The threat of litigation is present whenever the presence of Legionella bacteria results in illness. Liability may arise against a variety of defendants and under a number of different legal theories. While there is no sure way to protect against liability, an examination of the current legal landscape should provide guidance on how to deal with this threat. This paper will survey potential liability issues associated with an outbreak of Legionnaires' Disease. Specifically, it will review reported case law to date, focusing on those cases involving tort and contract law issues. It will examine not only the issues involved and how the courts handled them, but also what actions by the defendants precipitated the lawsuits. Additionally, there will be a discussion of how various agencies, both government and private, have handled the concerns surrounding Legionella. Finally, there will be an analysis of the costs and benefits associated with implementing risk minimization plans and conducting "due diligence".
Every year up to 18,000 Americans are hospitalized from Legionnaires' Disease.1 The fatality rate can range from as low as five percent to as high as thirty percent.2 With numbers such as these, it is not surprising that outbreaks often generate significant media interest. Public attention-coupled with such sympathetic victims-make those responsible for the outbreak susceptible to legal repercussions. Exactly how susceptible they are may depend on the actions taken before, after, and during the outbreak.
When examining this potential for legal liability, it is important to remember that often there is no single source of liability. Rather, a variety of parties may be subject to liability. For instance, assume there is an outbreak of Legionnaires' Disease at a hotel. The outbreak occurred partly as the result of poor maintenance of the air conditioning system by the facility operator, but was also precipitated by defective design of the system by an equipment vendor. In this case, it is not surprising that as a result of its negligence, the hotel may be liable directly to its guests who became ill. However, the potential for liability does not stop at the most obvious target; instead, one asks whether the end result was caused by any other actionable conduct. This sometimes leads to liability "up the chain"-courts may find liable all defendants who were involved in the marketing, manufacture, or design of a defective product, even if no defendant was negligent.(1) 3 Hence, the designer and manufacturer of the system may be held liable, even though they had no independent relationship with the guests-there was no privity.
Additionally, defendants may be liable to each other for the plaintiff's injuries.4 . For example, if the major cause of the outbreak was the defectively designed air conditioning system, and not the hotel's negligent maintenance of it, the designer and/or manufacturer may be liable to the hotel for the damages the hotel incurred in compensating its patrons; this is called indemnification.5 Also, there is often the potential for regulatory agencies to become involved. Assume not only guests became ill, but a number of employees did as well.