Liability of Environmental Health Professionals for Alleged Negligent Inspections William D. Marler

1
Liability of Environmental Health Professionals
for Alleged Negligent InspectionsWilliam D.
Marler
2
Foodborne Illnesses

• 54 billion meals served at US restaurants each
  year
• Between 1993 and 1997 over 40 of outbreaks
  occurred at businesses

3
Foodborne 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

4
Liability

• Financial responsibility for another persons
  injuries or damages

5
If you are going to be held liable, it will be
for
NEGLIGENCE
6
Elements of NEGLIGENCE

• DUTY
• BREACH
• CAUSATION
• DAMAGES

7
DUTY

• Legal obligation to act for the benefit of
  another person
• Sources
• 1. Statute or Regulation
• 2. Contract
• 3. Common Law

8
The other elements

• Breach
• Causation
• Damages

9
Is this in the future for food inspectors?
10
Public 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

11
A 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)

12
Immunity

• Governments can choose to not be liable for
  tortious conduct

13
Governmental immunity then
The king can do no wrong

14
Governmental immunity now

• The king is occasionally wrong

Minn. Stat. 466.02Waives Governmental
Immunity
15
Minn. 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

16
Minn. 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

17
Public Duty

• A legal doctrine that shields state and local
  governments from liability

18
PUBLIC 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
19
Public 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.

20
The 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.

21
Special 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.

22
So, can an inspector be sued for negligent
inspection?

• It Depends

23
Special 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?

24
NO!!!

• 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.

25
A 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.

26
Liability?

• 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.

27

• Another example . . .

An 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.
28
Words 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