I will be speaking with the department of health of any liability for inspections and how to avoid problems with food safety inspections.

1. Liability of Environmental
Health Agencies for Alleged
Negligent Inspections
Montana Food and Consumer Safety Webinar
February 20, 2018

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. Elements of NEGLIGENCE
• DUTY
• BREACH
• CAUSATION
• DAMAGES

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

6. The other elements
• Breach
• Causation
• Damages

7. Is this in the future for food
inspectors???

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

9. Immunity
Governments can
choose to not be
liable for tortious
conduct

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. 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”

12. 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?

13. It Depends
Even among
states that apply
the public duty
doctrine, there are
always
exceptions!

14. Governmental immunity then:
The king can do no wrongThe king can do no wrong

15. Governmental immunity now:
Well, the king is occasionally wrongWell, the king is occasionally wrong

16. Can a health inspector be sued
for failing in a duty to find a
food-safety risk?
The answer is…..
I’m not going
to tell you - yet

17. Gregor v. Argenot Great
Central Insurance 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.

18. • 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
Gregor v. Argenot Great
Central Insurance Co., Cont.

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

20. On Appeal
Health Department appealed, arguing that
it had discretionary immunity since the
display over the oyster bar was deemed
sufficient by the inspector

21. 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

22. Of Course, Exceptions
• The Special Relationship Exception
1) An assumption by the municipality, through promises or
actions, of an affirmative duty to act on behalf of the
party who was injured;
2) Knowledge on the part of the municipality's agent that
inaction could lead to harm;
3) some form of direct contact between the municipality's
agents and the injured party; and
4) That party's justifiable reliance on the municipality's
affirmative undertaking

23. Prior Health Department
Inspections
• Improper Cooking
Procedures
• Improper Refrigeration
• Improper Storage
and Cooking Procedures
• Improper Sanitation

24. Improper Cooking Procedures
Hamburger buns are toasted on the grill
immediately adjacent to the cooking patties,
and it is conceivable that, early in the cooking process, prior
to pasteurization, meat juices and blood containing active
pathogens might possibly splash onto a nearby bun.
Hamburger buns are toasted on the grill
immediately adjacent to the cooking patties,
and it is conceivable that, early in the cooking process, prior
to pasteurization, meat juices and blood containing active
pathogens might possibly splash onto a nearby bun.
• A young girl suffered HUS after eating a
hamburger from a midsized southern
California fast-food chain.
• Her illness was not culture-confirmed.
• No food on site tested positive
for E. coli O157:H7.
• Review of health inspections revealed flaws
in cooking methods.

25. Improper Refrigeration
• A Chinese buffet-restaurant in Ohio was the
suspected source of an E. coli O157:H7
outbreak.
• No contaminated leftover food was found.
• A number of ill patrons were children.
Jell-O was suspected as the vehicle of
transmission.
• Health Department report noted “raw meat
stored above the Jell-O in the refrigerator.”
The likely source of E. coli O157:H7 in the Jell-O was from raw meat juices
dripping on the Jell-O while it was solidifying in the refrigerator.

26. Improper Storage and Cooking
• Banquet-goers in southeastern Washington
tested positive for Salmonella.
• Leftover food items had been discarded or
tested negative.
• Restaurant had “pooled” dozens, if not
hundreds, of raw eggs in a single bucket for
storage overnight, then used
them as a “wash” on a
specialty dessert that was not cooked
thoroughly.

27. Words of Wisdom
• Do your job and you will be fine
• Think like the business and customers are your
family
• Educate, Educate, Educate
• Document, Document, Document
• Photos, Photos, Photos
• Work cooperatively with other agencies
• Do as complete of an investigation as resources
allow

28. 1012 1st
Avenue
Fifth Floor
Seattle, WA 98104
bmarler@marlerclakr.com
Questions?