According to the document, environmental health agencies and inspectors have potential liability for negligence related to inspections. The key elements of negligence that could result in liability are duty, breach of duty, causation, and damages. However, the public duty doctrine and governmental immunity protect public officials and agencies from most liability for tortious actions related to their duties. While inspectors could potentially be sued, the likelihood of being found liable for a negligent inspection is low in California due to protections provided by governmental immunity and the state's Tort Claims Act. Inspectors should still perform their duties carefully, document thoroughly, and cooperate with other agencies.

1. Potential Liability of Environmental
Health Agencies (and Inspectors) for
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, governmental 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
The King can do no wrong

16. 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

17. Can a health inspector in be sued?
The answer is…
I’m not going to tell
you…yet

18. 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.

19. 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.

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

21. 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

22. 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

23. So, what about California?

24. 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.

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

26. 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

27. 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

28. Questions?