I. Executive Summary
This paper is about seven people from different parts of the U.S. and Canada who contracted Legionnaires’ disease or Pontiac fever from December 2005 through January 2006. The only thing they had in common was their stay at the same hotel in Daytona Beach, Florida. (State Final Report P-3, p. 5, as well as the CDC Report entitled “Waterborne Diseases Outbreak Report”)
II. Historical Background of Legionnaires’ Disease
Many persons are under the impression that the outbreak of the disease at the Bellevue Stratford in Philadelphia was the last occurrence of this dangerous and sometimes fatal disease called Legionnaires’ disease. Unfortunately, this is not the case. Outbreaks of the disease have occurred on cruise ships, in malls, hospitals and other hotels on an all too frequent basis.
Legionnaires’ disease is a type of pneumonia, and is caused by the bacteria genus Legionella. One species of the genus Legionella is pneumophila (Lp). The species Legionella pneumophila contains 15 serogroups which are given numbers, e.g. Lp1. Lp1 is responsible for more reported cases of Legionnaires’ disease in the United States than any other Legionella species or serogroup. Infection occurs when an infectious dose of the bacteria enters deeply into a susceptible person’s lungs, most often by inhaling contaminated aerosolized water droplets.. Common sources of aerosolized water are Jacuzzis, shower heads, water faucets cooling towers and indoor spas.
III. Background of the Case
All seven persons stayed at the same hotel in this litigation. The first person arrived from Canada on November 16, 2005. The next person arrived on December 1, 2005. A fire occurred at the hotel on December 5, 2005, requiring evacuation of all hotel guests. They returned December 9, 2005. It should be noted here that the indoor spa at the hotel was shut down from December 5 to December 11, 2005, during which time the indoor spa pumps were not working because there was no electricity. The third person checked into the hotel on December 11, 2005.
Unbeknownst to the plaintiffs (plaintiff and person will be used interchangeably), the first owner of the hotel agreed to sell the hotel on October 28, 2005. The sale of the hotel actually occurred on December 16, 2005. but control of the hotel remained with the first owner until December 20, 2005, because monies had not been completely transferred for the sale.
The fourth person checked into the hotel on December 28, 2005. He was the first guest to check in after the transfer of control to the new owner. He was followed by a fifth person who checked in on December 31, 2005. The final two persons arrived on January 1, 2006.
The first person of the cluster experienced symptoms on January 5, 2006. These symptoms, typical of Legionnaires’ disease, included high fever, diarrhea, headaches and cough. Each of these cases will be discussed in greater detail under the damages section. All seven cases presented to the Halifax Medical Center in Daytona Beach. Six of the cases had confirmed pneumonia by x-ray. Five of the seven were admitted to Halifax Medical Center.
IV. State Investigation
Epidemiologic data obtained during the State of Florida’s Health Department’s investigation of the outbreak revealed the Daytona Beach hotel to be the source of the outbreak (State Final Report P-3, p. 5). This conclusion was reinforced by the plaintiffs’ expert. The State of Florida also conducted a case-control study which revealed the indoor spa at the hotel to be the most likely source for the transmission.
The Volusia County Health Department was alerted to a cluster of pneumonia cases, including the seven above, on January 23, 2006 from the Infection Control Department at the Halifax Medical Center. The Health Department came to the hotel on January 26, 2006 to perform an investigation. The investigating team included an epidemiologist and an investigator.
The State Investigator took water samples from the indoor spa pool filtration tank in the pump room as part of her investigation of the hotel on January 26, 2006. Unfortunately, no sodium thiosulfate was added to the sample. Sodium thiosulfate is a preservative for the samples and was added to the water samples taken by the state investigator after January 26th. It should be noted here that the indoor pool spa was super chlorinated on January 27, 2006, thereby killing any legionella that could have been detected in the water samples taken subsequent to the 27th. Superchlorination is the addition of many times more than the standard amount of chlorine that is usually added to the indoor spa. The indoor spa pool was also superchlorinated on February 2, 2006 and April 28, 2006 (State Environmental Investigation Report).
The State lab analyzed the water samples taken on the 26th four days later, i.e. on the 30th. This time period is outside the protocol for analyzing water samples of this sort. The State lab only checked for legionella pneumonia serogroup 1 from the water samples collected on the 26th. There are many more types of legionella bacteria. As noted above, the sample taken on the 26th did not contain any sodium thiosulfate which arguably invalidated the sample.
V. State Regulations
The indoor spa pool at the hotel was a public pool and therefore subject to Rule Chapter 64E-9 of State of Florida Department of Health Division of Environmental Health Administrative Code. The state regulations were in effect on January 26, 2006.
Bromine is a disinfectant that is used to kill legionella . Rule 64E-9.004(1) of the Florida Department of Health Division of Environmental Health Administrative Code states that disinfectants such as bromine are chemicals added to pool water to kill pathogens such as legionella. Bromine was used in the indoor spa pool as a disinfectant at the hotel.
The term “bromine residual” as used in Rule Chapter 64E-9.004(d)2 of the State of Florida Department of Health Division of Environmental Health Administrative Code means the amount of bromine present in the water The Bromine residual in the indoor spa pool at the hotel on January 26th, 2006 was 0.5 parts per million instead of the required minimum of 3-10 parts per million. Rule Chapter 64E-9.004(5) of the Florida Department of Health Division of Environmental Health Administrative Code requires water in the indoor spa pool to be recirculating at all times Rule 64E-9.010(8) of the same code further requires water in the indoor spa pool at the hotel to be recirculated every 30 minutes This rule is relevant not only for the inspection on January 26th, but for the shutdown from December 5th to 11th, 2005.
Rule Chapter 64E-9 also requires all appurtenances and equipment such as that of the indoor spa pool to be in good repair. In this regard, the automatic water level control for the indoor spa pool was not on during the State Investigator’s inspection on the 26th. In addition, the flow meter for the indoor spa pool was off the scale as it was reading below the bottom graduation level . The State Investigator, therefore, could not even determine what the actual flow of water was through the indoor spa pool. What she did note, however, was that the diatomaceous filters for the water flowing through the indoor spa pool were clogged with debris causing an extremely low flow rate for the water. (Final Report, P-.3). Because the extremely low flow rate was below the minimum required to activate the Acquasol URP controller AKA “Brominator”, insufficient bromine was being added into the indoor spa pool’s return line .
The State Investigator also found inadequate ventilation during her investigation on the 26th. The only available air exchange in the indoor spa was through a window kept closed most of the time. This also violated another portion of the rule 64E-9, namely Rule 64E-9.006(2)(e)(1).The water temperature for the indoor spa pool was 85 degrees Fahrenheit and well within the range in which legionella can propagate. Furthermore, jets in the indoor spa would blow air and water from which bubbles would rise to the surface and rupture containing the legionella. The air inside the spa was moist when the State Investigator inspected it. The person operating the indoor spa on the 26th was not certified as required by the state of Florida. Had this person been certified he or she would have been trained in filter types and filtration circulation and spa maintenance among other things. The State Investigator closed the indoor spa on January 26, 2006 because of the infractions mentioned above.
The next day, i.e. January 27, 2006, the indoor spa pool was superchlorinated by raising the level of bromine to 20 parts per million for 24 hours . The flow of water through the indoor spa had been substantially improved and the flow meter and Brominator were working when the State Investigator returned on January 31, 2006 She reopened the indoor spa pool on January 31, 2006. Environmental swabs were taken from the indoor spa on February 6, 2006, after the superchlorination on January 27, 2006, and no legionella was found. (See previous commentary on superchlorination.) No further sampling of the indoor spa pool was done by the state. The indoor spa pool was also drained and scrubbed with a biocide on April 28, 2006, as well as superchlorinated for a second time. A buildup of the biofilm at the tile line of the indoor pool spa existed on April 28, 2006.
VI. State Epidemiologist
The State Epidemiologist first heard of the outbreak from an Infection Control practitioner at the Halifax Medical Center on January 23, 2006. Emergency Department physicians had notified Infection Control of an unusual cluster of nine confirmed pneumonia cases, one confirmed case of Legionellosis, in patients who had stayed at the same hotel from January 8-22, 2006. All nine persons were out of the state residents, none of whom had traveled together The State Epidemiologist went to the hotel on January 26, 2006 along with the State Investigator.
The State Epidemiologist conducted a Case Control Study at the hotel to confirm the association between the hotel and the outbreak. The hotel provided a list of names to the State Epidemiologist, who randomly chose 46 names from the list. The State Epidemiologist interviewed each of these 46 guests and none of them had Legionnaires’ disease.
Most of the persons who contracted Legionnaires’ disease had multiple medical risk factors such as asthma, coronary artery disease, stroke, congestive heart failure, diabetes, and myocardial infarction (State Final Report P-3).
According to the State Epidemiologist, 50% of the eleven pneumonia cases had been in the indoor spa, 73% had used the breakfast room, and 73% used the recreation room. (right next to the indoor spa). The State Epidemiologist concluded that a person entering the indoor spa at the hotel was 9.82 times more likely to get sick than someone not entering the indoor spa (Final Report). He was 95% certain of the 9.82 number. Further, there was a six in 1,000 chance the indoor spa was not the source of the outbreak. After taking out confounding factors, i.e. something that may skew the results, however, a person entering or being near the indoor spa was 16.53 times more likely to contract Legionnaires’ disease than not. The State was 95 percent confident of the 16.53 number. There was also a good correlation between the data collected by the state and the statistical model designed by the state.
The State Epidemiologist concluded that the hotel was the source of the outbreak. He based this conclusion on the statistics and epidemiologic investigation of the hotel that the state performed. The data from the case control study indicated the indoor spa to be the most likely source of transmission of Legionnaires’ disease. This transmission included bathing in the water of the indoor spa and staying in the enclosed area long enough to inhale aerosolized water droplets produced from the operating spa jets (Final Report).
The State Epidemiologist also stated in his Final Report that the deficiencies revealed from the State Investigator’s inspection of the indoor spa, and the various peer review articles he read about indoor spas being the source of Legionnaires’ disease in other settings, further point to a biologically plausible causal connection between the indoor spa and the outbreak.
The State Epidemiologist also noted anecdotally that he interviewed several hotel guests who told him that the doors separating the indoor spa and the recreation room were left open. On those occasions water vapor or steam flowed into the recreation room while people socialized there. The State Epidemiologist placed this in his final report because persons could have been exposed to legionella without actually being in the enclosed indoor spa area. The State Epidemiologist had read articles indicating a person could be exposed to legionella from vapor. This could account for the confirmed cases that were not directly exposed to the spa.
VII. Hotel Maintenance
The hotel’s Chief Supervisor started working at the hotel on January 17, 2006, and reported to the General Manager. He was in charge of the maintenance department at the hotel. His responsibilities at the hotel included maintaining the indoor pool and spa.
The hotel’s Chief Supervisor inherited the maintenance crew from the prior owner as his maintenance staff. Three of the maintenance staff left the hotel within one week of his arrival. The three people who left all showed the hotel’s Chief Supervisor the daily indoor spa pool maintenance logs when he arrived, but the hotel’s Chief Supervisor did not otherwise review the logs with the three.
Although the hotel’s Chief Supervisor took over maintenance of the indoor spa pool himself shortly after he arrived in January 2006, he did not note that the bromine monitoring system was not working properly until after February 3, 2006. The hotel’s Chief Supervisor also did not check the diatomaceous filters when he arrived on January 17th, and only inspected them after February 3, 2006. The hotel’s Chief Supervisor stated in his deposition that the filters were old and should have been replaced, but were not replaced until after February 3, 2006.
The hotel’s Chief Supervisor filled out the daily maintenance log in January, 2006, which included various bromine level readings. The bromine level for January 19, 2006 was .4 (point 4), which is below the levels required by the state of Florida. The hotel’s Chief Supervisor threw away the original January 2006 Monthly Swimming Pool Report which had entries prior to January 17, 2006. Other interesting evidence testified to by the hotel’s Chief Supervisor was the lack of any manual for the operation of the indoor pool, the hotel’s Chief Supervisor seeing steam on the windows of the indoor spa on a daily basis, and his observation that guests would prop open the doors to the indoor spa leading to the breakfast/recreation rooms and hallway guests would use to go to the outside pool and ocean.
The Regional Director of Engineering for the parent company for the hotel had as a part of his responsibilities in January 2006 operational maintenance support for the hotel. The Regional Director was aware that Legionnaires’ disease was a dangerous disease and could cause people to die. He also knew that before January 2006 that Legionnaires’ disease was caused by bacteria in the water and could come from an indoor pool.
The Regional Director has testified he does not know if anyone checked for the level of chemicals in the indoor spa pool after the sale to the new owner and before the arrival of J the hotel’s Chief Supervisor. The Regional Director has also stated the hotel had problems with the filters for the indoor spa pool after the purchase of the hotel. The prior owner of the hotel was the only person who knew how to operate the water supply system for the indoor pool, but he did not continue to work at the hotel after the sale of the hotel.
The Regional Director has also stated no Environmental Risk Assessment or Management Plan for the water system even existed at the hotel. He has also stated the hotel’s Chief Supervisor was not a certified pool operator as required by state law. The Regional Director has stated in his deposition a certified pool operator is someone who is trained on the operation of pools and how to prevent Legionnaires’ disease. The Regional Director has stated he was aware prior to January 26, 2006 that the staff operating the indoor spa pool had not been properly trained by prior management. He has also stated in an e-mail to a Vice President of the owner of the hotel, dated February 1, 2006 that the indoor spa pool was in very bad shape when purchased from the first owner and that the staff at the hotel had problems learning the system to keep the indoor spa pool safe, and did not want to learn how to do this because they wanted an outside company to perform this duty. The Engineering staff also refused to do certain tasks and threatened to walk several times.
The Regional Director further stated in the e-mail that the rest of the engineering department threatened to quit when the hotel’s Chief Supervisor was hired. His e-mail goes on to say that the reason the indoor spa pool was shut down was lack of circulation causing a lack of bromine in the system, the filters were old and worn out, and the flow meters were the wrong size. He also stated “we have been fighting the pools from the first day we purchased the property.”
According to the General Manager, the Chief Supervisor was not qualified to be Chief Engineer, particularly because the hotel was in such bad shape when taken over by the new owner. Although there were problems with the indoor pool from the first day the hotel was acquired by the new owner, no checklist of things that needed to be done was created during the transition from the old to the new owners.
VIII. Legal Position of the Parties
1. Position of the Plaintiffs
A. Introduction
Plaintiffs were required to prove the following elements in their cases:
i. What entity controlled the premises.
ii. The legal status of the plaintiffs.
iii. The duty owed to the plaintiffs by the defendants.
iv. Whether that duty was breached.
v. Whether the breach of that duty was the proximate cause of the injuries to the plaintiffs.
vi. What injuries were suffered by the plaintiffs as a result of the breach of this duty. (See The Law of Torts, Fifth Edition, Prosser and Keeton, p. 419-434.)
Each of the above elements will be discussed below. The discussion will consist of the legal concepts enumerated above, followed by the application of the evidence deduced to date.
B. Control of the Premises
It was necessary for the plaintiffs to prove at trial which defendant controlled the hotel and its indoor spa during the relevant time in question. (See Restatement of Torts, 2nd Section, 343.) This is particularly important in this case because the prior owner sold the premises to the new owner on December 16, 2005. As previously noted, evidence revealed so far indicates that the first owner retained control of the hotel until December 20, 2005 because the monies paid by the new owner had not cleared the bank. The new owner assumed control of the premises and renamed it shortly thereafter. The first owner would have probably argued at trial that because the incubation period for Legionnaires’ disease is ten days from the onset of symptoms, he was not responsible for the three plaintiffs who had stayed at the hotel prior to the sale to the new owner. Thus, since all three plaintiffs all experienced their first symptoms January 5th, 2006 or thereafter, the first hotel owner could not be liable for any damages, because these plaintiffs became ill after the requisite incubation period. The position of the first hotel owner is belied by significant peer-reviewed articles to the contrary, as seen in plaintiff ’s expert report. The expert pointed out that there have been numerous cases where persons have come down with Legionnaires’ disease after ten days and as late as 21 days, well within the period of time during which he first owner owned the hotel.
C. Status of the Plaintiffs
Restatement of Torts, 2nd Section, 332 defines a business visitor as follows:
A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.
There is no dispute that all seven couples were business visitors.
D. Duty Owed to the Plaintiffs
Restatement of Torts, 2nd Section, 343 encapsulates the duty owed by the defendants to the plaintiffs in these cases. This section states as follows:
§ 343 Dangerous Conditions Known to or Discoverable by Possessor
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
Comment b. of Section 343 goes on to state:
On the other hand an invitee enters upon an implied representation or assurance that the land has been prepared and made ready and safe for his reception. He is therefore entitled to expect that the possessor will exercise reasonable care to make the land safe for his entry, or for his use for the purposes of the invitation. He is entitled to expect such care not only in the original construction of the premises, and any activities of the possessor or his employees which may affect their condition, but also in inspection to discover their actual condition and any latent defects, followed by such repair, safeguards, or warning as may be reasonably necessary for his protection under the circumstances. […] To the invitee the possessor owes not only this duty, but also the additional duty to exercise reasonable affirmative care to see that the premises are safe for the reception of the visitor, or at least to ascertain the condition of the land, and to give such warning that the visitor may decide intelligently whether or not to accept the invitation, or may protect himself against the danger if he does accept it.
Comment d. of Section 343 goes on to state:
d. What invitee entitled to expect. An invitee is entitled to expect that the possessor will take reasonable care to ascertain the actual condition of the premises and, having discovered it, either to make it reasonably safe by repair or to give warning of the actual condition and the risk involved therein. Therefore an invitee is not required to be on the alert to discover defects which, if he were a mere licensee, entitled to expect nothing but notice of known defects, he might be negligent in not discovering. This is of importance in determining whether the visitor is or is not guilty of contributory negligence in failing to discover a defect, as well as in determining whether the defect is one which the possessor should believe that his visitor would not discover, and as to which, therefore, he must use reasonable care to warn the visitor.
Finally, Comment e. of Section 343 states:
e. Preparation required for invitee. In determining the extent of preparation which an invitee is entitled to expect to be made for his protection, the nature of the land and the purposes for which it is used are of great importance. […] On the other hand, one entering a store, theatre, office building, or hotel, is entitled to expect that his host will make far greater preparations to secure the safety of his patrons than a householder will make for his social or even his business visitors.
Clause (a) of Section 343 discusses the burden of proof that the plaintiff has in proving that the defendants knew or should have known of the condition, or that by reasonable care would have discovered the condition. As will be discussed further below, the instant cases are not slip and fall cases or lettuce leaves or spilt drinks. The instant litigation involves different plaintiffs who became ill at the hotel over a month’s time. These cases also involve conditions that were created by acts or failures to act on the part of the defendants.
Florida case law relying on Section 343 is discussed below. The hotel owed the plaintiffs, who were business visitors in this case, the duty to exercise reasonable care in maintaining its premises in a reasonably safe condition. (St. Joseph’s Hospital, a Florida Corporation, Appellant/Cross-Appellee, v. Anthony Cowart and Terry Cowart, husband and wife, Appellees/Cross-Appellants, 891 So. 2d 1039 at p. 1040). The hotel also owed to its guests the duty to warn them of concealed perils that were or should have been know to the hotel and were unknown to its guests and could not be discovered through the exercise of due care (Ibid, St Joseph’s Hospital at p. 1040).
E. Breach of Duty
i. Introduction
In order to determine whether the defendants’ duty to the plaintiffs’ was breached, it is necessary to further analyze Section 343. In this regard, Section 343(a), which states in part “knows or by the exercise of reasonable care would discover” is important.
ii. Constructive Notice
a. Legal issue
The defendants will argue that they did not know there was Legionella in the indoor spa pool until after the state inspection of January 26, 2006. Their position at first blush seems to be supported by the following language. As stated in Winn-Dixie Montgomery, Inc. v. Petterson, 291 So.2d 666 at p. 668:
Liability for negligence in failing to maintain premises in a reasonably safe condition, or in failing to warn of existing dangers, must be predicated on the occupant’s superior knowledge or means of obtaining knowledge concerning the danger. In order to recover, a plaintiff must show either that the occupant or proprietor had actual notice of the condition or that the dangerous condition existed for such a length of time that in the exercise of ordinary care the occupant should have known of it and taken action to remedy it or guard the plaintiff from harm therefrom. No liability can attach where it is not shown that the owner or proprietor had actual or constructive notice of the dangerous condition.”
The case of Winn-Dixie Montgomery, Inc. v. Petterson, 291 So.2d 666, is inapposite to the instant matter, however, as it was not the negligence of a third party that caused the harm, but rather the negligence of the defendants themselves. This is important because in Winn-Dixie it was a third party that caused the waxed paper to be on the floor, requiring timely inspection of the floor. This is not the fact in this case.
Here, as mentioned above, there was no evidence to justify any conclusion that the paper came upon the sidewalk as a result of any negligence on the part of any appellant’s employees or that any employee saw the paper on the sidewalk before the accident. (Winn-Dixie Montgomery, Inc. v. Petterson, 291 So.2d 666 at p. 668)
Here, the defendants were required by state law to inspect and place biocide in the indoor spa. It was the negligence of the Defendants themselves that caused the injury, and not that of a third party. Thus the requirement to determine the amount of time the legionella had been present in the indoor spa is not dispositive of whether the defendants can be found to have constructive notice of the Legionella in the indoor spa pool.
It should be noted in this regard that circumstantial evidence can be used to prove whether the hotel had constructive notice (see Florence Broz, Appellant v. Winn-Dixie Stores, Inc., Appellee, 546 S0.2d 83). Further, this is not stacking of inference upon inference to prove how long the legionella had been in the indoor spa (see Silver Springs Moose Lodge No. 1119, etc., Appellant, v. Marion Orman and Karl Orman, Appellees, 631 So. 2d 1119 at p. 8). Rather, there is direct uncontroverted evidence that hotel employees did not perform their duties regarding the indoor spa well before and during the time the plaintiffs were at the hotel.Evidence in the record indicates that the testing of the water in the indoor spa was not done as was required by law. Maintenance records of the first or second hotel owner evidencing this testing are missing for 30 of the 31 days in December 2005 (see Marion Lubell, Petitioner, v. Roman Spa, Inc., et al., Respondents, 362 So. 2d 922 at p. 923). Testing of the water at the indoor spa was required by state law (see Grubbs p. 91). Furthermore, when testing was done, the bromine levels for the indoor spa were below state required levels for numerous days in December 2005 and January 2006 (see Grubbs 44-45). Assuming arguendo that the amount of time the legionella was in the indoor spa is still an element in proving whether the hotel fulfilled its legal duty “to ascertain that the premises are reasonably safe for invitees… (and that the hotel used) reasonable care to learn of (i.e. to acquire actual knowledge as to) the existence of any dangerous condition on the premises” (Winn-Dixie Stores, Inc., Appellant, v. Ramona F. Marcotte, Appellee, 533 So. 2d 213; 1989), it is instructive to take cognizance of the following. Using SGHMI’s argument that there is a 10 day incubation period, we know then that the defect must have been present for at least ten days.
iii. Reasonable care
The remaining language in Section 332, i.e. “(c) fails to exercise reasonable care to protect themselves” (see also Winn-Dixie v. Marcotte at p. 214) is met in these cases. The testimony of the first hotel owner, the Chief Supervisor and the Regional Director is replete with how they all failed to adequately maintain the indoor pool. These failures are further opined upon by plaintiff’s standard of care expert.
iv. Negligence per se
Rule Chapter 64E-9 of State of Florida Department of Health Division of Environmental Health Administrative Codes (Public Swimming Pools and Bathing Places) was in effect in January 2006 This regulation was designed to protect persons using public swimming pools, i.e. a particular class, from disease (Rule Chapter 64E-9.001 General). The interpretation that Rule Chapter 64E9 is designed to protect a particular class of persons is reinforced by Rule Chapter 64E-9.01 Spa Pools, which regulates such things as water depth in a spa pool. There are other aspects of chapter 64E-9 that specifically deal with providing a sanitary place to bathe. Florida case law has consistently held that violation of a state regulation designed to protect a particular class of persons constitutes negligence per se (see H.K. Corporation d/b/a National Hotel, Inc., Appellant, v. Estate of George W. Miller and Helen Miller, individually, Appellees, 405 So. 2d 218 and First Overseas Investment Corp., d/b/a Monte Carlo Hotel, Puritan Insurance Company and Insurance Company of the State of Pennsylvania, Appellants, v. Ola Ann Cotton and Levornia Jean Cotton, as the Co-Executrixes of the Estate of Cleophus Cotton Appellees, 491 So. 2d 293).
The State Investigator and State Epidemiologist have repeatedly stated in their deposition testimony that Rule Chapter 64E-9 had been violated by the hotel. It is clear that the defendants were guilty of negligence per se.
v. Gross Negligence
Restatement of Torts, 2nd Section, 500 states as follows:
Section 500 Reckless Disregard of Safety Defined: The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.
As stated in comment “a”:
It must not only be unreasonable, but it must involve a risk of harm to others substantially in excess of that necessary to make the conduct negligent. It must involve an easily perceptible danger of death or substantial physical harm, and the probability that it will so result must be substantially greater than is required for ordinary negligence.
The Regional Director’s testimony in this regard is instructive. He has stated his knowledge of the dangers of Legionnaires’ disease, his knowledge prior to the outbreak that Legionnaires’ disease was caused by bacteria and could come from an indoor pool, as well as his email stating “we have been fighting the pools from the first day we purchased the property,” are but two examples of the gross negligence at the hotel. It is clear then that the second hotel owner was guilty of gross negligence.
Comment “b” under Section 501 also touches on the award of punitive damages as follows:
As affecting measure of damages. The extent of liability, as well as its existence, may be affected by the fact that the actor’s conduct is reckless rather than negligent. Thus, the jury may be permitted to impose punitive damages upon a reckless defendant, although only compensatory damages would be permissible if the defendant had been merely negligent. As to this, see §908.
Comment “c” of Section 501 is also instructive regarding the appellation of a violation of a statute, or regulation as in this case. Comment “c” states as follows:
It must not only be unreasonable, but it must involve a risk of harm to others substantially in excess of that necessary to make the conduct negligent. It must involve an easily perceptible danger of death or substantial physical harm, and the probability that it will so result must be substantially greater than is required for ordinary negligence.
The case of Daniel D. Flood, Individually as the administrator of the estate of Thomas J. Flood, deceased, Plaintiff-Appellant, versus Young Woman’s Christian Association of Brunswick, George, Inc., Defendant-Appellee, 398 F.3d 1261, is instructive in this regard. The court in the Flood case found no gross negligence because the defendant was not “required to apply the Red Cross life guarding standards.” (Flood at p. 1267). That is not the case in the instant litigation. The defendants were required to abide by the Florida Statute Rule Chapter 64E-9, and their failure to do so was a direct cause of the plaintiff’s injuries.
F. Proximate Cause
i. Introduction
Proximate cause has been defined as “that which naturally leads to or produces a given result; such as might be expected directly and naturally to flow therefrom; and such cause as naturally suggests itself to the mind of any reasonable and prudent man as likely to flow out of the performance or nonperformance of any act.” (See Angeles De La Concha, Appellant, v. Herculano Pinero, Jr., Appellee, 104 So. 2d 25 at p. 26)
ii. Discussion
It is necessary then, for the plaintiffs to prove that the defendants’ actions and/or inactions were the proximate cause of the plaintiffs’ injuries. The plaintiffs must prove three things in order to prove proximate cause. First, they must prove that the legionella bacteria was present in the indoor spa. Secondly, they must prove that the legionella bacteria came into contact with the plaintiffs. Finally, they must prove that the legionella from the indoor spa caused Legionnaires’ disease and/or Pontiac fever (see Flamm v. The Coney Island Co., 195 N.E. 401).
iii. Presence of Legionella in the Indoor Spa
The most compelling evidence in this regard comes from the case control study performed by the State Epidemiologist. His epidemiological study clearly shows that the indoor spa was the source of transmission. He states unequivocally that a person entering or being near the indoor spa was 16.53 times as likely to contract Legionnaires’ disease as not.
iv. Legionella came in contact with the plaintiffs.
Again, it is necessary to turn to the testimony of the State Epidemiologist. As stated previously, his case control study showed that legionella in the indoor spa caused the Legionnaires’ disease in the plaintiffs.
v. Legionella caused Legionnaires’ disease or Pontiac fever in the plaintiffs.
The State Epidemiologist and Plaintiff Expert’s findings are again instrumental. The Plaintiff’s Expert unequivocally states that all plaintiffs, except Plaintiff number one who had Pontiac fever, had Legionnaires’ disease which came from the indoor spa pool at the hotel.
vi. Concurrent Causation
As stated in De La Concha at p. 27:
It is universally agreed that if damages are caused by the concurring force of a defendant’s negligence and some other force for which he is not responsible, the defendant is nevertheless responsible if his negligence is one of the proximate causes of the damage. When injury results from two separate and distinct acts of negligence committed by different persons operating concurrently, both are regarded as the proximate cause and recovery can be had against either or both.
De La Concha at p. 28 also states that:
when an injury is caused by the concurring negligence of two or more parties, each is liable to the injured to the same extent as though it had been caused by any one of the several alone. Such acts of concurring negligence give rise to joint and several liability, and there need be no common duty, common design or concerted action.
This language is instructive because a jury could find in the cases of plaintiffs 1, 2 and 3 that both the first and second hotels were at fault and apportion damages accordingly.
2. Position of the Defendants
A. Introduction
The defendant will argue the following positions:
1. There was no legionella in the indoor spa pool during the requisite time frame.
2. None of the plaintiffs contracted Legionnaires’ disease, including plantiff number 4.
3. The first hotel could not be liable for any damages because plantiffs number 1, 2 and 3 did not become ill during the requisite time period.
4. The plaintiffs were contributorily negligent.
B. There was no legionella in the indoor spa pool during the requisite time frame
The second hotel owner hired their own Remediation Person to conduct a test for the presence of legionella in the indoor spa pool. All of their tests were performed after superchlorination had been conducted in the water of the indoor spa pool. Furthermore, defendant’s Remediation Person did not even test for the presence of legionella pneumophila 1, the most prevalent form of legionella.
As far as the state tests are concerned, the first test done by the State Investigator was performed without the addition of sodium chiosulfate. Unfortunately for the defendants, their own medical experts severely criticized how the test was performed. Both experts discuss the lack of adding sodium chiosulfate to the first water sample collected on January 26, 2006.
Plaintiff’s medical expert, on the other hand, opines that there was legionella in the indoor spa pool. Her opinion is buttressed by the state epidemiologist, who states unequivocally that there is an extremely high probability that the indoor spa pool was the source of the infestation.
C. None of the plaintiffs contracted Legionnaires’ disease, including plaintiff number 4.
The defendants contend that none of the plaintiffs had Legionnaires’ disease or Pontiac fever (save possibly for plaintiff number 4), and that if they did, the hotel was not the source of the outbreak.
Unfortunately for the defendants, in the case of plaintiff number 4, there was a positive urine antigen test showing plaintiff number four had Legionnaires’ disease. In the case of plaintiff number 2, her treating doctors unequivocally stated that plaintiff number 2 had Legionnaires’ disease.
Plaintiff’s expert opines, based on epidemiological and medical evidence, that plaintiff numbers 2-7 all had Legionnaires’ disease. The plaintiff’s expert further opined that plaintiff number 1 had Pontiac fever.
D. The Hotel management company could not be liable for any damages because plaintiffs 1, 2 and 3 did not become ill during the requisite time period
The plaintiff’s expert report clearly refutes this position.
E. The plaintiffs were contributorially negligent
The only scintilla of evidence that the plaintiffs were negligent in any manner is plaintiff number 5’s allegation that there was a warning sign posted at the indoor spa. None of the defendant’s employees, including but not limited to the front desk receptionist, the Hotel manager, and the Chief Supervisor, at any time in their depositions indicated such a warning.
Irrespective of the warning, plaintiffs would have to be aware of an “open and obvious” defect to be charged with knowledge of the danger as a matter of law. In this case, there has been testimony from the defense expert that legionella is 5 microns (five millionths of an inch) in diameter when aerosolized and inhaled with the lungs. This is hardly a condition which would make the plaintiffs cognizant of any danger.
IX. Damages of the Plaintiffs
1. Compensatory Damages
A. Plaintiff Number 6
Plaintiff number 6 and his wife checked into the hotel on January 1, 2006. Plaintiff 6 noticed during the first week that he was there that the indoor spa pool was a very dirty green color, with mists coming off it flowing through the breakfast room and recreation room. Plaintiff 6 spent time inside the indoor spa and saw people swimming in the indoor spa pool. He also stood at the door to the indoor spa pool, and had to walk past the indoor spa pool (the doors were always open) to get to the ocean. Plaintiff 6 was admitted to an urgent care facility on January 11, 2006, about ten days after checking into the hotel. He started feeling symptoms, chills and diarrhea, on January 7, 2006. He stayed in bed and his room from the 7th to the 11th, ate little, and started having severe headaches and elevated temperature.
Around 10:30 AM on the 11th Plaintiff 6 and his wife decided to go to an urgent care facility because his headaches were not getting better. The first walk-in clinic refused to treat Plaintiff 6 because the physician described him as a “walking corpse.” The urgent care facility took his temperature which was 106 degrees. He was then taken by ambulance (he was placed on oxygen during the transport) to a major area Hospital and admitted immediately to the floor and placed under the care of an attending physician.
Plaintiff 6 was hospitalized from January 11 through 18, 2006. Plaintiff 6 was placed on intravenous fluids to bring his fever down and get rid of the diarrhea. Plaintiff 6 was diagnosed with pneumonia. Plaintiff 6 lost 11 pounds during his hospital stay. Plaintiff 6 was placed on Rocephin in the ER and then Zithromax. Both of these medications are antibiotics and were administered prior to any test for Legionnaires’ Disease. Rocephin is a third generation antibiotic, with a broad spectrum activity against gram negative bacteria. Zithromax is a macrocide antibiotic specifically designed to treat a community acquired pneumonia such as Legionnaires’ disease. Plaintiff 6 was tested serologically on January 27th and February 1st for Legionnaires’ disease and both tests came back negative.
Plaintiff 6 felt weak upon discharge from the Hospital and had lost an additional 18 pounds. Plaintiff 6 felt better upon his return to Canada on April 3, 2006. Plaintiff 6 currently feels fatigued and cannot do the things he used to do, e.g. shoveling snow and cutting the lawn, as quickly as he used to.
Plaintiff 6 is married. His wife went through the entire experience with Plaintiff 6 at the hotel and its aftermath.
B. Plaintiff number 3
Plaintiff 3 felt better than he had in 10 to 12 years when he checked into the Hotel on December 11, 2005. Plaintiff 3 commented on what appeared to him to be “kind of a fog” coming from the indoor spa when he played cards in the breakfast room. He also saw this fog or mist when he walked by the indoor spa. Plaintiff 3 walked inside the indoor spa on a number of times, when he noticed that the water had a deep green color to it and did not look “too good.” He saw people with young children swimming in the indoor pool.
Plaintiff 3 started experiencing symptoms on January 6, 2006. His symptoms included coughing and a fever. He fell on the 8th because his legs could not hold him up and hit his head on the TV. It took him an hour to crawl back to bed. He called the medics who examined him and told him he had to go to the Hospital. He was placed on a stretcher and taken through the lobby of the hotel, placed in his friend’s car, and driven to the hospital. Plaintiff 3 remembered leaving the hotel the evening of the 8th and waking up in the hospital on the 9th at 2:30 AM feeling terribly (weak, headache, a fever, delirious, bad chills).
Plaintiff 3 was admitted to the Hospital on January 8, 2006 and discharged January 13, 2006. He was diagnosed with probable aspiration pneumonia, but he was admitted for community-acquired pneumonia with a non-productive cough. Rocephin and Zithromax were begun. Clindamycin was added to the drug regimen, which is a lincosamide antibiotic. All of these medications were administered prior to any testing for legionella. Plaintiff 3 had a medical history of coronary heart disease, asthma, a cerebrovascular accident, and dyslipidemia.
After checking out of the Hospital on January 13, he returned to Indiana on the 14th. His daughter drove him home. Plaintiff 3 slept on the back seat of his daughter’s car back to Indiana. He was admitted to a hospital in the area three days later, i.e. January 17th and remained there until the 21st. He was still being treated for the Legionnaires’ disease. Plaintiff 3 initially refused to go to the hospital when he returned to Indiana on the 14th.
Plaintiff 3 received more antibiotics at the hospital. He felt really “rough” when he was discharged from this hospital. He was tested for Legionnaires’ disease as well after he had been administered Zithromycin at the first Hospital. The results came back negative for Legionnaires’ disease. He was also tested at the first Hospital after being administered antibiotics. This test came back negative as well. Plaintiff 3 had been a smoker for a good part of his life.
C. Plaintiff number 2
Plaintiff 2 checked into the Hotel on December 1, 2005, but because of a fire at the hotel, had to vacate from December 5 through December 9, 2005. She and her husband frequented the breakfast and card rooms, and would walk past the indoor spa daily to get to the ocean. She went inside the indoor spa on at least two occasions. She had put her feet in the indoor spa pool. She had seen bubbles on top of the indoor spa pool and the windows of the spa were fogged. She complained to the front desk of these conditions in the indoor spa before feeling any symptoms, but got no response. Plaintiff 2 started feeling fatigued and feverish on Thursday, January 5, 2006. She woke up Friday and felt a lot worse. Her fever was not below 102º. She stayed in bed all day Friday. She woke up Saturday and her temperature was 102º. When she woke on Sunday her temperature would not go down. It was still running around 102º. On Monday she felt really bad and was having a hard time breathing. Her husband said, “You are going to the hospital right now,” and they went to the Hospital on Monday, January 9, 2006 and discharged on January 11, 2006.
Her chief complaint upon admission was fever, shortness of breath, and cough. Plaintiff 2 was diagnosed with bilateral pneumonia while admitted to the Hospital. She has a history of hypertension. She was packed in ice during her hospitalization often to bring her temperature down.
Plaintiff 2 was discharged on Levaquin, which is an advanced generation Fluoroquinolone antibiotic. Prior to her discharge she had been administered Zithromax and Rocephin as antibiotics previously discussed. Blood cultures were taken prior to the administering of the antibiotics. Nevertheless, the blood cultures that were administered did not test for Legionnaires’ disease. The urine culture was done after Plaintiff 2 was started on an antibiotic regimen, which also did not test for Legionnaires’ disease. The same scenario occurred with the sputum test, namely it was administered after the administration of antibiotics.
Plaintiff 2 contacted another physician upon being discharged from the Hospital. This doctor tested Plaintiff 2 for Legionnaires’ disease. This doctor has stated unequivocally that Plaintiff 2 had Legionnaires’ disease. Her health had still not returned to its pre-hospitalization status.
Plaintiff 2 saw her family doctor when she returned to Michigan. He has also diagnosed Plaintiff 2 with Legionnaires’ disease and has indicated “since she was exposed to Legionnaires’ disease she has recurrent episodes of respiratory infection.”
H. Physician Expert
A physician expert employed by the plaintiffs has opined that all of the plaintiff’s care was related to the Legionnaires’ disease or Pontiac fever that they contracted, and that the care was reasonable and necessary.
2. Punitive Damages
Florida Statute 768.73 provides for the award of punitive damages. Plaintiff was precluded from discovering evidence regarding financial information during the deposition of the second hotel owner’s President by defense counsel.
The case of Jonathan Boyce (F. Gordon Boyce, Administrator of the Estate of Jonathan Boyce, Deceased, substituted in the place and stead of), Plaintiff-Appellee, v. Pi Kappa Alpha Holding Corporation, Defendant-Appellant, United States Court of Appeals for the Fifth Circuit 476 F. 2d 447, is instructive in what constitutes willful and wanton behavior that would rise to the level of awarding punitive damages. As stated in Boyce:
Extracting from these pronouncements the essential elements of willful and wanton misconduct, we note that (1) the actor must have knowledge, actual or constructive, of the likelihood that his conduct will cause injury to other persons or property; and (2) the conduct must indicate a reckless indifference to the rights of others, that is, conduct which may be termed equivalent to an intentional violation of those rights. See 57 Am.Jur.2d, Negligence §§ 101-105, 65 C.J.S. Negligence § 63(38).
The Boyce case takes this analysis a step further by stating:
To take our analysis a step further, the cases teach that willful and wanton negligence may be of two types: (1) that involving an affirmative act by the defendant; and (2) that involving a failure to act, or an act of omission, by a passive defendant.
The first part of the analysis, i.e. an affirmative act by the defendant, can be seen in keeping the old engineering staff on with the new owner, an engineering staff clearly not up to the task, and throwing away the January monthly maintenance log. Failure to act, the second part of the equation, can be seen in not bringing over the former person from the old hotel who knew how to maintain the pool, not replacing the filters, not having an Environmental Risk Assessment, not having a certified pool operator, not maintaining the daily pool maintenance records, and not providing adequate bromine amongst other things. All of this occurred, i.e. both active and passive behavior, when a member of senior management for the hotel knew the dangers of Legionnaires’ disease.
The Boyce case also discusses the requirement for knowledge, either actual or constructive, on the part of the defendant. Constructive knowledge has been discussed elsewhere in this booklet. Plaintiffs, therefore, are clearly entitled to the award of punitive damages.
X. Conclusion
As a result of the hotel’s negligence, seven people were hospitalized, six for Legionnaires’ disease and one for Potomac Fever in Daytona Beach, Florida. This unfortunate scenario is common throughout the United States, and indeed the world. It is hoped that this article will provide information regarding the right of persons who have been afflicted by this disease so that future outbreaks will be less likely to occur.
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