PEST CONTROL: Know the Risks

Just about everyone has heard about the onslaught of bed bug infestations that are rampant across the country and, for a host of reasons, these parasites are having a significant impact on the hotel/hospitality industry. But there is another side of this problem that involves more than just insects hiding in the shadows and threatening to affect your business.

Bed bugs are now becoming a major cause of litigation against hotel/hospitality companies because of the bites, rashes, and, sometimes, allergic reactions that guests and/or employees are experiencing. This means that the risk of being sued in court for the most common offense of negligence is a very real possibility. However, aside from this concern, there could be other theories used in bed bug cases, such as gross negligence, assault, battery, intentional infliction of emotional distress, and even fraud. For obvious reasons, any one of these claims brings the potential for substantial awards being paid out to plaintiffs who have been affected. 

To understand the risk, it is helpful to recognize just how easy it is for these blood-sucking parasites to wind up in your facilities. 

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For one thing, bed bugs are called “hitchhikers.” They have an enormously effective ability to travel from place to place in luggage, furniture, on buses and trains, airplanes, and more because they aggressively seek out warm-blooded hosts. Another reason is that the eggs are so small and they are covered in a sticky substance that the mother leaves when she deposits them. The sticky eggs can then attach to things (luggage, pants legs, vacuums) and be re-deposited elsewhere. Consequently, they are able to aggregate wherever warm-blooded animals (such as humans) tend to be seated or in a resting position for a period of time.

Given the almost limitless occasions where your guests and/or employees may be exposed to such potential for contact, they may inadvertently transport bed bugs into your facility. From that point, these incredibly prolific insects can multiply by the tens of thousands in a short period of time, and that is just the beginning.

Why Are You At Risk?
The level of news coverage on the subject of bed bug infestations has been substantial, to say the least. In fact, it would be difficult for any business manager in the United States to say they have not heard about the problem or how it affects their customers and employees.

What this means in the face of a lawsuit is that it would be almost impossible to claim ignorance about the subject or the risk that it poses to the people you serve. 

Foreknowledge of this danger means that you are legally bound to take proactive steps to protect your constituents. In the face of this foreknowledge, the law seeks to determine if someone has been provided with “notice” of a dangerous or hazardous condition. There are two types of notice: actual (you know something) and constructive (you should know about it through the exercise of reasonable diligence). Here is the catch. Anything your employees see, regardless of whether they tell you about it, is imputed to the employer for the purposes of actual notice. Failure to do so would place you in a position of negligence and subject to legal action.

In a negligence case, the plaintiff must establish that the defendant had a duty to provide a reasonably safe environment. If the property owner is aware of bed bugs and fails to eradicate them, then they have breached that duty and caused injury to the guest, and that can give rise to an award of damages against the hospitality organization. Further, there may be regulatory requirements in place that compel the facility to eradicate any discovered infestations.

Central to this point is that in today’s society people see litigation as a form of lottery. Many litigants/claimants want to blame someone else for virtually anything, since ours is a culture of expectation and entitlement. If people find bed bugs in their hotel room, they believe they should be able to sue. The question is, how do we address the expectations of the public when the reality of bed bugs is inescapable?

What Can You Do?
Protecting yourself from lawsuits is primarily a matter of demonstrating a track record of taking precautions to avoid the perception of negligence. In essence, you have to establish that you were “reasonable” under the circumstances—reasonable in your inspections, reasonable in your response plan, reasonable in how you address treatment options, etc.

Improper behavior can be considered one form of negligence. For example, if hotel staff members are instructed to tell customers that there are ticks in a room when they know they are bed bugs, the hotel can be found either negligent or grossly negligent, the latter of which would allow for an award of punitive damages. Trying to ignore the problem by calling it something else simply increases your exposure in any damage award.

It is also a negligence case unless you have demonstrated that you have taken “reasonable” precautions to protect the people for whom you are responsible. Then, of course, how do we define what is reasonable? This is a textbook case of Monday morning quarterbacking. Once a particular event takes place, people are quick to say that “you should have…” as though they would have had the foresight to do something differently, even though this is patently untrue.

When we look at many cases where a hotel knows it is infested and does not respond, it can be liable for punitive cases. Court cases show that if you put people in a room with bed bugs when you know that the individual is likely to be bitten, it is the same as battery or punching someone. What is of additional concern is that most insurance policies will not cover a hotel for punitive damages. You may think you are well protected but, in reality, you might be left wide open to significant financial damages. In any case, it could be wise to check with your insurance carrier to be certain of your position. Further, most insurance policies will not cover treatment for bed bugs anyway. Insurance companies are now selling specific riders for bed bug coverage and business interruption coverage.

How Can Proactive Steps Protect You?

No one has a true crystal ball, but that does not stop people from stepping up after the fact, and claiming that better precautions should have been taken. The problem, therefore, is that if you do not have a plan for monitoring and periodic inspections, you automatically fall below the threshold of having been proactive enough to protect your constituents. You might arrange for your own staff to conduct inspections or you might contract the work out to a professional. But, to say that you never looked would not be viewed very favorably by a judge or jury.

By definition, monitoring for bed bugs means that you have taken a proactive step to identify the emergence or presence of bed bugs before they become an issue, and take remedial steps to protect your customers and employees.

Pest control expert Jonathan Frisch of AP&G Inc. in Brooklyn, N.Y., said that there are a variety of products available to use in a monitoring program, with varying levels of cost and sophistication.
One of the most recent developments is the deployment of inexpensive matchbook sized, cardboard monitoring stations. These are manufactured with a proprietary dot matrix of an adhesive that can capture bed bug specimens once they appear. By conducting a regular schedule of checks on the monitors—about once every two weeks—the emergence of a bed bug infestation can be detected in very early stages and promptly addressed.

Aside from low-cost, passive monitoring devices, there is a selection of systems that utilize a battery and CO2 cartridge along with a chemical attractant. Other types of devices need to be plugged in to operate and yet another device uses chemical products to attract bugs and draw them to a pitfall trap. This is in the form of a ramp on one side that is rough enough for bed bugs to crawl over but includes a smooth surfaced, sharp drop-off on the other side that forces the bed bugs to slide into a container.

Regardless of the device used, the single best monitoring program is the physical inspection of the room, both on a daily basis by the guestroom attendant, and on a periodic basis where the headboard is removed, carpet is pulled back, and the mattress and box spring are inspected. It is important to remember that their biology dictates that they will want to seek out warm-blooded hosts to feed upon, so they will always gravitate to locations where people and sometimes pets typically rest for extended periods. 

This monitoring strategy brings added benefits in that it:

-Clearly identifies exactly where the infestation is taking place
-Captures actual insects to confirm that they are bed bugs and not some other insect pest
-Targets any remedial work where the problem really exists
-Helps reduce costs by limiting the treatment with fewer chemicals and less heat applications
-Increases the likelihood for complete eradication
-Establishes a pattern of proactive defense against infestation

Regardless of the monitoring approach that is taken, however, the critical issue is that you have demonstrated a clear level of responsibility in warding off potential injury to your constituents. This simple action is extremely effective when facing a judge or jury because the litigant will find it more difficult to prove negligence on your part.

Simply put, the more proactive, reasonable steps you take and carefully document, the further and further away from a lawsuit you will be. Taking the first step can be as easy as contacting a pest control professional and getting your monitoring program up and running. Pest control professionals can be very knowledgable about dealing with these incredibly difficult insects, and by establishing an early detection program, you gain the benefit of increased legal protection, not to mention avoiding the potentially very expensive remedial steps that would be necessary once a full-blown infestation is allowed to develop.
Your answer is to be aware of the problem, realize it can very easily become your problem, and take steps in advance to keep it from becoming a big problem.

Christian E. Hardigree is a faculty member and the department chair for the Hotel Management Department in the William F. Harrah College of Hotel Administration at the University of Nevada, Las Vegas (UNLV). She is a licensed attorney in Nevada and Georgia, and teaches graduate and undergraduate courses, including Hospitality Law, Laws of Innkeeping and Food Service, Hospitality Employment Law, Labor Management Relations, Legal Aspects of Recreation and Leisure Services, and Laws in Sports and Leisure Studies. Hardigree has been teaching courses at UNLV since 1997.