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Macias v. Mt. Olympus Resorts, LLC

United States District Court, W.D. Wisconsin

July 10, 2019

CLAUDIA MACIAS, FERNANDO DIAZ and ALANI DIAZ, by next friend Claudia Macias, Plaintiff,
v.
MT. OLYMPUS RESORTS, LLC, Defendant.

          OPINION AND ORDER

          WILLIAM M. CONLEY, DISTRICT JUDGE

         Plaintiffs 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.[1] 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.[2]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.

         UNDISPUTED FACTS[3]

         A. Bed Bugs Generally

         Bed 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. #35-1) 13.)

         Defendant's 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.)[4] “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.)

         B. Mt. Olympus's Efforts to Treat Bed Bugs

         Over 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.”[5] 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.

         Beginning 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.)

         More 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.

         As for 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.

         When bed bugs are detected, Mt. Olympus currently has a variety of processes to try to eradicate them.[6] 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.[7] 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.

         C. Plaintiffs' Stay at Mt. Olympus

         Plaintiffs 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 third night.

         At 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.[8]

         D. Room 20655

         There 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.[9] 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.)[10]

         Between 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.[11]

         Second, 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 ...


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