Legionella Testing & Compliance for Commercial Real Estate Buildings
If you are reading this article, I would like to assume that you are an Asset Manager, Property Manager or Engineering Manager in the commercial real estate world. Your property is probably maintained to the highest standards with an impressive Energy Star score, and you may be relishing the LEED Gold or Platinum Certification that was recently awarded to your building. Why should you worry about the new ASHRAE 188 standard?
You have probably heard about the large scale outbreaks of Legionnaires’ Disease in New York, Michigan and California in the last year. What hasn’t made the news feed (and is probably not known to most people) is that before June of last year, there was no industry or national standard for risk management of the causative bacteria responsible for the disease.
The lack of widely adopted regulations or industry standards prior to June 2015 has been cited in several court rulings in favor of defendants in Legionnaire’s related lawsuits.
On February 23, 2015, U.S. District Judge Andrew P. Gordon ruled on summary judgment that plaintiffs could no longer seek $330 million in punitive damages against the Aria Hotel and Resort in Las Vegas in a lawsuit stemming from a June 2011 outbreak of Legionnaire’s Disease.
An excerpt from the ruling reads, “Moreover, courts have focused on the lack of industry standards and government regulations surrounding Legionella prevention when dismissing claims at the summary judgment phase. Because “Legionella infection is a rare and relatively unforeseeable occurrence”, there is no clear set of prevention guidelines Aria could have willfully ignored”.
In a May 28, 2013 decision, the New Jersey Superior Court, Appellate Division upheld a previous ruling dismissing a wrongful death lawsuit related to Legionnaires’ Disease filed against Mack-Cali, a real estate investment trust (REIT).
In the original court ruling the judge rejected the plaintiff’s theory of liability against Mack-Cali, noting, “the lack of a statute, regulation, or industry standard requiring Mack-Cali to take proactive measures”.
An excerpt from the appellate ruling states, “After reviewing the record developed before the trial court, we conclude that summary judgement 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”.
In a June 11, 2008 decision, the United States Court of Appeals, Fourth Circuit affirmed a previous summary judgement dismissing a wrongful death lawsuit related to Legionnaires’ Disease.
The summary judgement from the district court had originally determined, “that the standard of care would have to be established through a source such as expert testimony, industry standards, or an applicable ordinance or statute”.
Now that Standard 188-2015 has been adopted by both ASHRAE and ANSI, we have what most people would agree is an industry and national standard. This can be argued to be the “standard or duty of care” in future litigation cases.
I recently ran a search on a well-known search engine for “Legionnaires’ Lawyer” and came up with 127,000 results. One of the lawyers actually sends out collection kits so that prospective plaintiffs can sample the water in suspect buildings. This is big money business.
Failing to correctly understand and adopt ANSI/ASHRAE Standard 188-2015 into your property’s operations and maintenance plan could very well put you on the wrong end of a potential Legionnaires’ related lawsuit. For more information regarding legionella testing and ASHRAE 188 compliance, please click here.