
Death in Airbnb Rental Raises Liability Questions - faisalkhalid80
http://www.nytimes.com/2015/11/14/your-money/death-in-airbnb-rental-raises-liability-questions.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=second-column-region&region=top-news&WT.nav=top-news&_r=0
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ewood
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-...](http://www.independent.co.uk/news/uk/home-news/corfu-carbon-
monoxide-deaths-father-of-children-who-died-on-holiday-blames-thomas-
cook-10210108.html)) 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?

~~~
jacquesm
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.

~~~
larrys
"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).

------
bambax
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.

~~~
JonFish85
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).

~~~
bambax
How would they agree to pay $10m and not be at fault?? ;-)

~~~
JonFish85
To make it go away. It happens all the time--generally when something is
settled, it has a "no admission of guilt" statement attached somewhere. Both
sides agree not to talk about it, and that ends that. It's useful in a case
where it'd be difficult to prove conclusively one way or another, and it could
hurt a company to have the publicity. It's probably cheaper for a company to
pay $10m and make it go away than to fight a year-long legal battle, even if
they eventually win, since there are bound to be stories linking them to
something bad.

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curun1r
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.

[1] [http://www.inc.com/tess-townsend/thousands-of-airbnb-
employe...](http://www.inc.com/tess-townsend/thousands-of-airbnb-employees-
and-hosts-caught-in-middle-of-paris-terrorist-atta.html)

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emiliobumachar
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.

~~~
underwater
In the Bay Area swings are common in both parks and private residences. Where
did you live in the US?

~~~
lfowles
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.

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jacquesm
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?

~~~
DanBC
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.

~~~
jacquesm
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.

~~~
DannyBee
"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 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).

~~~
jacquesm
If I try the swing today and it is safe (with my weight, and with my use of
the swing) trying my hardest to see if it will break and it does not, then the
next day you come by and you sit on it and it breaks am I liable?

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.

------
marincounty
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.

~~~
psaintla
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.

