Opinion
G060855
03-29-2023
JAMES BROWN, Plaintiff and Appellant, v. WALT DISNEY PARKS AND RESORTS U.S., INC., et al., Defendants and Respondents
Law Offices of Ilan N. Rosen Janfaza and Ilan N. Rosen Janfaza for Plaintiff and Appellant. Dykema Gossett, Derek S. Whitefield, Tamara A. Bush and Cory L. Webster for Defendants and Respondents.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 30-2018-01010205 Robert J. Moss, Judge.
Law Offices of Ilan N. Rosen Janfaza and Ilan N. Rosen Janfaza for Plaintiff and Appellant.
Dykema Gossett, Derek S. Whitefield, Tamara A. Bush and Cory L. Webster for Defendants and Respondents.
OPINION
MOTOIKE, J.
After staying at the Grand Californian Hotel and Spa (the hotel), James Brown developed itchy spots he believed were bed bug bites. Brown sued Walt Disney Parks and Resorts U.S., Inc. (Walt Disney Parks and Resorts), the owner and operator of the hotel, and its parent company, The Walt Disney Company, for negligence. (We will refer to defendants/respondents collectively as Disney.) Disney filed a motion for summary judgment. The trial court granted the motion, and Brown appealed.
We affirm. Disney established it met its duty of care as a premises owner to inspect the premises for bed bugs in a reasonable manner and negated the elements of breach of duty and causation. Brown failed to raise a triable issue of material fact. Brown's argument, raised for the first time on appeal, that this case is governed by the doctrine of res ipsa loquitur cannot defeat summary judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Brown checked into room 4117 of the hotel on August 4, 2016 and checked out the next day. During the night, Brown allegedly experienced itching. The next morning, he alleged he saw black bugs under the pillow, but did not know what they were. He also alleged he saw a stain on the bedsheet.
On August 5, Brown's lower back, shoulder, elbow, hand, knee, and neck allegedly itched. He claims he had bumps and red marks on his elbow, hand, and knee, which correlated with where he felt itching.
On August 8, Brown went to Cedars-Sinai Marina Del Rey Hospital, where he told the hospital employees he "'might have been bitten by bed bugs.'" The diagnostic impression of the treating physician's assistant was "symptoms are most consistent with likely insect bites. I suspect bed bugs." On August 12, Brown contacted Disney claiming he had been bitten by bed bugs while at the hotel.
The second amended complaint, which is the operative complaint, was filed on November 27, 2019, alleging a single cause of action for negligence. Disney filed a motion for summary judgment. After briefing and a hearing, the trial court granted the motion and entered judgment. Brown timely appealed.
DISCUSSION
I.
STANDARD OF REVIEW
In an appeal from an order granting a motion for summary judgment, "'"'[w]e review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.'" [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. [Citation.]' [Citation.]" (Gonzalez v. Mathis (2021) 12 Cal.5th 29, 39.)
"'Summary judgment should be granted if no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. [Citation.] The burden of persuasion is on the party moving for summary judgment. When the defendant is the moving party, the defendant must show the action has no merit. That showing is made if the defendant either negates an element of the plaintiff's cause of action or establishes that a complete defense exists. The burden then shifts to the plaintiff to show that a triable issue of material fact exists with respect to the cause of action or defense.' [Citation.]" (Hester v. Public Storage (2020) 49 Cal.App.5th 668, 674.)
II.
THE WALT DISNEY COMPANY IS NOT LIABLE FOR THE ALLEGED NEGLIGENCE OF ITS SUBSIDIARY
Summary judgment in a negligence case is proper where the absence of ownership, control, or possession by the defendant has been established. (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134; Sabetian v. Exxon Mobil Corp. (2020) 57 Cal.App.5th 1054, 1071.)
Walt Disney Parks and Resorts is the owner of the hotel. The Walt Disney Company is the parent company of Walt Disney Parks and Resorts. The Walt Disney Company does not own, operate, lease, manage, or maintain the hotel, and did not do so in August 2016.
The Walt Disney Company cannot be liable to Brown based solely on its parent-subsidiary relationship with Walt Disney Parks and Resorts. "It is a general principle of corporate law deeply 'ingrained in our economic and legal systems' that a parent corporation (so-called because of control through ownership of another corporation's stock) is not liable for the acts of its subsidiaries. [Citations.]" (United States v. Bestfoods (1998) 524 U.S. 51, 61; see Waste Management, Inc. v. Superior Court (2004) 119 Cal.App.4th 105, 109-111 ["a parent corporation is not liable for injuries of a subsidiary's employee in the absence of evidence establishing a duty owed by the parent corporation to the employee"]; see also Johnson &Johnson Talcum Powder Cases (2019) 37 Cal.App.5th 292, 319-320 [legal relationship of parent and wholly-owned subsidiary is not sufficient alone to hold parent liable for subsidiary's actions].) Summary judgment as to The Walt Disney Company was proper in this case.
In opposition to the motion for summary judgment, Brown conceded there was no legal basis to hold The Walt Disney Company liable in this case. Nevertheless, the notice of appeal and civil case information statement both identified The Walt Disney Company as a defendant and respondent on appeal.
III.
BROWN FAILED TO RAISE A TRIABLE ISSUE OF MATERIAL FACT REGARDING BREACH OF DUTY OR CAUSATION
Brown's claim of negligence requires proof Disney had a duty to use due care, Disney breached that duty, and Disney's breach was the proximate or legal cause of Brown's injury. (Hayes v. County of San Diego (2013) 57 Cal.4th 622, 629.) A premises owner has a duty of ordinary care to maintain its premises in a reasonably safe condition. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) The duty of ordinary care is met by making reasonable inspections of the property and undertaking such further steps as are "commensurate with the risks involved." (Ibid.) If the owner discharges its duty by inspecting the premises in a reasonable manner and finding no hazard, then the owner will not have breached its duty even if a guest suffers an injury in fact. (Id. at p. 1211.)
The premises owner is not an insurer of its guests' safety. (Ortega v. Kmart Corp., supra, 26 Cal.4th at p. 1205 .) Proof the owner had actual or constructive knowledge of a dangerous condition in sufficient time to correct it is required to establish a breach of duty. (Id. at p. 1206.)
Proximate cause, or "'but for'" causation, requires proof that an act is the cause in fact of the harm suffered. (State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 352.) Here, to establish the element of causation, Brown was required to prove he was bitten by a bed bug.
Disney offered admissible evidence of the lack of a breach of its duty to correct a known hazard and lack of causation as follows:
1. The hotel's rooms are cleaned daily.
2. Room attendants are trained to recognize possible signs of bed bugs on bed linens, to visually verify the hotel rooms are free of bed bug droppings, and to inspect the wall area behind the headboard, wall junctions, baseboards, electrical outlets, and inside the seams of curtains and drapes for signs of bed bugs.
3. While making the hotel room beds on a daily basis, room attendants check all bed linens including sheets, pillowcases, duvet, duvet coverlet, and bed skirt for signs of bed bugs.
4. On a daily basis, room attendants clean and inspect headboards for signs of bed bugs.
5. On a daily basis, room attendants inspect mattresses and box springs for signs of bed bugs. 6. On a daily basis, room attendants verify there is no odor indicating the presence of bed bugs.
7. When a guest checks out of a room, the room attendants will follow all procedures for cleaning a room before it is turned over to another guest.
8. If a sign of potential bed bugs is found during a daily cleaning or while turning a room over, room attendants prevent guests and other employees from entering the room, notify Walt Disney Parks and Resorts' horticulture department, and leave any potentially contaminated items in the hotel room.
9. An exterminator from the horticulture department then visually inspects the room for bed bug activity.
10. If a visual inspection does not show any signs of bed bugs, specially trained canines are used to detect bed bug odors.
11. If either the exterminator or canine detects the presence of bed bugs, the horticulture department seals the room before treating it with chemicals and heat.
12. After the treatment is completed, the exterminator from the horticulture department again inspects the room for signs of live bed bugs.
13. Separate and apart from the hotel's housekeeping protocols, Walt Disney Parks and Resorts' horticulture department conducts periodic preventative inspections of each hotel room using trained canines.
14. Room 4117 was cleaned on August 4, 2016, before Brown checked in. The room attendant did not report any evidence or suspicion of bed bugs. If the room attendant had suspected any bed bug activity in the room, the room attendant would have made a notation on the housekeeping report with the name of the manager to whom it was reported.
15. Room 4117 was cleaned on August 5, 2016, after Brown checked out. The room attendant did not report any evidence or suspicion of bed bugs. If the room attendant had suspected any bed bug activity in the room, the room attendant would have made a notation on the housekeeping report with the name of the manager to whom it was reported.
16. On August 19, 2016, room 4117 was inspected by trained canines, which did not detect any bed bug odor.
17. Room 4117 underwent a preventative inspection using trained canines about eight weeks before Brown's stay, and no bed bugs were found.
18. Brown did not observe any indication of bed bugs before going to sleep on August 4, 2016.
19. On August 5, 2016, Brown alleges he saw black bugs under his pillow but he did not know what they were.
20. Brown had never seen a bed bug before, except on the Internet. Brown was not able to say with certainty the bugs he allegedly saw in room 4117 were bed bugs.
21. Brown thought the itching and bite marks were from mosquitos. 22. When he went to the hospital, Brown told the staff he "'might have been bitten by bed bugs.'"
23. The treating healthcare provider's diagnostic impression was "symptoms are most consistent with likely insect bites. I suspect bed bugs."
24. The hospital's discharge instructions to Brown stated: "There is no test" for bedbug bites, "[b]ut the doctor or nurse might suspect your bites are from bed bugs when he or she looks at your skin. Other types of bugs and some diseases can also cause red bumps on the skin that look like bedbug bites. The only way to know for sure if you have bedbugs in your home is to catch one. Experts can then inspect the insect. They can tell if it is a bedbug or another type of bug."
25. Brown is not qualified to identify whether an insect is a bed bug or another type of bug, and he has no training in entomology, horticulture, or pest management.
26. A person cannot tell what type of insect caused a bite simply by looking at the bite.
Brown did not dispute any of the foregoing material facts. Brown contended bed bugs can be missed despite the foregoing inspection protocols. Brown also submitted his own separate statement of undisputed material facts, which included the following: bed bugs can be found even without a customer complaint; it is possible there were bed bugs in room 4117; it is possible housekeeping can miss the presence of bed bugs; and Disney cannot prove Brown was not bitten by bed bugs.
Disney established through admissible evidence it met its duty of care as a premises owner to maintain the hotel in a reasonably safe condition. Disney established it made reasonable inspections of the hotel rooms, both by trained housekeeping personnel during daily cleanings and by exterminators during periodic inspections.
Disney established it had neither actual nor constructive notice of bed bugs in the hotel, and it therefore did not breach a duty to correct a known hazard.
Brown's evidence did not create a triable issue of material fact as to whether Disney met its duty of care. Brown cannot create a triable issue by offering speculation that housekeeping might have missed bed bugs or Brown might have been bitten by bed bugs.
Disney also negated the element of causation through admissible evidence. Brown cannot establish his injuries were caused by bed bugs, much less that those injuries were suffered at the hotel. Brown offered no admissible evidence bed bugs caused his harm. Neither his testimony that he saw black bugs under his pillow nor the hospital physician's assistant's diagnostic impression of "likely insect bites. I suspect bed bugs" proves bed bugs were the cause of the injury. To the contrary, the evidence is that the bugs observed by Brown in room 4117, if they existed, cannot be proven to be bed bugs.
IV.
RES IPSA LOQUITUR DOES NOT APPLY IN THIS CASE
In his appellate brief, Brown argues this is a case of res ipsa loquitur, or "'the thing speaks for itself.'" (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825.) In California, "res ipsa loquitur is a presumption affecting the burden of producing evidence." (Evid. Code, § 646, subd. (b).) The presumption only arises if all of the following are true: "'"(1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff."' [Citations.]" (Brown v. Poway Unified School Dist., supra, 4 Cal.4th at pp. 825-826.) If the presumption arises, the trier of fact may infer the defendant's negligence was a proximate cause of the harm. (Evid. Code, § 646, subd. (c)(1).) The burden then shifts to the defendant to produce evidence "negating the inference of negligence or proximate cause or disputing the basic facts that gave rise to the inference." (Pappas v. Carson (1975) 50 Cal.App.3d 261, 267.)
Brown did not raise the issue of res ipsa loquitur in the trial court, and has therefore forfeited this argument. (People v. Venice Suites, LLC (2021) 71 Cal.App.5th 715, 724 [appellate court may only consider facts before the trial court; theories not fully developed or factually presented to the trial court cannot create triable issue on appeal]; Saville v. Sierra College (2005) 133 Cal.App.4th 857, 873 ["if this were permitted procedure, parties opposing and losing summary judgment motions could attempt to embed grounds for reversal on appeal into every case by their silence"].) An appellate court may nevertheless exercise its discretion to reach the merits of a newly raised issue if it only raises a question of law arising from the facts already before the trial court. (People v. Venice Suites, LLC, supra, 71 Cal.App.5th at p. 724.)
Even if we were to consider this argument, we would conclude the doctrine of res ipsa loquitur does not apply in a case of alleged bed bug bites. No reported case in California has addressed the application of res ipsa loquitur in a case with facts similar to those of the present case. Other jurisdictions, including a federal court in California, have determined res ipsa loquitur cannot be used to shift the burden of producing evidence in a case involving bug infestations in hotel rooms.
In Minass v. HHC TRS Portsmouth LLC (C.D.Cal. Dec. 19, 2014) 2014 U.S. Dist. Lexis 186231, the plaintiff discovered red bumps on her body after staying at the defendant hotel and sued for negligence. A jury found in the defendant's favor. The plaintiff argued in a motion for a new trial the jury should have been instructed as to res ipsa loquitur. The district court, considering the application of California's law on res ipsa loquitur, determined an instruction was not called for because the plaintiff did not prove her harm was caused by bed bugs. The physician's assistant who treated the plaintiff diagnosed her with bed bug bites, but "also testified at trial that confirming a bed bug diagnosis with any medical degree of certainty would require actually locating or presenting a bed bug . . . because . . . there are no clinical tests available that can test for bed bug bites." (Id. at pp. *5-*6.) "Plaintiff did not provide sufficient evidence that the harm done to her was caused by the agency or instrumentality she alleged-i.e., bed bugs. Res ipsa loquitur applies with the most logical force when the harm-causing instrumentality is known and undisputed: for example, an exploding Coke bottle, a collapsing bar stool, or a falling sack of flour. [Citations.] In other words, what caused the harm is clear-res ipsa loquitur instead answers the question 'why did the harm occur': the defendant's negligence. [Citations.] But in this case, the 'what' is far from clear. No witness testified to ever seeing bed bugs. No physical evidence of the presence of bed bugs was ever put forward." (Id. at p. *7.)
In Mills v. Best Western Springdale (Ohio Ct.App., June 18, 2009) 2009-Ohio-2901, the plaintiffs sued the defendant hotel, claiming they contracted scabies during a stay at the hotel. The appellate court affirmed the trial court's summary judgment on the plaintiffs' negligence claim, in part because the doctrine of res ipsa loquitur was not applicable. "[T]he record is devoid of evidence either that the mites themselves or any items infested with mites were under the exclusive control of Best Western. Neither does the record contain evidence in support of the conclusion that, absent negligence by Best Western, appellants would not have contracted scabies." (Id. at p. 28.)
In McMahan v. Hawkeye Hotel, Inc. (W.D.Mo. Jan. 19, 2022) 2022 U.S. Dist. Lexis 97741, the plaintiff sued the hotel for negligence when, after staying in the defendant hotel one night, he observed itchy red bumps on his body. The hotel had policies in place to train cleaning and maintenance staff to recognize pests, including bed bugs, during routine cleanings, and had contracted with an outside company to perform monthly pest control and prevention. "Plaintiff has not provided evidence that his injury was caused by bed bugs. Further, . . . Plaintiff does not offer any physician or expert testimony asserting that bed bugs, and not some other instrumentality, caused his injury. Plaintiff cannot establish the cause of his injury with any degree of certainty, so he cannot prove the harm-causing instrumentality was in Defendants' control. His claim under res ipsa loquitur cannot proceed." (Id. at pp. *14-*15.)
In Johnson v. Blue Chip Casino, LLC (Ind.Ct.App. 2018) 110 N.E.3d 375, while staying at the defendant hotel, the plaintiff woke up to find bed bug bites on his arm. He found a live bed bug on his pillow and two shell casings from dead bugs; he had not noticed anything when going to bed the night before. (Id. at p. 377.) The hotel had trained its housekeepers and supervisors to look for bed bugs. (Ibid.) The hotel had received a complaint about bed bugs in the same room two months earlier; the room had been held out of service and cleaned. (Ibid.) The hotel received no complaints about bed bugs after the room was put back in service before the plaintiff's stay. (Ibid.) The appellate court affirmed the small claims court's finding of no negligence by the hotel. "[The plaintiff's] 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. [The plaintiff] 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 [the hotel]'s negligence as opposed to another cause." (Id. at pp. 378-379.)
In another case, the appellate court observed: "The insect or bug which stung or bit the plaintiff was not known or identified. Where it came from, how long it had been in the room or the conditions under which it entered the room do not appear. Neither is it shown that it was in or about the bed at any time prior to the occupancy of the room or during the period of its occupancy.... In this situation to permit the jury to draw an inference of lack of due care on the part of the hotel company would be no more than conjecture which is not appropriate in the application of the doctrine of res ipsa loquitur nor to prove specific averments of negligence." (Cunningham v. Neil House Hotel Co. (Ohio App. 1940) 33 N.E.2d 859, 861.)
We agree with the legal analysis in the foregoing cases. In the absence of evidence establishing bed bugs caused Brown's harm, there is no basis for applying the doctrine of res ipsa loquitur to conclude Brown's harm was more probably the result of Disney's negligence than some other cause. Therefore, even if we were to consider Brown's newly raised argument that the doctrine of res ipsa loquitur applies in this case, we would reject it.
DISPOSITION
The judgment is affirmed. Respondents to recover costs on appeal.
WE CONCUR: MOORE, ACTING P. J., DELANEY, J.