Vellucci v. Allstate Insurance Company, A-2905-10T1; Appellate Division; opinion by Fuentes, P.J.A.D.; decided and approved for publication May 28, 2013. Before Judges Fuentes, Graves and Koblitz. On appeal from the Law Division, Somerset County, L-223-06. [Sat below: Judge Ciccone.] DDS No. 36-2-0095 [25 pp.]

This is a wrongful death and survivorship action brought by plaintiff Anthony Vellucci, individually and on behalf of his late father, Albert Vellucci. Decedent was employed by Allstate Insurance Company in an office located in a commercial office building in Bridgewater. The building was owned, designed, built, and managed by defendant Mack-Cali Realty, L.P. Plaintiff claims decedent contracted Legionnaires’ disease in December 2004 when he was exposed to a water-borne pathogen in the building’s water supply system. Plaintiff also sued New Jersey American Water Co. Inc., the building’s water supplier.

After joinder of issue and completion of extensive discovery by both sides, Mack-Cali moved for summary judgment, arguing that, under the circumstances of this case, it was not legally responsible to ensure that the building’s water supply was free of the Legionella bacteria. It is undisputed that, prior to decedent’s case, Mack-Cali did not know or have reason to know of the presence of Legionella bacteria in the building’s water supply or in the water supply of any other properties it owns or manages throughout the Northeast.

The trial court granted Mack-Cali’s summary judgment motion and dismissed plaintiff’s case. The motion judge rejected plaintiff’s theory of liability against Mack-Cali, noting the absence of a statute, regulation or industry standard requiring Mack-Cali to take pro-active measures to detect the presence of the Legionella bacteria in the building’s water system. Under these circumstances, the court found that Mack-Cali did not violate a duty of care to decedent because "Legionella infection is a rare [and relatively unforeseeable] occurrence."

Plaintiff appeals, asserting that Mack-Cali, as a sophisticated owner and manager of commercial properties, had a duty to maintain the building’s water supply and plumbing system in a reasonably safe condition, including taking affirmative measures to detect the presence of the Legionella bacteria.

Mack-Cali argues that the trial court correctly found that, under these circumstances, it was not objectively reasonable to impose a duty on Mack-Cali to foresee that plaintiff would contract Legionnaires’ disease from the building’s water supply.

Held: The prevailing industry and regulatory standards do not impose a duty on commercial landlords to take pro-active 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 prior to decedent’s case, Mack-Cali is not liable for decedent’s demise.

Mack-Cali designed, built, owned, and managed the office building in which decedent worked when he contracted Legionnaires’ disease in 2004. Mack-Cali controlled and maintained the plumbing in the building and was responsible for providing the tenants with water.

In its motion for summary judgment, Mack-Cali argued that plaintiff had failed to show that it had a duty to take pro-active measures to ensure that the building’s water system was not compromised by the Legionella bacteria. Citing the Appellate Division decision in Ivins v. Town Tavern, Mack-Cali’s counsel emphasized that the most significant factor in determining the scope of a party’s duty is foreseeability. In this respect, Mack- Cali argued that, absent evidence of actual or constructive notice of contamination, a reasonable and competent owner/manager of a commercial office building does not have a duty to ensure that the property’s water supply is not contaminated with the Legionella bacteria.

Plaintiff argued that foreseeability alone was not dispositive in determining whether Mack-Cali owed a duty of care to decedent and the public to ensure that the building’s water supply was free of potentially deadly pathogens like the Legionella bacteria. Plaintiff’s counsel argued that "fairness" was the overriding principle. According to plaintiff, in determining whether Mack-Cali had a duty of care, the trial court needed to focus on the nature of the risk. Large, sophisticated commercial landlords like Mack-Cali should be held liable to individuals like decedent, plaintiff argued, because they are in the best position to avoid the harm. Balancing the relatively minor effort involved in conducting periodic water sampling tests against the consequences of exposure to the Legionella bacteria, plaintiff argued that basic fairness requires commercial landlords like Mack-Cali be held civilly liable for compensating those most affected by their failure to take basic preventive measures.

Relying on Carvalho v. Toll Brothers & Developers, the motion judge agreed with Mack-Cali’s argument on the importance of foreseeability in determining whether Mack-Cali should be held civilly responsible for decedent’s demise.

The appellate panel agrees with the motion judge that summary judgment in favor of Mack-Cali is warranted. Plaintiff did not present any rational basis to impose a duty on Mack-Cali to foresee the advent of the Legionella bacteria in the building’s water system. There is no statutory or regulatory scheme imposing a duty on owners and managers of commercial office buildings to take affirmative action to detect the presence of Legionella. Plaintiff also failed to come forward with any objectively reasonable evidence of the existence of an industry standard requiring operators of commercial office buildings to test periodically for the presence of Legionella or to take ameliorative action without any prior notice of contamination. The two incidents cited by plaintiff’s expert occurred in 1976 and 1991, respectively, and neither one involved the transmission of the bacteria by contact with water flowing in bathroom facilities.

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 appellate panel affirms the trial judge’s ruling granting Mack-Cali’s motion for summary judgment.

For appellants — Ronald B. Grayzel (Levinson Axelrod). For respondents — Michael J. Jones (Rivkin Radler).