FOR IMMEDIATE NEWS RELEASE
NEWS RELEASE # 36
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 20th day of May, 2003, are as follows:
BY JOHNSON, J.:
2002-C- 1138
EILEEN GREGOR, ET AL. v. ARGENOT GREAT CENTRAL INSURANCE
COMPANY, ET AL. (Parish of Orleans)
Retired Judge Walter I. Lanier, Jr., assigned as Associate
Justice Ad Hoc, sitting for Associate Justice Chet D. Traylor,
recused.
The decision of the court of appeal that DHH is not entitled to
discretionary immunity under La. R.S. 9:2798.1 is hereby affirmed.
The court of appeal's allocation of fault is hereby reversed,
and allocation of fault is reapportioned: 50% to Pascal's Manale
and 50% to DHH.
AFFIRMED IN PART; REVERSED IN PART.
CALOGERO, C.J., concurs and assigns reasons.
KIMBALL, J., concurs in part and dissents in part with reasons.
VICTORY, J., dissents with reasons.
KNOLL, J., dissents and assigns reasons.
5/20/03
SUPREME COURT OF LOUISIANA
NO. 02-C-1138
EILEEN GREGOR, ET AL.
Versus
ARGENOT GREAT CENTRAL INSURANCE COMPANY, ET AL.
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL
FOURTH CIRCUIT, PARISH OF ORLEANS
JOHNSON, Justice.1
This matter arises from a suit filed by plaintiffs against several defendants,
including the Department of Health and Hospitals (DHH)2 for the wrongful death
of Daniel Gregor, who died after eating raw oysters at a Louisiana restaurant.
After trial on the merits, the trial court found DHH 75% liable and the restaurant
25% liable. The court of appeal affirmed. We granted DHH’s writ application to
determine the correctness of the lower courts’ decisions. Gregor v. Argenot Great
Central Insurance Co., et al., 02-1138 (La. 6/21/02), 819 So.2d 336. After review
of the record, we affirm in part, reverse in part, and reapportion the assignment of
fault among the parties.
FACTS AND PROCEDURAL HISTORY
In 1990, Dr. Joel Nitzkin, the state health officer at the time,3 expressed
concern about the growing problem of vibrio vulnificus cases in Louisiana. Vibrio
1
Retired Judge Walter I. Lanier, Jr., assigned as Associate Justice Ad Hoc, sitting for
Associate Justice Chet D. Traylor, recused.
2
Plaintiffs, in their original Petition for Damages, erroneously referred to DHH as the
Louisiana Department of Health and Human Resources (DHHR).
3
The state health officer is the state official responsible for implementation and
enforcement of the state sanitary code.
1
vulnificus, a naturally occurring salt water organism not dangerous to most people,
can be dangerous to those persons with chronic health problems, including gastric
disorders, liver diseases, and immune disorders. Proper cooking will kill the
bacteria.
In August 1982, DHH issued to physicians and hospitals a “Monthly
Morbidity Report” dealing with vibrio vulnificus infections. The report stated,
“[b]ecause of the severity and high case fatality rate for the septicemia cases,
physicians should warn patients with chronic underlying liver and kidney diseases
and other conditions causing, or capable of causing, impaired immune responses,
to avoid eating raw oyster.” Despite DHH’s warnings to physicians and
communication with the seafood industry, the number of vibrio vulnifcus cases
continued to increase. Dr. Nitzkin’s concern regarding the bacteria ultimately lead
to the amendment of the sanitary code to require restaurants serving raw oysters to
provide warnings about vibrio vulnificus.
In August 1990, DHH published a notice of intent in the Louisiana Register,
indicating its plan to implement such an amendment. Despite opposition from the
Louisiana Restaurant Association (LRA), DHH published the rule requiring
mandatory oyster warnings in the Louisiana Register in February 1991. The rule
amended §23:006-4 of the sanitary code to require restaurants that sell or serve raw
oysters to provide clearly visible warnings about vibrio vulnificus at the point of
sale.
§23:006-4 provides, in pertinent part:
All establishments that sell or serve raw oysters 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
2
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.
On July 25, 1996, Daniel Gregor was diagnosed with Hepatitas-C, a liver
disease, by the NABI Biomedical Center in Fort Meyers, Florida. By stipulation of
the parties, he was notified of his positive test result by a letter dated August 5,
1996, and was counseled personally about Hepatitis C at the NABI Biomedical
Center on August 9, 1996, 5 days before his trip to New Orleans. On August 14,
1996, Gregor came to New Orleans to visit his fiancee’, Elizabeth Lyle. During
this visit, Gregor, Ms. Lyle, and others visited Pascal’s Manale, a local seafood
restaurant and oyster bar for lunch. Pascal’s Manale decided to post the required
oyster warning above the oyster bar at its establishment, where approximately 75%
of its raw oysters were sold and consumed. The other 25% of its raw oysters were
ordered and consumed in the restaurant’s dining rooms. Gregor and his party
dined in the restaurant’s Opera dining room where Gregor ordered and ate the half
dozen raw oysters. He became ill soon thereafter and was admitted to the St.
Tammany Parish Hospital on the next day, August 16, 1996.
On August 19, 1996, Gregor lapsed into a coma and subsequently died on
August 25, 1996. The parties stipulated that the cause of Gregor’s death was vibrio
vulnificus sepsis and Hepatitis-C, with a secondary diagnosis of acute renal and
liver failure. The parties further stipulated that Gregor contracted vibrio vulnificus
sepsis through the consumption of the raw oysters on August 5, 1996 at Pascal’s
Manale which contained the bacteria. However, it is noteworthy that Dr. Joel
Nitzkin testified that the incubation period for vibrio vulnificus is a range of 12 to
36 hours with most persons who get sick consuming the product 18-24 hours prior
to the onset of illness. Dr. Louise McFarland (Chief Epidemiologist for the Office
3
of Public Health) agreed that with oysters consumed between 12 noon and 2:00
p.m., and the onset of symptoms at 4:30 p.m. on that same day, this case was
unusual because of the very short incubation period for bacteria to multiply enough
to cause a serious infection. The parties also stipulated that the raw oysters
consumed by Gregor were purchased by Pascal’s Manale from Bez Oysters and
Seafood, Inc., who purchased the raw oysters from Eddie’s Quality Oysters, Inc.
Despite this stipulation by the parties, an investigation by the Office of Public
Health, Seafood Sanitation Unit confirmed that the oysters served to Gregor were
harvested from private leases in California Bay, and Louisiana Bez Oysters and
Seafood, Inc. purchased the oysters from Miro Mjehovic rather than Eddie’s
Quality Oysters, Inc.
Suit was filed suit on March 18, 1997 on behalf of Eileen and Francis
Gregor, decedent’s parents, and Elizabeth Lyle, the decedent’s fiancee4 against
Pascal’s Manale, its insurer, Argenot Great Central Ins. Co., Bez oyster and
Seafood, Inc., Eddie’s Quality Oysters, Inc., DHH, and the Louisiana Department
of Wildlife and Fisheries. Prior to trial, plaintiff settled with Pascal’s Manale and
Argenot, and dismissed all other defendants, leaving DHH as the only remaining
defendant.
After a judge trial, the trial court found that DHH negligently enforced the
Sanitary Code and that such enforcement did not involve a discretionary function
entitling DHH to immunity under La. R.S. 9:2798.1. The trial court apportioned
75% fault to DHH. The trial court, finding that Pascal’s Manale to a large extent
could reasonably rely on the sanitarian’s approval of the signage, apportioned
4
By the time of trial, Gregor’s brother, Tom Gregor, had been substituted as the plaintiff,
since both Gregor’s mother and father were now deceased. Ms. Lyle’s claim was dismissed
shortly after suit was filed pursuant to an exception of no right of action. La. C.C. art. 2315.2
limits persons who may bring a wrongful death action, and does not include “fiancee.”
4
Pascal’s Manale the remaining 25% fault for its negligent violation of the Sanitary
Code. The court found no fault on the part of decedent, Gregor, after finding no
evidence that he had ever been warned of the dangers of eating raw oysters during
the consultation at NABI Biomedical Center on August 9, 1996. Likewise, the
court found no fault on the part of the oyster wholesaler. The trial court rendered
judgment in favor of plaintiff and against DHH in the sum of $450,000.00.
The court of appeal affirmed, agreeing with the trial court’s conclusion that
La. R.S. 9:2798.1 did not shield DHH from liability. The court found that the
Sanitary Code’s directive that establishments selling raw oysters “must” post this
warning at the “point of sale” to be mandatory language, not allowing for choice or
discretion. It found that because this provision requires a specific course of action,
the discretionary function exception does not apply. The court further found that
although the Code does not define the term “point of sale,” such an omission does
not require a finding that the discretionary function immunity applies.
The court of appeal also affirmed the trial court’s apportionment of fault.
The court reasoned that “[r]egarding the necessity and benefits of health warnings,
DHH enjoys a far superior posture than Pascal’s Manale. DHH is in the business of
protecting the health of the citizenry of Louisiana, whereas Pascal’s Manale is in
the business of selling oysters.”
From this ruling, DHH appeals.
DISCUSSION
Liability of DHH and applicability of La. R.S. 9:2798.1
We must first determine whether the court of appeal was correct in holding
that the discretionary function immunity of La. R.S. 9:2798.1 is inapplicable, such
that DHH can be exposed to liability in this case. Louisiana Revised Statute
9:2798.1(B) provides:
5
Liability shall not be imposed on public entities or their officers
or employees based upon the exercise or performance or the failure to
exercise or perform their policymaking or discretionary acts when
such acts are within the course and scope of their lawful powers and
duties. [Emphasis added.]
Section D of La. R.S. 9:2798.1 explains that its purpose “is not to reestablish any
immunity based on the status of sovereignty but rather to clarify the substantive
content and parameters of application of such legislatively created codal articles
and laws and also to assist in the implementation of Article II of the Constitution of
Louisiana.”5
The starting point for the interpretation of any statute6 is the language of the
law itself. Ginn v. Woman’s hospital Foundation, Inc., 02-1913, p. 9 (La. 4/9/03),
___ So.2d ___, ___; Rougeau v. Hyundai Motor America, 01-1182, p. 5 (La.
1/15/02), 805 So.2d 147, 151. Special rules for interpreting a statute (such as La.
R.S. 9:2798.1) have been enacted by the legislative branch and are found in La.
R.S. 1:1 et seq. Louisiana Revised Statute 1:3 provides, in pertinent part, that
“[w]ords and phrases shall be read with their context and shall be construed
according to the common and approved usage of the language” and the “word
‘shall’ is mandatory.” (Emphasis added.) Louisiana Revised Statute 1:4 provided
that “[w]hen the wording of a Section [of a statute] is clear and free of ambiguity,
5
Article II of the Louisiana Constitution provides for the distribution of governmental
powers as follows:
§ 1. Three Branches
Section 1. The powers of government of the state are divided into three
separate branches: legislative, executive, and judicial.
§2. Limitations on Each Branch
Section 2. Except as otherwise provided by this constitution, no one of
these branches, nor any person holding office in one of them, shall exercise power
belonging to either of the others.
6
Legislation is superior to any other source of law and is a solemn expression of
legislative will. La.C.C. art. 1 and 1987 Revision Comment (c) thereto and La. C.C. art. 2.
6
the letter of it shall not be disregarded under the pretext of pursuing its spirit.” The
legislative branch also has provided general rules for interpreting laws in La. C.C.
art. 9 et seq. See, in particular, La. C.C. arts. 9 and 11. We are bound by the
language of a relevant law. Allen v. State, through the Ernest N. Morial-New
Orleans Exhibition Hall Authority, 02-1072, p. 12 (La. 4/9/03), ___ So.2d ___,
___.
The Louisiana Constitution of 1974 art. III, § 15(A) provides, in pertinent
part, that “[e]very bill shall contain a brief title indicative of its object.” (Emphasis
added.) Thus, the title of a law may be examined to determine its purpose. Boutte
v. Jefferson Parish Hosp. Sev. Dist. No. 1, 99-2402, p. 5 (La. 4/11/00), 759 So.2d
45, 49. The title of La. R.S. 9:2798.1 is “Policymaking or discretionary acts or
omissions of public entities or their officers or employees.” After reviewing the
title and substance of La. R.S. 9:2798.1, we must conclude that for purposes of this
case its object is to provide immunity from liability for offenses and quasi offenses
of public entities, as defined therein, when the acts or omissions of the public
entities are policymaking or discretionary acts or omissions.7
Dictionaries are a valuable source for determining the “common and
approved usage” of words. Louisiana Horsemen’s Benevolent and Protective
Assoc. 1993, Inc. V. Fair Grounds Corp., 02-1928, p. 5 (La. 4/9/03), ___ So.2d
___, ___.
Louisiana R.S. 1:9 specifically provides that “[u]nless it is otherwise clearly
indicated by the context, whenever the term ‘or’ is used in the Revised Statutes, it
is used in the disjunctive and does not mean ‘and/or’.” Cf., La. C.C.P. art.
7
La. R.S. 9:2798.1 is found in Chapter 2 (Of Offenses and Quasi Offenses), of Code Title
V (Of Quasi Contracts, and of Offenses and Quasi Offenses), of Code Book III (Of Different
Modes of Acquiring the Ownership of Things), of Title 9 (Civil Code Ancillaries) of the Revised
Statutes.
7
5056(2); La. C.Cr.P. art. 6(2); La. Ch.C. art. 108(2). In BLACK’S LAW
DICTIONARY 987 (5th ed. 1979), the word “or” is defined as a “disjunctive particle
used to express an alternative or to give a choice of one among two or more things”
and indicates “an alternative between different or unlike things.” In MIRRIAMWEBSTER’S COLLEGIATE DICTIONARY 817 (10th ed. 1999), the word “or” is
defined as “a function word to indicate an alternative.” Thus, the word “or” as
used in the operative language of La. R.S. 9:2798.1 clearly and unambiguously
demonstrates that the words “policymaking” and “discretionary” have different
meanings. This is confirmed by their “common and approved” definitions.
BLACK’S at 1041 defines “public policy” as follows:
That principle of the law which holds that no subject can lawfully do
that which has a tendency to be injurious to the public or against the
public good. The principles under which the freedom of contract or
private dealings is restricted by law for the good of the community.
The term “policy,” as applied to a statute, regulation, rule of law,
course of action, or the like, refers to its probable effect, tendency, or
object, considered with reference to the social or political well-being
of the state.
In MIRRIAM-WEBSTER’S at 901 the word “policy” is defined as “a definite course
or method of action selected from among alternatives and in light of given
conditions to guide and determine present and future decisions.” MIRRIAMWEBSTER’S at 703 defines “making” as “the act or process of forming, causing,
doing, or coming into being.” Thus, “policymaking” in the public sector means the
planning of a course of action for the social or political well-being of the state.
BLACK’S at 419 defines the word “discretion” as follows:
When applied to public functionaries, discretion means a power or
right conferred upon them by law of acting officially in certain
circumstances, according to the dictates of their own judgment and
conscience, uncontrolled by the judgment or conscience of others. As
applied to public officers means power to act in an official capacity in
a manner which appears to be just and proper under the
circumstances.
8
In MIRRIAM-WEBSTER’S at 332 the noun “discretion” is defined as “power of free
decision or latitude of choice within certain legal bounds.” The word
“discretionary” is the adjective form of the noun “discretion.”
When we interpret La. R.S. 9:2798.1, we are bound to give effect to all parts
of it and cannot give it an interpretation that makes any part of it superfluous or
meaningless, if that result can be avoided. Palmer v. Louisiana State Board of
Elementary and Secondary Education, 02-2043, p. 5 (La. 4/9/03), ___ So.2d ___,
___; Hollingsworth v. City of Minden, 00-1528, p. 11 (La. 4/3/01), 783 So.2d 1251,
1260.
DHH argues that the testimony and evidence establishes that the intent of the
drafters of § 23:006-4 was to give DHH inspectors discretion when inspecting
restaurants for compliance with § 23:006-4. DHH argues that the actual words of
the regulation offer a variety of methods for compliance, which requires the use of
judgment or choice--i.e. “Discretion.” It maintains that the first sentence of the
regulation indicates three specific choices (signs, menu notices, or table tents), and
a fourth general alternative if signs, menu notices, or table tents are not appropriate
in a particular situation (other clearly visible messages). DHH also points to the
testimony of Dr. Nitzkin that “different approaches would work well in different
food service establishments because of the layout of the establishment ... what
would work in one restaurant might not work in another.” Thus, DHH maintains
that its sanitarians inspecting restaurants serving shellfish necessarily exercise
some degree of discretion in determining whether the restaurant is in compliance
based on the unique physical layout and service arrangements of each restaurant.
DHH argues that the sanitarian who inspected Pascal’s Manale exercised such
discretion in determining that the warning posted over the oyster bar met the
required posting mandated by the regulation.
9
DHH also maintains that the underlying rationale for the regulation’s
choices--to provide the public with a uniform warning in a variety of settings-indicates that discretion by the sanitarian should be used. Therefore, DHH argues
that the lower courts erred in failing to find that it enjoyed discretionary immunity
under La. R.S. 9:2798.1 to the sanitarian’s decision that the warning over the
oyster bar at Pascal’s Manale satisfied the requirements of the regulation
mandating a warning display at the point of sale.
Section 23:006-4 of the Sanitary Code requires that all “establishments that
sell or serve raw oysters must display” a prescribed warning “at point of sale.” The
establishment has discretion in determining what method may be used to convey
the warning because the warning can be conveyed by a sign, menu notice, table
tent or other clearly visible message. However, no policymaking act or
discretionary act is involved in determining where the warning must be given; it
must be given AT THE POINT OF SALE.
In the instant case, the point of sale was at the table where the raw oysters
were ordered for the decedent. The raw oysters were offered for sale in the menu
at a certain price. This offer was accepted and the sale was consummated when the
oysters were ordered. La. C.C. arts 2439 and 2456. This transaction did not take
place in the room where the oyster bar and warning sign were located. There were
no signs, menu notices, table tents, or other clearly visible messages conveying the
warning in the room, or on the table, where the order was made. This violated
Section 23:006-4.
In their briefs the relator and respondent applied La. R.S. 9:2798.1 as it was
interpreted by the lead opinion on rehearing in Fowler v. Roberts, 556 So.2d 1 (La.
1990), and its progeny. See, e.g., Jackson v. State, Dept. Of Corrections, 00-2882
(La. 5/15/01), 785 So.2d 803; Hardy v. Bowie, 98-2821 (La. 9/8/99), 744 So.2d
10
606; Archon v. Union Pacific Railroad, 94-2728 (La. 6/30/95), 657 So.2d 987;
Rick v. State, DOTD, 93-1776 (La. 1/14/94), 630 So.2d 1271. The essence of this
jurisprudence is summarized in Jackson, 00-2882 at 8, 785 So.2d at 809, as
follows:
The immunity from liability for discretionary acts is essentially
the same as the immunity conferred on the federal government by the
exception in the Federal Tort Claims Act (FTCA). Fowler v. Roberts,
556 So.2d 1 (La. 1989) (on rehearing). In Berkovitz v. United States,
486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), the United
States Supreme Court developed the following two-step analysis to
examine immunity under FTCA: (1) whether a statute, regulation, or
policy specifically proscribes a course of action; and (2) whether the
challenged action is grounded in political, economic or social policy.
This Court adopted the Berkovitz inquiry to analyze the applicability
of La. Rev. Stat. 9:2798.1, describing it as follows:
Discretion exists only when a policy judgment has been
made. Judicial interference in executive actions
involving public policy is restrained by the exception.
Thus, the exception protects the government from
liability only at the policy making or ministerial level,
not at the operational level.
Fowler, 556 So.2d at 15.
Initially, a review of the lead opinion on rehearing in the Fowler case shows
that the starting point for interpreting La. R.S. 9:2798.1 therein was not the statute
itself. Instead, the opinion starts with the premise that “[t]he discretionary function
exception to state governmental liability established by the statute is essentially the
same as the exception in the Federal Tort Claims Act.” Fowler, 556 So.2d at 15.
This premise is fatally flawed. The referenced provision of the FTCA is 28
U.S.C.A. 2680(a) that provides as follows:
The provisions of this chapter and section 1346(b) of this title shall
not apply to-(a) Any claim based upon an act or omission of an employee of
the Government, exercising due care, in the execution of a statute or
regulation, whether or not such statute or regulation be valid, or based
upon the exercise or performance or the failure to exercise or perform
a discretionary function or duty on the part of a federal agency or an
employee of the Government, whether or not the discretion involved
11
be abused. [Emphasis added.]
A review of the Louisiana statute and the federal statute shows that their language
is not essentially the same. The Louisiana statute applies to “policymaking or
discretionary acts when such acts are within the course and scope of ... lawful
powers and duties.” The federal statute is limited to “the exercise or performance
or the failure to exercise or perform a discretionary function or duty.” Unlike the
Louisiana statute, the federal statute does not provide that a “policymaking act” is
separate and distinct from a “discretionary function or duty.”
The Fowler opinion did not utilize the rules for interpreting Louisiana
statutes that are found in the Revised Statutes and the Civil Code. Instead, it went
to federal jurisprudence to interpret a dissimilar Louisiana statute to reach the
conclusion that the immunity provided for in the Louisiana statute only exists
when there is a discretionary act or function “grounded in social, economic or
political policy.” Fowler, 556 So.2d at 15. This quoted language is not found in
the Louisiana statute. As indicated in the above cited quote for the Jackson case,
the immunity has been further limited by the subsequent jurisprudence so that it
now only applies “at the policy making or ministerial level, not at the operational
level.” A review of the Louisiana statute shows that it does not make a distinction
between operational acts and ministerial or policymaking acts. Finally, the Fowler
interpretation of La. R.S. 9:2798.1 improperly renders the word “or” meaningless
and is an impermissible repeal of part of a substantive immunity right. Louisiana
R.S. 9:2789.1 is clear and unambiguous. We are bound to follow it as written and
give effect to all of its provisions.
For the foregoing reasons, the analysis given to La. R.S. 9:2798.1 by Fowler
and its progeny is faulty.
DHH had a mandatory duty to properly enforce the sanitary code. La. R.S.
12
40:4A. We find 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. The result of
this negligence is clearly seen in the actions of Mr. Robinson when he inspected
Pascal’s Manale. 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 §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 §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. We reject this
argument and conclude that Mr. Robinson’s decision in this case, that the warning
over the oyster bar was in compliance with §23:006-4, was not a decision grounded
in social, economic, or political policy. It was operational negligence in enforcing
the sanitary code. When the government acts negligently for reasons unrelated to
public policy consideration, it is liable to those it injures. Archon, 657 So.2d at
996.
Accordingly, we hold that DHH is not entitled to immunity under La. R.S.
13
9:2798.1. The factual ruling of the trial court, affirmed by the court of appeal, that
DHH negligently failed to enforce its own regulation is not clearly wrong
(manifestly erroneous). Therefore, we affirm these portions of the court of appeal’s
decision.
Apportionment of Fault
Our next inquiry is whether the lower courts erred in their apportionment of
fault. The allocation of fault between comparatively negligent parties is a finding
of fact. Sims v. State Farm Automobile Ins. Co., 98-1613 (La. 3/2/99), 731 So.2d
197, 199. As with other factual determinations, the trier of fact is vested with
much discretion in its allocation of fault. Duncan v. Kansas City Southern Railway
Co., 00-0066 (La. 10/30/00), 773 S.2d 670, 680. Accordingly, an appellate court
may only reallocate fault if it finds the trial court was clearly wrong or manifestly
erroneous in its allocation of fault, even if the reviewing court would have decided
the case differently had it been the original trier of fact. Hebert v. Brown Bottling
Group, Inc., 98-0924 (La. 10/30/98), 719 So.2d 1043, 1046.
DHH argues that the lower courts erred in holding it to a higher standard of
expertise than Pascal’s Manale, claiming that Pascal’s Manale has superior
knowledge as to where its customers order raw oysters. We agree. As stated
above, DHH was negligent in its enforcement of the Sanitary Code regulation. The
record reveals that a DHH sanitarian, untrained as to terminology of §23:006-4,
inspected Pascal’s Manale four times prior to Gregor’s death and never cited the
restaurant for noncompliance with the regulation. DHH should, therefore, bear
some portion of liability for the wrongful death of Gregor.
However, we find that the court of appeal’s allocation of only 25% fault to
Pascal’s Manale is manifestly erroneous.
In Simeon, supra, after rejecting the theory of strict liability on the part of
14
the restaurant and oyster supplier, we analogized the situation to a product liability
case for failure to warn. There, we noted that “in the context of product liability
cases, we have held that in performing this duty a manufacturer is held to the
knowledge and skill of an expert. It must keep abreast of scientific knowledge,
discoveries, and advances and is presumed to know what is imparted thereby.”
Simeon, 618 So.2d at 852. We went on to state, “[w]e find it unclear from the
record whether a reasonable retailer or wholesaler of oysters on September 6, 1986
would have known or should have known, when held to a standard of an expert, of
the potential danger to certain people from eating raw oysters.” Id. We therefore,
remanded the case to the trial court to take further evidence on that issue.
In the instant case, DHH argues that by 1996, ten years after the cause of
action arose in Simeon, retailers and wholesalers of raw oysters were well aware of
the potential danger to persons with chronic ailments as well as the general public.
The state agencies had provided free supplies of signs and brochures to the
restaurants, and information to the general public through mass communication.
By then, the regulation had been promulgated for five (5) years, with DHH seeking
voluntary compliance from 1991 until August 1993, and then instituting full
enforcement of the regulation thereafter.
The restaurants were well aware of the required oyster warning regulation
and, in fact, expressed opposition to such warnings up until the time of
enforcement. In 1990, the Louisiana Restaurant Association wrote to the Director
of Public Health expressing its concern that mandatory signs would result in a drop
in oyster sales. According to the LRA, its industry is the single largest retail
employer in the state of Louisiana, and restaurant business (at that time) resulted in
a $3.2 billion impact on the state’s economy. The LRA proposed to meet with
DHH officials to discuss alternatives to mandatory signage. In response, Dr.
15
Nitzkin delayed promulgation of the final rule, scheduled public hearings and
invited written comments. Despite strong opposition from the restaurant industry,
the enforcement of the mandatory warnings began in 1993.
Certainly, by 1996, Pascal’s Manale was fully aware of the warning
requirement. It had the benefit of various publications and brochures made
available by DHH to educate businesses and the public on the danger of eating raw
shellfish. More importantly, Pascal’s Manale certainly knew that it served
approximately 25% of its raw oysters in its dining rooms. Despite this superior
knowledge, it chose to employ only the sign posted in the oyster bar, and did not
provide the mandatory warning to customers who ordered raw oysters from menus
at tables in the dining rooms where 25% of the raw oysters were ordered and
consumed.
There was testimony presented at trial that even the oyster warning sign
posted above the oyster bar at Pascal’s Manale was inadequate. At trial, DHH
introduced excerpts from the deposition of Dr. Edward Karnes, a human factors
expert in the field of warnings, who testified that the signage in Pascal’s Manale at
the oyster bar was inadequate because of its placement and because of the “visual
clutter” that surrounded it. Dr. Karnes testified that there are approximately 30
placards on the one wall where the oyster warning sign is located. He testified
further that the placement of the oyster warning was “the best example of
camouflage for that notice that probably could be possible, other than turning it
faced against the wall so it can’t be read at all.” He also stated, “you have an
abundance of visual clutter in the area where the sign is located. If someone was
going to attempt to purposefully make this sign inconspicuous, the location chosen
for the sign ... is a perfect example of achievement of that.”
We find it clear from this testimony that not only did Pascal’s Manale fail to
16
give any warning to patrons who ordered raw oysters in its two dining rooms, it
also failed to give adequate warning to its oyster bar patrons because of the clutter
surrounding the signage. The court of appeal’s decision failed to recognize
Pascal’s Manale’s superior role in this failure to warn.
Under these circumstances, we find that Pascal’s Manale is liable for the
wrongful death of Gregor to the extent of no less than 50%. Accordingly, we
reverse the decision of the court of appeal in so far as it allocates only 25% fault to
Pascal’s Manale. We hereby reapportion the percentage of fault: 50% to Pascal’s
Manale and 50% to DHH.
DECREE
The decision of the court of appeal that DHH is not entitled to discretionary
immunity under La. R.S. 9:2798.1 is hereby affirmed. The court of appeal’s
allocation of fault is hereby reversed, and allocation of fault is reapportioned: 50%
to Pascal’s Manale and 50% to DHH.
Affirmed in part; Reversed in part.
17
The decision of the court of appeal that DHH is not entitled to discretionary
immunity under La. R.S. 9:2798.1 is hereby affirmed. The court of appeal’s
allocation of fault is hereby reversed, and allocation of fault is reapportioned: 50%
to Pascal’s Manale and 50% to DHH.
Affirmed in part; Reversed in part.
18
5/20/03
SUPREME COURT OF LOUISIANA
No. 2002-C-1138
EILEEN GREGOR, ET AL.
VERSUS
ARGENOT GREAT CENTRAL INSURANCE COMPANY, ET AL.
CALOGERO, Chief Justice, concurs and assigns reasons.
I respectfully concur in the majority’s finding that the Department of Health and
Hospitals (DHH) is not entitled to discretionary or policymaking immunity for its acts
or omissions under the provisions of La. Rev. Stat. 9:2798.1(B). I also concur in the
majority’s apparent determination that the allocation of fault under the circumstances
of this case was clearly wrong and that the fault of the restaurant may be raised only
to the lowest level the trier of fact could have reasonably assigned, or 50% in this
case. See Clement v. Frey, 95-1119 (La. 1/16/96), 666 So.2d 607.
Notwithstanding my concurrence in these findings, I disagree with the plurality
opinion’s decision to review the reasoning of Fowler v. Roberts, 556 So.2d 1, 13 (La.
1989) (on rehearing), within the context of this case. Whether or not this court should
choose at some point to revisit Fowler v. Roberts and its discussion of La. Rev. Stat.
9:2798.1(B), I do not see any compelling reason for the court to do so in this case,
where neither party has challenged the analytical framework set forth in Fowler v.
Roberts regarding La. Rev. Stat. 9:2798.1(B), and where the plurality’s criticism of
the Fowler v. Roberts decision has no effect whatsoever either upon the legal analysis
of the case before us or upon its outcome.
In my view, the plurality perhaps misunderstands the issues presented and the
positions taken up in Fowler v. Roberts. There, an applicant for a Louisiana driver’s
license suffered from a severe seizure disorder. Initially refused a license, he
1
ultimately obtained one after submitting a detailed medical report saying he had been
seizure-free for over a year. This license, however, had no restrictions other than the
condition that the driver be required to use an automatic transmission. He later
applied for a renewal of the license, and such request was granted without the
requirement of submitting another medical report. While La. Rev. Stat. 32:403.2
requires every physically handicapped person to submit a detailed medical report upon
initial application for a driver’s license, the statute also provides that the Department
of Public Safety (DPS) “may waive the furnishing of said report by any person
applying for a renewal license under the provisions of this Chapter.” In accord with
that statute, the DPS elected to waive the submission of a medical report in every
renewal application filed by a physically handicapped driver, rather than establish any
guidelines regulating when such medical reports may reasonably be waived. The
defendant driver, however, began having frequent seizures, despite medication, and
eventually caused an accident resulting in the deaths of two other people. The
survivors filed suit against the DPS alleging the agency had breached the duty it owed
to protect the public.
On original hearing, Justice Lemmon, writing for a majority that included Chief
Justice Dixon and Justices Watson and Calogero, performed a duty-risk analysis as
set forth in Pierre v. Allstate Ins. Co., 257 La. 471, 242 So.2d 821 (1970), and noted
the five separate elements of a negligence case: duty, breach of duty, cause-in-fact,
legal cause or scope of protection, and damages. The majority concluded the DPS has
the duty, “when it knows that an applicant for a driver's license has a seizure disorder
that may be dangerous either at present or in the future, to adopt reasonable
procedures designed to ensure safety on the highways not only in the initial issuance
of a license, but also in the continuation of the authority to drive.” 556 So.2d at 8.
The majority further reasoned that, given the purpose of this duty, the risk that a
2
handicapped driver might harm other drivers while undergoing the effects of his
condition was clearly within the scope of protection contemplated by imposition of
this duty. Justices Cole and Marcus dissented, being of the opinion that the DPS had
no duty either to monitor a handicapped driver, who was licensed after a doctor
attested he was medically capable of operating a vehicle safely, or to adopt and follow
such monitoring procedures.
Justice Dennis also dissented. However, he pointed out that the majority had
omitted any discussion of whether the DPS was entitled to immunity from liability
under La. Rev. Stat. 9:2798.1(B). Justice Dennis noted that, although sovereign
immunity has been abolished, the state and its agencies are “protected from liability
for the decisions of executive-branch employees and officers when those decisions
involve the kind of basic policy issues typically involved in legislation.” 556 So.2d
at 10. He went on to say that this immunity “is essentially the same immunity known
in federal law as the immunity for governmental conduct involving ‘discretionary
functions or duties.’” Id., citing inter alia 28 U.S.C. § 2680(a) (Federal Tort Claims
Act). Justice Dennis, after quoting at length a treatise on the federal immunity statute,
applied federal precepts to the Fowler facts and concluded that the DPS could invoke
governmental or discretionary immunity in that case because the agency’s only fault
consisted of its negligence in making law or governmental policy. 556 So.2d at 12.
He reasoned that the DPS is “being held responsible for negligent policy making,
rather than for any act or omission by its officers or employees in carrying out law or
policy previously established by the Legislature or the DPS.” Id.
The court granted the DPS’s application for rehearing, and in response to
Justice Dennis’s admonition addressed the applicability of La. Rev. Stat. 9:2798.1(B)
to the Fowler facts. On rehearing, Justice Watson, joined by Chief Justice Dixon and
Justice Lemmon (concurring), echoed Justice Dennis’s earlier observation that the
3
Louisiana immunity statute protecting the discretionary acts of DPS officers or
employees is “essentially the same as the exception in the Federal Tort Claims Act.”
556 So.2d at 15. Justice Watson noted, citing federal jurisprudence, that “[d]iscretion
exists only when a policy judgment has been made,” and that “the exception protects
the government from liability only at the policy making or ministerial level, not at the
operational level.” Id. Justice Watson then went on to adopt the two-step test
articulated in the federal jurisprudence, namely Berkovitz v. United States, 486 U.S.
531 (1988), which the plurality today criticizes. Justice Watson also noted two
principles: (1) that the discretionary function exception does not bar a negligence
claim if the official had no room to exercise a policy judgment, and (2) that a
government which acts negligently for reasons unrelated to public policy
considerations is liable to those it injures. 556 So.2d at 15-16. Justice Watson then
concluded the DPS there was not entitled to immunity protection, because implicit in
La. Rev. Stat. 32:403.2 was the requirement that the agency formulate policy and
make rules to govern license renewals by handicapped persons, and not either waiving
all renewal medical reports or making arbitrary decisions on an ad hoc basis. 556
So.2d at 16. He further reasoned, incorrectly perhaps, that when there are no
standards to be applied by the agency employee, “and renewals are granted to all
applicants, the operational decision to issue a renewal is not a discretionary act”
entitled to immunity under La. Rev. Stat. 9:2798.1(B). Id. The rehearing decision
then reinstated the original opinion as supplemented thereby.
Justice Dennis concurred in the result on rehearing, while adhering to his
reasons originally expressed in dissent, because he believed the DPS had violated
previously-established guidelines with regard to the submission and acceptance of the
initial medical report when the physically handicapped driver first applied for a
license. 556 So.2d at 17-18. And three justices, Cole, Marcus, and Calogero,
4
dissented from the plurality decision on rehearing, being of the belief that the DPS
was not negligently operating under an implied directive from the legislature, but
rather that the DPS had made a discretionary, policymaking act entitled to immunity
when it elected to waive all medical reports for all renewals by physically disabled
persons, as it was at liberty to do under La. Rev. Stat. 32:403.2.
While the plurality today faults the Fowler decision on rehearing because it
equated La. Rev. Stat. 9:2798.1(B) to the federal tort claim exception, U.S.C. §
2680(a), and adopted federal jurisprudence applying the latter, I perceived no
disagreement among the Fowler court’s justices in that regard. The justices in Fowler
disagreed, first, on whether the DPS had a duty to adopt monitoring procedures and
to follow them and, second, on whether the legislature had implicitly directed the DPS
to adopt such procedures, such that the DPS’s failure to do so was a non-discretionary,
operational-level decision not entitled to immunity under La. Rev. Stat. 9:2798.1(B).
Although I dissented from the ultimate conclusion reached in Fowler v. Roberts on
rehearing, none of the seven justices expressed opposition to comparing the Louisiana
immunity provision to the federal tort claim exception or to adopting the two-step
Berkovitz test.
In addition, the plurality opinion’s own reasoning in the case before us today,
in which I concur, belies any need for revisiting Fowler v. Roberts. The plurality
recognizes that the DHH has made the decision to promulgate the warning
requirement in the Sanitary Code, that the provision under review, §23:006-4, required
the establishment to place a warning of appropriate type “at point of sale,” and that La.
Rev. Stat. 40:4(A) placed a duty upon the DHH to enforce that provision of the
Sanitary Code. The Sanitary Code requirement allowed no discretion in where the
warning was to be placed, the plurality reasons, such that the DHH negligently failed
to enforce its own non-discretionary directive in not ensuring that an adequate
5
warning was placed in the dining room or at the table, as well as at the oyster bar.
Ante, p. 10. This finding -- that the sanitarian had no discretion or choice in where to
ensure placement of the warning -- obviates the need for a discussion as to whether
the Fowler rehearing decision properly distinguished between “discretionary” acts or
omissions and “policy making” acts or omissions within the meaning of La. Rev. Stat.
9:2798.1(B). Therefore, by its own reasoning, the plurality’s discussion of Fowler
does not affect the legal analysis in this case and has no ultimate effect on the outcome
of this case. Consequently, I fail to see a basis for mounting such an attempt to
undermine Fowler in the context of this case.1
Finally, it should be noted that the analytical framework set forth in Fowler v.
Roberts on rehearing has been consistently cited with approval by this court, most
recently in Jackson v. State, Dept. of Corrections, 00-2882 (La. 5/15/01), 785 So.2d
803 (Traylor, J.), and Hardie v. Bowie, 98-2821 (La. 9/8/99), 744 So.2d 606 (Victory,
J.). In sum, while I concur in the holdings of the majority today, I disagree with the
plurality’s decision to reach out and review Fowler v. Roberts, and with its conclusion
that the analytical framework established in Fowler v. Roberts is faulty.
1
I also question whether the plurality’s incomplete and cursory review might not invite
unintended consequences. For example, at one point, the plurality emphasizes that La. Rev. Stat.
9:2978.1(B), unlike the federal jurisprudence applying the federal tort claim exception, makes no
distinction between operational-level acts or omissions and ministerial or policy-making acts or
omissions. Ante, p. 12. However, the plurality does not discuss what import this lack of a
distinction would have on how a Louisiana court should apply La. Rev. Stat. 9:2978.1(B).
6
5/20/03
SUPREME COURT OF LOUISIANA
No. 02-C-1138
EILEEN GREGOR, ET AL.
v.
ARGENOT GREAT CENTRAL INSURANCE
COMPANY, ET AL.
KIMBALL, Justice, concurring in part and dissenting in part
While I do not necessarily agree with the extent to which the majority opinion
utilizes common dictionary meanings to support its interpretation of La. R.S.
9:2798.1, I do agree that this court’s decision on rehearing in Fowler v. Roberts, 556
So.2d 1 (La. 1990) was in error. I therefore subscribe to the majority’s conclusion that
DHH is not entitled to discretionary immunity under the provisions of La. R.S.
9:2798.1.
I disagree, however, with the majority’s allocation of 50% fault to DHH. In my
view, the record clearly establishes that although the negligence of DHH contributed
to the injury, the fault of DHH was certainly not equal to that of Pascal’s Manale. The
responsibility of disseminating the warnings and making them clearly visible to
patrons is rests primarily with Pascal’s Manale.
I would therefore allocate
substantially less fault to DHH and more to Pascal’s Manale.
5/20/03
SUPREME COURT OF LOUISIANA
NO. 02-C-1138
EILEEN GREGOR, ET AL.
versus
ARGENOT GREAT CENTRAL INSURANCE COMPANY, ET AL.
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FOURTH CIRCUIT, PARISH OF ORLEANS
VICTORY, J., dissenting
In my view, the Department of Health and Hospitals is not liable to the
plaintiffs under the facts and circumstances of this case.
5/20/03
SUPREME COURT OF LOUISIANA
No. 02-C-1138
EILEEN GREGOR, ET AL.
versus
ARGENOT GREAT CENTRAL INSURANCE COMPANY, ET AL.
KNOLL, Justice, dissenting
I disagree that the Department of Health and Hospitals (“DHH”) is liable under
the circumstances of this case.
Louisiana Sanitary Code, Chapter XXIII, § 23:006-4, states that “[a]ll
establishments that sell or serve raw oysters must display signs, menu notices, tables
tents, or clearly visible messages at point of sale” with the statutorily proscribed
warning. (emphasis added). Clearly, under the terms of the sanitary code, the
affirmative duty to ensure that patrons are adequately warned about the dangers
associated with consuming raw shellfish is imposed upon the “establishments” that
sell raw oysters, not the DHH. Under the circumstances of this case, the restaurant
clearly possessed the superior capacity to know where the warnings would have had
the greatest impact. Indeed, the DHH inspected Pascal’s Manale and found that, based
on all the objective evidence, the restaurant had posted the appropriate warning at its
oyster bar. It was Pascal’s Manale, alone, that knew that 20-25% of its customers ate
raw oysters in the dining area.
Without question the DHH is statutorily imposed with the duty to enforce the
sanitary code by La. R.S. 40:4(A). It is entrusted with countless responsibilities in
order to protect the public health, one of which is to make sure warnings have been
posted about the dangers of eating raw shellfish. There are thousands of businesses
and restaurants in Louisiana that sell raw oysters, each different from the next. What
is a “point of sale” at one, and thus requiring a warning, may not be a “point of sale”
at another. In my view, the majority’s interpretation places an undue burden on DHH
and effectively makes DHH the insurer of the safety of its citizens.
This Court has made clear that liability will not be automatically assigned to a
State regulatory agency for the malfeasance of a third party. Cormier v. T.H.E. Insur.
Co., 98-2208 (La. 9/8/99), 745 So.2d 1, 6. Furthermore, it has been recognized that
the State is not the insurer of the safety of its citizens. Wilson v. State Through Dep’t
of Public Safety and Corrections, 576 So.2d 490 (La. 1991). See also Guillot v. State
Through Louisiana State Police, 364 So.2d 254 (La.App. 3 Cir. 1978) (“[a]lthough
the State has a duty to enforce its criminal laws, it is not liable for damages to
individuals injured by criminal acts of others or by the State’s failure to punish those
criminal acts. To hold otherwise would, in effect, obligate the State to compensate the
victims of crime.”). Accordingly, I find the fault attributable to DHH to be minimal,
if any, and does not rise to the level of actionable negligence.
For these reasons, I respectfully dissent.
