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TORTS upholding a state Court of Appeals ruling, the Louisiana Supreme Court said on May 20 that the state’s Department of Health and Hospitals (DHH) is not entitled to discretionary-function immunity in a wrongful-death suit. Gregor v. Argenot Great Central Ins. Co., No. 02-C-1138. In February 1991, the DHH amended part of its Sanitary Code to require restaurants selling or serving raw oysters to provide clearly visible warnings at the point of sale about vibrio vulnificus, a naturally occurring salt-water organism that can be dangerous to people with chronic health problems. In 1996, a man suffering from hepatitis C died after contracting vibrio vulnificus sepsis from eating raw oysters at a restaurant. Although the restaurant displayed the required warning in its oyster bar, where most of its raw oysters are sold and consumed, there was no warning in its dining room, where the man ate the oysters. In a wrongful-death suit, the trial court found that the DHH negligently enforced the code and that enforcement did not involve a discretionary function. The intermediate level Court of Appeals affirmed. Agreeing, the Supreme Court found that the DHH was negligent in failing to properly train its employees as to what the term “point of sale” means. The DHH agent who inspected the restaurant in this case believed that only one warning per restaurant was needed and was unaware that the point of sale would have been the table where the decedent ate his oysters.

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