Bathroom Sink Does a commercial property owner owe a duty of care to ensure that its building’s water supply is not contaminated in a case involving the death of an employee of one of its tenants? This was the central question confronting a New Jersey appeals court in Velucci v. AllState Insurance Company, et al., Superior Court of New Jersey, Docket No.: A-2905-11 (App. Div. , May 28, 2013).

In this case, which was brought by the decedent’s estate, the trial court granted the corporate property owner’s pretrial motion for summary judgment declaring that it was not objectively reasonable to impose a duty upon the owner to foresee that the decedent would contract Legionnaires disease from the building’s water supply. As a plaintiffs’ law firm, this decision is one that plaintiffs’ attorneys will have to keep in mind and be able to adapt to the evolving law to better represent clients.

The appeals court affirmed this ruling, concluding that the prevailing industry and regulation standards did not impose a duty on the property owner 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 [the property owner] 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 the decedent’s demise,” the Appellate Division explained.

At the trial court level plaintiff argued that Mack-Cali should have known that Legionella might reasonably be present in the ground floor bathroom because there was a publicized report of an outbreak of Legionnaires’ disease that occurred in an office building in 1991. The plaintiff emphasized that as a matter of fairness, the company should be held liable because Mack-Cali was a sophisticated commercial landlord in the best position to prevent and treat contamination of the water supply system. Plaintiff contended that relatively minor water tests would have detected the problem and treatment would have logically followed to prevent such a tragic event.

The trial court disagreed, finding that there was no “concrete viable support” for liability against Mack-Cali. The court explained that arguably the most significant factor in determining the scope of a party’s duty of care is whether or not a future problem is foreseeable. Mack-Cali had no notice of the water supply system being contaminated by Legionella. The appeals court upheld the trial court’s ruling.