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Hotels Cannot Completely Rely on Their PMP to Avoid Liability

The general public relies on the hotel to provide a clean and safe environment.  Joe Q Public has no relationship with the Pest Management Professional [PMP] and was not involved in the selection of the PMP hired.  Therefore, the hotelier must ask, “Am I providing a safe environment for those leasing the space from me?”.  If there is a recurring problem with bed bugs – especially in the same rooms or areas – the answer is “no.”  The hotelier cannot simply hide behind the pant legs of the PMP or throw out the white flag if the pest control is ineffective.  Hotels are responsible for their own destiny!

Liability for bed bugs has seen a sea change over the years.  As with the progression of reaction-based protocols evolving into inspection and preventative-based protocols, so has related liability issues.   There is an ongoing shift from relying on your PMP as a means to avoiding liability to an obligation to become a more sophisticated commercial consumer.  While it is reasonable for the hotelier to rely on their PMP for the day-to-day management of pest control, this reliance becomes unreasonable if the control strategies employed are not successful over time.  The hotel’s obligation to the end consumer (guest) is to provide a safe and clean environment.  If the pest control program is not working despite attempts to resolve any deficiencies, then a change in PMP is required.

For example, a particular hotel is leasing thousands of rooms to consumers.  If there are recurrent infestations in the same target space, the hotel is not addressing the problem appropriately.  In that event, the hotelier needs to ask, “Is this the right PMP for me?”  The hotel is responsible for its own destiny and needs to be contemplating a change in their service provider.   As a sophisticated commercial consumer, the hotel must educate itself on which PMP has the tools in their arsenal and “know-how” to best serve the facility and guest’s needs.  Hoteliers have a responsibility to become knowledgeable about preventive strategies that will best position their facility and guests in the safest and most secure environment.  Especially true in brand name hotels that franchise, corporate ownership has a reasonable expectation that their franchisee hotels are selecting competent service providers to solve their pest control concerns.

Ultimately, if a hotel gets sued, it is not enough to say: “I am acting reasonably because I relied on my PMP.”  Hotels have a duty to educate themselves as to what being “successful” means in terms of pest control and to be sufficiently educated to discern who is qualified to get the job done effectively.  Failures in pest control are the responsibility of the hotel.  The mere fact that the property is being leased to transient traffic places management on notice that it is susceptible to introduction of pests (e.g., bed bugs) and is at high risk for infestation if not dealt with appropriately.

Popular brand hotels are especially at risk of liability due to the public expectation that the underlying brand (not the actual franchisee hotel where they are staying and renting their room from) is adhering to high standards of providing clean and safe living spaces. A review of most franchise agreements will confirm that the franchisor or corporate brand has control and oversight rights over the franchisee or property manager and may even revoke the franchise if the franchisee fails to adhere to quality expectations.

Consequently, hotel franchisees and their corporate franchisors, as well as privately owned/operated hotels need to be in a partnership when it involves pest control.  This partnership must assure that the properties comport with corporate standards expected of the “brand” in selecting quality pest control and oversight of their vendors. The hotelier and/or corporate quality control designee is responsible for knowing the status of pest control in their property and being prepared to take immediate measures to deal with deficiencies when they arise.

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Written by: Jeffrey M. Lipman, Attorney-At-Law and Polk County Magistrate Judge.

The Lipman Law Firm practice handles consumer class action litigation, specializing in class action bed bug litigation. Jeff Lipman is a frequent speaker throughout the United States, including the National Pest Management Association and Entomological Society of America.