Gregor v. Argenot Great Cent. Ins. Co.

• Decision Date: 20 May 2003
• Docket Number: No. 2002-C-1138.,2002-C-1138.
• Citation: 851 So.2d 959
• Court: Louisiana Supreme Court
• Parties: Eileen GREGOR, et al. v. ARGENOT GREAT CENTRAL INSURANCE COMPANY, et al.

851 So.2d 959

Eileen GREGOR, et al. v. ARGENOT GREAT CENTRAL INSURANCE COMPANY, et al.

No. 2002-C-1138.

Supreme Court of Louisiana.

May 20, 2003.

Rehearing Denied September 5, 2003.

Craig R. Nelson, Ward & Nelson, New Orleans, Counsel for Applicant.

Charles S. LaBarre, Leonard J. Cline, Jr., Gauthier, Downing, LaBarre, Beiser & Dean, Metairie, Counsel for Respondent.

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 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 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 Myers, 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 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 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:

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), 842 So.2d 338, 344; 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...