Vellucci v. Allstate Ins. Co., 431 N.J. Super. 39 (App. Div. 2013). Plaintiff’s decedent was employed by Allstate at an office building owned, designed, built, and managed by Mack-Cali Realty, L.P. Plaintiff alleged that the decedent contracted Legionnaire’s Disease from the building’s water supply. Plaintiff sued several defendants, including Mack-Cali. Mack-Cali moved for summary judgment, contending that it had no duty to ensure that the water supply in the building was free of Legionnaire’s Disease. The Law Division agreed and granted Mack-Cali’s motion. Plaintiff appealed, but the Appellate Division, in an opinion by Judge Fuentes, affirmed.
Because the issue of duty is a pure legal question, Judge Fuentes found the de novo standard of review applicable. He proceeded to canvas in detail the nature and background of Legionnaire’s Disease. The bottom line, according to the literature, is that it is difficult, if not impossible, to prevent the bacterium that causes Legionnaire’s Disease from entering a water system. There were no statutory or regulatory requirements that a building owner detect the bacterium that causes Legionnaire’s Disease. Plaintiff’s expert cited a 1991 Legionnaire’s outbreak in a Social Security office, and general “guidelines” regarding Legionnaire’s Disease that had been issued by various governmental agencies. Judge Fuentes concluded, however, that the expert did not offer “any concrete viable support” for liability on the part of Mack-Cali.
The legal arguments centered on foreseeablity and fairness. Mack-Cali argued that since it was undisputed that it had no actual or constructive notice of Legionnaire’s issues in this or any other Mack-Cali building, and foreseeability of harm is a central component of duty, the Law Division was correct to find that it had no duty. Plaintiff contended, in response, that foreseeability is not the only relevant factor, and that it was fair to impose liability on Mack-Cali because, as the builder and manager of the building, Mack-Cali was “in the best position to avoid the harm.”
Judge Fuentes agreed that foreseeability, though important to the duty analysis, “does not end the discussion. Once the foreseeablity of an injured party is established, … considerations of fairness and policy govern whether the imposition of a duty is warranted.” On the facts here, however, there was no rational basis to impose a duty on Mack-Cali to foresee the presence of the Legionnaire’s bacterium in the water system. No statutory or regulatory scheme required owners and managers of commercial buildings to act affirmatively to detect the bacterium, and plaintiff’s expert’s 1991 example (and the even more remote original outbreak in1976) did not justify creating a duty. Thus, summary judgment for Mack-Cali was affirmed.