Airbnb guest severely injured traversing stairs in home of Airbnb host: Is Airbnb liable?

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In this week’s travel law article, we examine the case of Carroll v. American Empire Surplus Lines Insurance Co., Civil Action No. 16-2589 ( E.D. La. 2017) wherein the Court noted that “This action arises from injuries as a result of the collapse of a staircase. Andrew Callard…rented a property at 1423 Royal Street in New Orleans, Louisiana (the Property) from its owners, Defendants Mark Hamilton and Lynn Schwarzhoff (the Owners), using the website maintained by Defendant Airbnb, Inc. Plaintiff Justine Judge Carroll, a friend of Callard’s, also stayed at the Property during Callard’s rental. On April 10, 2015, the wooden stairs that Carroll was ascending to access the Property collapsed, causing Carroll to fall approximately ten feet. Plaintiff Carroll alleges that he sustained severe musculoskeletal and neurological injuries as the result of the fall. Carroll asserts tort claims against Defendants Hamilton and Schwarzhoff, several of their alleged insurers and Defendant Airbnb…Defendant Airbnb now moves for summary judgment dismissing the Plaintiff’s against it, arguing that under Louisiana law Defendant Airbnb owed no duty to Plaintiffs and that Airbnb had no knowledge of the defect that allegedly caused Plaintiffs’ injuries”. Motion granted.

Terror Targets Update

Israel/Gaza

In Halbfinger, Kershner & Walsh, At Least 41 Palestinians Killed in Protests as U.S. Opens Jerusalem Embassy, nytimes (5/14/2018) it was noted that “Palestinian officials say at least 41 people have died in the latest round of protests. At least 1,700 Palestinian demonstrators were also wounded along the border fence with Gaza, the Health Ministry reported, as the mass protests that began on March 30 and that had already left dozens dead erupted again. The relocation of the United States Embassy to Jerusalem from Tel Aviv was set for Monday, timed to the 70th anniversary of the formation of Israel-a move that many Israelis have celebrated but that has enraged Palestinians…A mass attempt by Palestinians to cross the fence separating Israel from Gaza quickly turned violent, as Israeli soldiers responded with rifle fire…Tens of thousands of Palestinians took part in the Gaza protests, which spread on Monday to the West Bank, in opposition to the embassy move”.

Sumatra, Indonesia

In Sword-wielding assailants shot dead after attacking police station in Indonesia, travelwirenews (5/16/2018) it was noted that “Indonesian police have shot dead four men armed with swords after they attacked a police station on the island of Sumatra. One policeman was reported killed and three people injured in the attack….the perpetrators were armed with Samurai swords…Just two days ago…10 people were injured in a suicide bombing as two motorcycles drove into a checkpoint at a police station in the Indonesian port city of Surabaya”.

Exploding Cricket Match, Anyone?

In Ghazi & Nordland, Rare Attack on Cricket Match in Afghanistan Kills at Least 8, nytimes (5/19/2018) it was noted that “At least eight people have been killed and dozens of others wounded in a series of blasts at a cricket match in eastern Afghanistan…The Taliban spokesman…issued a statement denying that the group was involved in the attack late Friday night on the stadium in the city Jalalabad”.

Texas School Shooting

In Fernandez, Fausset & Bidgood, Texas School Shooting: 10 Dead, 10 Hurt, and Many Not Surprised It Happened, nytimes (5/18/2018) it was noted that “A nation plagued by a wrenching loop of mass school shootings watched the latest horror play out in this small Southeast Texas town Friday morning, as a young man armed with a shotgun and a .38 revolver smuggled under his coat opened fire on his school campus, killing 10 people, many of them his fellow students, and wounding 10 more…Law enforcement officials said they found two homemade explosive devices left at the school during the rampage”.

Cubana Airline Crash Kills 100 Plus

In Gladstone & Robles, More Than 100 Die as Aging Cuban Airliner Crashes, nytimes (5/18/2018) it was noted that “A Cuban state airliner crashed and burned moments after takeoff from Havana on Friday, killing nearly all 114 people aboard the nearly 40-year old plane. It was one of the worst airline crashes in Cuba, which has been struggling to operate with a decrepit fleet of planes that has been blamed on the longstanding economic embargo imposed by the United States”

Chinese Ride Hailing Rape & Murder

In Chen & Ou, Killing Spurs Didi, China’s Ride-Hailing Giant, to Revamp Its Service, nytimes (5/16/2018) it was noted that “Didi Chuxing, China’s wildly popular ride-sharing service, said on Wednesday that it would overhaul its app and its safety and security practices, after reports that a passenger had been raped and killed by her driver. The passenger, Li Mingzhu, 21, a flight attendant, was found dead last Saturday after hailing a ride downtown from the airport in the northern Chinese city of Zhengzhou on May 6…Didi Chuxing has faced a widening array of complaints from female passengers in recent days, as nationwide attention has focused on the company in the aftermath of the killing. Didi Chuxing is similar to Uber, and indeed bought Uber’s business in China nearly two years ago. The Chinese company which has been expanding at a breakneck pace within the country and around the world says it has 450 million users”.

British Tourists Kidnapped In Congo

In DRC park suspends tourism after kidnapping and murder, travelwirenews (5/16/2018) it was noted that “The management of Democratic Republic of Congo’s Virunga Park announced on Tuesday that it has temporarily halted tourist activities after the murder of a guard and the kidnapping of two British holidaymakers (who were) freed after two days. The UK pair were unharmed…One of the most important conservation sites in the world, Virunga Park covers 7,800 square kilometers along a swathe of eastern DRC abutting the border with Uganda and Rwanda. It also covers most of Lake Edward and the Ishasha river valley”.

Sichuan Airlines Windshield Shatters

In Ives & May, Windshield Shatters on Plane in China, Pulling Pilot Partly Through Window, nytimes (5/15/2018) it was noted that “A Sichuan Airlines plane heading for Tibet made an emergency landing on Monday after its windshield shattered and a co-pilot was partially sucked out of the cockpit…Flight 8633 left the southwestern metropolis of Chongqing at 6:26 a.m. and was scheduled to land at 9:05 a.m. in the Tibetan capital, Lhasa…But the windshield later ‘shattered with a loud sound’…’When I looked over to my side, half of my co-pilot’s body was hanging out of the window’. ‘Fortunately, he was wearing a seatbelt’”.

Russian Airline Engine Failure

In Russian Boeing 737 lands after reported mid-flight engine failure, travelwirenews (5/19/2018) it was noted that “A Pobeda Boeing 737 reported to have 170 people on board has landed in Moscow with only one working engine. The plane had to turn around mid-flight en route to the Russian city of Astrakhan after its right engine failed”.

EU Flight Delay Judgment

In Compensation of passengers in case of flight delay: European Judgment, travelwirenews (5/13/2018) it was noted that “The judgment delivered by the Court of Justice of the European Union on 7 March 2018 (dealt with) the compensation of passengers for the delay of a flight and the competent jurisdiction in the case of a dispute appears between the passenger and the airline responsible for the delay…The airline which has carried out the first segment of a connecting flight, in a Member State, may be attacked before the courts of the final destination in another Member State. This is the case when the individual flights have been booked for the entire flight and the significant delay on arrival is due to an incident that took place on the first of the flights”.

Uber Wants To Know, Now

In Uber will track even more about your trip with new mid-ride feedback, travelwirenews (5/14/2018) it was noted that “Instead of waiting until you’re safely at your destination to let Uber know your driver was on the phone the whole time (or, alternatively, the most attentive listener with killer dinner suggestions), the ride-hailing app is letting you share your thoughts while you ride. That’s rights, giving tips, ratings, compliments and other feedback is now a mid-ride event. Don’t worry, the driver won’t get the feedback until after you exit the vehicle”.

Uber Waives Arbitration In Sex Cases

In Wakabayashi, Uber Eliminates Forced Arbitration for Sex Misconduct Claims, nytimes (5/15/2018) it was noted that “Uber said on Tuesday that it is eliminating forced arbitration agreements for employees, riders and drivers who make sexual assault or harassment claims against the company. Before they could use Uber’s ride-hailing app, customers have had to consent to a terms-of-service agreement that required them to resolve any legal claims with the company in an arbitration hearing, rather than in open court [See e.g., Meyer v. Uber Technologies, Inc., 868 F. 3d 66 (2d Cir. 2017)(arbitration agreement enforced)]. Now, customers can take those claims to court or join a class action lawsuit, the company said”).

Luxury Paris, Anyone?

In Vora, How to Get to and Enjoy a Luxury Trip to Paris for Less, nytimes (5/16/2018) it was noted that “Interested in a late summer vacation in Paris, but think that peak travel season means it must be completely out of reach? In fact, the opposite is actually true: August happens to be one of the most affordable times to visit the city, with even luxury hotels offering rates and inclusions that aren’t usually available during the rest of the year. Airfare to the city, it turns out, is also cheaper compared with other months”.

Volcanos, Anyone?

In Blinder, It’s Not Just Hawaii: The U.S. Has 169 Volcanos That Could Erupt, nytimes (5/14/2018) it was noted that “Volcanos are full of tricks. They can build to a major eruption in a crescendo of shudders and spatters or explode without almost no warning. They can lie in wait under a magnificent snowcap, the centerpiece of a landscape of beauty that they can obliterate tomorrow, or in 10,000 years, or never again…The Unites States Geological Survey counts 169 potentially active volcanos in the country…About 50 of them in six states are rated high priority of highest priority for monitoring”.

Best Baguette In Paris

In Nossiter, Sons of Immigrants Prop Up a Symbol of ‘Frenchness’: The Baguette, nytimes (5/14/2018) it was noted that “Beware that basket of limp crust in front of you. Not all French bread is created equal. So sacred is the classic baguette that French law strictly codifies it, protects it and regulates it. There are in fact few things more closely associated with France than the baguette, that long crusty stick that announces its nationality like no other bread. So, the mastering of that symbol of Frenchness by Mahmoud M’sddi, an immigrant’s son and this year’s winner of the Grand Prize for Best Parisian Baguette, is about more than great baking…Mr. M’seddi’s triumph challenges the very notion of what it means to be French”.

Sports Betting, Anyone?

In Liptak, Supreme Court Ruling Favors Sports Betting, nytimes (5/14/2018) it was noted that “In a boost for the prospect of commercial sports gambling across the nation, the Supreme Court on Monday struck down a federal law that effectively banned such gambling in most states. The case concerned New Jersey, but it has implications for other states eager to allow and tax sports gambling. Americans are estimated to annually place $150 billion in illegal wagers on sports. The betting law, called the Professional and Amateur Sports Protection Act of 1992, prohibited states from authorizing sports gambling. It exempted Nevada, where sports betting has long been legal, along with sports lotteries in Delaware, Montana and Oregon. Other states were given a year to opt in, but none acted in time”.

Another Foot Washes Ashore

In Bilefsky, In Canada, Theories Swirl With the Tide as 14th Human Foot Washes Ashore, nytimes (5/12/2018) it was noted that “The mystery has haunted Canadians for more than a decade: one by one, human feet clad in running shoes have floated ashore on British Columbia’s southern coast with gruesome regularity. Last weekend, foot No. 14 was discovered by a man strolling on a beach on Gabrola Island, a sleepy and picturesque enclave, population 4,000, that is known for its captivating sandstone and close-knit artistic community. This time, the foot…wore what appeared to be a hiking boot…The discoveries have fanned speculation…that the unattached feet could be the work of a tsunami, a human trafficker, a Mafia hit man, a deranged foot fetishist or a serial killer who had spread body parts out to sea…Nine of the feet have been identified, two of them from the same person, according to the Caroners Service. Most of the feet were men’s. In at least three cases, the shoes were size 12. Not all the remains belonged to Canadians”.

Marriott’s Travel Geeks

In Blinder, Meet the People Who Can’t Get Enough Hotel Points (You’ll Learn Something), nytimes (5/15/2018) it was noted that “There are not many gatherings where a senior vice president of a hotel chain counts as a spot-on-sight celebrity. But on that Saturday evening in late April, the Marriott executive David Flueck has arrived in Northern Virginia for just such an event: a meeting of about 50 Marriott Rewards points aficionados who connected through a decade-old internet forum. They spend hours freely dolling out ideas and recommendations online and they affectionately call their in-person gathering “TIPPLE”, shorthand for ‘The Insider Points, Pints and Liquor Extravaganza’…With every answered question and shared strategy, they act as screen-named guides to a lucrative world governed by ‘Megabonus’ promotions and fine print, category changes and free night certificates. Their insights-fueled by a mix of practice, speculation and maybe a bit of projection-are an open-ended Google search away”.

Goodbye Old Ice, Was Nice Knowing You

In White & Pierre-Louis, In the Arctic, the Old Ice Is Disappearing, nytimes (5/14/2018) it was noted that “In the Arctic Ocean, some ice stays frozen year-round, lasting many years before melting. But this winter, the region hit a record low for ice older than five years. This, along with a near-record low for sea level over all, supports predictions that midcentury there will be no more ice in the Arctic Ocean in summer. As darker, heat-absorbing water replaces reflective ice, it hastens warming in the region. Older ice is generally thicker than newer ice and thus more resilient to heat”.

Japanese Railway Apologizes

In Japanese railway company apologizes for train leaving 25 seconds too early, travelwirenews (5/15/2018) it was noted that “Never late, never early…But in Japan, where the railway system is famous for being consistently punctual, no more or less, leaving too soon doesn’t quite fly with authorities. After a train left 25 seconds early last Friday morning, railway company JR West posted an apology and press release on its website”. Bravo.

Lightning Strikes In India

In Lightning strikes, freak storms kill & injure 200+ across India, travelwirenews (5/15/2018) it was noted that “Over 80 people have been killed in India by lightning strikes and thunderstorms that swept across five states. With hundreds of others injured, the National weather service is predicting more heavy rain and gusty winds”.

Travel Law Case Of The Week

In the Carroll case the Court noted that “Plaintiffs bring negligence claims against Defendant Airbnb asserting that Airbnb knew or should have known of the defect that caused the stairs to collapse and negligently failed to correct the defect or remove the Property from its listings. Negligence liability in Louisiana flows from Louisiana Civil Code article 2315 (which) employs a duty-risk approach…Whether the defendant owed the plaintiff a duty is a threshold issue in any negligence action…Additionally Louisiana Civil Code articles 2317.1 and 2322 provide that a person who owns or controls a building is liable for harm caused by its defect, but only when the plaintiff can prove the following elements: (1) ownership [or control] of the building; (2) the owner knew or, in the exercise of reasonable care, should have known of the ruin or defect; (3) the damage could have been prevented by the exercise of reasonable care; (4) the defendant failed to exercise such reasonable care; and (5) causation”.

The Parties’ Arguments

“Defendant Airbnb argues that it is not liable to Plaintiffs for two reasons: a) Defendant Airbnb wed no duty to Plaintiffs because it neither owned or controlled the Property on which Plaintiff Carroll was injured and b) Defendant Airbnb had no knowledge of the defective condition of the stairs. Plaintiffs respond by pointing to two sources of duty that they claim Defendant Airbnb owed to them. Plaintiffs argue that Defendant Airbnb ad a special relationship with either the Plaintiffs or Owners such that Airbnb had a duty to prevent the Owners from harming third parties like Plaintiffs. And Plaintiff argue that Defendant Airbnb had sufficient control over the Property so as to become liable under Louisiana Civil Code articles 2317.1 and 2322″.

A Special Relationship

“Louisiana courts have fund that if a defendant has a sufficiently close relationship with a wrongdoer, the defendant may owe a duty to third persons to protect them from harm caused by the wrongdoer. The examples in Louisiana Tort Law-the only source regarding this type of special relationship that Plaintiffs cite-are limited to parent or guardian over minor child, master over servant, jailer over his charge, and perhaps a psychiatric hospital over its committed patients. Each of those relationships involves a defendant exerting a degree of control over the other party far exceeding even the amount that Plaintiffs allege that Airbnb exercised over the defendant Owners”.

Airbnb As Gatekeeper

“At most, Plaintiffs allege that Defendant Airbnb was a ‘gatekeeper’ to the Property, with the right to inspect the property at any time and delist the Property at will. Such a relationship does not involve the direct control, and corresponding responsibility, of the more custodial relationships that have traditionally given rise to a duty to protect third parties…Airbnb’s Terms of Service specifically disclaim any control over, or responsibility for, the actions of hosts and guests. Instead they describe Airbnb’s role as facilitating a transaction between property owners and guests…Airbnb merely offered a platform on which the Defendant Owners listed the property”.

Airbnb As Mere Intermediary

“In keeping with the characterization of Airbnb’s role as a mere intermediary, Plaintiffs state that ‘Airbnb provides on online platform that provides property owners, or Hosts, access to Guests, individuals seeking lodging. Plaintiffs also describe how Airbnb allows property owners to create a profile and collects information about their property as part of the listing process. On the other hand, Plaintiffs claim that ‘Airbnb must accept a potential Host before the Host is allowed to make their property available for rent on Airbnb’s website and frequently refers to the fact the Airbnb retains the right to remove a listing for any reason…(However) plaintiffs offer no evidence that Defendant Airbnb actually exercises those rights with anything approaching the care and discernment of a business hiring an employee”.

Airbnb Similar To Real Estate Agent

“Instead, Defendant Airbnb’s role is more akin to a real estate agent, who works to connect the parties to a transaction and often facilitates payment. A real estate agent also retains the right to accept and terminate listings, just as Airbnb does. Under Louisiana law real estate agents have the duty to disclose those defects of which they have knowledge, but no duty to inspect the property they advertise”.

Not In Best Position To Prevent Harm

“Defendant Airbnb was not in the best position to prevent the harm that occurred. Airbnb has no right to inspect the Property before the incident and no right to authorize repairs. Exclusive control of the property remained with the Defendant Owners, and thus they were in the best position to mitigate the risk posed by a defective staircase”. Accordingly, Defendant Airbnb did not owe Plaintiffs a duty because of a special relationship between Plaintiffs and Airbnb”.

Duty Arising From Custody Or Garde

“Plaintiffs also assert that Defendant owed them a duty to care because of the custody or control over the Property that Airbnb retained. The duty of a custodian of a building…is to ‘keep [it] in a reasonably safe condition [, and to] discover any unreasonably dangerous condition on his premises and either correct the condition or warn potential victims of its existence’. Defendant Airbnb argues that it does not owe that duty to Plaintiffs because it lacked custody, or garde, over the Property. While ownership of a thing is usually sufficient to establish garde, the principle of imposing liability on the entity best able to mitigate risk is broader than ownership alone and thus more than one party may have garde. To determine whether a person has garde over a thing, courts look to (1) whether the person bears such a relationship as to have the right of direction and control over the thing; and (2) what, if any, kind of benefit the person derives from the thing’. Plaintiffs cannot establish the Defendant Airbnb had garde over the Property because they fail to identify a dispute of material fact as to whether Defendant Airbnb had a right of direction and control over it…Plaintiffs cite no evidence that the right of Defendant Owners to grant access to their Property to whomever they like was in any way uninhibited by their contract with Airbnb. …Plaintiffs point to no evidence suggesting that Defendant Airbnb had the general right to inspect the :Property before the incident in question and conceded so at oral argument”.

Actual Or Constructive Notice

“Even if Defendant Airbnb did have garde over the Property, Plaintiffs have produced no evidence that Airbnb knew or should have known of the defect in the stairs…In order to recover under a theory of custodial liability, ‘a plaintiff must prove that the defendant had actual or constructive knowledge of the vice or defect…To establish constrictive notice, plaintiff must prove that the defect casing the injury existed over a sufficient length of time to establish that reasonable diligence would led to its discovery and repair. Plaintiffs do not dispute that Defendant had no actual knowledge of any defect in the stairs and they also fail to city any evidence that Defendant Airbnb should have known of the condition of the stairs”.

Conclusion

“Plaintiffs fail to establish a dispute over a fact material to the question of whether Defendant Airbnb owed a duty to Plaintiffs under either the general negligence obligations of article 2315 of the obligations associated with custody of a thing under articles 2317.1 and 2322″.

The author, Thomas A. Dickerson, is a retired Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and has been writing about Travel Law for 42 years including his annually updated law books, Travel Law, Law Journal Press (2018), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2018), Class Actions: The Law of 50 States, Law Journal Press (2018) and over 500 legal articles. For additional travel law news and developments, especially, in the member states of the EU see IFTTA.org.

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