TECHNICALLY SPEAKING Liability — A Different Twist

Webster’s Dictionary defines liability as “anything for which a person is legally bound, as to make good any loss or damage that occurs in a transaction; answerable; responsible.” Recently I read an article about a lawsuit, claiming that a county mosquito control district and product manufacturer failed to protect a child from contracting encephalitis. This sent a shiver up my spine — because as protectors of food, property, health and the environment are we not opening ourselves up to this type of litigation?

There is no question that liability litigation against our industry has been successful, particularly as it relates to the Federal Trade Commission’s (FTC) investigation of industry practices in termite control. This type of liability is measurable and an objective value can be assigned to repairing damage, temporary living expenses, retreatment, etc.

This is not the case with personal injury claims and in the worse case scenario — death. In these situations injury awards can become astronomical because they are subjective and arbitrary. At this point, many of you are thinking that pesticides aren’t that bad and if used carefully and in accordance with the label, there is little risk of personal injury claims. You’re right — personal injury claims from pesticide exposure are extremely rare.

But what is the liability if your company provides pest management services for:
• Cockroaches — allergies
• Mosquitoes — West Nile virus, other encephalitis
• Ticks — Lyme disease, ehrlichiosis, Rocky Mountain spotted-fever
• Fire ants, spiders, bees and wasps — envenomization
• Rats and mice — bites, leptospirosis, hantavirus

TREAD LIGHTLY. In my opinion, this is a disaster waiting to happen. We need to be careful what we promise our customers. Pest eradication is extremely rare; however, typically, this is the customer’s expectation. Furthermore, inherent in that expectation is that they will not be exposed to the potential health effects associated with the target pest.

Realistically speaking, eradication is not possible and we cannot prevent pest importation and immigration. Thus, despite our best efforts, customers will occasionally encounter pests and their associated diseases. It is essential that our contracts, verbal and written, as well as all of our other communication with our customers make the following perfectly clear — we cannot guarantee a pest-free environment and freedom from arthropod-borne and rodent-borne diseases.

It is important that our services are not misrepresented to the public through false claims and statements about our services. Oftentimes these problems result from lack of knowledge about the pest, the products used and the customer’s expectations. It is easy to overstate a situation and to claim to have the ability to solve a problem simply and quickly.

AN EXAMPLE. For example, management strategies for cockroaches have improved to the point that they are rarely a major problem. If a customer were to ask me if I thought I could rid his or her home of cockroaches — in most cases my answer would be an unqualified yes. Unfortunately, ridding the home of live cockroaches may not fulfill the customer’s expectation of cockroach antigen removal and subsequent relief for their child’s asthmatic condition. At this time, our industry can not assure any customer that cockroach antigens have been reduced to a level that will not precipitate an asthmatic attack.

West Nile virus is rapidly spreading throughout the country. Thus, mosquito abatement is a major concern for commercial property managers and owners.

What is the liability for companies providing mosquito abatement services? Considering that mosquitoes are highly mobile insects, a person could easily be bitten across town and no where near where service was rendered.

We need to be VERY specific in discussing pest management services. For instance, we provide mosquito abatement in the immediate vicinity of the treatment and this will minimize mosquito bites. We should not imply that our treatments will prevent West Nile virus, Lyme disease, cockroach allergies, hantavirus or any pest-borne diseases. These unfounded claims will undoubtedly open the doors to litigation.

In terms of industry liability, unfortunately, most of it ultimately falls on the shoulders of service technicians. Technicians are entrusted with a great deal of responsibility, e.g., the reputation of our industry, company image, protection of the environment, customer satisfaction, and product use and performance.

They should be coached on how to discuss these issues with customers and cautioned not to overstate the impact of their services.

Overzealous salespeople can easily fall into the pitfall trap of overstating the impact of pest management services — promising far more than the company can deliver. Contracts and proposals should be reviewed to ensure that they do not overstate your company’s abilities, particularly with regard to disease prevention.

We will always be protectors of food, health, property and the environment, however, we need to be cognizant of our limitations and convey this to our customers.

The author is technical director of American Pest Management, Takoma Park, Md. He can be reached at 301/891-2600 or rkramer@pctonline.com.