                                                                                   FILED
                                                                              Aug 29 2018, 8:38 am

                                                                                   CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Candace C. Williams                                        Charles C. Hoppe, Jr.
      Tolbert & Tolbert, LLC                                     Roland Clark
      Gary, Indiana                                              Knight Hoppe Kurnik &
                                                                  Knight, Ltd.
                                                                 Schererville, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Maurice Johnson,                                           August 29, 2018
      Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                                 18A-SC-788
              v.                                                 Appeal from the LaPorte Superior
                                                                 Court
      Blue Chip Casino, LLC, d/b/a                               The Honorable Jeffrey L. Thorne,
      Blue Chip Casino Hotel Spa,                                Judge
      Appellee-Defendant                                         Trial Court Cause No.
                                                                 46D03-1710-SC-2122



      Vaidik, Chief Judge.



                                            Case Summary
[1]   While Maurice Johnson was a guest at Blue Chip Casino Hotel Spa in

      Michigan City, he woke up to discover bed-bug bites on his right arm. Johnson

      brought a small-claims action against Blue Chip Casino, LLC, and the court

      Court of Appeals of Indiana | Opinion 18A-SC-788 | August 29, 2018                               Page 1 of 9
      entered judgment in favor of Blue Chip. Johnson now appeals, arguing that the

      doctrine of res ipsa loquitur applies to this case. Because Johnson has failed to

      prove that the presence of bed bugs in his hotel room more probably resulted

      from Blue Chip’s negligence as opposed to another cause, we affirm the small-

      claims court’s judgment in favor of Blue Chip.



                             Facts and Procedural History
[2]   Johnson and his wife checked into Room 1253 at Blue Chip on January 1,

      2017. Because the room had two full beds (instead of a king bed as they had

      requested), Johnson and his wife slept in separate beds. When Johnson and his

      wife pulled down the sheets as they were going to bed, they did not see any bed

      bugs in their respective beds. But when Johnson woke up the next morning, he

      noticed bites on his arm and then saw one live bed bug on his pillow. He pulled

      down the sheets and saw two shell casings from dead bed bugs. Johnson’s wife

      took photos. Ex. 1. Johnson called guest services, and a supervisor came to

      their room, put the live bed bug in a jar, and had Johnson’s and his wife’s

      belongings “hot boxed” to kill any other bed bugs. Tr. p. 19. After checking

      out of the hotel, Johnson went to the emergency room, where he was treated for

      bed-bug bites and given an anti-itch prescription.


[3]   In October 2017, Johnson filed a notice of claim in small-claims court in

      LaPorte County alleging that “[a]s a result of his stay, [he] received bed bug

      bites” and “incurred medical expenses and suffered emotional distress due to

      [Blue Chip’s] negligence and breach of their duty of care.” Appellant’s App.

      Court of Appeals of Indiana | Opinion 18A-SC-788 | August 29, 2018        Page 2 of 9
      Vol. II p. 9. At trial, Blue Chip’s Safety Loss Prevention Manager, Rosella

      Luna, testified that because bed bugs are found in “hotels” and “a lot of other

      places,” Blue Chip has policies and procedures for inspecting and treating hotel

      rooms for them. Tr. p. 44. Luna explained that new hires undergo training on

      how to look for bed bugs and that all housekeepers and supervisors undergo

      annual training as well. Luna said that Blue Chip’s hotel rooms are cleaned

      and inspected daily (assuming they are rented out) and that the inspections

      include looking for evidence of bed bugs. Specifically, when housekeepers strip

      the beds, they look at the mattresses “to see if there is any evidence” of bed

      bugs. Id. at 42. Housekeepers also look for evidence of bed bugs in “the nooks

      and crannies” of the rooms, including furniture and bedding. Id. If a bed bug is

      found during a room inspection, that room as well as the surrounding rooms

      are taken out of service. A professional pest-control company then inspects the

      rooms and, if necessary, treats them. The treated rooms are held out of service

      until the pest-control company certifies that they’re clean and safe to rent.


[4]   Luna also testified that about two months before Johnson’s January 2017 stay,

      on November 4, 2016, Blue Chip received a complaint about bed bugs in the

      same room, Room 1253. At that time, Terminix “inspected and treated the

      room and held [it] out of service until . . . November 11, 201[6].” Id. at 35.

      Luna testified that she did not know if that guest brought the bed bugs into the

      hotel room, because “I can’t tell you if people bring them in or not.” Id. at 43.

      From November 11, 2016, until January 2, 2017, Blue Chip did not receive any




      Court of Appeals of Indiana | Opinion 18A-SC-788 | August 29, 2018         Page 3 of 9
      other complaints about bed bugs in Room 1253 even though the room was

      rented during that time. Id. at 35.


[5]   Following trial, the small-claims court entered findings and judgment in favor

      of Blue Chip. The court acknowledged that Johnson seemed to argue that “the

      existence of a bed bug is Res Ipsa Loquitur on the part of an inn keeper”;

      however, it found no merit to this argument. Appellant’s App. Vol. II p. 8.


[6]   Johnson now appeals.



                                  Discussion and Decision
[7]   The small-claims court determined that Johnson failed to meet his burden of

      proof regarding his claim against Blue Chip. Because the small-claims court’s

      decision was not in Johnson’s favor, he is appealing from a negative judgment.

      On appeal, we will not reverse a negative judgment unless it is contrary to

      law. LTL Truck Serv., LLC v. Safeguard, Inc., 817 N.E.2d 664, 667 (Ind. Ct. App.

      2004). To determine whether a judgment is contrary to law, we consider the

      evidence in the light most favorable to the appellee, together with all the

      reasonable inferences to be drawn therefrom. Id. A judgment will be reversed

      only if the evidence leads to but one conclusion and the trial court reached the

      opposite conclusion. Id.


[8]   Johnson argues that the doctrine of res ipsa loquitur applies to this case.

      Res ipsa loquitur is translated from Latin as “the thing speaks for itself.” Gary

      Cmty. Sch. Corp. v. Lardydell, 8 N.E.3d 241, 247 (Ind. Ct. App. 2014), trans.

      Court of Appeals of Indiana | Opinion 18A-SC-788 | August 29, 2018            Page 4 of 9
      denied. It is a rule of evidence that permits an inference of negligence to be

      drawn based upon the surrounding facts and circumstances of the injury. Rector

      v. Oliver, 809 N.E.2d 887, 889 (Ind. Ct. App. 2004), trans. denied; see also Cergnul

      v. Heritage Inn of Ind., Inc., 785 N.E.2d 328, 331 (Ind. Ct. App. 2003) (“[R]es

      ipsa loquitur permits an assumption that in some situations an occurrence is so

      unusual that, absent a reasonable justification or explanation, those persons in

      control of the situation should be held responsible.” (emphasis added)), reh’g

      denied, trans. denied. To create an inference of negligence, a plaintiff must

      establish that (1) the circumstances under which the injury occurred were under

      the management or exclusive control of the defendant and (2) the occurrence is

      of the type that does not ordinarily happen if those who have the management

      and control exercise proper care. Rector, 809 N.E.2d at 890. In determining

      whether the doctrine applies, the question is whether the incident more

      probably resulted from the defendant’s negligence as opposed to another cause.

      Id. A plaintiff may rely upon common sense and experience or expert

      testimony to prove that the incident more probably resulted from negligence.

      Cleary v. Manning, 884 N.E.2d 335, 338 (Ind. Ct. App. 2008).


[9]   Even assuming that Blue Chip maintained exclusive control over Room 1253

      once Johnson and his wife checked in, Johnson has failed to prove that the

      presence of bed bugs in his hotel room on January 1 or 2, 2017, more probably

      resulted from Blue Chip’s negligence as opposed to another cause. Bed bugs

      are small bugs that “hide during the day in places such as seams of mattresses,

      box springs, bed frames, headboards, dresser tables, inside cracks and crevices,

      Court of Appeals of Indiana | Opinion 18A-SC-788 | August 29, 2018          Page 5 of 9
       behind wallpaper, or any other clutter or objects around a bed.” Centers for

       Disease Control & Prevention, Bed Bugs FAQs,

       https://www.cdc.gov/parasites/bedbugs/faqs.html. Because bed bugs are a

       problem for hotels, Blue Chip developed policies and procedures for inspecting

       and treating hotel rooms for them. Luna testified that housekeepers are trained

       on bed bugs and look for evidence of bed bugs each time a room is cleaned,

       including stripping the beds to look at the mattresses and looking in “the nooks

       and crannies” of the rooms.


[10]   Johnson argues, however, that “bed bugs and bed bug shells are not usually

       found in hotel beds unless the hotel’s cleaning procedures f[a]ll below the

       reasonable standard.” Appellant’s Br. p. 11. His argument assumes that he

       would not have woken up to bed-bug bites if the housekeepers had done a better

       job cleaning and/or inspecting his room. But because of the hidden nature of

       bed bugs, it is entirely possible that a more thorough cleaning and inspection

       would not have discovered or eliminated the bed bugs. Johnson has thus failed

       to prove that the presence of bed bugs in his hotel room on January 1 or 2,

       2017, more probably resulted from Blue Chip’s negligence as opposed to

       another cause. See Cergnul, 785 N.E.2d at 332 (concluding that the plaintiff

       failed to satisfy the requirements of the res ipsa loquitur doctrine: “it is

       axiomatic that stair railings can become loose and fall through no negligence on

       the part of a landowner. For instance, a screw behind the wall could have

       fractured or another guest could have vandalized the railing just before Cergnul

       used it. Moreover, the evidence showed that neither the Super 8’s manager nor


       Court of Appeals of Indiana | Opinion 18A-SC-788 | August 29, 2018             Page 6 of 9
       any of the hotel employees experienced any difficulties with the railing prior to

       Cergnul’s fall.”).


[11]   Johnson argues that even if the res ipsa loquitur doctrine does not apply, Blue

       Chip is liable under premises liability. As a hotel guest, Johnson was an invitee

       of Blue Chip. See Holiday Hosp. Franchising, Inc. v. AMCO Ins. Co., 983 N.E.2d

       574, 580 n.8 (Ind. 2013). Under Indiana premises-liability law, the owner or

       possessor of land owes the highest duty of care to its invitees: the duty to

       exercise reasonable care for their protection while they are on the premises.

       Roumbos v. Vazanellis, 95 N.E.3d 63, 66 (Ind. 2018). Indiana has adopted the

       Restatement (Second) of Torts section 343, which provides:


               A possessor of land is subject to liability for physical harm caused
               to his invitees by a condition on the land if, but only if, he


                        (a) knows or by the exercise of reasonable care would
                        discover the condition, and should realize that it involves
                        an unreasonable risk of harm to such invitees, and


                        (b) should expect that they will not discover or realize the
                        danger, or will fail to protect themselves against it, and


                        (c) fails to exercise reasonable care to protect them against
                        the danger.


       Id. (citing Restatement § 343). An invitor is not the insurer of the invitee’s

       safety, and before liability may be imposed on the invitor, it must have actual or

       constructive knowledge of the danger. Schultz v. Kroger Co., 963 N.E.2d 1141,


       Court of Appeals of Indiana | Opinion 18A-SC-788 | August 29, 2018               Page 7 of 9
       1144 (Ind. Ct. App. 2012). Constructive knowledge can be found when a

       condition has existed for such a length of time and under such circumstances

       that it would have been discovered in time to have prevented injury if the

       invitor had used ordinary care. Id.


[12]   Here, the small-claims court found that Johnson failed to prove that Blue Chip

       had either actual or constructive knowledge that bed bugs were present in

       Room 1253 on January 1 or January 2, 2017, Appellant’s App. Vol. II p. 8, and

       the record supports this finding. According to Luna, Blue Chip did not have

       actual knowledge that there were bed bugs in Room 1253 on January 1 or 2

       until Johnson called guest services to report them.


[13]   Regarding whether Blue Chip had constructive knowledge, the record reflects

       that Blue Chip has policies and procedures for inspecting and treating hotel

       rooms for bed bugs. That is, Blue Chip’s hotel rooms are cleaned and inspected

       daily, which includes looking for evidence of bed bugs on mattresses and in

       “the nooks and crannies” of the rooms. If a bed bug is found during an

       inspection, that room as well as the neighboring rooms are taken out of service.

       A professional pest-control company is called to inspect and, if necessary, treat

       the rooms. The treated rooms are held out of service until the pest-control

       company certifies that they’re clean and safe to rent.


[14]   The record also reflects that not only did Blue Chip have bed-bug policies and

       procedures in place in January 2017, but Blue Chip followed them as well.

       That is, about two months before Johnson checked into Room 1253 at Blue


       Court of Appeals of Indiana | Opinion 18A-SC-788 | August 29, 2018        Page 8 of 9
       Chip, on November 4, 2016, bed bugs were found in the same room. At that

       time, Terminix “inspected and treated the room and held [it] out of service until

       . . . November 11, 201[6].” Tr. p. 35. From November 11, 2016, until January

       2, 2017, Blue Chip did not receive any other complaints of bed bugs in Room

       1253 even though the room was rented during that time. Id. Accordingly, the

       small-claims court did not err in determining that Johnson failed to prove that

       Blue Chip had actual or constructive knowledge that bed bugs were present in

       Room 1253 on January 1 or 2, 2017. We therefore affirm the small-claims

       court’s judgment in favor of Blue Chip.


[15]   Affirmed.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Opinion 18A-SC-788 | August 29, 2018       Page 9 of 9
