Few if any states have actual bed bug laws that dictate the specific duties that a hotel must provide its guests to protect them from bed bugs. The lack of legislative enactments in a state’s code, however, should not be misinterpreted as lack of laws. The duty-of-care is a well-established law in each state and is also known as “premises liability.”
Premises liability cases describe the duty-of-care a property owner or manager must extend to its guests to avoid being found negligent. This analysis can be tricky. For instance, how extensive a hotel must go to implement protective measures protecting guests against bed bugs largely depends upon demographics and the high-risk nature of a particular property.
Courts generally balance several factors in determining whether a hotel exercised reasonable care in avoiding a negligence finding. Included in consideration are the:
- foreseeability of harm of a bed bug introduction
- purpose for which the guest entered the hotel
- time, manner and circumstances surrounding the guest’s use of the hotel
- intended and anticipated use the guest will use the hotel for
- reasonableness of the bed bug inspection, repair remediation or warning
- opportunity and ease of repair or correction or giving the warning.
Naturally, how a hotel must act to comply with its duty has evolved over the years as bed bug integrated pest management practices and technology have improved. For instance, the pest control industry, and by extension their hotel clients, were on a reactive-based protocol when attacking a bed bug issue 10 years ago. As the industry progressed, pest management professionals began implementing inspection-based approaches to managing bed bugs for their customers.
Inspection-based procedures typically concentrated on the manner and frequency a hotel inspected all areas of the hotel including guest rooms, laundry and common areas. In addition, these procedures often involved the use of interceptors (monitors intended to gauge bed bug activity). Today, new technologies and products available to hotels have increased their duties to their guests to include preventative measures. For example, active mattress liners installed on mattresses or box springs provide prevention and control of bed bugs for two years. Further, silica-based insecticidal dusts can be applied around perimeters and in wall voids, offering extended residual control.
“If a hotel is ensnarled in a lawsuit or claim, the question of what could have been done to prevent bed bugs from attacking guests will be at the forefront of the inquiry,” said Jeffrey M. Lipman, attorney-at-law and Polk County Magistrate Judge. “For this very reason, pest management companies also have a duty to educate their customers on both inspection techniques as well as how to prevent bed bugs from progressing through their property and attacking their guests.
“The mere existence of a bed bug should, in most cases, not be enough to impose liability. That is, if the hotel property implements reasonable inspection and repair protocols including preventative measures. And, only then, has it honored its duty of care. The extent to which a hotel property must implement both aggressive measures will be dictated by the nature or high risk for bed bugs at a property. Reactive-based measures alone, however implemented is an ancient and ineffective way of management and control of bed bugs in hotels, and can create legal problems for hotel property owners. Early detection and prevention through both inspection and protection are essential elements of a hotel property’s duty and best practices to reduce their liability.”
The Lipman Law Firm practice handles consumer class action litigation, specializing in class action bed bug litigation. Jeff Lipman is a frequent speaker throughout the U.S., including the National Pest Management Association and Entomological Society of America.