Court of Appeals of Indiana | Opinion 18A-SC-788 | August 29, 2018 Page 1 of 9

ATTORNEY FOR APPELLANT

Candace C. Williams

Tolbert & Tolbert, LLC

Gary, Indiana

ATTORNEYS FOR APPELLEE

Charles C. Hoppe, Jr.

Roland Clark

Knight Hoppe Kurnik & 

 Knight, Ltd.

Schererville, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Maurice Johnson,

Appellant-Plaintiff,

v.

Blue Chip Casino, LLC, d/b/a 

Blue Chip Casino Hotel Spa,

Appellee-Defendant

August 29, 2018

Court of Appeals Case No.

18A-SC-788

Appeal from the LaPorte Superior 

Court

The Honorable Jeffrey L. Thorne, 

Judge

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 2 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 smallclaims 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 3 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 4 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 5 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 6 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 7 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 8 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 9 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.