Legionnaire's Disease Outbreak In Bronx Fast Tracks Legislation, Sets Table For Tort Liability of Building Owners

As is often the case, the outbreak of Legionnaire's disease in the Bronx in July and August, 2015, which infected over 125 and claimed the lives of 12, has been traced to a cooling tower in a Bronx hotel. In the wake of the outbreak the New York City Council and the State of New York enacted legislation intended to curb future outbreaks through the proper maintenance of cooling towers. Even though he was infected before the enactment of this legislation, at least one of the infected individuals has already filed suit against the owner of the hotel identified as the source of the outbreak. The new legislation creates both civil and criminal penalties for owners of buildings with cooling towers. Moreover, violations of the statutes would serve as the basis for negligence per se claims in future lawsuits arising out of Legionnaire's disease.

On August 6, 2015 the Commissioner of Health of the City of New York ordered that all owners of buildings with water-circulating cooling towers in the City of New York have the cooling towers disinfected and tested for contaminants within fourteen days. Subsequently, the New York City Council and Mayor DeBlasio enacted legislation imposing registration, maintenance, and inspection requirements for cooling towers. The newly enacted legislation requires building owners to register all cooling towers with the Department of Health within thirty (30) days. Thereafter, cooling towers must be inspected at least every ninety (90) days, and building owners must develop and implement a maintenance program and plan for their cooling towers in accordance with sections 5, 6, and 7.2 of American Society of Heating, Refrigeration, and Air Conditioning Engineers Standard 188-2015. Further, by November 1, 2016, and November 1 of each year thereafter, all building owners must certify that they have complied with these requirements.

Following the New York City legislation, the New York State implemented similar emergency legislation. The State legislation requires all cooling towers within the state to be registered, tested, and inspected within thirty (30) days. Like the New York City legislation, State legislation also requires owners to inspect cooling towers every 90 days and to implement a maintenance program and plan by March 1, 2016.

Unlike the New York City legislation, the State legislation reaches beyond cooling towers to other potential sources of Legionnella. The State legislation requires all general hospitals and health care facilities to adopt a Legionella sampling plan for its potable water system, report the results of such sampling, and take all necessary responsive actions. The Department of Health was also directed to investigate what, if any, more stringent requirements are warranted with respect to these facilities.

Since the recent outbreak in the Bronx there have been numerous confirmed cases in San Quentin Correctional Facility, in a Veterans' Home in Quincy, Illinois, and two deaths have been reported in Quebec. The Legionella bacteria was also found in the water system of a Philadelphia University prompting the university to shut down and disinfect the system just prior to the start of the school year. Finally, despite the City's claim that the outbreak is over, there have been two additional confirmed cases of Legionnaire's disease in New York.

Given this landscape, the recent New York legislation may have a substantial impact throughout the state, if not the country. New York property owners and others where this type of legislation is adopted/enacted must comply with the new rules in order to avoid potential negligence per se claims in future litigation relating to the proper maintenance of cooling towers.