Bed Bugs

“What To Do When The Bed Bugs Bite”*

By Marc Miner, Esq.

Bedbugs were mentioned in ancient Greece as early as 400 BCE. Pliny's Natural History, first published circa the year 77 in Rome, claimed that bedbugs had medicinal value in treating ailments such as snake bites and ear infections.i

John Southal wrote in his Treatise of Buggs that he was bitten by them in the West Indies in 1726 and that bed “buggs have been known to have been in England above sixty years, and every season increasing so upon us as to become terrible to almost every inhabitant in about this metropolis”. He was the maker of “the nonpareil liquor for destroying buggs.”ii

Bed bugs were believed to have been eradicated in the United States over fifty years ago. However, over the last several years they have made a resurgence. Likewise, litigation over the effects of bed bugs has been on the rise. Experts aren’t sure what has caused the return of bed bugs but speculate that it is due to a combination of greater international travel and the decreased use of strong pesticides.iii

Common bed bugs (Cimex lectularis) are small wingless insects that feed on warm blooded animals. They range in size from a poppy seed to a quarter of inch. Bed bugs can live up to 12 months and can survive 6 to 7 months without feeding. Females can lay a total of 200 to 300 eggs during their lifetime. The bugs hide in crevices, mattresses, books, picture frames, or any other opportune hiding place near a suitable meal. Because of their size and ability to hide they are notoriously difficult to exterminate. Often, if only the room they are in is treated for extermination they will travel to abutting rooms, whether next door, above or below.iv

As Bed Bugs do not fly they are usually transported via persons, animals, luggage, furniture, or other movable items. There is also a risk that furniture that has been left outside for garbage pick up may be infected by bed bugs, and therefore should be avoided.v What appears to be a hidden treasure may bring disaster.

Bed bugs inject a tiny bit of saliva and then sip out a few drops of blood from the body. While they have been known to harbor pathogens in their blood, including the Plague and hepatitis B, they have not (yet) been linked to the transmission of any diseases.vi Some individuals, however, will get welts as a result of an allergic reaction, and can get skin infections from scratching. Additionally, the stress effects of a bed bug attack include insomnia, panic attacks and/or post traumatic stress syndrome. The economic costs as a result of a bed bug attack include: Medical treatment; cleaning costs; extermination services; and loss of property as a result of having to discard, and replace, belongings.vii

The effects of the bites might not appear for a few days after the first bites take place. The effects can vary greatly from person to person, even among those sleeping in the same bed, as a result of a difference in allergic reactions.viii PRACTICE TIP: Pictures of any bite marks should be taken as soon, and as often, as possible to document the physical effects of the bites, as the bite marks will fade and usually disappear. Pictures showing particularly bad reactions (large red welts) will be invaluable to proving and settling a case, and will usually invoke a visceral reaction from the person viewing the photograph.

Bed bugs have been found in hotels, apartments, office buildings, dormoratories, and all places where large amounts of people frequent.ix In July of 2009, the New York State Hospitality and Tourism Association, whose members include 1,000 hotels and other lodging properties, held a Web seminar on bed bugs as a “proactive” initiative for members who “want to learn more about how to spot, treat and cope with” bed bugs.x

SAFETY TIP: When staying in a hotel, check the mattress for bed bugs, looking underneath and in the seams for live bugs, evidence of molting, or eggs. If any evidence of the aforementioned is seen, vacate the room and remove your belongings immediately.

There are numerous statutes, codes and regulations in New York that require owners and operators of premises to keep their property free of vermin and insects such as bed bugs. The mere presence of bed bugs may thus be evidence of negligence, and in some cases, negligence per se.xi

For example, New York State Multiple Residence Law § 174 (which applies in New York State, outside of New York City) requires that “The owner shall keep all and every part of a dwelling and the lot on which it is situated in good repair, clean and free from vermin, rodents, dirt, filth, garbage or other thing or matter dangerous to life or health...”.

Under the New York State Real Property Law § 235-b, Warranty of Habitability, the landlord or lessor must make sure that the premises are fit for “human habitation and for the uses reasonably intended”. Further, “...premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety...”. The presence of bed bugs have been found to be a violation of this section resulting in an abatement of rentxii, even where the tenants themselves were most likely (inadvertently) the cause.xiii

In New York City, the Multiple Dwelling Law, which applies to apartment buildings, hotels, and dormitories, requires under Section 80 that: “The owner shall keep all and every part of a multiple dwelling...clean and free from vermin...”xiv

Generally, a shareholder of a cooperative is responsible for maintaining the apartment in good repair and would be responsible for extermination within the apartment. However, where there is a building-wide infestation, the Multiple Dwelling Law imposes a non-delegable duty upon the cooperative corporation, as landlord, to remedy the problem.xv

Under the New York City Health Code “All buildings, lots, premises or commercial vehicles shall be kept free from rodents, insects and other pests, and from any condition conducive to rodent or insect and other pest life…”xvi There are also several other New York City Public Health sections that require different types of premises and establishments to be free of insects.xvii

Section 27-2018 of The New York City Building Code requires that “The owner or occupant in control of a dwelling shall keep the premises free from rodents, and from infestations of insects and other pests, and from any condition conducive to rodent or insect and other pest life.”xviii

Several different causes of actions may be appropriate in bed bug cases including: common law negligencexix; fraudxx; and batteryxxi; as well as punitive damagesxxii.

Federal Courts in Florida and Illinois have held that a bed bug cause of action based upon fraud is proper. “A failure to warn hotel guests regarding the dangers of insect bites at an insect-infected hotel is a material representation by omission for the purposes of determining fraud. See e.g. Mathias, 347 F.3d at 675 (noting that the “failure either to warn guests or to take effective measures to eliminate the bedbugs amounted to fraud...”)”xxiii. The Seventh Circuit also held in Mathias that the hotel’s failure probably amounted to “battery as well”.xxiv

In New York, all reported bed bug cases to date, have been based upon either a breach of the warrant of habitability, or a negligence cause of action. A New York State landowner is under a non-delegable duty to maintain its property in a reasonably safe condition, and owners and managers of hotels owe guests the duty of providing them with accommodations that are in a reasonably safe condition.xxv This common law duty is tempered by a requirement that a plaintiff must establish that the landlord either created or had actual or constructive notice of the presence of bed bugs. To constitute constructive notice, a defect must be visible and apparent, and it must have existed for a sufficient time for the owner to have discovered and remedied it.xxvi Justice Gische does a good job setting forth the applicable common law principles, and applying them, in denying the defendants’ motions for summary in the case of Grogan v. Gamber Corporation d/b/a Milford Plaza.xxvii

Courts have held that the owner of a premises could be found to have notice of the presence of bed bugs where the following existed: Extermination reports of bed bugs in rooms other than the one plaintiff was a guest inxxviii; information contained in a hotel’s “insect log”xxix; based on the testimony of a “disgruntled ex-employee”xxx; and from the plaintiff himself who complained to the front desk on each day of his 4 day stay that there were bugs in the roomxxxi. PRACTICE TIP: In addition to the normal discovery requests for extermination records, written complaints, prior similar incidents, etc., an internet search should be made for the premises in question. Many travel sites report reviews of hotel guests, and may include references to bed bugs. There are web sites that are devoted to bed bug information that lists known infested locations.xxxii Also there may have been news articles written about bed bugs at a particular location. Additionally, a search of the Department of Buildings, Housing Preservation Department, and Public Health Department web sites, may result in a listing of violations issued due to bed bugs. In some instances, such as a building code violation, a positive finding may provide actual notice. In other cases, such as complaints of bed bugs on third-party web sites, a positive finding may provide constructive notice and/or fertile grounds for deposition questions.

In the proper case, where the defendant claims it had no prior notice, it may be argued that the defendant failed to take the necessary proactive steps to discover and remedy the problem. Such an argument may require expert testimony to establish that the infestation existed for a significant period of time and would have been discovered if reasonable steps had been taken. Further, the mere presence of bed bugs, in violation of relevant laws may be evidence of negligence, negating the need for notice.

A claim should always be made against the building owner in these cases even if another entity, such as a tenant, is in possession of the property. This is because, as discussed above, many laws require the owner to keep the premises pest free. Claims should also be brought against the operator and managing agent. It is also wise to bring claim against the pest extermination company – if there is one. Not only will the extermination company have helpful records as to the pests found on the premises for the purpose of notice, but the exterminator may be liable itself if their obligations under its service agreement was so “comprehensive and exclusive” that it could have been considered to have assumed a duty to keep the subject area in a reasonable safe condition.xxxiii Even when the extermination company cannot be held in the case on the direct action, it may be held in as a third-party defendant on the basis of either common law or contractual indemnification. xxxiv

As in most premises cases, retaining an expert should be considered. Either an entomologist or an exterminator may be utilized to explain to the court or jury what reasonable steps should have been taken to eradicate the pests. Because the presence of the bed bugs will be, hopefully, fleeting, the failure of the expert to inspect the infested location should not be a bar to his testimony.xxxv

Damages can vary in these types of actions, based upon the amount of exposure, the number of bites, the physical reaction to the bites, the amount of medical treatment, and the economic losses. Psychological injuries, sometimes resulting in panic attacks and/or post traumatic stress disorder can result in much greater compensation. As defendants are under an obligation to keep the premises pest free; notice can often easily be proven; and because the physical results of the bug bites can be visually disgusting; defendants are often willing to resolve these claims before trial to avoid negative publicity or an angry jury meting out a punitive verdict.

There are few reported verdicts in bed bug cases, but the case of Mathias v. Accor Lodgingxxxvi, is one worth reviewing, even though the extent of plaintiffs’ specific injuries are not discussed. The defendants operated a Motel 6 in Chicago, which had a history of bed bug problems. In 1998 their exterminator first noticed bed bugs in several rooms in the hotel and recommended that it be hired to spray every room, for which it would charge the motel a total of $500. The motel refused. In 2000 the motel manager started noticing that refunds were being given by desk clerks for complaints of biting insects in the rooms. The manager recommended to her supervisor that the entire motel be closed while every room was sprayed. The motel again refused. The infestation continued and began to reach “farcical proportions” and in July of 2000 the motel was acknowledging to the exterminator that there was a “major problem with bed bugs” and that all was that was being done about it was “chasing them from room to room”. In November 2000 the plaintiffs, brother and sister, checked into the motel and were given one of at least three rooms classified by the motel as “DO NOT RENT UNTIL TREATED”, even though it had not been treated. In upholding the verdict below, the court stated that:

 

“Although bedbug bites are not as serious as the bites of some other insects, they are painful and unsightly. Motel 6 could not have rented any rooms at the prices it charged had it informed guests that the risk of being bitten by bedbugs was appreciable. Its failure either to warn guests or to take effective measures to eliminate the bedbugs amounted to fraud and probably to battery as well”.xxxvii

 

The jury awarded $5000 in compensatory damages and $186,000 in punitive damages to each plaintiff. The court in upholding the awards noted that it was probably not a coincidence that there were 191 rooms in the hotel and that each plaintiff was awarded a total of $191,000. The court also took judicial notice that there were several regulatory and criminal laws that may have been violated, and thus closed its decision noting that “we are sure that the defendant would prefer to pay the punitive damages assessed in this case than to lose its license.”xxxviii

As discussed above, victims of bed bugs can successfully bring claims as a result of being bitten. All it takes is a diligent attorney, who is not afraid to look under the mattress, to find what lies beneath.

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*A version of this article appeared in the New York State Trial Lawyers Spring 2010 publication “Bill of Particulars”.

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