The night before, 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, 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 last night are sharing in your misery.
Noroviruses 101
If you find yourself in a scenario such as this one, chances are you have contracted a Norovirus. You would not be alone. Noroviruses is the name given to a group of related viruses that cause acute gastroenteritis in 23 million cases a year, according to the Centers for Disease Control (CDC).1 It is estimated that 50% of foodborne gastroenteritis outbreaks can be attributed to Noroviruses.2
The good news about Noroviruses is that they are very unlikely to cause serious or lasting injury. While the acute symptoms — nausea, vomiting, diarrhea, fever, chills and aches — can be severe, they typically will last less than 60 hours.3 The primary risk to be aware of is dehydration, most common in the young, the elderly and the immune-compromised. Dehydration, regardless of its underlying cause, can quickly become a serious health issue.
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. One way or the other, public awareness seems to be increasing.
The increased public awareness of Noroviruses is likely due in large part to the most common settings for outbreaks. Noroviruses are the highly publicized scourge of the cruise industry, although cruise ships and other vacation settings, including water parks, rank only fourth on the list of common settings. Other prominent venues include restaurants and catered meals (36%), nursing homes (23%) and schools (13%).4
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. There is strong evidence that the virus is prone to “aerosolization,” allowing microscopic droplets to contaminate surfaces and making for very easy transmission from person to person.5 Charmingly enough, the “projectile” nature of vomiting associated with Noroviruses is a contributing factor here as well.
Legal Implications
The legal fallout from outbreaks of Noroviruses will depend largely on the setting of the outbreak and the vehicle of transmission. Determining whether the method of transmission was foodborne or person-to-person will go a long way to determining the causes of action available to those who were made ill.
Foodborne Claims. Foodborne Norovirus outbreaks in commercial food-service settings give rise to strict product liability claims, just as they would with more notorious pathogens such as E. coli O157:H7, Salmonella and Hepatitis-A.
Contaminated-food cases were among the earliest cases to establish strict liability principles, in Washington and elsewhere.6 Today, it is plainly established that restaurant or catered meals are, in fact, a product, and that the act of preparing them is manufacturing.7
Because prepared food items contaminated with a pathogen are essentially per se defective, such cases turn almost entirely on the issue of causation. In other words, 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.8
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 and premises liability are more applicable. The duties of hotels, conference centers and cruise ships to prevent the spread of Noroviruses among their patrons are consistent with their general duties under common carrier and business invitee 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 Norovirus involving more than 1,000 persons associated with the Flamingo Hotel in Las Vegas in October and November, 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 up 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.
Outbreaks of Noroviruses on cruise ships present some additional legal considerations. According to the CDC, “Passengers and crew members on cruise ships … are frequently affected by outbreaks of [Noroviruses].”9 The CDC now operates a Vessel Sanitation Program designed to combat the problem.10
Passengers rights in such situations are frequently curtailed by conditions imposed through the purchase of the ticket. These limitations often include forum-selection clauses, shortened statutes of limitations and arbitration clauses. As a general rule, these limitations have been upheld.11
In addition, measures implemented by cruise ships to combat the spread of illnesses on board often include quarantining 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.
Protecting Against Norovirus
As an individual, there are a few things that can be done to reduce the risk of contracting Noroviruses. These include frequent hand-washing; washing fruits and vegetables before consumption; quickly and thoroughly cleaning contaminated areas; and removing and/or discarding implicated 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 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 incidents 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 summer fun and vacation season.
n
- 1 http://www.cdc.gov/ncidod/dvrd/revb/gastro/norovirus-factsheet.htm
- 2 Id.
- 3 Id.
- 4 Id.
- 5 Id.
- 6 Mazetti v. Armour & Co., 75 Wash. 622 (1913).
- 7 Almquist v. Finley School District, 114 Wn. App. 395, 57 P.3d 1191 (2002).
- 8 The illness need not be tied to a specific food item, which often is very difficult to establish. 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.
- 9 http://www.cdc.gov/ncidod/dvrd/revb/
gastro/norovirus-factsheet.htm
- 10 http://www.cdc.gov/nceh/vsp/
- 11 Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991).
