Liability, Nuisance Control and Personnel Issues.

Introduction

Local environmental health programs must manage or overcome many legal obstacles. One difficult legal issue is whether a focal health department is liable if one of its programs fails to protect a member of the public. The first case discussed below considers the liability of a municipality for failure to control an environmental hazard.

Another local problem is the control of nuisances. Unlike fines or civil penalties applied to typical environmental violations, nuisance control has historical roots and is highly variable. It can be as complicated as the actual destruction of the property The second case discussed this month concerns whether a city needs a seizure warrant from a court to demolish a building declared a public nuisance.

The third and fourth cases look at two personnel issues facing environmental health professionals--workers' compensation and criminal charges.

Case #1: Liability for Failure to Eliminate an Environmental Health Problem

Many local environmental health programs are responsible for animal control. If a dog has been reported running at large and harassing someone and a city fails to take action against the animal, is the city responsible if another person is bitten?

In Bayard, Iowa, a person notified the mayor of being harassed by a dog. The mayor personally went to the residence where the dog was located and observed the dog quietly sitting on the porch. Even though the city had an ordinance prohibiting dogs running at large, the mayor took no action. Shortly thereafter, another person was attacked and seriously bitten by the same dog. Only then was the county's environmental health office notified. The office took the dog and destroyed it. The bitten person sued the city, claiming it owed her a duty to protect her from the dog.

In Smith v. City of Bayard, the city claimed it owed no duty to protect a citizen from a third person unless a special relation existed between the city and the third person or thing. Even though there is common-law authority indicating the general absence of a duty by the government to control a third person from injuring another, the Iowa Supreme Court dismissed the case on the basis of immunity An Iowa statute provides that a city is immune from all liability "if the damage was caused by a third person, event, or property not under the supervision or control of the municipality" Since merely having an ordinance regulating dogs was not the actual supervision or control of any animal, the city was immune.

The issue and reasoning in this case are pertinent to many environmental health programs. If a health department has received a complaint about sanitation in a restaurant and fails to have the problem corrected and a person later becomes ill from food poisoning at the restaurant, would the health department be liable? Would a health department be liable for the injuries by a bioterrorist if it knew of the presence and intention of the terrorist? Questions such as these may need to be answered by local legal counsel.

Case #2: Local Nuisance Abatement

The abatement of nuisances has been a fundamental program of local governments for decades and, according to the court in Freeman v. City of Dallas, "is at the heart of the municipal police power." Once a municipality determines a nuisance exists, the municipality must decide what to do about the problem. In most jurisdictions, one option is demolition. In this situation, what does the U.S. Constitution require before demolition can proceed?

In Dallas, Texas, two partially burned apartment buildings were purchased for $11. After two inspections, the buildings were determined to require $200,000 in repairs, and the matter was referred to the Urban Rehabilitation Standards Board (URSB). URSB sent a hearing notice to the owner and then conducted two hearings. Because of the hearings, URSB ordered the buildings demolished, Since the owner did not appeal the decision to a Texas court, which she had an absolute right to do, the buildings were demolished at cost of $16,000, which amount was assessed against the owner.

About 18 months later, the owner sued Dallas in federal court under 42 U.S.C. 1983. The owner claimed that under the Fourth Amendment, the city could not "seize" her buildings by destroying them without a judicial warrant.

The Fourth Amendment prohibits "unreasonable searches and seizures" and allows judicial warrants to search or seize upon a showing of "probable cause." There was no dispute that the demolition of a private building constituted a seizure by the city of Dallas. The issue in the case was whether a judicial warrant was required in all seizures.

In the past, nuisances were a matter of common law to be determined and abated by the courts on a case-by-case basis. Modern nuisance law, however, is defined by statute, specified by regulations, and administered by agencies. In this case, the court said, "The common law of nuisance must be considered a jurisprudential artifact, interesting but not controlling."

The traditional judicial standard for search or seizure is reasonableness. The court distinguished this case from the traditional housing and OSHA inspection warrant cases of Camara v. Municipal Ct. of San Francisco (1967), See v. City of Seattle (1967), and Marshall v. Barlow's (1978) on the basis that the Dallas owner had already had administrative adjudication when URSB indicated noncompliance; also, URSB had satisfactory procedures for limiting its discretion instead of the unbridled discretion exercised by field inspectors in the other cases. Therefore, since a seizure warrant was not per se required under the Fourth Amendment before a city conducted nuisance abatement, the city's procedures were reasonable, an administrative warrant would not enhance the landowner's security or privacy, and the demolition did not violate the Constitution.

Case #3: Workers' Compensation 

In most states, a private or public employee who is injured within the scope and course of her employment is entitled to workers' compensation benefits. In Pittillo v. North Carolina Dept. of Env. Health & Nat. Resources, a waste management specialist with the North Carolina Department of Environmental Health and Natural Resources claimed workers' compensation benefits when she suffered a panic disorder and major depression because of a harsh annual performance evaluation.

In the performance evaluation, the supervisor, after a discussion with her peers, reported that the waste management specialist was "unapproachable." In addition, the employee was criticized for being adversarial, instead of cooperative, with the waste management industry. The employee, on the other hand, believed it was unprofessional, inappropriate, and unethical for her supervisor to discuss her work with her peers, and was proud of the high number of violation notices she issued.

The waste management specialist had three physicians who diagnosed her panic disorder and depression and related the illness to her supervisor's actions. The North Carolina Industrial Commission, however, relied upon the testimony of another psychiatrist and the supervisors, and held that the employee's work "did not place plaintiff at an increased risk of developing anxiety disorder and depression than members of the general public not so employed." Therefore, the mental injury did not arise out of and in the course of her employment.

Case #4: Criminal Charges for Filing a False Inspection Report

In the July/August issue of the Journal, this column considered the case of State v. Hampton, which had reached the Washington Court of Appeals. In that case, a county sanitarian was criminally prosecuted for filing a false final on-site sewage inspection report. Originally, the trial court had dismissed the charges because there was no requirement that the final inspection report be filed. The Washington Court of Appeals reversed that decision and reinstated the conviction. Since then, the case has been appealed, and the Washington Supreme Court has reversed the Court of Appeals, holding that even though there was some falsification on the inspection report, state law did not require that the final inspection report be filed. The sewage regulations discussed in detail the final inspection process but did not discuss a final inspection report. In a criminal prosecution, the statute or regulation must explicitly require or permit the report to be filed before a person can be criminally prosecuted for its falsi ty.

Cases Cited

Freeman v. City of Dallas, No. 97-10907, __ F.3d __ (5th Cir. 2001)(en banc).

Pittillo v. North Carolina Dept. of Env. Health & Nat. Resources, IC. No. 734776 (N.C. Industrial Commission 2001).

Smith v. City of Bayard, Iowa No. 57/99-1092, __ N.W.2d __ (Iowa Sup. Ct. 2001).

State v. Hampton, 100 Wash.App. 152, 996 P.2d 1094 (2000).

State v. Hampton, No. 69651-9 __ P3d __ (Wash. Sup. Ct. 2001).