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 person’s 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 doctrine”—Cracraft 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. § 466.02—Waives 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 act”—an act or omission done on the inspector’s 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 city’s fire code. Two students are killed in a subsequent explosion. • The fire inspector’s 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 Plaintiff’s 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 municipality’s, or its employees’, representations; • A statutory duty for the protection of a particular class; and • The municipality’s, 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? • Question—did the outbreak victims/plaintiffs rely on the municipality’s “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 you’ll 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