Legal Aspects of an Outbreak of Legionnaires’ Disease at a Hotel in Orlando, Florida
I. Executive Summary
This case is about two people from Canada, Person A and Person B, who contracted Legionnaires’ disease in February and March, 2008. These two cases were part of four confirmed cases and one probable case of Legionnaires’ disease. Although three of the confirmed cases were part of a wedding party who stayed at the hotel, the fourth confirmed case was an English tourist who had nothing to do with the wedding party . The only thing they all had in common was their stay at the same hotel in Orlando during the relevant time period.
As stated in a final report issued by the state of Florida in a different case:
Legionnaires’ disease is a water-borne bacterial infection and a common cause of severe pneumonia. Illness caused by Legionella bacteria resembles other pneumonia-like symptoms and can range from mild infection (Pontiac Fever: influenza-like illness without pneumonia) to febrile illness, respiratory disease, and even death (15% of cases). Even though Legionella bacteria occurs naturally in the environment, it thrives best in warm water, such as potable water systems, whirlpool spas, and cooling towers. Every year an estimated 8,000-18,000 people are hospitalized with Legionnaires’ disease and more than 20% of all cases are thought to be associated with recent travel.
The plaintiffs’ expert opines that Person A contracted Legionnaires’ disease at the hotel in question. No report has been prepared on behalf of Person C because her case is not yet in litigation. Epidemiologic data obtained during the State of Florida investigation of the outbreak further revealed the hotel to be the source of the outbreak.
II. Background of the Cases
The subject hotel in this litigation is located in Orlando, Florida. The hotel has a 1,850 gallon outdoor hot tub with two cartridge filters which use automatic chlorine feeders controlled by equipment supplied by Company B, another defendant in the case.
Both plaintiffs, Person A and Person B, stayed at the hotel during the relevant time period, described in the state final report as being from February 27, 2008 to March 15, 2008, as part of a wedding party. The first person, Person C, arrived at the hotel on February 28, 2008. She left the hotel on March 3, 2008. The next two persons, Person A and Person B, arrived on February 29, 2008. Person A and Person C spent significant time in and around the spa. Person A and Person B left the hotel on March 2, 2008.
III. State Report
As indicated in the state report, two confirmed cases of Legionnaires’ disease were reported to the Pinellas County Health Department on March 11, 2008 of persons who had attended a wedding in Orlando. The father of the bride reported a third case. All three had stayed at the hotel in question, and had spent time in and around the hot tub (spa) at the hotel.
An environmental investigation was performed at the hotel on March 13, 2008. Environmental samples were taken from the hot tub and filter. Environmental inspection of the hot tub revealed initial chlorine levels of 0.5 ppm in the hot tub, well below the required 2.0-10.0 ppm required for hot tubs under Florida law. As a result of the inspection, the Orlando County Health Department closed the hot tub. It should be noted here that 30 minutes after closing the hot tub, the residual chlorine level was measured again, at which time the measurement was 3.0 ppm, within the accepted state range. The only explanation offered by the state epidemiologist was that someone added chlorine to the hot tub during the interval between the first and second reading.
The state report goes on to state that the flow rate was not proper for the design of the filter, and that the filters were not properly maintained. More importantly, no maintenance logs were available during the inspection of the hot tub.
All environmental samples obtained from the hotel were negative for legionella pneumophila. Nevertheless, the state report addresses this issue by stating the lack of positive laboratory results for legionella from the environmental samples could be due to laboratory error, sampling error, organism not present in determinable quantities for methods used, or organism not present at time of sampling.
The state epidemiologist further commented on this lack of evidence by stating that the water samples sent to the state were only taken after the chlorine level went up from 0.5 ppm to 3.0 ppm. Further negative samples collected 10 days after exposure, i.e. from March 3 to March 13, do not rule out the possibility of legionella in the hot tub on the 3rd because of the time lapse involved.
In conclusion, the state report concluded that epidemiologic data
…indicate that the source of the outbreak was the [hotel in question]. The only common exposure among the five cases was staying at this hotel…. There was a statistically significant association between spending time in the hotel’s hot tub and acquiring Legionnaires’ disease (odds ratio is 22.11…). Persons who spent time in and around the hot tub had 22 times the odds of acquiring Legionnaires’ disease as those who did not spend time in or around the hot tub.
IV. Key Players
1. Person D
Person D has testified in his deposition that he was in Denver, Colorado and left the management of the hotel entirely to his staff in Orlando. He made this statement even though he was the majority partner in a partnership, Company A. As managing partner, he hired and fired the staff that ran the hotel, including the on-site manager. Person D also closely monitored occupancy rates, approved checks for payment of all hotel bills, and visited the hotel numerous times per year.
Person D has also testified under oath that state and local authorities were out to get him when they conducted their investigation and subsequently shut down the hotel during the peak season, resulting in significant financial loss to him.
2. Company B
Company B is the pool maintenance company that supplied the controller that controlled the chlorine flow to the hot tub. As indicated in one of the plaintiff’s expert reports, the controller that continually malfunctioned should at the very least have been replaced.
3. Company C
Company C is the franchisor which granted a franchise to Company A. Person D has testified that he followed the directions of Company C, particularly when it came to maintenance of the spa.
V. Expert Testimony
1. Expert A
Expert A has prepared a report with the following three opinions.
A. Maintenance of the [hotel] spa in 2008 was substandard for the control of Legionella bacteria.
B. The Legionella test results for the samples collected from the spa on March 13, 2008 cannot be relied upon to determine the source of the outbreak.
C. Proper maintenance would have controlled Legionella bacteria in the spa during [Person A’s] stay at [the hotel].
2. Expert B
Expert B, an epidemiologist, has stated the following opinion.
The epidemiologic study implicates the spa as the source for the outbreak. … The results of the Florida investigation, the failure of the hotel to follow state and CDC guidelines for maintenance of the spa, and knowledge of the microbiologic conditions that favor the proliferation of Legionella in a spa compel me to render an opinion with a reasonable degree of certainty that [Person A] contracted Legionnaires’ Disease at the [hotel in question] near Universal Studios when he stayed there in late February and early March, 2008.
3. Expert C
Expert C has stated the following opinions.
…the SPC Controller was in need of serious electronic repairs, or … the ORP probe needed replacement. One can also conclude that the Certified Technicians used by [Company B] were not well trained as they failed to see the obvious. The lack of attention to the Probe/Controller and chemical problems experienced with the indoor spa set the stage for the legionella amplification attributed to this site. This is corroborated by the outbreak of late February as reported by the health department ….
VI. Status of the Case
This case is currently pending before a judge in the U.S. District Court for the Middle District of Florida (Orlando). The case for Person C has not been placed into suit yet.
VII. Legal Position of the Parties
1. Position of the Plaintiffs
A. Introduction
Plaintiffs are required to prove the following elements in their case:
- What entity controlled the premises;
- The legal status of the plaintiffs;
- The duty owed to the plaintiffs by the defendants;
- Whether that duty was breached;
- Whether the breach of that duty was the proximate cause of the injuries to the plaintiffs;
- 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 is necessary for the plaintiffs to prove at trial which defendant controlled the hotel and its spa during the relevant time period. (See Restatement of Torts 2nd Section 343.) It is patently clear that Company A and Company C controlled the premises at 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 four plaintiffs 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 two month period. 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. Company A and Company C 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 known 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).
Perhaps more important is the non-delegable duty owed by the hotel to the plaintiffs. The following quotation is illuminating in this respect:
The law imposes on hotels, apartments, innkeepers, etc., the duty to keep their buildings, premises, and appliances in a condition reasonably safe for the use of their guests, or at least those parts of the buildings or premises to which the guests are invited and may reasonably be expected to use. The duty of maintaining safe premises cannot be delegated to another. U.S. Sec. Servs. Corp. v. Ramada Inn, 665 So.2d 268, 270 (Fla. 3d DCA 1996) quoting Golding v. Lipkind, 49 So.2d 539, 541 (Fla. 1950).
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 hotel’s hot tub until after the state inspection of March 13, 2008. 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 did not have adequate chlorine in the spa, did not have appropriate or clean filters, and did not have the appropriate maintenance logs. Thus the requirement to determine the amount of time the Legionella had been present in the hotel’s water system is not dispositive of whether the defendants can be found to have constructive notice of the Legionella in the hotel’s water system.
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 water system (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 the hotel employees did not have a management plan to prevent the propagation of legionella.
iii. Negligence per se
The state epidemiologist has testified that at least 2 to 5 parts per million of chloramine (a derivative of chlorine) is required in hot tubs pursuant to Florida state code. The hotel had less than 0.5 parts per million of chloramine on March 13, 2008. Florida case law has consistently held that violation of a state regulation designed to protect a particular class of persons, such as hotel guests, 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 epidemiologist, as well as other state witnesses, have stated in their deposition testimony that the state requirement for minimal chlorine levels had been violated by the hotel. It is clear that the defendants were guilty of negligence per se.
iv. 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.
Failure to provide maintenance, failure to provide adequate filtering, and failure to provide adequate chlorination are all evidence 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 not do anything to cover up their failure to do so.
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 water system. Secondly, they must prove that the legionella bacteria came into contact with the plaintiffs. Finally, they must prove that the legionella from the hotel’s water system caused Legionnaires’ disease and/or Pontiac fever (see Flamm v. The Coney Island Co., 195 N.E. 401).
iii. Presence of Legionella in the Hot Tub
While all samples taken from the hot tub were negative, it is clear from epidemiologic data that the bacteria was present in the hot tub when the victims contracted Legionnaires’ disease. Also relevant is the addition of chlorine to the samples, thereby throwing off any adequate readings.
iv. Legionella came in contact with the plaintiffs.
Both the state report and Expert B point out the transmission of the Legionella bacteria to the plaintiffs through the inhalation of the bacteria from the hot tub at the hotel.
v. Legionella caused Legionnaires’ disease in the plaintiffs.
The state report and Expert B’s findings are again instrumental. Expert B unequivocally states that Person A had Legionnaires’ disease which came from the hot tub at the hotel in question.
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 that the hotel, Company B and Company C were at fault and apportion damages accordingly.
2. Position of the Defendants
A. Introduction
The defendants will most likely argue the following position:
- They had no notice of the presence of Legionella at the hotel.
As previously stated, when the defendant creates the very defect that causes injury, it cannot be heard to say it did not have notice of the defect causing the injury.
VIII. Damages
1. Person A
Person A first began exhibiting symptoms of Legionnaires’ disease on March 5, 2008 when he experienced coughing and chills while staying at a house in Hudson, Florida. These symptoms became progressively worse, including feelings of lethargy, headache, and lack of appetite. Person A continuously ignored his wife’s entreaties to see a physician, until on March 9, 2008, she took her husband to a hospital after experiencing the following as reflected in her deposition testimony.
A. His face was drawn. His teeth – When I looked at him, his teeth, like they were sticking. He’s making noises. So the first – I got him up in the morning for the next day and tried to get him up and get him in the shower, and that maybe if he showered – because he hadn’t been in the shower at all. I put a chair in the shower for him. And he couldn’t even do that. And then he kept wetting himself.
Person A was immediately admitted to the hospital where he went into respiratory failure and his kidneys shut down. He was delirious and continuously ripped off his lines while he was in the ICU, necessitating restraints. He was intubated, connected to a ventilator, and placed into a medically induced coma. Eventually, his lungs were x-rayed, which revealed pneumonia. Person A did not improve until two and one-half weeks after his admission. A treating physician informed his wife, Person B, that “he (Person A) was sitting at the top of a fence. He can go either way.” The infectious disease physician informed Person A and Person B that Person A had contracted Legionnaires’ disease.
Because the plaintiffs wanted treatment in their own country, Person A was flown to Canada by air ambulance. He was still intubated when he left the hospital, and he was incoherent but conscious. Person A was then admitted to a hospital in Ontario, Canada where he continued his recuperation. It should be pointed out at this stage that Person A was diagnosed with multiple myeloma while at the hospital in Florida. Much of the care rendered at the hospital in Ontario was for cancer care, unrelated to Legionnaires’ disease. Unfortunately, Person A contracted VRE while at the hospital in Florida. VRE is a highly contagious hospital virus that only complicated Person A’s recovery.
2. Person B
Person B went through hell while caring for her husband. Aside from all the experiences enumerated above, Person B suffered anxiety attacks requiring medication while at the hospital in Florida. Person B has also testified that their marital relations suffered.
3. Monetary damages of Person A and Person B
Person A and Person B had to use up their retirement savings of $20,000 because Person A was unable to find employment as a result of his illness. The total medical bill for hospitalization in Florida was $240,966.68. Although this bill was paid for by a Canadian insurance company, it is plaintiff’s contention that the entire amount can be shown to a jury. Further research is being conducted as to whether any verdict amount would have to be reduced by an amount paid by a Canadian insurance company. As far as the bill for the hospital in Ontario is considered, Person B has testified that she is not aware of what the bill was. It is estimated that it is roughly the same amount as Florida hospital bill. The airplane bill was $15,000.
4. Person C
Person C was admitted to the hospital in Flordia on March 12, 2008 and discharged March 14, 2008. She was diagnosed with legionella pneumonia in her left lung. She was treated with IV Levoquin as well as Zithromax. While hospitalized she had a significant epigastric and leg pain, and problems with ambulation. Prior to her hospitalization she had 3 to 4 days of fever, cough, and body pain.
IV.Conclusion
Due to the hotel’s negligence, two guests contracted Legionnaires’ disease and were hospitalized. This unfortunate scenario is common through out 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.
