It's not just Montezuma's revenge anymore ... - Free Online Library
Editor's note Editor's Note (foaled in 1993 in Kentucky) is an American thoroughbred Stallion racehorse. He was sired by 1992 U.S. Champion 2 YO Colt Forty Niner, who in turn was a son of Champion sire Mr. Prospector and out of the mare, Beware Of The Cat.
Trained by D. : The Journal recognizes the importance of
providing readers with practical and relevant legal information through
Legal Briefs Legal Briefs is an interactive television program aired on CablePulse24 and CourtTV Canada, hosted by Lorne Honickman, a lawyer and journalist, as he discusses the ins & outs of the Canadian legal system and provides free legal advice. columns. In every other issue of the Journal, this
information is presented by one or more of several insightful and
dedicated columnists: Bill Marler,
Denis Denis, king of Portugal: see Diniz. Stearns, Drew Falkenstein,
Patti Waller, and David W. Babcock, all of the law firm Marler Clark.
The attorneys at Seattle-based Marler Clark,
LLP LLP - Lower Layer Protocol , PS
(www.marlerclark.com) have developed a nationally known practice in the
field of food safety. Marler Clark represents people who have been
seriously injured, or the families of those who have died, after
becoming ill with foodborne illness during outbreaks traced to
restaurants, grocery chains, and other food suppliers. The attorneys
have litigated thousands of food contamination cases throughout the
United States, many of them high-profile, including the Jack in the Box
and Odwalla
E. coli E. coli: see Escherichia coli.
E. coli
in full Escherichia coli
Species of bacterium that inhabits the stomach and intestines. E. coli can be transmitted by water, milk, food, or flies and other insects. outbreaks; the Malt-O-Meal, Sun Orchard, and
Chili's Salmonella outbreaks; the Senor Felix
Shigella shigella
Any of the rod-shaped bacteria that make up the genus Shigella, which are normal inhabitants of the human intestinal tract and can cause dysentery, or shigellosis. Shigellae are gram-negative (see gram stain), non-spore-forming, stationary bacteria. S. outbreak;
and the Subway and Chi-Chi's
hepatitis A Hepatitis A Definition
Hepatitis A is an inflammation of the liver caused by a virus, the hepatitis A virus (HAV). It varies in severity, running an acute course, generally starting within two to six weeks after contact with the virus, and lasting no outbreaks.
David W. Babcock, the author of this month's installment,
joined Marler Clark as the firm's senior
litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.
When a person begins a civil lawsuit, the person enters into a process called litigation. associate in
2001. Representing children and the elderly has been central to Mr.
Babcock's practice at Marler Clark, where he focuses on litigation
resulting from foodborne-illness outbreaks.
Last night you attended a catered function for your favorite
charity. Now, 24 hours later, you are feeling less than charitable. In
the past hour, you have vomited five times. Your head is pounding, your
back aches, and you have a fever. Just before the diarrhea begins, a
friend from the charity's board calls to see how you are doing. She
informs you that several others who attended the function are sharing in
your misery.
Noroviruses 101
If you found yourself in a scenario such as this one, chances would
be that you had contracted a norovirus. You would not be alone.
Noroviruses is the name given to a group of related viruses that cause
acute
gastroenteritis gastroenteritis: see enteritis.
gastroenteritis
Acute infectious syndrome of the stomach lining and intestines. Symptoms include diarrhea, vomiting, and abdominal cramps. in 23 million cases a year, according to estimates
by the
Centers for Disease Control and Prevention Centers for Disease Control and Prevention (CDC), agency of the U.S. Public Health Service since 1973, with headquarters in Atlanta; it was established in 1946 as the Communicable Disease Center. (
CDC See Control Data, century date change and Back Orifice.
CDC - Control Data Corporation ). (1) Of viruses,
only the common cold is reported more often than
viral gastroenteritis viral gastroenteritis Intestinal flu Infectious disease A generic term for GE induced by viruses Clinical presentations 1. Epidemic VGE, most often caused by the Norwalk agent or Norwalk-like viruses Clinical N&V, diarrhea, abdominal pain, anorexia, .
(2)
Norovirus is recognized as the cause of over half of all
foodborne-illness outbreaks. In fact, of 232 outbreaks of norovirus
between July 1997 and June 2000, 57 percent were food-borne, 16 percent
were spread from person to person, and 3 percent were waterborne. (3)
The good news about noroviruses is that they are very unlikely to
cause serious or lasting injury While the acute symptoms of
norovirus--nausea, vomiting, diarrhea, fever, chills, and aches--can be
severe, they typically last less than 60 hours. (4) People infected with
norovirus usually recover in two to three days; however, in some cases,
severe dehydration, malnutrition, and even death can result from
norovirus infection, especially among children, the elderly, and
immunocompromised immunocompromised /im·mu·no·com·pro·mised/ (-kom´pro-mizd) having the immune response attenuated by administration of immunosuppressive drugs, by irradiation, by malnutrition, or by certain disease processes (e.g., cancer). adults in hospitals and nursing homes. (5)
Reported outbreaks associated with noroviruses are on the rise. It
is not clear, however, whether this rise is due to any increase in
illnesses. In the past 10 to 15 years, diagnostic techniques for
identifying noroviruses have advanced significantly, and increased
reports may simply be due to an increase in surveillance. One way or the
other, public awareness seems to be increasing.
Increased public awareness of noroviruses could be due in large
part to the most common settings for outbreaks. Those settings include
restaurants and catered meals (36 percent); nursing homes (23 percent);
schools
(13 percent); and "vacation settings or cruise ships" (10
percent). (6) Nursing homes, schools, and cruise ships rank high on this
list primarily because proximity among potential outbreak members plays
a dominant role in the spread of noroviruses.
Noroviruses are highly contagious--spreading either in fecal matter
or
vomitus vomitus /vom·i·tus/ (vom´i-tus) [L.]
1. vomiting.
2. matter vomited.
vom·i·tus
n.
Vomited matter.
vomitus
1. vomiting.
2. vomited material. . There is strong evidence that norovirus is prone to
"aerosolization," allowing microscopic droplets to
contaminate con·tam·i·nate
v.
1. To make impure or unclean by contact or mixture.
2. To expose to or permeate with radioactivity.
con·tam·i·nant n. surfaces and making for easy transmission from person to person. (7)
Charmingly enough, the "
projectile projectile
something thrown forward.
projectile syringe
see blow dart.
projectile vomiting
forceful vomiting, usually without preceding retching, in which the vomitus is thrown well forward. " nature of vomiting
associated with noroviruses is a contributing factor here as well.
Elderly populations, such as residents of
long-term care
facilities long-term care facility
n.
See skilled nursing facility. , are more likely to suffer severe complications from
norovirus infection. Factors that play a role in this heightened
virulence among elderly populations include
* age-induced decrease in stomach acid production, which allows
ingested in·gest
tr.v. in·gest·ed, in·gest·ing, in·gests
1. To take into the body by the mouth for digestion or absorption. See Synonyms at eat.
2. pathogens to enter the intestinal tract; (8)
* age-induced decrease in cellular and hu-moral immunity, which is
caused by decreased T-cell activity, and thus decreases resistance to
pathogens; (9) and
* age-induced decrease in
peristalsis peristalsis: see digestive system.
peristalsis
Progressive wavelike muscle contractions in the esophagus, stomach, and intestines, and sometimes in the ureters and other hollow tubes. , (11) which significantly
slows the elimination of
enteric enteric /en·ter·ic/ (en-ter´ik) within or pertaining to the small intestine.
en·ter·ic
adj.
1. Of, relating to, or within the intestine.
2. pathogens.(12)
Legal Implications
The legal fallout from outbreaks of noroviruses depends largely on
the setting of the outbreak and the vehicle of transmission. Determining
whether the method of transmission was foodborne or waterborne or was
person to person will go a long way toward determining the causes of
action available to those who were made ill.
Foodborne Norovirus Claims
Foodborne norovirus outbreaks in commercial food service settings
give rise to strict product liability claims, just as they would with
more notorious pathogens like E. coli 0157:H7, Salmonella, and hepatitis
A.
Contaminated contaminated,
v 1. made radioactive by the addition of small quantities of radioactive material.
2. made contaminated by adding infective or radiographic materials.
3. an infective surface or object. food cases were among the earliest cases to establish
strict liability principles, in Washington and elsewhere. (12) Today it
is plainly established that restaurant or catered meals are in fact a
product, and that the act of preparing them is manufacturing. (13)
Because prepared food items contaminated with a pathogen are essentially
per se defective, such cases turn almost entirely on the issue of
causation. (14)
In other words Adv. 1. in other words - otherwise stated; "in other words, we are broke"
put differently , the focus of the plaintiff's case
would be proving the link between the individual plaintiff's
illness and the established outbreak.
Person-to-Person Transmission in Commercial or Institutional
Settings
Different issues arise outside of the foodborne context. When
transmission of the illness cannot be tied to consumption of a product,
strict liability principles are most likely not available. (15) Where
the spread of a norovirus outbreak has occurred through person-to-person
transmission without the aid of a food item, traditional notions of
negligence (16) and premises liability (17) are more applicable.
The duties of hotels, conference centers, health care facilities,
and cruise ships to prevent the spread of noroviruses among their
patrons are consistent with their general duties under common carrier
(18) and
business invitee business invitee n. a person entering commercial premises for the purpose of doing business, rather than just taking a short cut to the next street. It is important since a business is liable to a business invitee for injury caused by dangerous conditions such as bad (19) doctrines. Consistent with these
principles, such businesses would have a duty to take reasonable steps
to prevent such transmission, to respond accordingly in high-risk
scenarios, and to sufficiently warn patrons of the risks of
transmission. For example, Marler Clark is involved in litigation
resulting from an outbreak of a norovirus involving more than 1,000
people associated with a large hotel in 2004. A central issue in that
litigation is whether the hotel took adequate steps to prevent the
spread of the illness, such as removing sick employees from the
workplace; cleaning properly after ill guests; and restricting access to
high-risk areas and activities. Also at issue is the adequacy of the
hotel's communication of the situation to its guests and other
patrons.
Cruise Ships
Outbreaks of noroviruses on cruise ships present some additional
legal considerations. According to CDC,
Cruise-ship outbreaks demonstrate how easily noroviruses can be
transmitted from person to person in a closed environment, resulting
in large outbreaks. The continuation of these outbreaks on consecutive
cruises ... suggests that environmental contamination and infected
crew members can serve as reservoirs of infection for passengers. (20)
The CDC now operates a
Vessel Sanitation Program Vessel Sanitation Program See Sanitation score. designed to combat
the problem. (21) In addition, measures implemented by cruise ships to
combat the spread of illnesses on board often include quarantining of
passengers who report themselves ill. While this method is likely
effective in curbing the spread of illness, it is not always a welcome
development for the sick individual or family.
Passengers' rights in such situations are frequently curtailed
by conditions imposed through the purchase of the ticket. These
limitations often include forum selection clauses, (22) shortened
statutes of limitations, (23) and arbitration clauses. (24) As a general
rule, these limitations have been upheld. (25)
Protecting Against Norovirus
There are a few things that individuals can do to reduce the risk
of contracting noroviruses. These include frequent handwashing, washing
fruits and vegetables before consumption, quickly and thoroughly
cleaning contaminated areas, and removing and perhaps discarding
implicated im·pli·cate
tr.v. im·pli·cat·ed, im·pli·cat·ing, im·pli·cates
1. To involve or connect intimately or incriminatingly: evidence that implicates others in the plot.
2. clothing and linens.
For businesses hoping to avoid sickening patrons and incurring
potential legal hassles, there are additional precautions to take. A
first step is to educate employees on the importance of personal
hygiene. In conjunction, food service and hospitality industry
businesses should make every effort to keep sick workers out of the
workplace. Finally, each establishment should have a well-thought-out
and feasible plan for responding to incidence of illness on the premises
quickly and effectively.
Efforts on both sides of the "table," as it were, will
help all of us enjoy a healthier and safer environment.
(Portions reprinted, with permission, from Bar Bulletin, August
2007, Volume 25, Issue 12, pages 12-13, a publication of the King County
Bar Association.)
Disclaimer: Legal Briefs is published for informational purposes
only; none of the information is intended to be, nor is, formal legal
advice.
NEHA NEHA National Environmental Health Association
NEHA National Executive Housekeepers Association
NEHA Northern Estates Homeowners Association (Indianapolis, Indiana) and the Journal of Environmental Health are not liable or
responsible for actions taken on the basis of the information contained
in these columns.
References
1. CDC. Norovirus: Technical Fact Sheet. at
http://www.cdc.gov/ncidod/dvrd/revb/gastro/norovirus-factsheet.htm. Last
updated on August 3, 2006. Accessed on August 14, 2007.
2. FDA/Center for Food Safety and Applied Nutrition. The Bad Bug
Book:
Norwalk Virus Nor·walk virus
n.
A norovirus.
Norwalk virus (nôr´wôlk),
n. Family, at
http://www.cfsan.fda.gov/~mow/chap34.html. January 1992 with periodic
updates. Accessed on September 4, 2007.
3. See CDC Web site n. 1
Supra A relational DBMS from Cincom Systems, Inc., Cincinnati, OH (www.cincom.com) that runs on IBM mainframes and VAXs. It includes a query language and a program that automates the database design process. .
4. Id.
5. Mayo Clinic. Norovirus. April 5, 2007. at
http://www.mayoclinic.com/health/norovirus/DS00942/DSECTION=1. Accessed
on August 15, 2007.
6. See CDC website n. 1 Supra
7. Id.
8. See, James L. Smith. Foodborne Illness and the Elderly. Journal
of Food Protection. Sept. 1998 at 1229-39.
9. Id.
10. Peristalsis is the rhythmic contraction of smooth muscles to
propel contents through the
digestive tract digestive tract
n.
See alimentary canal.
Digestive tract
The organs that perform digestion, or changing of food into a form that can be absorbed by the body. .
11. Supra at 21.
12. Mazetti v. Armour & Co., 75 Wash. 622 (1913).
13. Almquist v. Finley School District, 114 Wn. App. 395, 57 P.3d
1191 (2002).
14. See R. Drew Falkenstein. An Introduction to Liability,
Negligence, and All Things in Between: Part I. Journal of Environmental
Health. Sept. 2005 at 41.
15. The illness need not be tied to a specific food item, which is
often very difficult. A link to a meal, or even to food from a
particular source over a time frame is sufficient. For example, a sick
food service worker might contaminate a wide variety of foods over a
certain time frame, making isolation to a specific food very difficult,
but not exonerating the food service establishment.
16. Supra at 10.
17. See David W. Babcock. Legal Implications of Zoonotic Disease
Outbreaks at Petting Zoos and Animal Exhibits. Journal of Environmental
Health. November, 2006 at 46.
18. A common carrier is an organization that transports persons or
goods, and offers its services to the general public. See WILLSTN-CN
[section]58:3 (4th ed.).
19. A business invitee is a person who is invited to enter or
remain on land for a purpose directly or indirectly connected with
business dealings with the possessor of the land. See Restatement
(Second) of Torts [section]332 (1965).
20. CDC. Outbreaks of gastroenteritis associated with noroviruses
on cruise ships--United States, 2002.
MMWR MMWR Morbidity & Mortality Weekly Report Epidemiology A news bulletin published by the CDC, which provides epidemiologic data–eg, statistics on the incidence of AIDS, rabies, rubella, STDs and other communicable diseases, causes of mortality–eg, , Dec. 13, 2002 at 1112-1115.
21. "Vessel Sanitation Program." at
http://www.cdc.gov/nceh/vsp/desc/aboutvsp.htm. Accessed on August 16,
2007.
22. A "forum selection" provision in a contract
designates a particular state or court as the jurisdiction in which the
parties will litigate disputes arising out of the contract. See 17A Am.
Jur. 2d Contracts [section]259.
23. Statues of limitation are designed to protect potential
defendants from stale claims by requiring plaintiffs to assert claims
within a reasonable time period while evidence is fresh. See 51 Am. Jur.
2d Limitation of Actions [section]15.
24. An arbitration clause is a provision to a contract requiring
the arbitration of disputes under the contract. See 67 Am. Jur. 2d Sales
[section]156.
25.
Carnival Cruise Lines, Inc. v. Shute Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991)[1], was a case in which the Supreme Court of the United States held that United States federal courts will enforce forum selection clauses so long as the clause is not unreasonably burdensome to , 499 U.S. 585 (1991).
David W. Babcock, J.D.
[ILLUSTRATION OMITTED]
Editor's note Editor's Note (foaled in 1993 in Kentucky) is an American thoroughbred Stallion racehorse. He was sired by 1992 U.S. Champion 2 YO Colt Forty Niner, who in turn was a son of Champion sire Mr. Prospector and out of the mare, Beware Of The Cat.
Trained by D. : The Journal recognizes the importance of
providing readers with practical and relevant legal information through
Legal Briefs Legal Briefs is an interactive television program aired on CablePulse24 and CourtTV Canada, hosted by Lorne Honickman, a lawyer and journalist, as he discusses the ins & outs of the Canadian legal system and provides free legal advice. columns. In every other issue of the Journal, this
information is presented by one or more of several insightful and
dedicated columnists: Bill Marler,
Denis Denis, king of Portugal: see Diniz. Stearns, Drew Falkenstein,
Patti Waller, and David W. Babcock, all of the law firm Marler Clark.
The attorneys at Seattle-based Marler Clark,
LLP LLP - Lower Layer Protocol , PS
(www.marlerclark.com) have developed a nationally known practice in the
field of food safety. Marler Clark represents people who have been
seriously injured, or the families of those who have died, after
becoming ill with foodborne illness during outbreaks traced to
restaurants, grocery chains, and other food suppliers. The attorneys
have litigated thousands of food contamination cases throughout the
United States, many of them high-profile, including the Jack in the Box
and Odwalla
E. coli E. coli: see Escherichia coli.
E. coli
in full Escherichia coli
Species of bacterium that inhabits the stomach and intestines. E. coli can be transmitted by water, milk, food, or flies and other insects. outbreaks; the Malt-O-Meal, Sun Orchard, and
Chili's Salmonella outbreaks; the Senor Felix
Shigella shigella
Any of the rod-shaped bacteria that make up the genus Shigella, which are normal inhabitants of the human intestinal tract and can cause dysentery, or shigellosis. Shigellae are gram-negative (see gram stain), non-spore-forming, stationary bacteria. S. outbreak;
and the Subway and Chi-Chi's
hepatitis A Hepatitis A Definition
Hepatitis A is an inflammation of the liver caused by a virus, the hepatitis A virus (HAV). It varies in severity, running an acute course, generally starting within two to six weeks after contact with the virus, and lasting no outbreaks.
David W. Babcock, the author of this month's installment,
joined Marler Clark as the firm's senior
litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.
When a person begins a civil lawsuit, the person enters into a process called litigation. associate in
2001. Representing children and the elderly has been central to Mr.
Babcock's practice at Marler Clark, where he focuses on litigation
resulting from foodborne-illness outbreaks.
Last night you attended a catered function for your favorite
charity. Now, 24 hours later, you are feeling less than charitable. In
the past hour, you have vomited five times. Your head is pounding, your
back aches, and you have a fever. Just before the diarrhea begins, a
friend from the charity's board calls to see how you are doing. She
informs you that several others who attended the function are sharing in
your misery.
Noroviruses 101
If you found yourself in a scenario such as this one, chances would
be that you had contracted a norovirus. You would not be alone.
Noroviruses is the name given to a group of related viruses that cause
acute
gastroenteritis gastroenteritis: see enteritis.
gastroenteritis
Acute infectious syndrome of the stomach lining and intestines. Symptoms include diarrhea, vomiting, and abdominal cramps. in 23 million cases a year, according to estimates
by the
Centers for Disease Control and Prevention Centers for Disease Control and Prevention (CDC), agency of the U.S. Public Health Service since 1973, with headquarters in Atlanta; it was established in 1946 as the Communicable Disease Center. (
CDC See Control Data, century date change and Back Orifice.
CDC - Control Data Corporation ). (1) Of viruses,
only the common cold is reported more often than
viral gastroenteritis viral gastroenteritis Intestinal flu Infectious disease A generic term for GE induced by viruses Clinical presentations 1. Epidemic VGE, most often caused by the Norwalk agent or Norwalk-like viruses Clinical N&V, diarrhea, abdominal pain, anorexia, .
(2)
Norovirus is recognized as the cause of over half of all
foodborne-illness outbreaks. In fact, of 232 outbreaks of norovirus
between July 1997 and June 2000, 57 percent were food-borne, 16 percent
were spread from person to person, and 3 percent were waterborne. (3)
The good news about noroviruses is that they are very unlikely to
cause serious or lasting injury While the acute symptoms of
norovirus--nausea, vomiting, diarrhea, fever, chills, and aches--can be
severe, they typically last less than 60 hours. (4) People infected with
norovirus usually recover in two to three days; however, in some cases,
severe dehydration, malnutrition, and even death can result from
norovirus infection, especially among children, the elderly, and
immunocompromised immunocompromised /im·mu·no·com·pro·mised/ (-kom´pro-mizd) having the immune response attenuated by administration of immunosuppressive drugs, by irradiation, by malnutrition, or by certain disease processes (e.g., cancer). adults in hospitals and nursing homes. (5)
Reported outbreaks associated with noroviruses are on the rise. It
is not clear, however, whether this rise is due to any increase in
illnesses. In the past 10 to 15 years, diagnostic techniques for
identifying noroviruses have advanced significantly, and increased
reports may simply be due to an increase in surveillance. One way or the
other, public awareness seems to be increasing.
Increased public awareness of noroviruses could be due in large
part to the most common settings for outbreaks. Those settings include
restaurants and catered meals (36 percent); nursing homes (23 percent);
schools
(13 percent); and "vacation settings or cruise ships" (10
percent). (6) Nursing homes, schools, and cruise ships rank high on this
list primarily because proximity among potential outbreak members plays
a dominant role in the spread of noroviruses.
Noroviruses are highly contagious--spreading either in fecal matter
or
vomitus vomitus /vom·i·tus/ (vom´i-tus) [L.]
1. vomiting.
2. matter vomited.
vom·i·tus
n.
Vomited matter.
vomitus
1. vomiting.
2. vomited material. . There is strong evidence that norovirus is prone to
"aerosolization," allowing microscopic droplets to
contaminate con·tam·i·nate
v.
1. To make impure or unclean by contact or mixture.
2. To expose to or permeate with radioactivity.
con·tam·i·nant n. surfaces and making for easy transmission from person to person. (7)
Charmingly enough, the "
projectile projectile
something thrown forward.
projectile syringe
see blow dart.
projectile vomiting
forceful vomiting, usually without preceding retching, in which the vomitus is thrown well forward. " nature of vomiting
associated with noroviruses is a contributing factor here as well.
Elderly populations, such as residents of
long-term care
facilities long-term care facility
n.
See skilled nursing facility. , are more likely to suffer severe complications from
norovirus infection. Factors that play a role in this heightened
virulence among elderly populations include
* age-induced decrease in stomach acid production, which allows
ingested in·gest
tr.v. in·gest·ed, in·gest·ing, in·gests
1. To take into the body by the mouth for digestion or absorption. See Synonyms at eat.
2. pathogens to enter the intestinal tract; (8)
* age-induced decrease in cellular and hu-moral immunity, which is
caused by decreased T-cell activity, and thus decreases resistance to
pathogens; (9) and
* age-induced decrease in
peristalsis peristalsis: see digestive system.
peristalsis
Progressive wavelike muscle contractions in the esophagus, stomach, and intestines, and sometimes in the ureters and other hollow tubes. , (11) which significantly
slows the elimination of
enteric enteric /en·ter·ic/ (en-ter´ik) within or pertaining to the small intestine.
en·ter·ic
adj.
1. Of, relating to, or within the intestine.
2. pathogens.(12)
Legal Implications
The legal fallout from outbreaks of noroviruses depends largely on
the setting of the outbreak and the vehicle of transmission. Determining
whether the method of transmission was foodborne or waterborne or was
person to person will go a long way toward determining the causes of
action available to those who were made ill.
Foodborne Norovirus Claims
Foodborne norovirus outbreaks in commercial food service settings
give rise to strict product liability claims, just as they would with
more notorious pathogens like E. coli 0157:H7, Salmonella, and hepatitis
A.
Contaminated contaminated,
v 1. made radioactive by the addition of small quantities of radioactive material.
2. made contaminated by adding infective or radiographic materials.
3. an infective surface or object. food cases were among the earliest cases to establish
strict liability principles, in Washington and elsewhere. (12) Today it
is plainly established that restaurant or catered meals are in fact a
product, and that the act of preparing them is manufacturing. (13)
Because prepared food items contaminated with a pathogen are essentially
per se defective, such cases turn almost entirely on the issue of
causation. (14)
In other words Adv. 1. in other words - otherwise stated; "in other words, we are broke"
put differently , the focus of the plaintiff's case
would be proving the link between the individual plaintiff's
illness and the established outbreak.
Person-to-Person Transmission in Commercial or Institutional
Settings
Different issues arise outside of the foodborne context. When
transmission of the illness cannot be tied to consumption of a product,
strict liability principles are most likely not available. (15) Where
the spread of a norovirus outbreak has occurred through person-to-person
transmission without the aid of a food item, traditional notions of
negligence (16) and premises liability (17) are more applicable.
The duties of hotels, conference centers, health care facilities,
and cruise ships to prevent the spread of noroviruses among their
patrons are consistent with their general duties under common carrier
(18) and
business invitee business invitee n. a person entering commercial premises for the purpose of doing business, rather than just taking a short cut to the next street. It is important since a business is liable to a business invitee for injury caused by dangerous conditions such as bad (19) doctrines. Consistent with these
principles, such businesses would have a duty to take reasonable steps
to prevent such transmission, to respond accordingly in high-risk
scenarios, and to sufficiently warn patrons of the risks of
transmission. For example, Marler Clark is involved in litigation
resulting from an outbreak of a norovirus involving more than 1,000
people associated with a large hotel in 2004. A central issue in that
litigation is whether the hotel took adequate steps to prevent the
spread of the illness, such as removing sick employees from the
workplace; cleaning properly after ill guests; and restricting access to
high-risk areas and activities. Also at issue is the adequacy of the
hotel's communication of the situation to its guests and other
patrons.
Cruise Ships
Outbreaks of noroviruses on cruise ships present some additional
legal considerations. According to CDC,
Cruise-ship outbreaks demonstrate how easily noroviruses can be
transmitted from person to person in a closed environment, resulting
in large outbreaks. The continuation of these outbreaks on consecutive
cruises ... suggests that environmental contamination and infected
crew members can serve as reservoirs of infection for passengers. (20)
The CDC now operates a
Vessel Sanitation Program Vessel Sanitation Program See Sanitation score. designed to combat
the problem. (21) In addition, measures implemented by cruise ships to
combat the spread of illnesses on board often include quarantining of
passengers who report themselves ill. While this method is likely
effective in curbing the spread of illness, it is not always a welcome
development for the sick individual or family.
Passengers' rights in such situations are frequently curtailed
by conditions imposed through the purchase of the ticket. These
limitations often include forum selection clauses, (22) shortened
statutes of limitations, (23) and arbitration clauses. (24) As a general
rule, these limitations have been upheld. (25)
Protecting Against Norovirus
There are a few things that individuals can do to reduce the risk
of contracting noroviruses. These include frequent handwashing, washing
fruits and vegetables before consumption, quickly and thoroughly
cleaning contaminated areas, and removing and perhaps discarding
implicated im·pli·cate
tr.v. im·pli·cat·ed, im·pli·cat·ing, im·pli·cates
1. To involve or connect intimately or incriminatingly: evidence that implicates others in the plot.
2. clothing and linens.
For businesses hoping to avoid sickening patrons and incurring
potential legal hassles, there are additional precautions to take. A
first step is to educate employees on the importance of personal
hygiene. In conjunction, food service and hospitality industry
businesses should make every effort to keep sick workers out of the
workplace. Finally, each establishment should have a well-thought-out
and feasible plan for responding to incidence of illness on the premises
quickly and effectively.
Efforts on both sides of the "table," as it were, will
help all of us enjoy a healthier and safer environment.
(Portions reprinted, with permission, from Bar Bulletin, August
2007, Volume 25, Issue 12, pages 12-13, a publication of the King County
Bar Association.)
Disclaimer: Legal Briefs is published for informational purposes
only; none of the information is intended to be, nor is, formal legal
advice.
NEHA NEHA National Environmental Health Association
NEHA National Executive Housekeepers Association
NEHA Northern Estates Homeowners Association (Indianapolis, Indiana) and the Journal of Environmental Health are not liable or
responsible for actions taken on the basis of the information contained
in these columns.
References
1. CDC. Norovirus: Technical Fact Sheet. at
http://www.cdc.gov/ncidod/dvrd/revb/gastro/norovirus-factsheet.htm. Last
updated on August 3, 2006. Accessed on August 14, 2007.
2. FDA/Center for Food Safety and Applied Nutrition. The Bad Bug
Book:
Norwalk Virus Nor·walk virus
n.
A norovirus.
Norwalk virus (nôr´wôlk),
n. Family, at
http://www.cfsan.fda.gov/~mow/chap34.html. January 1992 with periodic
updates. Accessed on September 4, 2007.
3. See CDC Web site n. 1
Supra A relational DBMS from Cincom Systems, Inc., Cincinnati, OH (www.cincom.com) that runs on IBM mainframes and VAXs. It includes a query language and a program that automates the database design process. .
4. Id.
5. Mayo Clinic. Norovirus. April 5, 2007. at
http://www.mayoclinic.com/health/norovirus/DS00942/DSECTION=1. Accessed
on August 15, 2007.
6. See CDC website n. 1 Supra
7. Id.
8. See, James L. Smith. Foodborne Illness and the Elderly. Journal
of Food Protection. Sept. 1998 at 1229-39.
9. Id.
10. Peristalsis is the rhythmic contraction of smooth muscles to
propel contents through the
digestive tract digestive tract
n.
See alimentary canal.
Digestive tract
The organs that perform digestion, or changing of food into a form that can be absorbed by the body. .
11. Supra at 21.
12. Mazetti v. Armour & Co., 75 Wash. 622 (1913).
13. Almquist v. Finley School District, 114 Wn. App. 395, 57 P.3d
1191 (2002).
14. See R. Drew Falkenstein. An Introduction to Liability,
Negligence, and All Things in Between: Part I. Journal of Environmental
Health. Sept. 2005 at 41.
15. The illness need not be tied to a specific food item, which is
often very difficult. A link to a meal, or even to food from a
particular source over a time frame is sufficient. For example, a sick
food service worker might contaminate a wide variety of foods over a
certain time frame, making isolation to a specific food very difficult,
but not exonerating the food service establishment.
16. Supra at 10.
17. See David W. Babcock. Legal Implications of Zoonotic Disease
Outbreaks at Petting Zoos and Animal Exhibits. Journal of Environmental
Health. November, 2006 at 46.
18. A common carrier is an organization that transports persons or
goods, and offers its services to the general public. See WILLSTN-CN
[section]58:3 (4th ed.).
19. A business invitee is a person who is invited to enter or
remain on land for a purpose directly or indirectly connected with
business dealings with the possessor of the land. See Restatement
(Second) of Torts [section]332 (1965).
20. CDC. Outbreaks of gastroenteritis associated with noroviruses
on cruise ships--United States, 2002.
MMWR MMWR Morbidity & Mortality Weekly Report Epidemiology A news bulletin published by the CDC, which provides epidemiologic data–eg, statistics on the incidence of AIDS, rabies, rubella, STDs and other communicable diseases, causes of mortality–eg, , Dec. 13, 2002 at 1112-1115.
21. "Vessel Sanitation Program." at
http://www.cdc.gov/nceh/vsp/desc/aboutvsp.htm. Accessed on August 16,
2007.
22. A "forum selection" provision in a contract
designates a particular state or court as the jurisdiction in which the
parties will litigate disputes arising out of the contract. See 17A Am.
Jur. 2d Contracts [section]259.
23. Statues of limitation are designed to protect potential
defendants from stale claims by requiring plaintiffs to assert claims
within a reasonable time period while evidence is fresh. See 51 Am. Jur.
2d Limitation of Actions [section]15.
24. An arbitration clause is a provision to a contract requiring
the arbitration of disputes under the contract. See 67 Am. Jur. 2d Sales
[section]156.
25.
Carnival Cruise Lines, Inc. v. Shute Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991)[1], was a case in which the Supreme Court of the United States held that United States federal courts will enforce forum selection clauses so long as the clause is not unreasonably burdensome to , 499 U.S. 585 (1991).
David W. Babcock, J.D.
[ILLUSTRATION OMITTED]