By Paul Goeringer, Dr. Jon Moyle, and Ashley Newhall
This should not be construed as legal advice. This originally appeared in Lancaster Farming on Oct. 6, 2015.
The possibility of an avian influenza (AI) outbreak in Maryland, Delaware, Pennsylvania, or Virginia is a scary possibility, given the recent AI outbreak in the Midwest resulting in the infection of over 48 million birds on 223 farms. With infected birds euthanized to help contain the disease, the economic loss to both grower and integrator as well as small and backyard flocks looms large.
With this in mind, poultry producers (both small flock and contract growers), companies, and service providers often have questions about potential liability if AI breaks out on one farm (Farm A) and then on a neighboring farm (Farm B). Could Farm A be liable to Farm B for damages caused by the disease? Under the traditional view, Farm A would not be liable for the spread of the disease unless it was shown that Farm A was negligent. Poultry producers, poultry companies, and contractors visiting poultry farms which practice biosecurity measures can demonstrate he/she was not negligent and is working to prevent the spread of AI.
Negligence is simply failure to exercise a duty of care under 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 AI outbreak. Actual damages would be shown through loss of income due to loss of birds from the decontamination process.
For example, Small Flock Grower A does not keep his birds on his property and allows them to wander. A’s birds drink from a contaminated water source and contract AI. While wandering, A’s birds wander onto B’s property and infect B’s small flock. B could potentially recover from A in a lawsuit for negligence.
In another example, a poultry company sends out feed trucks to visit multiple growers in a single day. Feed truck operator does not wash the truck off before visiting different farms nor does the driver wear protective footwear outside the truck at each farm. Operator delivers feed to Grower A and then to Grower B, and both growers’ flocks later develop AI. Both growers could potentially recover from the poultry company for negligence because the operator/driver did not follow appropriate biosecurity practices.
Although we have few reported cases involving disease outbreaks in poultry, it is important to realize implementing biosecurity practices is one way to demonstrate that you were not acting negligently. Additionally, if both growers (commercial and hobby/backyard) and companies implement good biosecurity practices, it can also help lessen the potential impact of AI in our region.
One way to demonstrate you are operating to prevent the spread of a contagious disease such as AI is through adopting biosecurity practices to limit the spread of diseases and farm-to-farm outbreaks. These practices are good for growers, companies, and contractors who may be coming onto poultry farms. The National Chicken Council has suggested the following practices:
Limiting visitors on the farm and minimizing foot traffic;
Avoiding contact with wild and domestic fowl;
Avoiding the sharing of farm equipment;
Having a clean and functioning footbath at each entrance to the broiler house;
Ensuring that all visitors or personnel have disinfected or new footwear before entering a house or facility;
Making sure feed and water sources are covered and free of contaminants, limiting the attraction of wild fowl and pests;
Having official signage clearly stating the farm is a biosecure zone and any unauthorized entry is strictly prohibited;
Employing effective pest and wild bird management practices; and
Adequately training farmers, farm and company personnel in biosecurity and disease prevention.
Small flock and backyard poultry growers should take measures to prevent their poultry from wandering off their property and to limit their exposure or exposing other birds to AI.