Personal injury attorneys eye Airbnb for recovery

Personal injury attorneys are looking to Airbnb and other online rental companies to compensate clients who claim they suffered injuries as a result of unreasonably hazardous conditions on the property of the homeowner hosts.

Earlier this month, Providence attorney Thomas L. Moran filed a negligence action in Rhode Island federal court naming Airbnb as a joint tortfeasor for injuries sustained by a New York chiropractor who alleges she suffered serious injuries while taking a shower in a South Kingstown home she and her husband leased in 2021 from co-defendant Joseph Mollicone III.

The complaint alleges that, along with the homeowner, Airbnb was “in control” of the property such that the company owed plaintiff Tamsin Pope “a duty to exercise reasonable care to protect the Plaintiff, and others similarly situated, by inspection and other affirmative acts, from injuries resulting from dangerous and unsafe conditions thereby resulting on the Premises.”

Moran said the new app-based economy produces novel questions of law and liability every day. He sees Pope v. Mollicone as seeking to answer those questions in the short-term rental market.

“The task that falls on us as plaintiffs’ attorneys is to make sure we level the playing field for an unsuspecting tenant or renter who is paying a premium to rent the property and who is injured through no fault of their own,” Moran said.

Boston personal injury attorney Heather M. Boutet has handled cases involving injuries at Airbnb rentals but said they’ve all settled without suit being filed.

“When you host on Airbnb, you have the advantage of the host liability coverage, which provides $1 million in liability coverage at no cost to the host,” Boutet said. “In the cases I’ve handled, that has been sufficient coverage to get the case settled.”

Peabody attorney Rebecca L. Thomas likewise said she has been able to obtain pre-suit settlements in her premises liability cases involving Airbnb rentals.

“Basically, it seems like Airbnb’s adjusters step right in and assume they must indemnify and defend,” Thomas said.

South Kingstown slip and fall

Moran said personal injury litigation against rideshare companies Uber and Lyft to a certain extent provide a model for claims against Airbnb and similar short-term online rental services such as Vrbo.

“Similar to an Uber driver, Airbnb provides a policy of insurance to the host homeowner in the event a guest is injured due to negligence,” Moran said. “The question becomes does Airbnb or Vrbo or whoever do any diligence or place any requirements on the host homeowner with regards to safety measures and safeguards. We know that Uber does background checks to ensure their drivers are fit and suitable to transport passengers, but do short-term rental platforms do anything to ensure the rental is free from defects or hazardous conditions? That’s the question I want to have answered.”

In Pope, the plaintiff filed suit against Airbnb and homeowner Mollicone in U.S. District Court in Providence on Sept. 4. According to the complaint, Pope and her husband, Thomas, rented a Riverside Drive home owned by Mollicone through Airbnb for a stay in September 2021.

Given the increase in popularity of short-term rentals like Airbnb, I would certainly support more stringent safety standards for those hosts. If they are offering their homes for a fee, why shouldn’t they be held to a higher safety standard?

The plaintiff alleges that, on Sept. 5, 2021, she attempted to take a shower in the bathtub.

“The shower stall lacked any slip resistant shower mat or other safety measures necessary to avoid slipping on the slick tub basin surface,” the complaint states. “The shower stall also lacked any safety measures necessary to avoid losing one’s balance, such as handrails or grab bars.”

Moran said his client’s position is that short-term rental owners, since they are in actuality running a business, need to provide the same safety measures and precautions as hotels and resorts in the hospitality industry.

“It’s the same as if you walk into your hotel room,” Moran said. “You expect that all the proper safety measures are in place.”

Boutet said she reads the complaint in Pope as asserting that Airbnb had a duty to inspect the Mollicone property for hazards, which she suggested might be a bridge too far.

“It would be overly optimistic to expect that Airbnb would be able to inspect every property that is listed on their platform. I don’t think that would be reasonable,” Boutet said.

Under Massachusetts law, short-term rentals are currently subject to residential standards of care. But Boutet said the Legislature should consider raising those standards.

“Given the increase in popularity of short-term rentals like Airbnb, I would certainly support more stringent safety standards for those hosts,” Boutet said. “If they are offering their homes for a fee, why shouldn’t they be held to a higher safety standard?”

According to the plaintiff in Pope, her fall occurred when the water temperature unexpectedly became so hot that it began to scald her skin.

“In an effort to avoid serious burn injury, Dr. Pope attempted to exit the shower,” the complaint states. “In doing so, she was caused to slip on the slick basin floor and fell backwards over the side of the tub.”

Pope allegedly suffered severe and permanent injuries in the fall, including fractures in the vertebrae of her back that required surgery.

No fun in the tub

Airbnb was also a defendant in a Massachusetts bathroom slip-and-fall case. Filed in U.S. District Court in January 2020, Mondelli v. Wierzbowski involved the short-term rental of a single-family home in Colrain. The plaintiff, Michael A. Mondelli of New York, was a guest of someone who had rented the property through Airbnb.

The plaintiff alleged that he suffered “catastrophic injuries” when he slipped and fell while exiting an indoor whirlpool bathtub on Nov. 30, 2019.

According to Mondelli’s original complaint, which named only the property owner, Edward Wierzbowski, as a defendant, the means of exiting the bathtub was unreasonably dangerous for a variety of reasons.

Mondelli alleged that he was unable to safely exit the tub because a fixed wooden crosspiece installed in the bathroom obstructed his access to a grab bar by which he could have steadied himself.

In addition, Mondelli claimed there was a wide wooden bench attached to the side of the tub, which made it awkward for anyone to step out of the tub onto the bathroom floor. Finally, the plaintiff contended that the polished wood flooring in the bathroom became slippery when wet.

The defendant property owner later filed a statement of “undisputed material facts” based on the plaintiff’s deposition testimony, which indicated there were other factors that contributed to Mondelli’s fall. In particular, Wierzbowski pointed to deposition testimony that Mondelli was in the tub with a female companion at the time and the fall occurred as he tried to step around her.

Airbnb was brought into the case by a third-party complaint filed by Wierzbowski in July 2020. The property owner alleged that Airbnb, Inc. was in breach of an “Airbnb Host Protection Insurance Policy” it marketed as part of its services to both property owners and guests.

“The Host Protection Insurance program provides primary liability coverage for up to $1,000,000 per occurrence in the event of a third-party claim of bodily injury or property damage related to an Airbnb stay,” the third-party complaint states. “This is a material term of the contract between Mr. Wierzbowski and Airbnb. … Airbnb, Inc. has breached its contract with Mr. Wierzbowski because it … has done nothing to defend or indemnify him.”

A month later, Wierzbowski voluntarily dismissed his third-party complaint against Airbnb. The court’s docket doesn’t reflect a reason for the dismissal. Following mediation, the parties reported on the eve of trial that the case had settled and a stipulation of dismissal was entered on Oct. 14, 2022.

According to Moran, Airbnb’s host liability policy becomes critical in personal injury cases because the typical homeowner’s policy includes coverage exclusions for losses arising from the operation of a business.

Boutet noted that, since 2019, Massachusetts law has required short-term rental owners to maintain liability insurance in an amount not less than $1 million — unless the property is being offered through a hosting platform such as Airbnb that maintains equal or greater coverage.

“With that said, I still think it’s best practice [for the property owner] to purchase a policy in addition to what’s offered through the platform,” Boutet said. “While $1 million would capture a lot of claims, as a host I would want more than $1 million in coverage for the more catastrophic [injury] claims.”

In most cases, if a suit needs to be filed, it would be good practice for the client to sue both the hosting platform and the property owner right off the bat, Thomas said.

“In the case of a catastrophic injury or wrongful death, you are going to want the availability of both policies,” she said.

Unlike Airbnb, Vrbo’s host liability coverage doesn’t “kick in” unless the owner doesn’t have a liability policy, Thomas added.

“If the owner has its own liability policy, that’s the primary policy and the Vrbo policy would [provide excess coverage],” she said.

Insurer subrogation suit

Earlier this year, Airbnb became a defendant in an action filed by USAA Casualty Insurance Co. as subrogee of four policyholders who stayed at a rental property in July 2021. The policyholders — Michael and Jennifer Daley, and Shahzad and Catherine Rajwani — stayed with their families at a rental property in Douglas, Massachusetts. Their Airbnb host was property owner Frederick J. Dodd.

On July 15, 2021, a friend of the couples’ children was struck in the eye by a dart.

On behalf of its insureds, USAA settled the girl’s bodily injury claims for $725,000 following pre-suit mediation.

In turn, on Jan. 8, 2024, USAA sued property owner Dodd and Airbnb for contribution in Worcester Superior Court. Dodd removed USAA Casualty Insurance v. Dodd to federal court where, on March  28, USAA voluntarily dismissed its contribution claim against Airbnb.

USAA’s attorney, Allison K. Gurley of Dedham, did not respond to a request for comment on the reasons for the dismissal of Airbnb. Meanwhile, the case against Dodd continues, with court records indicating the property owner disputes liability and has not made an offer of settlement.