Death in Airbnb Rental Raises Liability Questions
nytimes.com
nytimes.com
There was a recent inquest in the UK (http://www.independent.co.uk/news/uk/home-news/corfu-carbon-...) where the liability of a package holiday company in the deaths of children caused by a faulty boiler was examined, and where the hotel may have taken shortcuts in repairing the boiler. If this was an AirBnB property would we put the blame for the faulty boiler on the customer or the service provider?
Assumes the homeowner checks that the insurance for the professional is valid at the point the repair is made. Of course nobody does that. (They ask and are told they are insured. Maybe on a large project but on a small repair?)
Along those lines I have a doctor that is practicing in a property that I own (commercial). As part of the lease (as with all tenants that I have) they are required to provide not only proof of insurance but to add my LLC as a named insured to the policy and provide what is known as an ACCORD certficate (as proof). They do have the insurance (I have seen the policy) but even after 2 months I have not been able to get them to get their agent to provide the ACCORD cert. So what am I supposed to do? Tell them to move out? In theory this needed to be provided prior to moving in. But as things like this go of course you give leeway and try not to be a hard ass. I am sure I will get the cert but there is liability for a brief time prior to receiving it. My point is all of this is real life and the difference between what is taught in school (or online) and what actually happens in business. [1]
[1] And another tenant provided the CERT but named me personally instead of the LLC. And I've had cases where my own insurance company mixes up company names (there are several) on the policy and it's a constant battle to get all paperwork actually straight and in order (easy when you own 1 thing, much more difficult to keep track of when you own several or have multiple tenants).
For example, if I purchase a defective product from a retail store and I am injured, I would be able to name the manufacturer, retailer and any other middlemen in the supply chain. If multiple parties are found to be liable, I can collect 100% from any 1 party (the deep pockets). It's not necessarily as unjust as it may sound because generally each liable party will be assigned a % of the fault/damages and the deep pockets can recoupe that from the other parties (as long as they have it, can't get blood from a stone).
This is why the article exists.
IMHO, clauses where a party forbids the other party to talk about the deal, should be made illegal, because as it is, companies with deep pockets can totally control the story.
Of course, people know you were paid $10m; it's not the sort of thing you can perfectly hide.
[1] http://www.inc.com/tess-townsend/thousands-of-airbnb-employe...
Swings and related fairly dangerous toys are dissappearing from the US. In the year I spent there in 2001/2002, I saw two swings, in the same playground.
http://news.nationalpost.com/news/canada/return-of-risk-the-...
The insurance company settled, which suggests that under US law there was liability. Negligence is one of the most common sort of lawsuits in the US, looking it up I see that it is a common law concept and it's hard to find any resources that discuss it in terms of civil law. Perhaps that explains some of it.
IANAL, so I won't discuss the law, but if I were operating that BNB, I would feel personally liable. It was a failure on their part to allow that tree to remain standing (let alone with a _swing on it_) and an ethical failure to take responsibility for other people's safety without fully understanding what was involved.
That said, it is a human error I've made myself (fortunately without fatal consequence).
I am reminded of the parable of the young reformer and the old guard politician. The reformer wants to remove a fence which is blocking a path, because it is inefficient to detour around it and he sees no use for it. The old guard says that, regardless of inefficiency, he won't allow the reformer to destroy something for which he sees no use, because it is very unlikely that their predecessors invested time, energy, and budget to just to frustrate his movements. Taking the fence down would invite unknown consequences on to his constituents.
AirBNB, Uber, and similar start ups are taking a crow bar to regulations they do not understand.
Which is exactly why I see this as an accident. It is very easy to see a tree as something strong and capable of supporting some amount of weight because it has done so for a very long time. Even experienced woodsmen are caught unawares by trees with regularity.
A dead tree is an accident waiting to happen and any tree without leaves is one that you should not climb into or hang weight from or even walk under until you've figured out what the exact state of affairs is.
But that is precisely why we've placed barriers to entry for jobs that serve the public, to catch mistakes known to us collectively but perhaps not individually. You're right that it is your own responsibility to verify that a given course of action is safe. But it is also your responsibility not to market defective products, and to educate your users about risks associated with your product. The latter can and should be enforced by society.
When you make money from your property, using the swing in your adverts, you either need to make sure it's not going to kill people doing normal things (swinging on the swing is normal; getting 8 drunk people to swing on the swing would be abnormal) or you need to put big disclaimers up.
And depending where you are disclaimers might not be enough.
When you invite the public onto your property for a fee you probably need to make sure your public liability insurance is paid up. You can't make anything totally safe, but you need to make an effort to minimise the hazards.
Trees are natural items, not engineered, ridiculously strong, most of the times and unpredictable when it comes to failure modes. Even perfectly healthy trees can lose branches. Sometimes accidents are just that: accidents.
What could the owner have done to ensure that this did not happen? For all we know he tried the swing himself the day before and it was fine. At least at the time of making the advert it was still fine and short of 'destructive testing' to figure out how much load it supports there is no way to know what it will handle except for trying to see if it supports your weight.
Remove the swing? If you have the foresight to say that the swing is so dangerous, then why not the person who actually owns the thing?
I am aware that there's some risk involved in swings - don't walk in front of one when it's being used, don't use it when I'm drunk, don't do handstands on it, but I also know that using it normally is pretty safe.
Maybe common sense isn't such a good guide, though.
Now, that doesn't mean you're wrong about what people usually think. It's just an argument that people are not being sensible about it.
It looks like a win because it's cheaper, but that's only true until something goes badly wrong.
Oversight and regulation aren't always a bad thing. Sometimes they prevent avoidable accidents.
Yes.
> It looks like a win because it's cheaper, but that's only true until something goes badly wrong.
It isn't a win in my opinion, for many reasons. It violates all kinds of social contracts.
> Oversight and regulation aren't always a bad thing.
Agreed.
> Sometimes they prevent avoidable accidents.
That's a tricky one. I suspect this particular tree-swing would have killed someone, it's a coincidence that it had to be an AirBNB guest so even if this particular person may not have died the accident itself would have probably happened anyway sooner or later. Which is sort of the root of my whole argument about this being a tragedy rather than an issue of liability.
Either the homeowner needs to see a huge disclaimer and accept liability when they place a property, or the consumer needs to see a huge disclaimer and accept liability when they rent a place, or AirBnB needs to assume responsibility and liability for both. You can't just leave it a grey area where it automatically defaults to the consumer being liable for everything, so that the homeowner and AirBnB can maximize profit while assuming zero risk.
Held to a different standard by whom? Definitely not by courts.
This is theoretically true in all of life, so it's kind of a vacuous and IMHO not very useful point.
IE if someone doesn't stop when you have the right of way, it doesn't make you any less dead when they run you over.
Realize the reason the law exists is precisely to force the burden back onto homeowners, and that is in fact, the likely outcome.
This is not the brakes of your car services by some competent mechanic in which case I can easily see a liability issue but in the case of old stuff hanging from trees different rules apply.
For that matter, when visiting a friend who has two young children and a nice swing in their garden I spent the better part of a day re-inforcing the swing and its foundation because I thought the whole thing was an accident waiting to happen.
If you stay in someone else's apartment and it does not have a CO alarm and a stove that may or may not vent into the apartment then you should at a minimum sleep with a window open.
Tree-swings are not usually installed by licensed engineers, they are typically installed by people with a tree with a suitable profile, a rope and an old tire, any of which may fail at unpredictable times, but most likely when being used (and even more likely: when being used by an adult).
For all we know the owner of the swing tried it the day before but weighed 10 kg less than the guest and he/she never noticed a problem. For every tree-swing there is a point in its life where it will fail and a load that will cause it to fail right now.
In this case I'm not sure how anyone could defend the homeowner or AirBnB when the house had a picture of the swing on the website. Granted AirBnB isn't filtering those pictures looking for potential problems (hrm, image recognition problem here that could be interesting) but the owner sure could have if he/she were trained or asked to do so. Right now they aren't -- it is just a "host your home for free and get people to give you money" without thinking about the consequences.
I can see why the homeowner might not have all the insurance or knowledged needed to make it a safe(r) place. That's why they are homeowners and not hotel or apartment owners -- they aren't that sophisticated. But is it right for AirBnB to profit off of that?
I agree with everything else you're saying, but as for the example of states' rights vs. city rights, - while this may appear to be inconsistent, it isn't necessarily. It appears to be a contradiction if you interpret states' rights to be an affirmation of delegation to smaller forms of government on pure principle, but that's not what it is.
Advocates of states' rights base their argument on the Constitution, which specifically affords states (and the people) all rights that aren't provided to the federal government[0]. States reserve this power because the federal government actually draws its power from the states, not the other way around[1].
This isn't an argument that generalizes to the sub-state level, because incorporated cities and towns draw their authority from the state, just as the federal government draws its power from the federation of states that form the union.
You may or may not agree with the extension of this argument to advocate for the various things that states' rights advocates promote, but I'm just pointing out that this isn't actually a paradox.
[0] The tenth amendment is the most notable example of this, but there are other parts of the constitution in which states are treated as having far more sovereignty than any other subdivision of government: https://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_...
[1] Historically, this is obvious: the states had to ratify the Constitution before it ever even came into effect!
You can do a simple impedance test on the tree. If the tree had rot then electricity will go through the core faster due to additional water content. And they give you a nice graph to prove whether the tree is safe or dangerous.
If you as an individual want to own trees, and especially if you want to let others use your property, I don't see any reason why you should be held to a lesser standard of care than any municipality across the country. If you can't afford to keep your trees safe then you can't afford the trees and/or the property.
But yeah, this definitely isn't anything beyond what you'd learn in a plant pathology 101 class in college or a basic arborist certification.
1. Handling it like that might mean more cut down trees, which is probably not something the town/city has an interest in. (Maybe they should send professionals to check out all the trees?)
2. Properties can change hands much quicker than cut down trees can be regrown.
I am not sure what the point of point 2 is, when you have point 1. You don't really have to cut down all the untested trees on your property, but if you're not doing testing/maintenance on the trees for ANY reason(ignorance, cost), don't be surprised when one kills someone and you're held liable for it. You should consider this before buying a property with trees. It's similar to owning a dog. If you own a dog, and it runs out and bites someone, you will likely be held liable, and the dog will likely be put down. If the dog tests positive for rabies before even biting anyone, it will be put down, similar to a dead tree being cut down.
No, liability insurance moves money from the insurance company to the next of kin of the person who died from having a chunk of tree crack their head open like it was an egg. It does not protect you from this sort of thing.
Is anybody actually arguing that a property being covered by liability insurance makes the property safer? I suppose that is the case in more commercial/industrial settings where the insurance company has a list of requirements on the policy.
Change the scenario. Is it reasonable for the renter to assume that the floorboards in the building are sound? This really only differs in degree from that.
It's also code to have bedroom electric outlets protected by an AFCI.
I guess my point is that even though my reaction to your posts about fire is that it seems paranoid, those accommodations are supposed to be the default where I live.
It will give my family the money they need to bury me. It will give my dependents a bit of the money I would have given them across the rest of my life.
> If you want to use an old tree-swing the onus is on you, the user to make sure that it is safe because if it isn't you pay the price.
Not if someone has charged me for access to the swing. It's the commercial activity that has caused the extra attention here.
This falls into the area of "jury argument" ;-)
However, i will point out "if you can't figure out whether it's safe, you generally have a duty to remove it or warn people it's possibly not safe".
(Whether i like the law or thing it just generates tons of warning labels, that is the law).
Should I have judged my test as 'inability to figure out if it was safe'?
Nothing short of a destructive test will tell you exactly what load a swing like this will support, but common sense will tell you to be careful with tree swings regardless of whether or not someone tells you that it is safe. It's a non-engineered project probably made on a budget (even though in this particular case the tree swing had chains rather than rope so it was constructed fairly well) and it ended up being the tree trunk that snapped rather than the branch the chains were attached to.
> Liability insurance won't save your life if you get hit by a few hundred pounds of tree. It will just move money around.
By this argument you seem to be claiming that there's no liability in cases where people die. Just because you could have stayed alive by not doing something doesn't mean there is automatically no liability.
Obviously we agree that it would be better to not sing and be alive than to swing, die, and get a payout. I'm also not sure whether there is liability here legally, or even whether I think morally there was reasonable expectation that the swing was safe.
But surely the question of liability doesn't factor in whether or not the payout brings someone back to life, and this part of your comment obscures your point a bit.
No, that's not what I'm claiming. There are many cases in which there is clear liability when people die.
Properties you rent from professional operators you should be able to trust to be up to date, in a country that has a low incidence of corruption.
Anything you rent from private individuals should be considered unsafe by default.
How about when you rent a car?
This is true even when it's not a situation where the guy paid for a rental and you put the pictures of the swing in the listing ;-)
By way of an example, here's a writeup on connecticut:
https://www.cga.ct.gov/2002/rpt/2002-R-0365.htm
"The Connecticut Supreme Court described three types of invitees.
...
2. A business invitee is someone invited to enter or remain on land for a purpose directly or indirectly connected with business dealing with the possessor of land.
...
The possessor of land owes an invitee all the duties that he owes to a licensee and also: (1) the duty to inspect the premises and erect safeguards, if necessary, to render the premises reasonably safe and (2) he has liability for defects that would ordinarily be discoverable by a reasonable inspection and he has the duty to give a proper warning. But he is not liable to anyone for unknown latent defects, that could not be discovered by the exercise of reasonable care (Conn. Law of Torts, § 49).
Even if he is an invitee, the plaintiff must prove that the defendant had notice, actual or constructive, of the specific defective condition that caused the injury, and that the condition existed for a sufficient length of time to allow the possessor, in the exercise of reasonable care, an opportunity to discover it and fix it or warn of its presence (Monahan v. Montgomery, 153 Conn. 386). The possessor of land is not liable for hazards that could not have been discovered or anticipated (Conn. Law of Torts, § 49). "
(The usual next argument is about whether it's reasonable, could have been discovered, etc. These are generally jury questions)
And that's exactly the rub. People renting out their AirBNB properties will not study the law beforehand to establish the limits of their liability, nor will they review the entirety of their property for being safe for guests. They will go online and click a few buttons and expect some extra income from guests in their house and therefore accidents can and will happen. Nor will AirBNB send around their friendly safety inspector to make sure everything is A-OK before accepting the listing. I'm very sorry that person died but with private operators your normal expectations of service levels should go right out the window in return for a less cookie-cutter experience.
I can't see a way in which you could rule out these sort of accidents without ending up in the regular hotel business. So either AirBNB operators are hotel operators and their hosts are franchise operators and they should all just 'follow the rules' or AirBNB guests will have to take into account that they are entering an unknown private home with an unknown history of maintenance. Caveat emptor... Because in the end it is your life and the lives of your dear ones that are at risk.
This has zero effect on the law, of course, and in fact, i expect the law will get harsher in the face of AirBNB, not easier.
"AirBNB guests will have to take into account that they are entering an unknown private home with an unknown history of maintenance."
More likely what will happen is what has happened in the past: People get sued into oblivion, and either take out insurance, have regular inspections, or stop renting their home.
Or some type of regulatory change will occur that makes airbnb untenable.
That would be a good thing but I think that it may be quite a while before a synchronized legal framework will materialize and the money is such that it will drive such rentals underground.
AirBNB is the talk of the town in Amsterdam, whole buildings are converted into illegal hotels (and are fire-traps to boot). There is a huge divide imo between people using AirBNB to rent out the place they normally occupy versus people setting up places with the sole intention of renting them out via AirBNB, bookings.com (which is quite popular) and the like.
The city of Amsterdam has stopped issuing permits allowing 'short stay' (which still has to be 7 days or more).
https://www.amsterdam.nl/veelgevraagd/?caseid={BF4EAC6B-F642... (dutch, sorry, I can't find a relevant link in English).
That doesn't stop people from buying up stacks of houses and converting them. One such situation with which I'm familiar converted two stacks right next to each other, 5 floors each into 20 (front and back) sections each of which fetches between 100 and 150 euros per night on AirBNB. The money involved is stupendous and the municipality has more things to do than to go after illegal hotels though they will definitely act if a situation is deemed unsafe.
In some cities, like San Francisco, you need to disclose in the sale of your home if anyone died in your house--even of natural causes.
Rediculious law? Something about Asian superstition? My grand mother died a natural death in here Richmond district home. The fancy realestate agent skipped through the house yelling, "You need to disclose the death!". I told my dad fine. We would have caught it eventually.
I did get his commission reduced 1 percent on the gleeful way he treats my father's/mine pain.
Why do realestate agents even exist anymore? 6-7 community college courses, and a easy test? I've never understood the need for them these days. A few years ago, the Realestae lobby got to Jerry Brown, and got him to sign a bill making it harder to become a Realestae broker. It exempted all the current cheerleaders who passed their broker's exam years ago.
What I found ironic, is the bill was presented to Arnold Schwartzeneger years ago, and he saw right through it. There was no problem with inexperienced brokers. The current brokers/cheerleaders just didn't want more competition, and wanted salespersons commissions.
That day I realized a good Republican is no different than a democrat.
On top of all that small but invaluable information a good real estate agent will make the process of buying your home smoother. I don't think many people have an appreciation for how difficult it is to manage a title company, the seller's agent, three attorneys, a loan officer and the bank. Contrary to popular belief it is not always in the best interest for them to all work together. In some cases one or several of those parties my have a vested interest in slowing the process down or killing the deal completely.
Selling a house, I'd recommend skipping the realtor and hiring a good real estate attorney from the start. After you sign a realtor's contract, their entire job is based around managing your expectations and simply waiting until they convince you to lower the price enough for the transaction to clear. If you can be honest with yourself about needing to lower the price, and can manage different people asking you to leave your house (as opposed to just funneling through a single one), you're better off using that 5% as a direct incentive to buyers.