A New Jersey Appellate Court recently ruled in Vellucci v. Allstate Insurance Company that defendant Mack-Cali Realty Corp., an owner and manager of commercial properties, is not liable for the death of Albert D. Vellucci, who likely contracted Legionnaire’s disease from the water supply in the defendant’s building. Affirming the trial court’s decision, the appellate court concluded that the building owners did not have a duty to proactively ensure that the water supply was not contaminated by the Legionella bacteria that causes Legionnaire’s disease.
Plaintiff Anthony Vellucci, representing his deceased father, argued that Mack-Cali had a duty to maintain the water supply of the building to a reasonably safe condition, which would include taking affirmative measures to detect the presence of the Legionella bacteria. Vellucci presented an expert opinion to show that the decedent was exposed to Legionella in his place of employment, the building in question owned by defendant Mack-Cali. This opinion was based on the report of the environmental consultants retained by the tenants of the building, which revealed that samples from the men’s bathroom which the decedent frequented contained high levels of Legionella requiring remedial action.
However, the Court agreed with Mack-Cali’s argument that the building owner need not take proactive measures to test for Legionella contamination when there is no actual or constructive notice of contamination. This conclusion stems from the ambiguous results of Legionella testing. According to the Association of Water Technologies (AWT), routine testing may not be a reliable indicator of the absence or presence of Legionella bacteria in water systems. Furthermore, the mere presence of Legionella does not result in disease. Other factors, including the susceptibility of the exposed host, also come into play. In addition, Legionella are resistant to standard water disinfection procedures, and there is disagreement regarding the risks posed by Legionella in the environment. Legionnaire’s disease is sporadic, not epidemic, and the amount of organisms needed in a water source to cause these sporadic cases is unknown. Indeed, AWT does not promote Legionella testing in the absence of suspected or confirmed Legionnaire’s cases.
Since foreseeability is critical in determining the existence of a duty to proactively safeguard against risks, such ambiguity surrounding Legionella presence in water systems in problematic. Therefore, the Court found it appropriate to side with Mack-Cali, since they were unaware of the risk of Legionnaire’s disease in their building’s water supply before Vellucci fell ill. Although Anthony Vellucci argued that Mack-Cali was the lowest cost avoider in this unfortunate incident, the Court cited that foreseeability is the leading factor in determining the existence of a duty to care. Unfortunately for Albert D. Vellucci, his sporadic disease did not fall into the realm of foreseeability.
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