What Defends You

A Customer Bitten or Stung: Premises Liability for Pests

Written for: Restaurant owners and managers, patio and event operators, insurers, counsel on either side

Parts of this page marked Professional synthesis, not law are a Board Certified Entomologist's reading of published records. They are not legal rules, they are not legal advice, and they are written to read the same for an owner, a customer, or either side's counsel.

A customer on the patio is bitten by a spider. Does the restaurant owe her anything? The answer in the one published appellate decision on the question is that it owes her reasonable care, and that whether it gave her that is a question of what it did after it knew. Not legal advice.

The duty: Coyle v. Historic Mission Inn

In 2018 a California appellate court reversed a judgment for a hotel restaurant whose patio guest had been bitten by a black widow. The court framed the question this way:

The general negligent act or omission at issue is the failure to take more action regarding black widow spiders on one’s restaurant premises than employees monitoring for pests and then recording the employees’ observations. The general harm is a person being bitten by a black widow spider. — Coyle v. Historic Mission Inn Corp., 24 Cal. App. 5th 627 (Cal. Ct. App. 2018)

It held that a restaurant owes patrons a duty of reasonable care regarding black widows, and sent the case back for trial on whether the duty was breached. It did not hold that the restaurant was liable. It said the opposite was possible:

It is possible that it will be found that the Mission Inn met its reasonable standard of care—that despite reasonable efforts being made, an accident occurred, which is relevant to breach. — Coyle v. Historic Mission Inn Corp., 24 Cal. App. 5th 627 (Cal. Ct. App. 2018)

What made the case go forward was the record. Employees had been logging spider sightings and handing the log to the pest control company, which established that the operator knew. The open question was what happened next:

The Mission Inn presented evidence that it had employees monitor for pests and insects and report their observations. The Mission Inn then recorded the sightings and gave the report to its pest control company. As will be explained post, it is unclear what, if anything, the Mission Inn did in regard to warning patrons about black widows or controlling the black widow population. — Coyle v. Historic Mission Inn Corp., 24 Cal. App. 5th 627 (Cal. Ct. App. 2018)

That is the single most useful sentence on this site about records: a sighting log proves knowledge. It helps you only if the next column, what was done, is filled in.

Utah’s standard for business invitees

No Utah appellate decision involving a pest bite or sting at a restaurant was found. Utah’s general standard for a customer injured on business premises comes from slip-and-fall cases, and it distinguishes temporary conditions from permanent ones. The owner is not a guarantor:

[t]he owner of a business is not a guarantor that his business invitees will not slip and fall. He is charged with the duty to use reasonable care to maintain the floor of his establishment in a reasonably safe condition for his patrons. — Schnuphase v. Storehouse Markets, 918 P.2d 476 (Utah 1996), quoting Preston

For a temporary condition, the plaintiff must show notice and time:

(A) that he had knowledge of the condition, that is, either actual knowledge, or constructive knowledge because the condition had existed long enough that he should have discovered it; and (B) that after such knowledge, sufficient time elapsed that in the exercise of reasonable care he should have remedied it. — Schnuphase v. Storehouse Markets, 918 P.2d 476 (Utah 1996)

For a permanent condition, or one the owner created, notice is presumed:

where the defendant either created the condition, or is responsible for it, he is deemed to know of the condition; and no further proof of notice is necessary. — Schnuphase v. Storehouse Markets, 918 P.2d 476 (Utah 1996)

To recover under a permanent unsafe condition theory, a plaintiff must show that an owner chose a mode of operation that foreseeably could result in an inherently dangerous condition. — Jex v. JRA, Inc., 2008 UT 67

What this means for a restaurant

Professional synthesis, not law. Reading Coyle and the Utah invitee cases together, and without predicting how a Utah court would decide a pest case it has not yet decided:

1. Knowledge starts the clock. A sighting in the log, a line on an inspection report, a customer’s complaint: each is the kind of fact a court would look at on the question of notice. Under the Utah temporary-condition rule, the question then becomes whether enough time passed that reasonable care would have fixed it.
2. Reasonable care is a program, not a promise. Coyle said in so many words that reasonable efforts followed by an accident may satisfy the standard. What shows reasonable efforts is what was done after the sighting and when: the call to the pest company, the service date, the exclusion repair, the monitor read. The sighting log has a column for each.
3. A warning is a reasonable step too. The Coyle court asked what the restaurant did “in regard to warning patrons.” A patio with a known wasp nest and no sign is a different case from a patio with a sign and a call in to the pest company.
4. The first hour decides the tone. The response card is written so that the person at the table does the right things in order: care for the customer, document, preserve, report.

Nothing here is a prediction about any claim, and the standard a Utah court would apply to a pest case has not been written. These are the published decisions as they stand.