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Vellucci v. Allstate Insurance Company

Superior Court of New Jersey, Appellate Division

May 28, 2013

ANTHONY VELLUCCI, as Executor of the Estate of Albert D. Vellucci, and ANTHONY VELLUCCI, Plaintiff-Appellant,
v.
ALLSTATE INSURANCE COMPANY (Discovery Alone); NEW JERSEY AMERICAN WATER CO., INC., and ELIZABETHTOWN WATER CO., Defendants, and MACK-CALI REAL ESTATE CORPORATION and MACK-CALI BRIDGEWATER CO., L.P., Defendants-Respondents.

Argued December 14, 2011 [1]

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-223-06.

Ronald B. Grayzel argued the cause for appellants (Levinson Axelrod, attorneys; Mr. Grayzel, on the brief).

Michael J. Jones argued the cause for respondents (Rivkin Radler, LLP, attorneys; Mr. Jones, on the brief).

Before Judges Fuentes, Graves, and Koblitz.

OPINION

FUENTES, P.J.A.D.

This is a wrongful death and survivorship action brought by plaintiff Anthony Vellucci, individually and on behalf of his late father, Albert D. Vellucci. Decedent was employed by Allstate Insurance Company[2] (Allstate) in an office located in a commercial office building in the Township of Bridgewater. The building was owned, designed, built, and managed by defendant Mack-Cali Realty, L.P. (Mack-Cali). Plaintiff[3] 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 this country's northeastern region.[4]

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 proactive 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 now appeals, arguing that the trial court erred in granting Mack-Cali's motion for summary judgment. According to plaintiff, 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 upon Mack-Cali to foresee that plaintiff would contract Legionnaires' disease from the building's water supply.

After reviewing the record developed before the trial court, we conclude that summary judgment was properly granted and affirm. 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.

I

Because the trial court dismissed this case as a matter of law, our standard of review requires us to consider all factual allegations in the light most favorable to the non-moving party, in this case plaintiff. This standard requires us to determine "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202, 214 (1986)); see also R. 4:46-2(c).

In December 2004, decedent, then fifty-three years old, began to suffer acute respiratory distress characterized by fever, shaking chills, and muscle pain. Despite his difficulty breathing, however, decedent did not suffer extensive coughing. He was admitted to Saint Claire's Hospital on December 14, 2004, and diagnosed with pneumonia. Urine samples collected over the next two days tested positive for the Legionella pneumophila serogroup 1 antigen, and he was subsequently diagnosed with Legionnaires' disease.

On December 21, 2004, decedent began a treatment regime of antibiotics. In a report documenting an examination he performed on decedent, Dr. Barry S. Benerofe noted that decedent's medical history revealed that he had previously suffered from pancreatitis and had had his gall bladder removed. Dr. Benerofe also noted that decedent drank alcohol and smoked cigarettes, although the actual amount and frequency of consumption of each substance was unknown. Decedent died on January 16, 2005; the cause of death was attributed to multiple organ failures precipitated by acute Legionnaires' pneumonia.

According to the National Institutes of Health:

Legionnaires' disease is a form of pneumonia caused by Legionella bacteria. The disease was named after its discovery in a group of people attending an American Legion convention in 1976. Legionella bacteria live in fresh water and are often found in hot tubs, air conditioning cooling units and fountains. They cause disease when people inhale droplets of water containing the bacteria. People of all ages can get Legionnaires' disease, but it primarily affects people with weakened or compromised immune systems, including those who are over age 65, those with lung disease and smokers.
[Key Step Identified in Legionnaires' Infection, National Institutes of Health (Dec. 3, 2012), http://www.nih.gov/researchmatters/ june2011/06272011legionnaires.htm (emphasis added).]

The Centers for Disease Control and Prevention (CDC) estimates that between 8, 000 and 18, 000 people are hospitalized with Legionnaires' disease in the United States annually. Legionella (Legionnaires' Disease and Pontiac Fever), CDC (Feb. 5, 2013), http://www.cdc.gov/legionella/about/history.html. The symptoms of the disease are similar to other forms of pneumonia, including cough, shortness of breath, high fever, muscle aches, and headaches. Legionella (Legionnaires' Disease and Pontiac Fever), CDC (Feb. 5, 2013), http://www.cdc.gov/legionella/about/ signs-symptoms.html.

As part of the appellate record, plaintiff included several reports and studies from scientists who opined on the environmental conditions required for the proliferation of Legionella, the type of individual who would be most at risk of being exposed to the bacteria, and the countermeasures available to eradicate or at least minimize the risk of exposure.

An example of such reports is one dated May 16, 2008, entitled "Legionella and Legionnaires' Disease, " authored by microbiologist Janet E. Stout, Ph.D., director of the Special Pathogens Laboratory in Pittsburg, Pennsylvania. According to Dr. Stout:

Legionella are opportunistic pathogens with widespread distribution in the environment but a very low rate of infection in the general population. Legionella are transmitted directly from the environment to humans. There is no evidence of human-to-human transmission. The sources of transmission of Legionella to humans involve the aerosolization of water to contaminated Legionella and/or inhalation or aspiration. Potable water, especially in hospitals and ...

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