not merely to the public at
large.
21Special Duty The Elements
- The municipality had actual knowledge of the
dangerous condition - The plaintiff reasonably relied on the
municipalitys, or its employees,
representations - A statutory duty for the protection of a
particular class and - The municipalitys, or its employees, negligent
conduct.
22So, can an inspector be sued for negligent
inspection?
23Special Duty 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?
24NO!!!
- No special duty to outbreak victims because
- No actual knowledge,
- No representation by the municipality about the
dangerous condition, and - No reliance by the victims on municipal
representations.
25A Variation on the Same Scenario
- This time the inspector sees the ill employee
handling RTE foods without gloves and without
washing his hands. - The restaurant is nonetheless given the highest
inspection rating. - The rating is posted on the Hennepin County HD
Web site.
26Liability?
- Questiondid the outbreak victims/plaintiffs rely
on the municipalitys representation (i.e. the
Web site posting)? - The four special duty factors do leave room for
interpretation, so a court may find a way to
phrase the facts to achieve a given result. - I think the municipality would be liable.
27An inspector at a grocery store says to an
incoming customer, The produce is as clean and
disease free as youll find in Minnesota no
need to wash it. Based on this representation,
the customer buys lettuce and foregoes washing
it. His entire family becomes ill with E. coli.
28Words of Wisdom
- Do your job and you will be fine
- Think like the business and customers are your
family - Educate
- Document
- Photos
- Work cooperatively with other agencies
- Do as complete of an investigation as resources
allow