Daniel Wise of the New York Law Journal reports that
In a ruling of first impression, a Manhattan judge has scratched a request for punitive damages in a bedbug case.
But the judge, Acting Supreme Court Justice Judith J. Gische, let go forward the negligence claims of two Maryland tourists for bites they sustained during a two-night stay at the theater district’s Milford Plaza.
The tourists, Debra Grogan and her adult daughter, Dana, are seeking $2 million in compensatory damages and an unspecified amount of punitive damages.
In rejecting their request for punitive damages, Justice Gische referred to a New York City Department of Health pamphlet in ruling that the two women had failed “to raise a triable issue of fact whether bedbugs are anything more than a nuisance.”
It’s important to understand that the plantiffs are still able to proceed with their claims for $2 million in compensatory damages for negligence. Only the request for punitive damages has been rejected.
What is interesting here is that in making this decision, the judge apparently cited the NYCDOMHH Bed Bug Fact Sheet, which asks and answers questions about bed bugs, and says:
ARE BED BUGS DANGEROUS?
Although bed bugs are a nuisance, they are not known to spread disease.
The plaintiff is suing the Milford Plaza and the Pest Control Operator with whom the Milford had a contract (PAC Extermination Services). The Grogans stayed in a room infested with bed bugs that was near two rooms treated for bed bugs less than a month earlier, but which was itself not treated:
Evidence in the case showed that three weeks before the Grogans’ stay, the hotel had asked PAC to exterminate bedbugs in two rooms near the room reserved by the Grogans. Work orders had been issued for rooms 1511 and 1512 on Dec. 22, 2002. The Grogans stayed in room 1540 from Jan. 17 to Jan. 19, 2003.
The Grogans’ argument is backed up by an entomologist’s testimony that bed bugs travel from room to room:
In support of their claims, the Grogans presented the affidavit of an expert in insects who teaches epidemiology and other courses at the University of Alabama School of Medicine.
(It’s worth noting that although bed bugs are not currently known to spread disease, they are still the subject of study by an entomologist who teaches epidemiology in a medical school.)
The entomologist, Robert J. Novak, reported that bedbugs can “easily” migrate from one room to another and that “proper eradication techniques” require inspection of “adjacent or contiguous rooms, or even rooms on several floors above and below” the floor where the pests had been spotted.
With the defendants having offered no affidavit to counter Dr. Novak’s assertions, Gische wrote, the Grogans had presented enough evidence that the hotel had “constructive notice” of the need to fumigate room 1540 to deny the defendants’ motion for summary judgment.
The case must go to trial, Gische ruled, because Novak’s affidavit “set forth genuine issues of fact about the life span of bedbugs, how they migrate and whether these factors should have been (or were) taken into consideration by the defendants in how rooms were treated following bedbug complaints by other guests.”
Even more interesting, this case may have ramifications for the ways PCOs treat for bed bugs.
PAC Extermination Services had argued that it should be released from the case because its obligations were limited to completing work in specifics rooms the hotel had asked to be fumigate.
But Gische said a jury must decide whether the exterminator’s duties were so “comprehensive and exclusive” that it had assumed a duty to keep rooms, other than those for which it received work orders, in “a reasonably safe condition.”
We often hear from PCOs who treat buildings that landlords will ask them to treat just the infested room or rooms, and will often refuse to have other adjacent units on the same or other floors inspected. I can only assume that many hotel managers will make the same request.
In such a case, it’s my understanding that PCOs have two choices: refuse the job (knowing some other PCO will be happy to do as the landlord asks), or do the job, knowing it is likely not enough. This is not an easy choice to make, by any means.
Depending on the court’s findings in this case, we may see a change in this. It may mean more PCOs refuse to treat under such circumstances, insisting instead that adjacent and nearby units are inspected and/or treated.
It could also have ramifications for the price of treatment, since it will doubtless lead to more litigation along the same lines.
