TAKING BIOSECURITY MEASURES TO LIMIT YOUR LEGAL LIABILITY FOR THE SPREAD OF AVIAN INFLUENZA

The possibility of an avian influenza (AI) outbreak on the Delmarva is a scary possibility. The recent AI outbreak in the Midwest has resulted in the infection of over 48 million birds on 223 farms. Infected birds are euthanized to help contain the disease, resulting in large economic loss to both the grower and integrator.

With this in mind, poultry growers and companies often have questions about potential liability if AI breaks out on one farm (Grower A) and then on a neighboring farm (Grower B). Could Grower A be liable to Grower B for damages caused by the disease? Under the traditional view, Grower A would not be liable for the spread of the disease unless it was shown that Grower A was negligent. Growers, poultry companies, and contractors practicing biosecurity measures can demonstrate he/she was not negligent and is working to prevent the spread of AI.

Negligence

Negligence is simply failure to exercise a duty of careunder the circumstances. This means that you failed to act as a reasonable and prudent person would have in the same situation. Courts have found that negligence has four elements which need to be proven:
Party owed a duty of care to act reasonable under the circumstances to the injured party;
Party breached that duty of care;
Breach was the proximate cause of the injury; and
Actual damages occurred.

When looking at negligence in a livestock contagious disease situation, a grower would have a duty to conduct the operation in a reasonably safe way and in a reasonable fashion to prevent a contagious disease from spreading to neighboring operations. Breaching that duty would come from failure to practice good biosecurity protocols to prevent the spread of AI. The proximate cause of the breach would be from the failure to practice biosecurity, causing a neighboring landowner to have an outbreak of AI. Actual damages would be shown through loss of income due to loss of birds from the decontamination process.

For example, Grower A is concerned he has AI in a house and calls neighbor, Grower B, to compare birds. Grower A enters Grower B’s poultry house without cleaning his boots or putting on booties, gloves, or any other protective gear. A few days later, Grower B’s birds show signs of AI. Grower B could potentially recover from Grower A in a lawsuit for negligence.

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