I think this is about the third time this story has got to the front page and I find it interesting that most comments seem to focus on the personal responsibility angle rather than the duty of care. The question is whether AirBnB and the homeowner can be seen to be providing a service much like a hotel. You have a reasonable expectation that hotels have procedures and systems in place to ensure the accommodation they provide is safe.
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?
In the US it is called joint and several liability and it could result in 100% liability for all parties in the supply chain.
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).
If the service provider (AirBNB host in this case) had done the repairs themselves or had let an unlicensed person work on that boiler then yes, they should be liable. If the work had been done by a licensed professional then their professional liability insurance would protect them from the fall-out of sloppy workmanship.
"then their professional liability insurance would protect them from the fall-out of sloppy workmanship"
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).
The interesting thing about this specific incident is that the son of the victim chose to not pursue any claim against AirBnb, so as to be free to talk about the incident.
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.
I agree with you in principle, but I believe these agreements exist so that you can't take a $10m payout (and drop the legal case with a no-fault agreement), and then turn around and tell the media that "I was paid $10m, but they TOTALLY were at fault". It'd come across as disingenuous all around (company & victim).
A bit off topic, but AirBnB's big conference is going on right now. In Paris [1]. It's a complete coincidence, but probably means the issue we're talking about here is on their far back burner as they try to ensure the safe return of everyone there.
As a non-American who once spent a year living in the USA, I can't help but point out the downside of holding the owner of a swing liable when it kills someone:
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.
Same in Kansas. They may not be the same swings I had as a kid (with bare chains, chafing rubber seat, and a wood chip pit to land in), but they still seem to be around in the same numbers.
They is something called the Risky Playground Movement to return some of the less dangerous items to play spaces. These are supposed to stimulate kids more and help them learn risk.
There are plenty of parks with swings in Oregon. They never diminished. There have been cases of shoddy or poorly constructed playgrounds and skate parks though. People should definitely question if the materials and the contractor installing them are of quality.
It's a tragic accident, I don't see much in terms of liability. If you use a swing hanging from an old tree then yes, something could fall on your head, why would that have to be somebody's fault or responsibility except for your own?
The swing was in the photos on the AirBnB listing.
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.
Liability insurance won't save your life if you get hit by a few hundred pounds of tree. It will just move money around. 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. Somebody else might have installed that swing for a bunch of kids weighing 45 pounds and they used it for years without a problem. Then some full grown adult comes along and the branch breaks, either because the rope has scoured the bark enough that it started to rot or simply because it is overloaded.
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.
In the US, property and tort law varies from state to state, but in general, for "invitees" (IE people you have explicitly invited to come into your property), you have a duty to not only repair and correct known dangers, but reasonably inspect, discover, and correct unknown dangers.
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:
"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)
> But he is not liable to anyone for unknown latent defects, that could not be discovered by the exercise of reasonable care.
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.
When you pay money to stay in a place with advertised amenities (I'm assuming the swing was part of the listing, idk) it is expected that you can use those amenities without dying... Basically whoever makes the listing should ensure that the product they are offering the user (the abode + amenities) is hazard free.
If you are renting out your property, it should be safe for reasonable use. A swing being part of the rental should be safe to use in a normal manner, not to mention that a temporary tenant cannot possibly be expected to know the maintenance history of any fittings.
If I would rent a property through AirBNB (which I won't) I would expect it to be unsafe by default because that to me would seem to be the most prudent way to act. Ditto when I buy a used car, I inspect the thing end-to-end before I trust it, ditto when I buy a new place to live in (the one I just moved into had sub-standard electrical circuitry and I ripped everything out and replaced it with up-to-date and safe materials at considerable expense).
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.
This is really interesting and highlights a problem with AirBNB that I hadn't thought of. OP could be an AirBNB renter and sees no issue here. A hotel or B&B owner would see the issue. And if not his insurer etc would inspect his or her facility and drive these points home. I think AitBNB is a great service but this is enlightening and highlights key differences to regulated facilities.
If I were to rent out my home on AirBNB (which I won't) I'd make damn sure that everything is in 100% working order and safe because I would not want anything to happen to my guests. Conversely, if I would rent someone else's home on AirBNB (which I won't) I would make damn sure that everything is in 100% working order too before using it simply because I would assume that the home-owner is not the one who has the most at stake if it turned out not to be the case.
The issue is not liability. It's whether there is a leg to stand on to get sued for this. In this case there is a leg to stand on to get sued. And in that case it's time and money to defend, assuming insurance does not cover this of course.
A little of topic, but if we're talking strict liabilities, and lawsuits?
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.
While most real estate agents are completely useless I don't believe the profession is useless. A good real estate agent knows everything about the area they service. What areas have bad reputations and crime scores but are perfectly safe? What areas have development plans in the works? What are the local laws and ordinances, how does that affect your purchase? How difficult is it to get permits for types of work? Are residents fleeing an area because of upcoming re-zoning that isn't well published? They'll have a vast network of trusted service professionals that can help you renovate. They will know little things like which HOA has unreasonable board members or which homes keep going up for sale because the next door neighbor is crazy.
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.
Think of it this way - people with a calling in life go and do that, accepting whatever compensation that comes with it. But nobody says "I really love facilitating house sales". So people become realtors for the money and that is what they optimize for - there's no passion for the activity itself. And while there is probably the rare exception, you will only think you have found them.
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.
Readit News
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?
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).
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).
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.
[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-...
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.
https://en.wikipedia.org/wiki/Occupiers'_Liability_Act_1957
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.
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.
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.
Deleted Comment
Dead Comment
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.