Immunity from liability--when does it apply?

The friendly cow, all red and white, I love with all my heart: She gives me cream with all her might, To eat with apple tart. (1)

This children's nursery rhyme, unfortunately, fails to mention that the "friendly cow" may give children infectious Escherichia coli as well as cream for apple tarts.

As of June 2000, no state had any laws to control human exposure to enteric pathogens at farms or petting zoos. No federal law addressed the issue. (2) Apparently, it was unexpected in the United States that petting zoos or farms would present a bacteriological health hazard. (3)

During the fall of 2000, it was popular for young children in the Philadelphia area to visit a pumpkin patch and dairy farm in Montgomery County, Pennsylvania, about 20 miles west of downtown Philadelphia. The Merrymead Farm was a regional attraction, and many children touched animals at a "petting zoo" with cattle, calves, sheep, goats, llamas, chickens, and a pig. (4) Visitors could eat and drink while in the petting zoo. (5) According to a report by the Centers for disease Control and Prevention (CDC), hand-washing facilities lacked soap and disposable towels, were out of children's reach, were few in number, and were unsupervised." (6)

On September 13, 2000, a physician contacted the Montgomery County Health Department about an E. coli infection in a 13-year-old patient who had visited the Merrymead Farm 10 days earlier. (7) Then, on September 15, 2000, a mother called the health department to report that her daughter was ill with E. coli and reported the daughter's visit to the Merrymead Farm. (8) Next, on September 25, the farm operators contacted the county health department to report that three children had become sick after visiting the farm and request guidance. (9) By October 5, 2000, at least two children were confirmed to be ill from E. coli after visiting the Merrymead Farm. (10) Sometime in late October or early November, the Montgomery County Health Department began investigating the situation. (11)

By the second week of November, the outbreak had become political. The county commissioners were highly critical of the way the situation had been handled and conducted an investigation. (12) The health director resigned, a disease-intervention specialist was terminated, and disciplinary action against other personnel was being considered.

This outbreak was one of the first in the United States to involve direct transmission of E. coli O157:H7 from farm animals to humans, and it made national news. (14) Subsequent investigation by CDC confirmed that 26 cows and calves at the farm were positive for E. coli O157:H7. (15) Over 75,000 people had visited the farm during the fall of 2000, and the county health department identified 51 people with diarrhea probably associated with their visit to the farm.

Case 1 concerns this outbreak. The episode has two parts. The first part is a lawsuit the parents of one of the affected children brought against the Montgomery County Health Department. The second part is a lawsuit brought by the former health department disease intervention specialist against the county.

Case 2 is from Rhode Island. It is about the validity and civil rights liability of warrantless searches in potential environmental-crimes investigations.

The final case returns to the issue of Louisiana health department liability for a Vibrio fulnificus death, first discussed in this column in May 2003.

Case #1: County and Commissioner Immune (16)

Two young children (one and two years of age) became ill with E. coli shortly after visiting Merrymead Farms. Their mother sued the farm and the Montgomery County Health Departments. (17)

The farm claimed that the health department had "breached its duty to protect the health and safety of individuals and business owners." The department was dismissed from the suit by the trial court on the grounds of sovereign immunity. The mother and the farm appealed.

Under Pennsylvania law, a county health department is created by a county and is a local agency despite its receipt of state funds. As such, it can he liable only if it was negligent and the negligence is excepted from the immunity statute.

The farm argued that the Montgomery County Health Department was liable because its disease control powers gave it "care, custody or control of animals in the possession or control of a local agency." Indeed, according to the farm, the health department was the first and, for a while, the only entity aware of the outbreak, and it was therefore in a superior and responsible position with respect to control of the disease.

In upholding the dismissal, however, the appellate court held that

   To subject a local agency to liability
   relating to the care, custody or control
   of animals exception to immunity, the
   party bringing the action must demonstrate
   that the animals in question were
   in the possession or control of the local
   agency. We specifically decline to equate
   statutory authority to inspect, to isolate,
   to segregate and to quarantine animals
   with actual possession or control of animals,
   Such a construction would lead to
   the absurd conclusion that local health
   boards and the Pennsylvania
   Department of Health are in control of
   every known person, animal or arthropod
   capable of transmitting a communicable
   disease in Pennsylvania....
   Furthermore, such a construction
   would render local health boards or the
   Pennsylvania Department of Health susceptible
   to suit in every case of communicable
   disease infection from a known
   agent in Pennsylvania. There is no indication
   that the legislature intended local
   health boards or the Pennsylvania
   Department of Health to be insurers
   against such infections. In short, unless
   a local health board or the Pennsylvania
   Department of Health actually takes
   possession of an animal or orders its
   destruction, the unexercised authority
   to do so does not expose it to suit.

The second part of this episode was a federal lawsuit brought under 42 U.S.C. [section] 198 by a former disease intervention specialist against Montgomery County and one of its commissioners. The former employee claimed that her 14th Amendment due-process rights had been violated because she had not been given a hearing before her dismissal and the county commissioner had committed slander and libel against her. The U.S. District Court held that the commissioner was immune under Pennsylvania lay and that Montgomery County was not liable as a matter of law. She appealed.

A local government such as a municipality or county is liable under 42 U.S.C. [section] 1982 only if it has caused a civil rights violation through "a policy statement, ordinance, regulation, or decision officially adopted and promulgated by the body's officers." Since statements made by only one commissioner did not constitute a statement by a majority of the commission, those statements did not constitute county policy. Nor was there any evidence that the commission had either acquiesced in the commissioner's statements or delegated authority to him to speak for the entire commission. Since the single commissioner did not have final policy-making authority, his statements alone were insufficient to create liability for Montgomery County.

Under Pennsylvania law, "high public officials," such as county commissioners, have absolute immunity from liability suits while acting in their official capacity. The immunity includes defamation. Any statement by the commissioner was, therefore, immune.

Case #2: Civil Rights Liability for a Warrantless Environmental Search (18)

The Rhode Island Department of Environmental Management was concerned about possible illegal dumping of solid waste (construction and demolition debris) on a father and son's properties. So the department conducted an inspection of the father's properties in February 2000. Apparently, nothing illegal was discovered. The father filed a lawsuit against the department in the Rhode Island Superior Court to enjoin the department from any more inspections. The court dismissed the lawsuit in August 2000 after the department notified the court that it would no longer inspect the property.

In September 2000, however, two inspectors from the department, as part of a criminal investigation, inspected without a war rant the lather's residential property for evidence of illegal dumping. They gathered a the property a "small amount of material" for samples and evidence. Then, in December 2001, under authority of a search warrant, the department again searched two properties of the father and son, and seized more material on the properties. The father and son sued the two inspectors and the department for damages and an injunction under 42 U.S.C. [section] 1983.

The issue was the legality and scope of authority of Rhode Island Gen. Laws [section] 42-17.1-2(t) in relation to the searches by the Rhode Island Department of Environmental Management. That section of the law gives the department power "to enter, examine or survey at any reasonable time such places as the director deems necessary to carry out his or her responsibilities under any provision of law." The Rhode Island Supreme Court had held in 1995 that the section allowed warrantless inspections by the department of "closely regulated" businesses that were sources of air pollution. (19) The problem in this case was that the "inspections" were of residential property and part of a criminal investigation.

Indeed, in recognition of the differences between inspections of "closely regulated" businesses and criminal searches, the department had during September 2000 circulated internal guidelines about obtaining search warrants. The guidelines required department staff to obtain a search warrant before searching residential property" as part of a criminal investigation.

The U.S. District Court denied the inspectors qualified immunity because the inspectors had not proven that a reasonable department official would not "have recognized that their entrance onto the [the father's] property violated his right to he free from unreasonable searches and seizures." The court wanted more evidence about the inspectors' knowledge at the time the search occurred of the department's September 2000 guidelines prohibiting warrantless searches in criminal investigations.

Case #3: Louisiana Oyster Update (20)

In May 2003, this column discussed the case of Grayson v. State ex rel. Depart. of Health & Hospitals (#2001-CA-0720 [La. Ct. App. 2002]), in which the Louisiana Department of Health and Hospitals was found liable for $168,042.43 for the death of a man who had consumed raw oysters contaminated with Vibrio fulnificus. In a more recent case, the Louisiana Supreme Court upheld a larger judgment against the Louisiana Department of Health and Hospitals for another man's death from eating raw oysters.

The Gregor case differs from Grayson in several important aspects, and it resulted in severe criticism of the Louisiana public health department. Grayson concerned a V. fulnificus death that occurred after the department decided to not enforce the posting of a warning because of objections about the language of the warning from the Interstate Shellfish Sanitation Conference. By contrast, Gregor concerned liability for careless inspections, an inspector's misunderstanding of the sanitary code, and his subsequent failure to strictly enforce the code's requirements.

In February 1991 the department published the oyster-warning rule. Voluntary compliance was encouraged until 1993 when compliance became mandatory. Sanitary Code [section] 23:006-4 provides that al establishments that sell or serve raw oyster must display signs, menu notices, table tents, or other clearly visible messages at point of sale with the following wording:

   THERE MAY BE A RISK ASSOCIATED
   WITH CONSUMING RAW SHELLFISH
   AS IS THE CASE WITH OTHER RAW
   PROTEIN PRODUCTS. IF YOU SUFFER
   FROM CHRONIC ILLNESS OF
   THE LIVER, STOMACH OR BLOOD
   OR HAVE OTHER IMMUNE DISORDERS,
   YOU SHOULD EAT THESE
   PRODUCTS FULLY COOKED.

A New Orleans restaurant, Pascal's Manale, had an oyster bar and also served oysters in its dining room. A notice was posted at the oyster bar, where about 75 percent of the raw oysters were eaten. Nothing was posted in the dining room. The oyster bar warning was located among 30 other placards on the wall that the court described as "the best example of camouflage for that notice that probably could be possible, other then turning it faced against the wall so it can't be read at all."

Nonetheless, the restaurant had beer inspected four times between 1993 and 1996 by the Louisiana Department of Health and Hospitals without receiving any citation for noncompliance with the sign regulation of the sanitary code.

In July 1996, Mr. Gregor was diagnosed with hepatitis C. No one advised him that it was dangerous for him to eat raw oysters. In August 1996, he went to New Orleans to visit his fiancee and ate lunch with her in the Pascal's Manale dining room. He ate a half-dozen raw oysters at the restaurant, was admitted to a hospital the next day, and died 10 days later from a Vibrio fulnificus infection. His next of kin sued the department for negligence. The trial court held the restaurant 25 percent responsible for the death and the department 75 percent liable (a judgement of $450,000).

The main issues in the case were 1) whether the actions or inactions of the department constituted "the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts," for which the department is immune, and 2) the apportionment of liability. The department argued that inspectors have discretion when inspecting restaurants for compliance with the warning notices, that there were a variety of methods of compliance, and that the sanitarian who inspected the restaurant exercised his discretion in determining that the one warning sign at the oyster bat was sufficient.

The Louisiana Supreme Court said that the department "had a mandatory duty to properly enforce the sanitary code." The "point of sale" was where the raw oysters were ordered, the dining room. A warning had to be posted at each point of sale. The only discretion was in the method of conveying the warning at that point. The court found that

   DHH was negligent in failing to properly
   train its sanitarians and failing to
   properly provide them with interpretations
   of the Sanitary Code terminology,
   specifically as to what the term "point of
   sale" means. After observing that the
   restaurant had a raw oyster bar in the
   front of the restaurant displaying the
   required warning sign, Mr. Robinson
   testified that he did not inquire as to
   where else, other than the oyster bar,
   raw oysters might be sold to customers
   in Pascal's Manale. Mr. Robinson testified
   that he believed that the one posted
   sign over the oyster bar met the requirement
   of [section] 23:006-4 because he believed
   that the warnings needed to be posted at
   each "establishment."

   Disturbingly, the evidence reveals
   that 20-25% of the raw oysters sold at
   Manale were sold and served in the
   restaurant's dining area. Therefore,
   under Mr. Robinson's interpretation of
   the statute, 20-25% of consumers at
   Manale's would not receive the benefit
   of the required warning because none
   was included in menus, table tents or
   signs in the dining rooms. We find that
   this fallacious interpretation is the
   result of DHH's negligent failure to
   properly train its sanitarians for
   enforcement of [section] 23:006-4. DHH is
   now attempting to escape liability for
   its failure to train its sanitarians by
   claiming that the untrained sanitarians
   are themselves exercising policymaking
   discretion.

The court concluded that the department had been negligent and was not immune.

Finally, the court believed a different apportionment of liability was necessary. By 1996, New Orleans restaurants were well aware of the potential dangers of raw oysters to persons with certain chronic illnesses. The restaurants were also well aware of the notice requirement. Furthermore, Pascal's Manale certainly knew that 25 percent of its raw oysters were sold in the dining room, where no notices were posted. Therefore, the court adjusted the liability to 50 percent, or $300,000 each.

Help Wanted--Help Available

NEHA and I are discussing the possibility of writing and publishing an Environmental Health Law Manual. I am trying to determine interest in such a book and possible content. I would appreciate hearing from any readers who would have an interest in having such a book or suggestions for topics. My e-mail address is listed below.

Finally, I want readers to know that Dr. Creg Bishop and I teach a three-day course for the Food and Drug Administration (FDA) titled "Effective Enforcement." The course covers many of the topics discussed in this column. If you are interested in such a course in your state, please contact your state food safety director or training coordinator, who can contact the FDA state training office.

Editor's note: Readers who have questions about cases discussed in Legal Briefs may contact Mr. Sikora by e-mail at [e-mail].

References

(1) Robert Louis Stevenson, "The Cow." In The Oxford Book of Children's Verse 1:1-4 (Iona Opie and Peter Opie eds., Oxford University Press 1973) (1885).

(2) CDC, "Outbreaks of Escherichia coli O157:H7 Infections Among Children Associated with Farm Visits--Pennsylvania and Washington, 2000," Morbidity and Mortality Weekly Report, April 20, 2001, at 293-297.

(3) "E. coli Outbreaks at Farms and Petting Zoos Had Been Already Documented in England," Philadelphia Inquirer, Nov. 8, 2000, at B1.

(4) Nicole Weisensee Egan & Gloria Campisi, "10 Cases of E. coli in Children Linked to Montco Farm," Philadelphia Inquirer, Nov. 3, 2000, at 5; CDC, "Outbreaks of Escherichia colt O157:H7 Infections Among Children Associated with Farm Visits--Pennsylvania and Washington, 2000," Morbidity and Mortality Weekly Report, Apr. 20, 2001, at 293-297.

(5) CDC, "Outbreaks of Escherichia coli O157:117 Infections Among Children Associated with Farm Visits--Pennsylvania and Washington, 2000," Morbidity and Mortality Weekly Report, Apr. 20, 2001, at 293-297.

(6) Id.

(7) Ralph Vigoda, "Visits to Farm Continued as More Cases Found," Philadelphia Inquirer, Dec. 1, 2000, at A10.

(8) Stacey Burling, "Mother Criticizes Montco Over What Proved to Be an E. coli Case: Sheila Carroll and the Health Department Disagree as to When Officials Learned of Her 10-Year-Old Girl's Illness," Philadelphia Inquirer, Nov 9, 2000, at A37.

(9) Erin Carroll, "Farm Owners Say They Told Monco of Link to Illnesses," Philadelphia Inquire1; Nov 10, 2000, at B1.

(10) Nicole Weisensee Egan, "Unreported E. coli Threat Draws Fire," Philadelphia Daily News, Nov 4, 2000, at 8.

(11) Nicole Weisensee Egan, "10 Cases of E. coli in Children Linked to Montco Farm Philadelphia Daily News, Nov. 3, 2000, at 5.

(12) Erin Carroll, "9 More Cases of E. coli Suspected Also, Owners of the Farm Cited in the Outbreak Said," Philadelphia Inquirer, Nov. 7, 2000, at A1; Erin Carroll 6z Susan Stranahan, "Official Cites Costly Failure to Communicate," Nov. 9, 2000, at A37; Erin Carroll, "As E. coli Criticism Mounts, Chief Quits: Montgomery County's Health Director Was Faulted in a Scathing Report, One of his Employees Was Fired," Dec. 1, 2000, at A1.

(13) Erin Carroll, "As E. coli Criticism Mounts, Chief Quits: Montgomery County's Health Director Was Faulted in a Scathing Report, One of his Employees Was Fired," Dec. 1, 2000, at A1.

(14) "E. coil Suspected in Illness of 21 Children," New York Times, Nov. 8, 2000, at A20; Inside Edition [Television broadcast], May 6, 2002.

(15) Erin Carroll, "E. coli Found in Cows Sixteen Children Who Visited the MerryMead Farm, Became Ill Alter Petting the Cows and Calves," Philadelphia Inquirer, Dec. 14, 2000, at B1; CDC, "Outbreaks of Escherichia coli O157:H7 Infections Among Children Associated with Farm Visits--Pennsylvania and Washington, 2000," Morbidity and Mortality Weekly Report, Apr. 20, 2001, at 293-297.

(16) Sweeney v. Merrymead Farm, Inc., 799 A.2d 972 (Pa. Commw. 2002); Laverdure v. County of Montgomery, 324 F.3d 123 (3rd Cir. 2003).

(17) Erin Carroll, "Parents Suing Over Child's E. coli Illness: The Montgomery County Health Dept. and a Montco Farm Are Cited for Failing to Warn the Public Sooner," Philadelphia Inquirer, Nov. 25, 2000, at B1; Erin Carroll "Second Family Sues Farm Over Sickness front E. coli," Philadelphia Inquirer, Nov. 25, 2000, at B6.

(18) Vinagro v. Reitsma, C.A. 02-121-L (U.S.D.C.R.I. 2003), http://www.loislaw. com (3 June 2003).

(18) Keeney v. Vinagro, 656 A.2d 973 (R.I. 1995).

(20) Gregor v. Argenot Great Central Ins. Co., #2002-1138 (La. Sup. Ct. 2003) http://www.loislaw.com (3 June 2003).

(21) Vincent Sikora, "Health Department Liability for Non-enforcement," Journal of Environmental Health, May 2003, at 30.

Vincent A. Sikora, J.D., LL.M.

Associate Professor,

East Tennessee State University