Principles Used In Bed Bug Law Cases

Bed bug infestations are becoming very common and have clearly reached epidemic and alarming proportions. The bed bug was brought to its’ knees by the 1950s, with the use of DDT. But now, the situation has changed. Strong and often dangerous chemicals are no longer available for general or commercial use. Meanwhile, the age of world travel and the interchange of populations and cultures has brought the bed bug back from overseas in record numbers. This epidemic has spread from suitcases, clothing and furniture to hotels, used furniture and moving companies to group living facilities with transient populations and finally to renters and homeowners of all economic levels, low, medium and even and especially high income homeowners who travel frequently. Being a victim of a bed bug infestation is an unnerving situation, bringing forth a range emotions from anger to fear and in some serious cases can lead to the suffering of severe mental anguish. The blame could be placed with hotels and motels, public transportation, group living facilities such as dormitories, movers and retailers of furniture movers, or anyplace they may have acquired the infestation.

Causes of Action

These victims of bed bug infestations have sought to recover for financial and physical personal injuries, emotional distress, and a variety of other injuries from acts of:
    • Negligence
 
    • Misrepresentation
 
    • Violations of Code.
 
  • Contract breach
These broad types of suits are used in a variety of situations. More limited use causes of actions include (most commonly used by tenants in a dispute with a landlord):
    • Implied Warranty of Habitability (IWH)
 
  • Doctrine of “Constructive Eviction” (CE).
With the knowledge of what courts are looking for and what factors they consider, our hope is that consumers of services, who have been victimized by bed bug infestations will understand the options available to them for redress and will first consider what they can and should do to right the problem. Of course filing a lawsuit should not be the first thing you consider. Before consulting a lawyer consider any actions of your own volition that may have contributed to the state or size of the infestation.

Blame for the Bed Bug Infestation

Commercial establishments, (hotels and motels, commercial and public transportation companies, retailers, universities with dormitories, camps, residential group living facilities with transient populations) all are subject to potential lawsuits. Even homeowners are potentially subject to lawsuits if an infestation spreads from a guests visit. Pest control companies, while not usually the first to be sued, are often drawn into lawsuits due to errors or misrepresentation during inspection and/or treatment.

Preventing Bed Bug Lawsuits

For potential defendants in bed bug lawsuits, our hope is that this information will help guide your operations in a preventative manner. While lawsuits can not always be prevented, by paying close attention to the information presented, we hope you will establish preventive procedures that address areas that could lead to a successful lawsuit.

Negligence and Misrepresentation

Negligence and misrepresentation are very broad and cover a variety of situations and topics. The basic requirements for these suits are the same, although states do have specific approaches to portions of the requirements. The four basic requirements for Negligence are:
    1. The existence of a duty
 
    1. A breach of that duty
 
    1. That factually and proximately caused
 
  1. The damages
All the above elements must be present for a successful lawsuit on the basis of negligence.

Defense to Negligence

The main defenses to negligence include:
    • Contributory Negligence
 
    • Contributory negligence occurs when the plaintiff is partially at fault. This often bars the recovery of all damages. This defense is very strict, and is not commonly allowed.
 
    • Comparative Fault. (Comparative fault reduces the amount of money recoverable by the percent the plaintiff is at fault. An example of this would be if the plaintiff is 25% at fault, he or she would only be able to recover 75% of the total).
 
  • Assumption of the risk. (Assumption of the risk is when the plaintiff is fully aware of the risk, and voluntarily accepts it.1 This has the effect of barring the plaintiff from recovering damages).
States laws take different approaches for which principles apply in what circumstances, so consult an attorney before taking action.

Misrepresentation

In misrepresentation there are four basic requirements:
    1. The defendant made a misrepresentation of a material fact
 
    1. The intent to induce the plaintiff’s reliance
 
    1. The plaintiff was justified in relying
 
  1. Damages ensued from this.

Defenses to Misrepresentation

The main defenses to misrepresentation include: contributory negligence, comparative fault, and assumption of the risk as defined above. Negligence and misrepresentation cases often have specific facts that effect portions of the requirements and each state has different laws for when the defenses are appropriate, so consult an attorney for further information.

Implied Warranty of Habitability (IWH)

The idea behind the IWH is that when someone buys or rents a residence it should be safe enough to be fit for human use.2 Generally, the warranty applies to new houses, condominiums, and apartments, in both written and spoken agreements.3 However, on occasion it also has been extended to commercial leases.4 Regarding bed bugs, courts have found that bed bug infestations breached the IWH, which entitled the renter or owner to damages from physical injuries or a partial refund of rent.5 In many cases the builder or landlord must be notified of the situation, in order to give them a chance to fix the situation before legal action is taken.6 The IWH has also been successfully used as a defense under a state law, when a landlord tried to sue for the non-payment of rent.7 The IWH is more flexible than the doctrine of CE because it has fewer requirements. 8

Doctrine of “Constructive Eviction” (CE)

Closely related to the implied warranty of habitability is the concept of the constructive eviction. A constructive eviction occurs when, “any disturbance of the tenant’s possession by the landlord, or someone acting under his authority, which renders the premises unfit for occupancy for the purposes for which they were devised or which deprives the tenant of the beneficial enjoyment of the premises, causing him to abandon them, amounts to a constructive eviction, provided the tenant abandons the premises within a reasonable time. In such situations, the tenant may terminate the lease and seek damages.”9 Simply stated, when a condition exists that makes the unit unfit to live in, the tenant must leave and may not be required to pay a portion of the rent if this is done within a reasonable time. In several cases, courts have stated that a condition which satisfies this must be “intolerable,” not created or fixable by the tenant, and some wrongful act was committed by the landlord.10 This means that just because bed bugs exist does not necessarily mean constructive eviction applies. The other requirements above must also be satisfied. Generally, courts take several factors into account when deciding on whether constructive eviction was allowed, including:
    • the time of the infestation
 
    • the conduct of the landlord
 
    • the conduct of the tenant
 
    • the time vacated
 
    • the time a complaint was given
 
  • the severity of the condition.11
Furthermore, the factors listed above may limit the amount of money the tenant can receive. An example of this is if the condition was not very severe and the tenant did not leave for a long period of time, the court may find these factors cut against the tenant and decrease the sum awarded. Because of the variety of factors, requirements, state and federal regulations, in addition to each situation being different, consult with an attorney before taking action. For more information on constructive eviction and possible exceptions, see the “realtor and property management issues” section. 1 57B Am. Jur. 2d Negligence � 769 (2009). 2 49 Am. Jur. 2d Landlord and Tenant � 449 (2009). 3 Id. citing Estate of Vazquez v. Hepner, 564, N.W.2d, 426 (1997). 4 57 Am. Jur. Proof of Facts 3d 127 � 1 (2008). 5 Ludlow Properties, LLC v. Young, 780, N.Y.S.2d, 853 (2004). 6 3 COA 379 Cause of Action for Breach of Implied Warranty of Habitability of Residence (2008). 7 Hutchins v. Peabody, 151, N.H. A.2d, 82-85 (2004). 8 Lemle v. Breeden, 51, Haw. 426, 475 (1969). 9 J. F. Ghent., Infestation of leased dwelling or apartment with vermin as entitling tenant to abandon premises or as constructive eviction by landlord, in absence of express covenant of habitability, 27 A.L.R.3d 924, � 2a (Originally published in 1969). & 49 Am. Jur. 2d Landlord and Tenant � 598 (2009). 10 Ray Realty Co. v Holtzman, 234, Mo App, 802 (1938)., Barnard Realty Co. v Bonwit, 155, App Div, 182 (1913)., Streep v Simpson, 80, Misc, 666 (1913)., Hancock Constr. Co. v Bassinger, 198, NYS, 614 (1923)., Leo v Santagada, 45, Misc 2d, 309 (1964)., Leech v Husbands, 34. Del, 362 (1930) cited in 27 A.L.R.3d 924. 11 J. F. Ghent., Infestation of leased dwelling.., 27 A.L.R.3d 924, � 12a-16 (Originally published in 1969). *Disclaimer: The information provided is generalized and should not be relied on as a complete and accurate description of the laws that apply in your state. For the best course of action consult an attorney that specializes in the law in your state before taking further action. Call today at 1-800-986-1006 for help with a bed bug infestation. You’re also welcome to complete the form below and a caring Hearts Pest Management representative will contact you shortly.
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