|Claimant(s):||In the Matter of the Claim of: MELISSA G. MOORE, as parent and natural guardian of JACOB T. MOORE, a minor|
|Claimant short name:||MOORE|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Edward A. Sheridan|
|Claimant's attorney:||BROWN, PETERSON & CRAIG
by: Horigan, Horigan, Lombardo & Kelly, P.C.
(Timothy Horigan, Of Counsel)
|Defendant's attorney:||HON. ELIOT SPITZER, Attorney General
(Michael W. Friedman, Assistant Attorney General)
|Third-party defendant's attorney:|
|Signature date:||January 28, 2005|
|See also (multicaptioned case)|
On August 29, 1999, accompanied by his grandparents, Joan and Ronald Moore, Jacob T. Moore, then five years old, attended the Washington County Fair, at Easton, New York. During some three hours at the Fair, Jacob drank a soda, dispensed at the Argyle Fire Department concession stand. Later, just prior to exiting the grounds, he consumed part of a lemonade beverage, dispensed at the Udder Delights concession stand. Both concessions were located in the southwestern part of the fairgrounds and their beverage dispensers were supplied with unchlorinated water from the Fair's Well #6. Thereafter, Jacob suffered high fever, acute diarrhea, abdominal cramping and other symptoms. Admitted to Saratoga Hospital on September 3,1999, a stool culture ultimately confirmed a diagnosis of E. Coli 0157:H7 infection. Subsequently, Jacob was diagnosed with acute Hemolytic Uremic Syndrome (HUS), having sustained permanent kidney damage.
The Washington County Fair closed on August 29, 1999. Responding to increasing numbers of Capital District residents being evaluated for diarrheal illnesses at area hospitals, on September 3, 1999, the Bureau of Communicable Disease Control (BCDC) undertook investigation of what was believed to be a potentially large and serious infectious disease outbreak. County health departments were consulted and Capital area hospital emergency rooms were contacted recommending that all gastrointestinal complaints be evaluated for E. Coli 0157:H7 infection. A press release was issued the same day alerting the public and advising those with diarrheal illnesses to seek medical attention.
Environmental health staff from the Department of Health's (DOH) Glens Falls District Office contacted Fair food vendors and obtained water samples from the fairgrounds for analysis. Well #6 tested positive for E. Coli and Center for Environmental Health staff began a focused field investigation of Well #6. A sanitary survey of the fairgrounds in the vicinity of Well #6 was conducted. The environmental investigation found:
Ultimately, BCDC found and reported:
The Department of Health's final Washington County Fair Outbreak Report characterized the outbreak as the largest waterborne E. Coli 0157:H7 event in United States history. Without definitively endorsing or rejecting any specific hypothesis with respect to the source of the bacteria or the mechanism of infection of Fair attendees, the report noted that DOH epidemiologic, environmental and laboratory findings suggested that a substantial number of ill Fair attendees were sickened after consuming contaminated water from Well #6; and that there was a hydraulic connection between the dormitory septic system and Well #6 at the time of the DOH study.
The amended claim alleged that the State had a non-delegable duty to insure that water provided to the Fair attendees was safe; that the State was a "joint venturer or partner" with the Washington County Fair, Inc. and was a sponsor of the Fair; and that the State " planned, regulated, oversaw, monitored, diagnosed, tested and/or approved . . . the water delivery system" at the Fair so as to be answerable in damages for negligence.
Defendant moved for summary judgment contending (1) that the Fair water system was not a public water system and that, therefore, it did not have a non-delegable duty with respect to it; (2) that if in fact the State undertook some action with respect to the Fair's water system, it was entitled to governmental immunity with respect to any negligence in its conduct; (3) that there was no special relationship alleged between plaintiff and DOH that might override governmental immunity; (4) and that permits issued by DOH to Fair vendors involved an exercise of discretion entitling the State to immunity. Claimant countered, inter alia, that a special relationship need not be shown because with respect to State involvement with the Fair's water system, it was acting in its proprietary capacity; and, alternatively, that defendant had undertaken and assumed a duty to this claimant. An amicus brief submitted on the motion asserted that the State had failed to exercise any discretion with respect to the issuance of permits to vendors and thus, the State was not entitled to sovereign immunity.
The motion was denied in part, this Court holding, inter alia, that the Washington County Fair water system was not a public water system over which DOH maintained supervisory or regulatory control; that there was not a "special relationship" between defendant and the claimant; that the State was not acting in a proprietary capacity and could not be held liable as a Fair sponsor; that the State did not exercise control of the Fair's water system so as to impose liability for creation of a dangerous condition; and that the State could not be held liable for any negligently performed inspections of the Fair's water supply after the Fair opened. An issue of fact was found with respect to the sole question of whether any inspections, as required by DOH regulations, were performed incident to issuance of food vendor permits thus lifting the shield of governmental immunity under the doctrine of Haddock v City of New York (75 NY2d 478).
The credible evidence at trial established that food vendor permits, including those for the Argyle Fire Department and Udder Delights, were issued by DOH's Glens Falls District Office in June 1999 more than 60 days prior to opening of the Fair. It is undisputed that when signed by Brian Fear, Glens Falls District Health Administrator, no inspection of these vendors was performed. In this regard, State Sanitary Code provisions applicable to mobile food service establishments define certain violations constituting imminent health hazards. These include potable water supplied to a vendor that is not in compliance with Part 5 (Drinking Water Supplies) of the Sanitary Code and any cross-connection or other fault in the potable water system that permits contamination (10 NYCRR §14-4.20). Such violations are deemed imminent health hazards against the public interest requiring the permit-issuing official to order the establishment immediately closed. Testimony at trial, however, clarified that permitting regulations provide that inaction upon a mobile food vendor permit application for 21 days entitles the applicant to operate pending inspection (10 NYCRR §14-4.190[e]). Testimony also established that mobile food vendors typically move from fair to fair and some operate interstate. At the time of application, many, if not most, mobile vendors are unavailable for simultaneous inspection. Departmental practice and procedure, therefore, was to sign and to issue permits upon an application subject to inspection on the first day of operation. Indeed, Argyle and Udder Delights were inspected on August 24, 1999, the first full day of operation at the Fair.
As noted above, while the water system at the Washington County Fair is not a public water supply, mobile food vendors operating there were subject to water potability and purity standards as set forth in the Sanitary Code (10 NYCRR §14-4.120). Washington County Fair vendors did not supply their own water but drew from the Fair's water system. Argyle and Udder Delights, located in the southwestern part of the fairgrounds, drew water from contaminated Well #6. There is no question but that on August 24,1999, DOH inspectors did not sample or test for potability and purity of water utilized in Argyle's or Udder Delights' beverage dispensers. Nor did they sample or test at the supply from Well #6. The inspectors' form checklist of public health hazards for each contains an entry for water potability and improper cross-connections of the water supply that could result in contamination. Neither check list bears any notation or entry therein. Clearly, there was no inspection or test of water potability, safety of cross-connections or water supply on August 24, the confirming date for permits signed and issued in June.
Defendant contends nevertheless that governmental immunity shields it from liability because the issuance of permits in accordance with the aforementioned practice and procedure, coupled with the confirming inspections of August 24, involved an exercise of discretion by defendant and a determination, albeit erroneous, that the vendors' water supply met potability and purity standards. Specifically, defendant contends that when the permits were signed and issued by the District Health Administrator, he acted with knowledge of the Washington County Fair's water supply history and past compliance with Sanitary Code standards. Plaintiff counters that this was negligence; that, in conjunction with permit issuance, defendant by virtue of its own regulations, at a minimum had a duty to conduct a sanitary survey, as was done in 1995, 1996, and 1997, and to make an affirmative determination by sampling and testing that the Fair's water supply met potability and purity standards; and that such sanitary survey would have revealed the dangerous proximity of the dormitory septic system seepage pit to Well #6.
Viewed in total context, the credible evidence establishes that the permitting and inspection practice and procedure employed by defendant for mobile food vendors at the 1999 Washington County Fair involved an exercise of judgment by the permitting official as to the potability and purity of the Washington County Fair water supply. While that judgment was in all probability erroneousness, and while more could have been done (e.g. sanitary survey, timely water sampling and testing), upon settled principles of sovereign immunity, defendant is not answerable in damages for any injuries proximately caused by errors of omission in permitting vendors to operate with what in all probability was a contaminated water supply. In contra-distinction to the Haddock case, there was not here a total failure by DOH to follow its owns rules relative to water supply safety for mobile food vendors nor an abdication of judgment or discretion in permit issuance.
The Glens Falls District Office had conducted sanitary surveys in previous years at the Fair. There was a familiarity with and knowledge of the Fair's water system and history, including recent improvements to the chlorination treatment system. The Fair was self- testing its water supply and reporting water quality results to the District Office. A senior sanitarian from the District Office consulted with the Fair manager less than one week before the Fair opened to review water system changes and chlorine residual testing procedures and reporting. That official noted, inter alia, that two dug wells, one of which had produced non-complying samples the previous year, had been abandoned and partially filled. The senior sanitarian noted no imminent health hazard or system problem and reported none to the District Office. District Office personnel were actively collaborating with Washington County Fair management regarding changes and improvements to the Fair's water system. Against this backdrop, and ascribing this knowledge to the permitting official, the permit issuance and inspection procedure employed was, in the Court's view, a discretionary governmental act to which immunity applies (see O'Connor v City of New York, 58 NY2d 184; Miller v State of New York, 125 AD2d 853, lv denied 69 NY2d 608).
Defendant argues alternatively that even if the Haddock rationale applied and even if DOH were negligent in its permitting and inspection procedures, claimant's injuries were not the proximate result of that negligence. Defendant points to the significantly higher incidence of illness for Fair attendees during the last two days of the Fair and theorizes that the lethal bacteria probably did not migrate to the water supply until after August 24, 1999. In light of the Court's above findings, proximate causation need not be addressed. Were the Court to address it, defendant's argument would be unpersuasive. The evidence established that two individuals who attended the Fair one time on August 24, 1999 contracted the E. Coli infection, the probable source of which was waste water migrating from the dormitory septic system seepage pit via hydraulic connection to Well #6. By defendant's own testing, such migration could have occurred in 8 hours or less after the Fair's opening on or about the evening of August 23,1999. Absent negligent inspections, the contamination of the water supply may well have been detected on August 24, allowing for curative measures that would have prevented claimant's exposure to E. Coli 0157:H7 bacteria on August 29, 1999, and thus it cannot be said that defendant's negligence was not a proximate cause of claimant's injuries.
For the reasons above stated, the claim must be dismissed in its entirety.
Let judgment be entered accordingly.
January 28, 2005
Saratoga Springs, New York
Edward A. Sheridan
Judge of the Court of Claims