Sunday, November 28, 2010
Josh Freedom duLac of The Washington Post published an article yesterday about liability for bed bugs. Judge Posner's Mathias case was ahead of its time. The recent surge in bed bugs has created an uptick in litigation against motel owners and landlords alike. duLac's article focuses on a Maryland attorney who is filing a series of bed bug liability suits. The typical compensatory damages claim is $200,000, and many of the suits claim punies. Bed bug suits, in Maryland and elsewhere, generally face three major issues.
First, plaintiff will have to prove notice on the part of the motel owner or landlord. Actual notice is best, but constructive notice should suffice. For constructive notice, the focus will be the length of time the condition (bed bugs) has been in place. The Maryland suits contain mostly conclusory allegations, so discovery will be important.
Second, plaintiff will have to establish compensatory damages. Bed bugs are nasty creatures, and I have a lot of sympathy for people impacted by them. On the other hand, as I noted in the article, I'm skeptical of the amounts claimed in the Maryland suits. $200,000 is a large sum of money. I know of someone who received slightly more than that from the tort system for losing his eyesight in both eyes. I don't claim that outcome was adequate, but it does bring the bed bug damages into perspective. I understand that ad damnum clauses are drafted as a ceiling, but these are quite high. Plaintiffs in Mathias got a jury verdict for compensatory damages of $5,000. A Florida attorney quoted in duLac's article is leaving the bed bug liability field because the damages are too small. He noted that he settled one case for $4,000 and another for $10,000.
Finally, a fairly standard punies regime requires a plaintiff to prove some type of conscious and deliberate behavior on the part of the defendant. In Mathias, the hotel owners were informed about the bed bugs. Instead of paying for a $500 extermination, the owners allowed the bed bug situation to fester for nearly two years. It was widely known the hotel had bed bugs. There were certain rooms that employees were not supposed to rent out because of the bugs, yet the rooms were rented if there were not enough other rooms available. Guests were informed the bugs were ticks (as if that's better!). Under these circumstances, the court upheld a punies verdict of $186,000. If proving notice in the Maryland cases will require the discovery of significant facts, for punies the bar is even higher.