United States District Court, W.D. Wisconsin
CLAUDIA MACIAS, FERNANDO DIAZ and ALANI DIAZ, by next friend Claudia Macias, Plaintiff,
MT. OLYMPUS RESORTS, LLC, Defendant.
OPINION AND ORDER
WILLIAM M. CONLEY, DISTRICT JUDGE
spouses Claudia Macias and Fernando Diaz and their minor
child Alani Diaz assert negligence and private nuisance
claims against defendant Mt. Olympus Resorts, LLC, based on
alleged bed bug bites they sustained during a stay at the
resort in September 2016. Before the court is defendant's
motion for summary judgment in its favor as to all claims,
principally on the basis that expert testimony is required to
prove plaintiffs' claims.For the reasons that follow, the
court grant in part and deny in part defendant's motion.
Specifically, the court grants defendant's motion on
plaintiffs' claim of negligence with respect to
prevention or remediation of bed bug infestations, but will
deny defendant's motion in part, allowing plaintiffs to
proceed on their claim that defendant failed to conduct
adequate inspections for bed bugs in their room. The court
will also grant summary judgment in defendant's favor on
plaintiffs' claim for punitive damages, because
plaintiffs have failed to put forth sufficient evidence to
allow a reasonable jury to find defendant acted maliciously
or in an intentional disregard to plaintiffs' rights.
Bed Bugs Generally
bugs were nearly eliminated as a problem during the years
when DDT was in use. With the banning of DDT, bed bugs have
returned with a vengeance. Indeed, bed bugs can now be found
virtually anywhere many people come and go, including
hospitals, office buildings, hotels and motels.
Defendant's expert Michael F. Potter, Ph.D., an
entomologist with bed bug expertise, states that
“[u]nlike cockroaches or flies that feed on filth, bed
bugs can persist in pristine environments.” (Potter
Aff. (dkt. #37) ¶ 7.) This statement is consistent with
the medical information that plaintiffs received from Alani
Diaz's medical visit, which stated, “Usually they
[bed bugs] are found in places where many people come and go.
Hotels, shelters, hospitals. It does not matter whether the
place is dirty or clean.” (Ward Aff., Ex. A (dkt.
expert Potter further opines that Mt. Olympus is “an
especially challenging environment in which to prevent bed
bugs, ” given the thousands of visitors each year in
close proximity to metropolitan Chicago. (Potter Aff. (dkt.
#37) ¶ 3.) “The perpetual flow of guests makes
it all but impossible to avoid introduction of the bugs with
suitcases, backpacks, clothing, shoes, toys, wheelchairs and
other belongings.” (Id.) Potter further opines
that “[m]aximum occupancy and rapid turnover between
guests make it challenging to inspect painstakingly for bed
bugs.” (Id. ¶ 4.) Furthermore, Potter
explains that inspections also are not entirely reliable
because of certain characteristics of bed bugs:
Bed bugs are small, secretive and nocturnal. Once the pests
are introduced, they often remain unnoticed. The eggs and
newly emerged nymphs are no bigger than dust specks. During
the day, they hide in cracks and crevices away from cleaning
and housekeeping activities.
(Id. at ¶ 5.)
Mt. Olympus's Efforts to Treat Bed Bugs
the years, Mt. Olympus has taken several steps to prevent,
inspect for and remediate bed bugs. For example, Mt. Olympus
consults outside vendors and trade journals regarding best
practices for bed bug extermination. At one point, Mt.
Olympus hired outside vendors to perform pest extermination
through “thermal treatment.” In addition to
these heat remediation efforts, Mt. Olympus used an outside
pest control service to administer a chemical remediation
process in 2011. Subsequently, Mt. Olympus began
administering treatments of Dry Earth and Cedar Oil as
preventative measures, and also tried a pesticide Temprid.
Mt. Olympus has also hired a professional pest control
company to perform preventative treatment to room outlets,
presumably to prevent pest migration. In the past, Mt.
Olympus has even used bed-bug sniffing dogs.
in 2014, Mt. Olympus stopped outsourcing bed bug remediation
in favor of purchasing its own heat machine, so that it could
conduct remediation in house. Mt. Olympus further purchased
sealed mattress protectors designed to block bed bugs,
although plaintiffs point out that during 2015 and 2016 some
mattresses used by guests were not encased in plastic, and
there is no documentation showing that the mattresses used in
2016 in Building 4 were encased in the preventative bed bug
plastic. In addition, Mt. Olympus began phasing out old
mattresses in 2013 in favor of a new design, with
chemically-treated fabric that repels bed bugs. Plaintiffs do
not dispute this transition, but point out that “the
process is now 6 years [a]long and still not complete.”
(Pls.' Resp. to Def.'s PFOFs (dkt. #62) ¶ 24.)
Plaintiffs also point out that the mattresses use a
plant-based essential oil Santeol, which defendant's
expert does not include on the list of products he recommends
to prevent bed bugs. Mt. Olympus's expert Potter also
acknowledges that the “utility of plant oils in
preventing problems with bed bugs needs further study.”
(Bulin Dep. (dkt. #51) 70.) Nonetheless, Mt. Olympus's
Housekeeping Manager, Douglas Bulin, conducted his own test
to gauge the effectiveness of the new mattresses, finding
that live bed bugs placed on the mattress were dead within
20-30 minutes. (Def.'s Resp. to Pls.' Add'l PFOFs
(dkt. #64) ¶ 112.)
recently, as alluded to above, Mt. Olympus's remediation
efforts have focused on thermal treatment, which its expert
describes as the “gold standard” for eradicating
bed bugs. (Potter Aff. (dkt. #37) ¶ 6.) Mt. Olympus has
invested approximately $100, 000 in heat-treatment equipment
and an infrared heat camera for in-house use. Mt. Olympus now
has three thermal heat-treating devices on the premises. In
2014, Mt. Olympus also sent Maintenance Department Assistant
Phil Massari to Minnesota to attend training on how to
operate these trailer-sized devices put on by the
manufacturer of the equipment, although plaintiffs point out
that it was only a three-hour training and Massari was the
only employee to attend. Massari in turn trained Maintenance
Manager Shaun Bellock, and now Bellock alone primarily
operates the thermal-treatment, since Massari testified at
his deposition that he no longer performed remediation due to
his age. Moreover, if a remediation need arises at night,
night-time maintenance staff perform the heat-treatment.
inspections, since before 2016, Mt. Olympus has instructed
its housekeeping and maintenance staff, including seasonal
employees, on how to monitor for bed bugs, although
plaintiffs point out that there is “no
documentation” of such training. The maintenance
department also has pictures posted on the front of a locker
in the maintenance quarters to show what bed bugs look like
and how to recognize signs of their presence. In addition to
inspecting and treating the guest rooms, Mt. Olympus inspects
its laundry facility, employee housing, storage areas and
transport vehicles for the presence of bed bugs.
bed bugs are detected, Mt. Olympus currently has a variety of
processes to try to eradicate them. Specifically, Bulin
testified that “we have chemical, we have mattress
treatment, we have heat eradication, we have procedures of
sanding to make sure that there are no eggs or any residual
left.” (Bulin Dep. (dkt. #51) 142.) If bed bugs are
located in a guest room, Bellock or Massari would move the
guests, lock the room and heat-treat it. Mt. Olympus
represents that having its own heat remediation equipment
allows it to treat a room for an even longer period of time
than suggested by industry standards and to do it
immediately, without waiting for a third-party pest control
company, thus reducing the risk of cross-contamination.
Still, defendant's expert acknowledges that even after
treatment, there is no way to be 100 percent certain that the
problem is eradicated.
Plaintiffs' Stay at Mt. Olympus
stayed in hotel room number 20655 in Building 4 at the Mt.
Olympus resort for two days in 2016, arriving at 1:52 a.m. on
September 17, 2016, and checking out sometime on September
19, 2016. During their stay, plaintiffs suffered from bed bug
bites. Specifically, Alani Diaz suffered bites the first two
nights, while all three plaintiffs suffered bites on the
checkout, Claudia Macias complained to the front desk about
bug bites during their stay but staff told her that they were
mosquito or other related bug bites. Plaintiffs did not
specifically complain about suspected bed bug bites
during their stay, although they did mention a concern about
housekeeping not changing their sheets, and that concern was
addressed promptly. After they returned to Chicago, plaintiff
Alani Diaz was diagnosed with bed bugs.
appear to have been only two documented complaints
of the potential presence of bed bugs in Room 20655 between
the years 2014 through plaintiffs' stay in 2016, although
plaintiffs question the adequacy of defendant's
documentation and whether these are the only
complaints. First, Mt. Olympus received a
complaint of bed bugs in Room 20655 on June 15, 2016.
Director of Safety Jason Hammond avers in his declaration
that the complaint “was investigated and found to be
‘negative' for bed bugs.” (Hammond Decl.
(dkt. #36) ¶ 6.) Plaintiffs challenge Hammond's
personal knowledge to make this representation, but it
appears undisputed that he reviewed documentation and
provided a declaration based on this “personal
investigation.” (Id. at ¶ 1.) Moreover,
the Maintenance Manager Bellock testified at his deposition
that the documentation shows an inspection was completed and
that the results of the inspection were
“negative” for “Code 99, ” which is
Mt. Olympus's shorthand for bed bugs. (Bellock Depo.
(dkt. #52) 105-06.)
June 23, 2016, and September 19, 2016 (the date of
plaintiffs' checking out), Room 20655 was occupied on a
nearly constant basis. Even so, Mt. Olympus received no
further, documented complaints of bed bugs in Room 20655
during that three-month period. Again, plaintiffs do not
dispute that there is no documentation of any complaints
during this period, but contend, without support, that there
still may have been complaints.
after their stay, plaintiff Claudia Macias attempted to
inform Mt. Olympus of her daughter's diagnosis of bed
bugs. She eventually received a return call, during which the
hotel staff said they would investigate the issue. Mt.
Olympus also credited Macias $150.00 and issued her fifteen
park passes. Plaintiffs, however, represent that they did not
learn that the ...