
    Charlene Van Natta GRAYSON v. The STATE of Louisiana ex rel The DEPARTMENT OF HEALTH AND HOSPITALS; Felix’s, Inc. d/b/a Felix’s Restaurant and Oyster Bar, Inc.; “ABC” Insurance Company; Mike Anderson’s Seafood of New Orleans, Inc., et al.
    No. 2001-CA-0720.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 30, 2002.
    
      Scott LaBarre, Gauthier, Downing, La-Barre, Beiser & Dean, Metairie, LA, for PlaintifRAppellee.
    
      Craig R. Nelson, Ward Nelson, L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MIRIAM G. WALTZER and Judge DENNIS R. BAGNERIS, SR.).
   | MOAN BERNARD ARMSTRONG, Judge.

This is a wrongful death and survival action. The plaintiffs decedent died of an infection contracted from eating raw oysters. The plaintiff sued, among others, a State agency. The claim against the State was based upon failure to enforce a health regulation. The trial court found in favor of the plaintiff and awarded damages. The State appeals. We will affirm.

Jack Van Natta visited New Orleans in June, 1993. He was from California. He was accompanied by his girlfriend, June Wutzke. They visited three New Orleans restaurants and Mr. Van Natta ate raw oysters. Mr. Van Natta was infected with the bacteria vibrio vulnificus as a result of eating the raw oysters. The bacteria is not dangerous to most people. However, to persons with certain health problems, including chronic liver disease, the bacteria can be deadly. Mr. Van Natta, who was an alcoholic, suffered from liver disease. As a result, he became extremely ill and died from the infection.

| j>Mr. Van Natta’s daughter, Charlene Van Natta Grayson, filed suit against the restaurants and DHH. She settled with the restaurants. The case was tried to the bench and the trial court found DHH 100% at fault. The theory of liability was that DHH had failed to enforce a State Sanitary Code provision calling for restaurants which serve raw oysters to place warnings at the point of sale informing customers that persons with certain health impairments including chronic liver disease, should not eat raw oysters. The provision had been added to the State Sanitary Code because of concern about the threat of the vibrio vulnificus bacteria to persons with certain health impairments including chronic liver disease. However, because the Interstate Shellfish Sanitation Conference (“ISSC”) had certain objections to the language of the warning called for by the State Sanitary Code, DHH deliberately did not enforce the requirement of restaurant warnings.

DHH argues on appeal that its failure to enforce the raw oyster warning requirement did not matter because, as a matter of voluntary compliance, the restaurants had the warnings in place. The plaintiff replies that the evidence at trial showed that the restaurants did not have the warnings in place. The trial court’s holding the DHH liable for failure to enforce the warning requirement necessarily implicitly included a factual finding that the warnings were not in place. Of course, we review the trial court’s finding of fact under the clearly wrong-manifestly erroneous standard of review and so we cannot disturb that factual finding so long as it is reasonable. The evidence in support of plaintiffs position consisted of the testimony of June Wutzke, who did not remember seeing any warnings, and the testimony of Pauline Warriner, who went to the restaurants on behalf of the plaintiff, a few months after Mr. Van Natta’s death, to see if there were warnings in place, and she did not see any warnings in place. Also, Ms. |sWarriner obtained menus from the restaurants and the menus did not contain any warnings. The evidence in favor of the DHH’s position consisted of the testimony of two DHH sanitary inspectors and the testimony of the restaurants’ owners. However, the testimony of one of the inspectors was impeached and the testimony of the other was not clearly in support of DHH positions. The testimony of the two restaurant owners was that they did eventually post the warnings but really, could not recall whether they had done so prior to the time of Mr. Van Natta’s visit. Overall, we cannot say that the trial court’s implicit finding, that the warnings were not posted in the restaurants, was clearly wrong-manifestly erroneous.

R.S. 40.4.A. requires DHH to enforce the State Sanitary Code. DHH argues that it acted legally in “suspending” the enforcement of the regulation requiring the warnings due to objections by the ISSC to the required warnings. DHH cites R.S. 40:5.3.E. for the proposition that DHH was required to conform to the wishes of the ISSC. However, the statutory language relied upon by DHH merely requires that DHH “promulgate and adopt emergency regulations in accordance with R.S.49:953 (B) of the Administrative Procedure Act encompassing the detailed methods and technical procedures prescribed by ISSC in the National Shellfish Sanitation Program Manual of Operations”. Such emergency regulation procedures are not implicated with respect to enforcement of the oyster warning regulation. Thus, the statutory language does not excuse the DHH of the statutory requirement to enforce the State Sanitary Code’s oyster warning regulation.

DHH argues more generally that, because it had the statutory authority to promulgate the oyster warning regulation, and the authority to amend or repeal that regulation, it necessarily has the implied power to “suspend” enforcement of the regulation. We do not agree. The DHH, following lawful rule-making procedures, |4could amend or repeal the regulation. However, so long as the regulation is extant, the DHH has absolutely no choice but to enforce it as written. R.S. 40:4.

DHH also argues that its decision not to enforce the regulation was a policy making or discretionary act immunized from liability by R.S. 9:2798.1. However, while the DHH engaged in policy making or discretionary acts when it promulgated the regulation, its policy making and discretionary acts ended with promulgation of the regulation. Once the regulation is promulgated, DHH has no discretion as to whether to enforce it because enforcement is statutorily mandated. R.S. 40:4. DHH’s course of action is prescribed by statute, in that enforcement of the regulation is statutorily mandated, and DHH has no judgment to exercise or decision to make as to whether to enforce the regulation. Therefore, no policy making or discretionary act is involved and R.S. 9:2798.1 is not applicable. E.g., Simeon v. Doe, 618 So.2d 848 (La.1993).

DHH also argues that its decision not to enforce the oyster warning regulation is protected by legislative immunity. We will not address the applicability of legislative immunity to administrative agencies because, clearly, if it is applicable to administrative agencies, it applies to them in their rule-making role, which is analogous to legislation, and not in their rule-enforcement role, which is clearly executive rather than legislative. While DHH’s promulgation of the regulation was “legislative”, its enforcement of the regulation after promulgation is “executive”.

DHH argues that some comparative fault should have been assigned to Mr. Van Natta. However, there is no evidence that Mr. Van Natta knew or should have known that eating raw oysters was hazardous to him. As discussed above, the trial court implicitly found that the warnings were not posted in the restaurants. | .¿Therefore, there is no possible basis to assign any comparative fault to Mr. Van Natta.

DHH argues that, even if warnings had been posted, Mr. Van Natta would not have needed them. DHH bases this argument on the fact that Mr. Van Natta’s physicians had advised him to quit drinking but he continued to drink. We will not generalize from Mr. Van Natta’s failure to heed warnings against drinking to an assumption that he would fail to heed a warning to avoid eating raw oysters. Mr. Van Natta was an alcoholic, i.e., he was addicted to alcohol, and that explains his failure to quit drinking. Avoiding eating raw oysters would present no difficulty similar to alcoholism.

DHH argues that the trial court should have assigned some comparative fault to non-defendant the California Health Department. DHH also complains of the trial court’s exclusion of some of its evidence as to the comparative fault of the California Health Department. However, even if we consider the excluded (but proffered) evidence, and consider the California Health Department’s alleged comparative fault on a de novo basis, we find no error by the trial court. DHH argues that information as to the danger presented by vibrio vulnificus bacteria to persons with chronic liver disease was transmitted to the California Health Department, but that the California Health Department did not disseminate that information to California physicians, with the result that Mr. Van Natta’s California physicians did not know to warn him to avoid raw oysters. However, while consumption of raw oysters is' quite common in Louisiana, it is doubtless rarer in California and we see no reason to doubt that the California health Department made reasonable decisions as to what information, regarding which of myriad health concerns, to disseminate generally among all California physicians. ^Moreover, and perhaps more importantly, the restaurant oyster warning regulation was promulgated some time after Louisiana physicians had been alerted to the threat of the bacteria and the precise purpose of the regulation was to warn those, such as out-of-state tourists, who did not receive warnings from their physicians. DHH also briefly refers to comparative fault of Mr. Van Natta’s California physicians but for the same reasons as just given with respect to the California Health Department, we see no error in not assigning any comparative fault to Mr. Van Nat-ta’s California physicians.

The plaintiff cross appeals as to the quantum of damages. It is readily apparent to us that, because the amount of medical expenses was stipulated, and not made the subject of any testimony, the trial court simply omitted the medical expenses from the judgment through oversight. Therefore, we amend the judgment to add the medical expenses in the stipulated amount of $84,042.43. We also find that the amount of general damages awarded, $85,000, was within the trial court’s vast discretion. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993).

For the foregoing reasons, the judgment of the trial court is affirmed as amended.

AFFIRMED AS AMENDED.

BAGNERIS, J., dissents with reasons.

|,BAGNERIS, J.,

dissenting with reasons.

I respectfully dissent from the majority for the following reasons.

FACTS

Mrs. Charlene Grayson’s cause of action is for the wrongful death of her father, Jack Van Natta, who died after eating raw oysters infected with vibrio vulnificus while vacationing in New Orleans. The plaintiff originally brought suit against The Department of Health and Hospitals (hereinafter DHH) and three French Quarter restaurants and their insurers: Felix’s Restaurant and Oyster Bar, Mike Anderson’s Seafood Restaurant and Oyster Bar, and The Seaport Cafe and Bar, filing her petition on June 23, 1994. She argued that DHH was negligent because it breached its mandatory duty to ensure that these restaurants post warnings in accordance with the State Sanitary Code regarding the dangers of eating raw seafood and that the restaurants themselves were also negligent for not providing the warnings. She further alleged a cause of action in redhibition against the restaurants because the raw oysters were “absolutely useless and imperfect” in that her father would not have purchased and consumed them had he known they were infected with vibrio vulnificus.

pin plaintiffs First Supplemental and Amending Petition, filed July 18, 1994, defendants, The Seaport Cafe and Bar and its insurer, were dismissed from the suit and The Desire Oyster Bar and its insurer were substituted in their place. The plaintiff eventually settled with the three restaurants. And went to trial against DHH as the only remaining defendant.

The Second Supplemental and Amending Petition, filed on October 5, 1994, added the State of Louisiana through the Office of the Attorney General (hereinafter Attorney General) to the suit because plaintiff anticipated that DHH would defend itself by arguing the applicability and constitutionality of La. R.S. 9:2798.1.

DHH filed a motion for summary judgment that was granted. The plaintiff filed an appeal and this Court reversed the trial court and remanded the case for a trial on the merits. After a trial, judgment was rendered against DHH in favor of the plaintiff. DHH appeals the trial court’s judgment.

DISCUSSION

DHH argues that the trial court erred in denying it the immunity granted by the statute, LSA-R.S. 9:2798.1, which states in pertinent part:

“B. 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 policy-making or discretionary acts when such acts are within the course and scope of their lawful powers and duties.
C. The provisions of Subsection B of this Section are not applicable:
(2) To acts or omissions, which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.”

|sApplying La.R.S. 9:2798.1 to the facts of this case, we conclude that it bars recovery by the plaintiff against the DHH. La. R.S. 9:2798.1, requires that in order to impose liability on the DHH for discretionary acts, not only must there be a finding of liability under the standard duty/risk analysis, but there must also be a finding that either the conduct complained of was not reasonably related to the DHHR’s legitimate governmental objectives or, it constituted criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.

Assuming the existence of liability on the part of DHH under a duty/risk analysis, La.R.S. 9:2798.1 would nevertheless bar recovery. The failure to warn complained of by the plaintiff constituted a failure to perform a discretionary act within the lawful course and scope of the duties of the DHH. Any warning would have been reasonably related to the DHH’s objectives, and the failure to warn did not constitute the gross misconduct contemplated by the statute.

Further, we are of the opinion that the DHH’s acts or omission in this case do not satisfy the requirements for the imposition of liability set out in La.R.S. 9:2798.1, but the DHH’s conduct does not even satisfy the standard duty/risk analysis necessary to impose liability notwithstanding the applicability of La.R.S. 9:2798.1.

Under the duty/risk analysis adopted by the courts of this state, four inquiries must be answered in the affirmative before a plaintiff can recover based on a negligence theory.

I. Was the conduct in question a substantial factor in bringing about the harm to the plaintiff, i.e., was it a cause-in-fact of the harm, which occurred?
II. Did the defendant owe a duty to the plaintiff?
III. Was the duty breached?
|4IV. Was the risk, and harm caused, within the scope of protection afforded by the duty breached?

Mart v. Hill, 505 So.2d 1120 (La.1987); see also, Crowe, The Anatomy of a Tort-Greenian, as Interpreted by Crowe who has been Influenced by Malone-A Primer, Loy.L.Rev. 903 (1976).

Based on the facts of this case, we conclude that all four of the above inquiries cannot be answered affirmatively. The first element, causation in fact, requires that the defendant’s conduct must have contributed to the plaintiffs harm in some substantial way. The omission on the part of the defendant which the plaintiff complains of and which must have contributed to the plaintiffs harm in order for causation in fact to exist, was a failure to warn the general public about the dangers inherent in eating raw oysters, specifically those dangers posed by the bacteria vibrio vulnificus.

Since this particular bacteria generally only affects persons with certain underlying risk factors, any warning would have necessarily been to the effect that if you have one of the underlying risk factors, you shouldn’t eat raw oysters. Van Natta was an alcoholic with a severely damaged and diseased liver. Van Natta failed to heed the warnings from his physicians to stop drinking.

The Louisiana Supreme Court has held that although it is presumed that warnings will be heeded, this presumption can be rebutted if there is persuasive evidence that an adequate warning would have been futile under the circumstances. Bloxom v. Bloxom, 512 So.2d 839 (La.1987). In this case we are persuaded that an adequate warning would have been futile given the evidence that the plaintiff did not heed the medical advice give by his physician regarding his drinking habits. Thus, the failure of the DHH to warn the general public of the dangers of vibrio vulnificus was not a cause in fact of the plaintiffs harm.

|fiEven if I were to conclude that a failure to warn was a cause in fact of the plaintiffs harm, the plaintiff has also failed to establish the remaining elements of his case under the duty/risk analysis.

After a careful analysis of the relevant statutory provisions I conclude that there was no statutorily imposed duty on the part of the DHH to issue warnings about vibrio vulnificus. However, since the DHH had undertaken various studies of these bacteria, and since it knew that there was a danger posed by these bacteria to a small segment of the population, DHH had a duty, once it had sufficient information, to issue some type of warning.

DHH fulfilled this duty when it published the Monthly Morbidity Report in August of 1982, a full year before the events, which lead to this suit, took place. This report summarized what the DHH knew about vibrio vulnificus at the time, including the deadly effects it has on certain persons with underlying risk factors, what those risk factors are, and the proper methods of prevention and treatment. The report specifically stated that physicians should warn patients with chronic liver and kidney diseases and other conditions causing, or capable of causing impaired immune responses, to avoid eating raw oysters.

The fact that the DHH chose not to aggressively disseminate the information contained in the Monthly Morbidity Report to the general public does not constitute a breach of the duty to warn. Since this bacteria only attacks a small percentage of the population, i.e., those with liver disease, kidney disease or other immuno-suppressive condition, the DHH was reasonable in its conclusion that the best way to warn these people was through the medical community. The Monthly Morbidity Report was sent to every physician in Louisiana, the Center of Disease Control in Atlanta, Georgia, and the health departments of several states, including California. I would hold that this satisfied the duty to warn incumbent on the DHH due to its specialized knowledge and position of public trust.

liJDHH makes two other assignments of errors, however I pretermit discussion of those issues based on my disposition of this matter.

Therefore, for the above and foregoing reasons the judgment of the trial court should be reversed.  