Running any hotel has more than its share of potential lawsuits that can emerge for any number of reasons, whether a guest falling on a wet floor, employees suing for union-related issues, and sometimes, plaintiff claims that defy the imagination. Surprisingly, in today’s environment, one of the most critical legal developments is the onslaught of bed bug infestations and the havoc they reign on just about anyone with access to the facility.

Bed bugs are blood-sucking nocturnal pests about a quarter-inch in size and remain flat until they gorge on human blood. When bitten by one of these parasitic insects, a variety of skin rashes can develop. The most common rash to occur consists of red and itchy flat lesions in the area of the bite — sometimes not appearing for seven to 11 days after being bitten.

The fact is, lawsuits brought by people bitten by bed bugs have become rampant, and are bringing the potential for substantial financial penalties when the defense is unsuccessful.

Consider these examples as reported on Bed-Bug.org:
2004 — 45% rent abatement awarded for six-months to a New York apartment tenant
2007— A woman is claiming infestation by hundreds of bed bugs in a cheap motel during her recuperation from breast cancer. The person is suing the motel in Arkansas, alleging “pain and mental anguish, embarrassment and humiliation, medical bills and expenses” from countless bug bites and visible bugs in her bed.
2008 — Three apartment tenants in Chicago are suing for bed bug injuries.
2008 — An opera singer initiated a lawsuit against a major hotel chain for $6 million. The alleged injuries involve over 150 bed bug bites.

These are only a selection of the actual number of cases that exist. The reality is there are countless others.

As these cases are not frightening enough, there is a different, landmark case involving a Midwest woman ― and a far more enormous claim ― where the plaintiff is suing a New York hotel for $20 million after she woke up in her bed with hundreds of bed bug bites. Sample bugs were sent to a lab and confirmed as bed bugs. After the report was made to hotel officials, the guest was offered two free nights at the hotel. She declined the offer and initiated the lawsuit instead. In reality, this is an unrealistic amount to expect in a settlement, but some plaintiff attorneys will still push for such huge amounts to get future plaintiff clients.

The best defense ― take the threat seriously
Offering a guest a free stay at a facility where they have just experienced bed bugs may not be the most sensitive or effective way of deflecting their anger or, more importantly, their desire to gain a monetary award.

Failing to take the risk seriously is one of the most dangerous positions to assume. People, by and large, are appalled at the presence of bed bugs. There is a stigma about the bugs that calls up images of un-cleanliness and, in particular, the prospect of being bitten while you sleep. Ironically, this stigma is misplaced because bed bugs are not necessarily associated with un-cleanliness.

Mounting a good defense is something that can take place before and after the lawsuit even exists.

Being inadequately responsive to complaints can quickly lead to a worsening situation. For example, an upset couple who found bed bugs in their room recently approached one hotel in Florida. They were so disturbed that they quickly called their son who had a room in the same hotel and said they all should check out. The parents, who reached the front desk first, said they were leaving and did not want an alternate room. Soon after, when the son came down to check out, he was offered the infested room that was just vacated by his parents.

Clearly, the hotel personnel were not trained in advance about the sensitivity of this problem, nor were they instructed on ways to properly address the customers’ concerns. Putting the room on an immediate ‘No Rent’ status would be one of the first steps, followed by a call to a professional pest management company to come in and take remedial steps.

Having a fact sheet at the front desk would be another valuable, proactive measure. Providing documented information from the U.S. Environmental Protection Agency or from your local health district can show hospitality guests how to keep from transporting bed bugs. While such a fact sheet may not be something you want to give to every guest, if there is an inquiry, it demonstrates the information you have provided about the issue.

What claims can be leveraged against you?
There is almost no end to the type of claims that someone might make relative to bed bug issues and the damages they claim to have experienced.

One of the more common ones involves either negligence, or gross negligence when there was insufficient protection in place. Negligence is limited in damages — whereas gross negligence can open it to punitive damages. Plaintiffs might initiate a claim saying that the bed bug bites resulted in emotional trauma and physical discomfort. In cases like this, the claim may be actually something that amounts to assault and battery and can be seen as such in a court of law. This is dependant upon whether the hotel knew about the likelihood of an infestation and how they responded to the situation. The result can be a very expensive finding in favor of the plaintiff.

Another risk is something called “Loss of Consortium.” In this case, the lawsuit might be brought not by the person who was bitten, but possibly by a spouse who, during the course of the afflicted person’s suffering, lost their regular level of companionship. Such claims may be difficult to disprove, as it is often difficult to find individuals who can testify as to what is and isn’t going on in the intimate aspects of a relationship.

Fraud and misrepresentation claims are another, very large category for lawsuits. If a hotel makes a fraudulent statement of fact regarding its level of bed bug protection, it may face a lawsuit on those grounds. For example, it can be risky to claim hotel rooms are bed bug free because they were examined by sniffing canines. In fact, there is a realistic chance that the bugs are still there, depending on the company and the handlers. Bed bugs might be hiding high in draperies or in textured wallpaper near the ceiling where dogs would not detect them. Claiming a room is bed bug free may be considered an “expressed warranty” and in this case, fraudulent.

What are the elements of a good defense?
• Establishing a bed bug monitoring strategy
The most important step is having a plan in place for conducting proactive inspection measures — daily inspections for guestrooms by attendants, monthly detailed inspections by the operations staff and quarterly inspections by a licensed pest control company.

Establishing a monitoring program is critical because you are being proactive in searching for infestations, or the signs of one just beginning. By monitoring, you are able to identify the problem before it has a chance to increase to the point where people start reporting that they already have been bitten.

Considering the widespread nature of today’s bed bug infestations, it is not surprising that a variety of monitoring options are being used.

One of the newest methods involves the distribution of matchbook-sized insect monitors that specifically target bed bug infestations. These monitors, when strategically placed, offer a tool to effectively detect the presence of bed bugs by using an adhesive drop matrix that helps to identify a bed bug presence.

This product is priced specifically to accommodate large-scale monitoring programs. The cost of current bed bug monitors can range from $20 to $600, so there is no practical way to institute a large-scale program in complexes with hundreds of rooms. This newer product overcomes this obstacle because of its low price point and, as such, it presents a completely new option for even the largest monitoring settings.

Aside from low-cost, passive monitoring devices, another approach features an active monitor designed much like a briefcase. The device utilizes 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.

Though often effective, some of these alternate approaches may be more cumbersome, unsightly and expensive.

• Managing occurrences
A second key legal step is a developing a proactive plan reporting bites when they occur — what do you do and how do you handle the situation? You need to go to the room, have an outside company assess the situation and develop a written report. With this documentation in place, the pest control company can later testify for you and outline how professional steps were taken.

• Protect those affected
If a guest/employee complains of having been bitten, be responsive. Do not just discount their comments. Have them take a shower and examine their clothes to see if an infestation is actually there.

You can also arrange for their luggage to be heat-treated to ensure there are no bed bug hitchhikers on board. And, if it can’t be treated, just pay them for their luggage and/or clothes. Take steps to prove that action has been taken to keep them from bringing the problem home with them and, most importantly, make sure you are clear to explain the steps you are taking, why they are taken and document the fact that they were implemented.

You especially should take pictures of peoples’ bites — as well as areas where they were not bitten. This can be a key step since a lawsuit could take up to two years to reach the courts and, in that time, plaintiffs whose rashes had long-since disappeared, could choose to exaggerate the extent of their bites. Having photographic proof in advance can go a long way in protecting your position when the lawsuit comes.

What can make a defense fail?
Failing to properly identify evidence is one. If you see a bug and assume it is a bed bug — it could be a spider, or other kind of insect. You need to know what you are dealing with, and the bed bug monitoring approach is something that can help.

If people say they were bitten you should get a history of where they have been to see if there were other sites where bites could have taken place. Have they traveled to other hotels prior to your location? Could the bites have happened in their homes? It is critical to determine if there may be different sources of the problem.

Another concern is supposed bed bug treatments are becoming the “snake oil” business of the century. There is a great deal of misinformation on the ways these parasites must be avoided and treated. Responding to a problem without professional assistance can make your position hard to defend.

Bed bug infestations are no simple matter. And, from a legal perspective, their presence establishes a host of lawsuit scenarios that can be very costly, time consuming and damaging to reputation.

Pursuing an effective and rigorous defense against these suits can be a very worthwhile approach because of the potential consequences involved. Hotel and hospitality management professionals need to become aware of the level of risk involved, to assume a very proactive approach to intervention steps, documentation and responsibility.

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 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.