No Liability for Petting Zoo Operator in 2004 North Carolina State Fair E. Coli Outbreak Case

Overview

The North Carolina Court of Appeals has affirmed a North Carolina Industrial Commission (Commission) order denying damages to plaintiffs in a negligence action against the North Carolina Department of Agriculture and Consumer Services (the “Department”) stemming from an E. coli outbreak at a state fair petting zoo.

Background

The Department operated a petting zoo at the 2004 North Carolina State Fair. In preparation for opening the petting zoo, the Department hired a number of veterinarians and conducted a pre-fair assessment. In response to the assessment, the Department set up multiple hand sanitizer stations and posted a number of signs warning patrons to wash their hands before and after touching the animals. The Department also posted a sign by the hand sanitizer stations warning of the danger of hand to mouth contact. Petting zoo employees monitored entrances and exits, regularly removed feces, and replaced soiled wood shavings from the pens. Despite the precautions, of the approximately 20,000 visitors to the petting zoo, 108 of them (most of them children) contracted E. coli infection.

Lawsuit

A number of parents of minor children who contracted the bacterium filed a negligence action against the Department, alleging that the Department had not exercised reasonable care in operating the petting zoo. The Commission ruled that the Department had exercised reasonable care in its operation of the zoo and that the plaintiffs had failed to show that Department employees were negligent in failing to warn the Fair patrons of the hidden hazard of E. coli. An important factor in the Commission’s decision was that the danger of E. coli was still an “emerging issue” in 2004. One commissioner dissented, arguing that the key Department employees—all of them veterinarians—knew or should have known that E. coli was a hidden danger that posed a substantial risk to young children. She thus contended that the Department failed to adequately warn the Fair’s patrons of that danger.

On appeal, the plaintiffs argued that the petting zoo unreasonably exposed lawful visitors to “a significantly increased risk of contracting a potentially deadly bacterium.” The plaintiffs alleged that the Department breached its duty of care by failing to take more precautions such as requiring parents to hold hands with their children, refusing to allow food in the zoo, and providing more detailed information to the patrons of the dangers of E. coli.

In affirming the denial of benefits to the plaintiffs, the Court of Appeals stated, “Our premises liability law does not require landowners to eliminate the risk of harm to lawful visitors on their property or undergo unwarranted burdens in maintaining their premises.” The Court found that the Department took reasonable steps in 2004 to reduce the inherent risks of operating a petting zoo. To hold otherwise, the court found, would be to engage in the type of “Monday-morning quarterbacking that the law of negligence should avoid.” The court did suggest that the safety precautions taken by the Department “might not be sufficient today,” especially given the 2004 outbreak.  

Conclusion

Although the court absolved the petting zoo operator of liability in this case, it should serve as a warning to any individual or business operating a livestock exhibit of any kind.  The case appears to represent the first negligence claim against a petting zoo that has failed at both the trial level and on appeal. The Department took a number of precautions: implementing hand sanitizer stations, posting warning signs, engaging veterinarian consultants, timely removing feces, and maintaining clean bedding for the animals. Nonetheless, the court suggests these steps would likely not meet the required reasonable care standard today.  In response to the 2004 E. coli outbreak, the North Carolina legislature enacted a law in 2005 (now 02 NCAC 52K  or “Aedin's Law”) requiring permits, hand-washing stations, special signage, food and drink restrictions, and supervision of children under the age of six at all North Carolina animal exhibitions at agricultural fairs. In 2011, another E. coli outbreak was traced to an exhibit of competitive livestock at the North Carolina State Fair.

Iowa has no legislation similar to Aedin’s law, but exhibitors of farm animals for nonagricultural purposes (such as petting zoos) must be licensed under the federal Animal Welfare Act. Fair exhibitions are exempt from this requirement. Even though this case is rather fact-specific, the court’s opinion certainly suggests that petting zoo operators (no matter how informal the operation) should stay informed as to the latest safety recommendations. At a minimum, they should require hand washing before and after animal interaction, supervise children closely, educate visitors regarding the risks of E. coli and other pathogens, maintain clean bedding, and forbid eating and drinking in the exhibit area.