Bed Bug Powerpoint 6.14.11

Is There Any Bite to

Bed Bug Litigation?

Mike Halaiko and Mike Howard

June 16, 2011

YES!!!

June 16, 2011| Bed Bug Liability – Mike Halaiko and Mike Howard 2

http://www.webmd.com/skin-problems-and-treatments/slideshow-bedbugs

WHY?

Economic Damages

• Damages to clothing, luggage

• Medical expenses

• Lost wages

• The costs paid to stay in the room

• Cost to treat house if bedbugs are carried home

3June 16, 2011| Bed Bug Liability – Mike Halaiko and Mike Howard

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WHY?

Non-Economic Damages

• Pain & Suffering

• Annoyance & Inconvenience

• Loss of Consortium


http://www.scottgreenberg.com/wp-content/uploads/2010/10/Pain.jpg

WHY?

Punitive Damages


Damages flowing from actual harm – Low Value

Purpose of punitive damages –

Punish and deter or change conduct

Courts use punitive damage awards to effect change when they believe corporations or industries are ignoring problems –

Design flaws, predatory practices, etc.

WHY?

Negative Press


Bed Bugs are a hot topic in the press

Local lawsuits can generate

national press

Hard to locate jurors who have not

heard of this problem

WHY?

The Internet


A Google search of “bed bug litigation” returns 196,000 results

www.bedbugregistry.com

No control over content

No way to easily have content removed

Helps plaintiff’s lawyers find “similarly situated” people

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http://www.rylanclayne.com/wp-content/uploads/2010/05/internet-marketing-strategy-traffic1.jpg

WHY?

Cost of Defending Litigation• Attorneys’ Fees

• Expert Costs

• Lack of Insurance Coverage

• Disruption of Operations

• Loss of Business


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WHY?

Jury Trials


Plaintiff’s Exhibit 1

WHY?

Jury Trials


Plaintiff’s Exhibit 2

=

Legal Theories of Liability

Breach of Contract



This is

what

they

paid to

get



This is

what

they

got



Can a hotel contract away its

exposure for bed bugs?




Liability Scenario Number One

Bill manages a hotel in Baltimore. He’s heard about the resurgence of bed bugs, but thinks he runs a clean place and isn’t worried about a problem that only affects “dirty hotels.” Bill hasn’t trained his staff to look for evidence of bed bugs and doesn’t conduct inspections. A guest in room 425 was bitten 15 times last night. Is Bill liable?


Negligence


• Duty to Keep Rooms in Safe and Healthful Condition

• Duty to Prevent Harm to Guests

• Duty to inspect for possible hazards—constructive notice



Liability Scenario Number Two

John owns a hotel in Washington, D.C. Last week, some crazy old guy was in the lobby yelling at the desk clerk about bed bugs in his room and showed the clerk the bites on his arm. John thought it looked like the guest had been bitten by a mosquito and ignored him. John rented the same room to a guest the following day and the guest now has 50 bed bug bites on his body. Is John liable? Could John be exposed to punitive damages?


Gross Negligence


• Duty to Fully Investigate Reports of Bed Begs—includes surrounding rooms

• Duty Not to Rent Rooms Known or Suspected to be Infested



Liability Scenario Number Three

Karen saw a couple of bedbugs in Room 12 last week, but the Red Sox are in town to play the Orioles and rooms are in high demand. She rented the room to Nate, who is now in the lobby yelling about finding a “wicked nasty” bug crawling on his arm. Nate was not bitten by the bedbug. Is Karen liable?


Battery


• Any “unwelcome or offensive” touching

• Guest must also show that bed bugs were in contact with his or her body

• Actual harm not necessary



Liability Scenario Number Four

Rebecca regularly travels for work and knows about the bed bug resurgence. She asks Phil, the hotel manager, if the room she is going to stay in has been inspected for bed bugs. Phil tells her it was inspected and is clean, but Phil knows a housekeeper just told him that she saw bed bug stains on the sheets in Rebecca’s room. Rebecca is bitten 25 times that night. Is Phil liable? Could Phil be exposed to punitive damages?


Fraudulent Concealment


• Intentional concealment of a material fact with the intent to defraud

• Had guest known of true bed bug situation, would not have rented room



Liability Scenario Number Five

Katie manages a hotel and needs to hire a housekeeper to work on floors 5 through 8. Katie asks the applicant if she can identify bed bugs or evidence that bed bugs are in a room. The applicant says she has never seen a bed bug. Katie hires her and never provides any training about bed bugs. A guest on the 6th floor was bitten 50 times by bed bugs last night and there are old bed bug stains all over the mattress in that room. Is Katie liable?


Violation of Statute


“It shall be the duty of any person

owning or operating a hotel to

exercise due care and diligence in

providing honest and competent

employees and to take reasonable

precautions to protect the persons and

property of the guests of the hotel.”


Other Theories


• Intentional Infliction of Emotional Distress

• Violation of 8th Amendment Right to be Free From Cruel and Unusual Punishments

Avoiding Liability

Strategies

to Minimize

Risk


Avoiding Liability


Inspect, Inspect, Inspect…

Proactive, regular inspection of all rooms—avoids constructive notice

arguments—“you should have known”

Create a written inspection protocol and document inspections—checklist

approach

Consider having professionals inspect your property on a regular basis

Avoiding Liability


Respond to Guest ConcernsPolite, immediate response

Inspect new room before moving guest into it

If no room available, assist in finding another hotel

Even if you do not think the complaint is credible, do not rent the room again until it is inspected.

Record as much information as possible and document your response in detail.

Avoiding Liability


Resolve Infestations Completely

Document all steps taken to eradicate actual infestations

Consider a full-facility inspection if an infestation is discovered, but at a minimum inspect surrounding rooms

Avoiding Liability


Resolve Infestations Completely

Use professionals with appropriate experience that you would feel comfortable calling as witnesses in court

Under no circumstances rent a room that has a known infestation—biggest source of risk

Employee Training


Front Line Employee Training

Front-line employees: front desk, housekeeping, maintenance

These employees must be trained to handle bed bug complaints, bed bug detection, and media inquiries

Employee Training


Front Line Employee Training

• Immediately inform management of any complaints

• Sympathize with guests and take any and all steps to accommodate them, but avoid admissions

• Immediately quarantine the room and ensure that it is not offered to another guest under any circumstances

Employee Training


Employees should invite a guest with a bed bug complaint to a back office or private area so the matter can be discussed away from other guests

Employee Training


Management Response to Complaints

• Ensure that potentially infested rooms are quarantined and not rented until inspected or treated

• Arrange for appropriate inspection, treatment, and follow up of potentially affected rooms

• Prepare written reports documenting all actions

Employee Training


Proactive Management Steps

Consider a Response Management and Prevention Plan

Train new employees in bed bug policies and procedures

Establish good relationships with inspection and treatment professionals

Employment Scenarios


Scenario One: I’m Not Going in There

Sarah has been working for your company for ten years as a housekeeper. She learns that a guest told the front desk that there are bedbugs in Room 811. Sarah refuses to clean any room on the 8th floor, which is part of her regular assignment. Can you discipline Sarah?



Scenario One: I’m Not Going in There

• After receiving a bed bug complaint, no employee should be sent into a room until it has been inspected and/or treated

• If the room has been treated and no bed bugs are present, management should sit down with Sarah and discuss the steps the Company took to address the problem

• If Sarah continues to refuse to perform her duties, discipline may be appropriate



Scenario Two: Bitten in the line of duty

Justin tells you that after he finished installing a new light fixture above the bed in Room 121, he noticed ten bug bites on his ankle. An inspection of the room reveals a bed bug infestation. Justin goes to the doctor and gets a shot to numb his ankle so the itching stops and calls out sick for 4 days. What do you do?



Scenario Two: Bitten in the line of duty

• Fill out OSHA 300 log if employee requires more than first aid

• Workers’ Compensation First Report of Injury Form



Scenario Three: Problems at Home

Jack is a night clerk at your hotel. Other employees have noticed small bugs crawling on Jack’s collar and the back of his shirt. You ask Jack about the bugs and he informs you that his apartment is infested and the landlord won’t do anything about it. What do you do?



Scenario Three: Problems at Home

Jack represents a threat to your business and your facility

Jack also represents a distraction for other employees

Remember: Having bedbugs on your person is not a characteristic protected by law and you have a duty to keep

bed bugs out of your facility

Options: Termination, suspension

It’s Going to Be OK


With appropriate inspection, documentation, and employee training, these claims can be defended successfully

Questions?

Documents

Bed Bug Powerpoint 6.14.11