A building owner recently prevailed in a wrongful death and survivorship action involving Legionnaires’ disease caused by contamination in an office building’s water supply system.  On May 28, 2013, the Appellate Division upheld the trial court’s ruling granting the owner summary judgment in Anthony Vellucci, Etc. vs. Allstate Insurance Company, Et Al., App. Div. Docket # A-2905-10.  It is an important decision for property owners, managers, employers, brokers, and others in New Jersey because it involved deadly contamination and shows that you can avoid liability by taking appropriate measures.       

The decedent was employed by Allstate in an office in the commercial building.  The trial court had dismissed Allstate from the case and then granted the building owner summary judgment, stating: “The plaintiff offers that the building owner has an obligation to provide safeguards necessary to make its premises reasonably safe for the uses [it] has invited others to make, but the Court finds that Mack-Cali did so and that [Legionella] infection is a rare occurrence and that Mack-Cali owed no duty to take special precautions against [Legionella] bacteria.” 

The Appellate Division concluded that summary judgment was properly granted, stating: “The prevailing industry and regulatory standards do not impose a duty on Mack-Cali to take proactive measures to ensure that a commercial office building’s water supply is not contaminated by the Legionella bacteria.  Absent evidence that Mack-Cali actually knew or should have known, through the exercise of reasonable maintenance measures, that the building’s water supply had been contaminated with the Legionella bacteria, Mack-Cali is not liable for decedent’s demise.”

In deciding in favor of the building owner, both the trial judge and Appellate Division relied on Carvalho v. Toll Brothers & Developers, 143 N.J. 565 (1996) and balanced “several factors — the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution.”  The Appellate Division applied these legal principles, stating: “Plaintiff did not present any rational basis to impose a duty on Mack-Cali to forsee the advent of the Legionella bacteria in the building’s water system… Although tragic in its result, decedent’s case was an isolated one.  Once relevant information concerning decedent’s illness was brought to its attention, Mack-Cali took appropriate measures to investigate the matter and ascertain what needed to be done to prevent a recurrence.” 

The Court noted that Mack-Cali retained a certified industrial hygienist to investigate and take samples of the building’s water for testing and that the investigation was “extensive” and included a survey of the entire building, multiple water samples, testing, and a report.  The Court also noted that Allstate retained its own occupational and environmental health consultant to test the building’s water system, and that Mack-Cali hired a water treatment provider to clean the building’s plumbing system as recommended and “after the remediation was completed, there was an extensive period of continued testing.” 

This case is important because it emphasizes the defense of taking appropriate measures.  Based on the “salient facts” of this “isolated” case of a “rare occurrence”, the Appellate Division found that appropriate measures were required after learning of the illness “to investigate the matter and ascertain what needed to be done to prevent a recurrence”.  But other courts or circumstances could require additional proactive and other appropriate measures both before and after learning of an illness.  The big question for you and your matters is what will be deemed “appropriate measures” to minimize risk?   

Evaluating your legal issues requires careful review on an individual basis with experienced counsel.