In 2019, the San Francisco Chronicle published a cursory review of gun violence at short-term rental or Airbnb properties days after one of the first documented incidents of mass violence at an Airbnb in Orinda, California. The results were surprising. The newspaper documented more than 42 incidents of gun violence at Airbnb in the previous six months prior to the Halloween mass shooting in Orinda.[1] More recently, an article published in the Public Library of Science Journal by Northeastern University professors, Dan O’Brien and Babak Heydari, found that there is a direct correlation with an increase in crime and increase in available short-term rental units in neighborhoods. According to their research “the proportion of buildings with at least one home-sharing listing—and not the volume of tourists cycling through such units—that had the greatest (indeed, only) measurable effect on crime in the neighborhood.”[2] If the Chronicle were to do another review of gun violence at Airbnb properties post-Orinda to present, there is no doubt they would find more than the 42 incidents they found in 2019, even with the intermittent lockdowns brought upon the U.S. by COVID-19.
In the wake of Airbnb’s second announcement that they are once again banning party houses on June 28, 2022, it has become increasingly clear that there is a violence problem directly related to the increasingly ubiquitous presence of Airbnb or short-term rental properties in our neighborhoods.[3] As Congress continues to show being unwavering in their inability to enact legislation that addresses the challenges modern technology has brought upon society, should we be looking to plaintiff’s lawyers as an opportunity to curb the spread of Airbnb-related violence?
When is Airbnb liable for injuries at their properties?
California law creates negligence as a cause of action by statute, requiring all parties to exercise reasonable care to avoid causing injury to others. Cal. Civ. Code § 1714. To prevail on a claim for negligence, plaintiffs must demonstrate a legal duty, a breach of that duty, causation, and damages. Regents of Univ. of California v. Superior Court, 4 Cal. 5th 607, 618 (2018). The existence and nature of a duty of care is the primary question in a case involving a short-term rental property (or Airbnb) injury, where novel situations involving technology and the sharing economy mean that no judgments that are squarely on point have been rendered.
Duty to Protect Against Foreseeable Conduct
In general, parties have no affirmative duty to act to prevent harm to another. “A person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another.” Williams v. State of California, 34 Cal. 3d 18, 23 (1983). The situation differs, however, where one party places another in harm’s way. “It is well established … that one’s general duty to exercise due care includes the duty not to place another person in a situation in which the other person is exposed to an unreasonable risk of harm through the reasonably foreseeable conduct (including the reasonably foreseeable negligent conduct) of a third person.” Kesner v. Superior Court, 1 Cal. 5th 1132, 1148 (2016). Acts that put others in dangerous situations are known as misfeasance as opposed to nonfeasance when no action is taken. Melton v. Boustred, 183 Cal. App. 4th 521, 531 (2010).
Misfeasance and nonfeasance are best explained by example. Nonfeasance is booking a room at a hotel only to be led by the bellhop to your room, which is just a door that leads back onto the street. Misfeasance would be you booking a hotel room in Marin County, settling into your beautiful room (clean sheets and breakfast included) and simultaneously noticing you’re your room just so happens to be located San Quentin Prison where the correction’s officers have all gone on holiday. In the first example, if you walked out onto the street and were attacked by a mugger, the hotel would only be liable for the damages you sustained from losing your money on the hotel room (and rebooking another on short notice). The hotel would not be liable for the bruises or bumps you suffered when the mugger pushed you to the ground. On the other hand, if during your leisurely stay at San Quentin you are used as a punching bag by an inmate, the hotel certainly would be liable for your injuries, both physical and psychological. With all due respect to correction’s officers, staying inside the walls of a notoriously violent prison clearly predisposes an individual to foreseeable violence.
The key question is when violent outbursts occur at an Airbnb and someone is injured, is Airbnb guilty of misfeasance or nonfeasance? If Airbnb opened their platform up and every few years or months, a violent party erupted where people were injured or died, they would be in the clear. However, the reality is that this type of violence is happening nearly every day. The steps Airbnb has taken so far, while in the right direct, have not quelled the proliferation of violence at their properties in any meaningful way. Airbnb is an indispensable link in the causal chain that leads to people’s injuries. Without Airbnb’s services people who throw large-scale parties or gatherings that turn violent, often for financial gain, would not be able to throw the party in the first place. As there are other options available to them that would likely dramatically decrease the likelihood of violent incidents at their properties (creating a check-in team with security support for bookings that were flagged as potentially problematic, for example), they are guilty of misfeasance and liable for the injuries sustained.
Rowland v. Christian: Factors Determining if Duty Exists
When considering whether to impose a duty in novel situations, California courts will also look to several other factors not related to misfeasance outlined in Rowland v. Christian, 69 Cal. 2d 108, 113 (1968). This inquiry is a question of law for the court to resolve. Melton at 532. Analysis of whether to impose a duty in these circumstances based on the Rowland factors and often comes down to a question of public policy. Brown v. USA Taekwondo, 40 Cal. App. 5th 1077, 1096 (Ct. App. 2019), as modified on denial of reh’g (Nov. 6, 2019).
The specific factors taken into account in this analysis include “ ‘the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” Brown at 1096. As the court in Brown observes, these “factors fall into two categories. The first group involves foreseeability and the related concepts of certainty and the connection between plaintiff and defendant. The second embraces the public policy concerns of moral blame, preventing future harm, burden, and insurance availability.” Brown at 1097.
With regards to foreseeability, courts endorse no rigid formula and instead look to the totality of circumstances. Isaacs v. Huntington Mem’l Hosp., 38 Cal. 3d 112, 126 (1985), holding modified by Ann M. v. Pac. Plaza Shopping Ctr., 6 Cal. 4th 666 (1993). “In examining foreseeability, ‘the court’s task … “is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed.” Brown at 1096. Thus, the question in cases where people are injured by violence at Airbnb properties is not whether the company was negligent in renting the specific property to the specific user; rather, the question is whether Airbnb’s policy of renting known properties used for parties – which they have known often to end in violent bloodshed – to unvetted and anonymous renters is negligent or reckless.
Even apart from Airbnb’s specific, actual awareness of the violent outcomes of such gatherings, courts have recognized that consumption of alcohol at parties “unrestrained by sensible rules” can create a foreseeable risk of harm. Univ. of S. California at 452. Airbnb has been aware that parties are happening all over the country in their properties. They knew that such parties were not made safe by what they purported to have been doing thus far (e.g., fledging prophylactic measures, ineffective company policies, and the lack of user accountability to name a few) and they knew that these parties created dangerous situations. They knew that they as a company played an integral role in enabling them.
Public Policy: who is best suited to take measures to prevent this violence?
The remaining question in the Rowland analysis deals with public policy. Among the public policy considerations are: (1) closeness between the action and the harm, (2) the moral blameworthiness of the act in question, (3) the goal of preventing harm in the future, (4) the burden on the Defendant to prevent harm, and (5) the consequences of imposing a duty. Rowland at 114.
In terms of the relationship between Airbnb’s conduct and the harm suffered, the connection is direct and immediate. If Airbnb did not enable people to rent in anonymity, they would likely not hold the large-scale parties that have been shown to have a high potential for violence. By providing a location for this party that was central and spacious, the conditions for a party were satisfied. By creating a situation where a renter can benefit financially by throwing a party with almost no potential accountability for property damage and personal injury, Airbnb incentivizes the conduct which end too often like the Halloween massacre in Orinda, California in 2019 where five people lost their lives and countless others were injured.
In assessing whether conduct is morally blameworthy, courts have looked at the relative sophistication of the parties involved and whether the parties could have taken reasonable means to avoid the harm. “We have previously assigned moral blame, and we have relied in part on that blame in finding a duty, in instances where the plaintiffs are particularly powerless or unsophisticated compared to the defendants or where the defendants exercised greater control over the risks at issue.” Kesner at 1151. “[I]f there were reasonable ameliorative steps the defendant could have taken, there can be moral blame ‘attached to the defendants’ failure to take steps to avert the foreseeable harm.” Brown at 1099.
The relative sophistication of the parties in most cases where people are injured at short-term rental properties presents a stark juxtaposition. Airbnb is a multi-billion-dollar company with operations around the globe. Most of the people injured at these rentals because of the negligence of these companies are people who trust companies like Airbnb’s policies and reputation as a successful, thoughtful company when making the decision to attend this party. However, Airbnb knew that these types of gatherings often lead to violence, including shootings, where the average attendee is likely to have had no such awareness of the correlation. This informational asymmetry further demonstrates that the STR companies, like Airbnb, with their workforce in the thousands, are in a better position to understand the risks of such gatherings. Ultimately, it means that Airbnb is in a better position to take action to make their rental properties safe.
Airbnb and the Duty to Protect People from foreseeable harm
Ultimately, Airbnb’s conduct created an unreasonable risk of severe injury to people, guests, property owners and renters alike, by subjecting them to the potential of violent eruptions at these parties. If Airbnb were operating in a way that protected public safety, those throwing parties and promoting them would not be able to financially benefit from throwing dangerous parties with relative impunity and almost complete anonymity. It would be far more difficult to, if not nearly impossible, to anonymously throw a large-scale party, especially in many of the neighborhoods where Airbnb makes it possible. As a result, quiet, residential neighborhoods, where zoning regulations have served to prevent nightclubs and bars from opening for decades, have become inundated with parties at STR properties.
The dearth of these Airbnb parties places the law enforcement officers trying to break them up in a high-stakes game of “whack-a-mole.” When law enforcement can find and shut down one unauthorized party, another starts in its place. The people who throw these parties, with just a small amount of precaution and cunning, are easily able to circumvent the obstacles to throwing the large parties (or getting caught) and earning money off them. It is unlikely that these same people would throw these parties if they were forced to throw them at their own home or under their own real name. The risk-reward analysis is simply weighted too heavily against them. The basis for the shifting calculation of risk and reward when it comes to throwing these parties rests almost entirely on the shoulders of companies like Airbnb. This perilous situation is preventable. However, companies like Airbnb have sophisticated risk vs. reward computations of their own. In the case of Airbnb, the incentive to grow and generate more revenue dramatically outweighs the probability that a sizable amount of people, who likely would remain in good health otherwise, will be shot, maimed, and killed as a result.
Airbnb’s response: Callous Disregard for Public Safety
As a result of their risk vs. reward calculations, Airbnb routinely ignore public safety issues in favor of generating revenue from the unlawful use of properties across the country. Short-term rental properties appear in neighborhoods under the guise of the sharing economy. Companies, like Airbnb, promote their services with slogans like “belong anywhere” advertising inclusivity and travel without the constraints of staying in the tourist section of town. Ironically, as short-term rentals start emerging in residential neighborhoods, the people who have lived there often feel like they don’t even belong in their own neighborhood anymore.
Airbnb Rentals are Operating as De Facto Nightclubs
Quiet neighborhoods become unwitting entertainment districts as what are essentially unlicensed nightclubs booked for one or two nights on Airbnb pop up in residential neighborhoods. Lacking adequate oversight and security, these venues often turn into chaotic free-for-alls that spiral out of control. As more popup, small police departments in quiet communities, like Orinda, California, or Manville, Texas (where a gunfight broke out during a 16th birthday party held at an Airbnb), police departments that are ill equipped to deal with these issues are placed under excessive strain. Unfortunately, despite Airbnb having the knowledge and ability to prevent these issues, the company remained silent and relied on the police to carry out the functions that private security personnel at nightclubs are generally tasked with.
This refusal to take adequate steps to help prevent violence and misappropriation of public resources enriches companies like Airbnb. Further, it fosters careless disregard for state administrative bodies, such as alcohol control boards, meant to provide regulatory oversight in the case of systemic issues relating to the consumption of alcohol. In California, obtaining a liquor license requires an individual or business to undergo background checks and follow strict guidelines to work with the local police department in developing a security plan for the property they intend to operate at. Instead of relying solely on public resources, like police intervention, this security plan typically involves hiring private security professionals to keep their guests safe from the foreseeable risk of unruly, violent intoxicated patrons.[1] On the contrary, the ability to anonymously open what is essentially a nightclub, where people are charged for entrance and/or drinks, now takes people minutes. All that is required is for a would-be event organizer with some social media marketing savvy to run a quick search of Airbnb and for Airbnb, in return, to refrain from asking too many questions.
Airbnb Admittedly Knew They Were Creating Problems, Yet Failed to Act
The prevalence of these incidents has not been a secret to Airbnb executives; in fact, for years it was actively and sometimes aggressively swept under the rug by the leadership team despite relentless prodding by experienced security personnel to do something about it. According to reporting by the Wall Street Journal, as far back as 2017 several Airbnb security directors had implored executives to better police the listings and implement safety measures, such as requiring government identification during registration, to prevent violent Airbnb parties.[2]
Executives fervently and repeatedly declined to pursue these safety measures, citing an organizational study that found the likelihood that any government identification procedure would have slowed the singularly important key performance indicator, growth in users. For years, the one tenant the company remained steadfastly loyal to was not their customer or their partner, it was their growth. This adherence to a singular goal made decisions easy, Airbnb simply chose growth over any other option, including preventing unnecessary, tragic deaths and widespread wreckage of thousands of what were once considered quiet, safe neighborhoods. Airbnb executives pledged to enact unspecified safety measures only after it became clear the public that shootings and homicides at Airbnb parties were becoming a national epidemic that would prevent the growth of their company and encourage regulatory bodies to step in an act where the company wouldn’t.
In an interview with tech journalist Kara Swisher on November 7, 2019, CEO Brian Chesky acknowledged the company’s shortcomings stating that “everyone” at Airbnb knew about prevalence of violence at Airbnb properties. [3] Chesky went on to say that the company “did not do nearly enough to prevent it” and was not nearly “aggressive enough, fast enough” in their response to try to combat the growing trend of homicides and gun violence at the properties they partnered with. In the same interview, Chesky noted that procedures that would have prevented a large majority of these violent episodes at Airbnb parties had already been created and were ready for deployment.
Chesky noted that these procedures should have been implemented earlier and acknowledged the need for Airbnb to “take more responsibility for the stuff on our platform.” The problem that Chesky avoided expounding on is that while Airbnb is an economic mechanism driven to achieve financial success, this success came with a known price tag: the ability for millions of Americans to feel safe in their own neighborhoods and the loss of several dozen human lives.
Airbnb’s Misrepresentations Strategically Created a False Sense of Security
Instead of dealing with the problems that Chesky admitted the company knew about, Airbnb through their marketing apparatus intentionally created a false sense of security for those attending parties at their properties and those renting or living near units listed on the platform. Airbnb has campaigned on policies of trust and reliance. Airbnb continues to claim they deserve the public’s trust in their ability to vet and assess each host and location for potential security and safety issues. Airbnb strategically has imbued this false sense of security in individuals by means of the literature they publish on their website, most notably the page dedicated to the trust and safety.
The language and literature paint the picture of a company that is there to protect their customers and hosts with all sorts of security measures and protections.[4] On this page, Airbnb expressly notes several safety measures that they, upon further review, admittedly did not actually carry out: (1) background checks, (2) screening of guests and hosts and (3) and operating, functional 24/7 hotline for support on security. Airbnb goes on to say that “Airbnb’s commitment to the safety and security of guests and hosts includes a global team of safety and security experts and a full range of safety practices including reviews, insurance, a host guarantee, and 24/7 global response and assistance.”
This ethos of safety is in stark contrast to their actions, or inaction. Only when the national media picked up a story about five people killed at an Airbnb party rental on Halloween in 2019, did the company’s attitudes towards violence prevention become more aggressive. Ultimately, this shifting corporate attitude surmounted to little more than lip service. As deaths increased, the company has maintained their alleged dedication to the safety and security of their partners, customers, and guests. However, the mounting death toll of people killed at violent Airbnb incidents, the words of Chesky, and the relative inaction of company prove otherwise.
The reality is that all of these new safety and security “measures” have combined to provide little in the way of actual security. Instead, these purported measures did provide plenty in the way of good will and comfort for those deceived by them. The fact that Airbnb did not actually take real, meaningful steps to ensure that properties were not rented for dangerous parties, despite their assurances to the public that Airbnb rentals are safe, illustrates what is essentially a callous disregard for the actual safety of anything other their own growth. Airbnb, and other STR companies, continue to prioritize boosting revenue and failing to adequately deal with the real social costs of their business model.
One of the most notable refrains the CEO Brian Chesky is known to make is that Airbnb is not a technology company, or a real estate or travel company, it is a “trust company.” Chesky knew very well that his company was tied more to their ability to make the public believe that renting homes to others and feel comfortable with others in theirs. To maintain this aura of trustworthiness, the truth has been regularly buried behind a multitude of shiny, ineffective security and safety policy that acted more as façade than prophylaxis.
Tied in with these considerations are questions of the public policy goal of preventing harm in the future, the burden on the Defendant to prevent harm, and the consequences of imposing a duty. Each of these considerations further reinforces the appropriateness of imposing a duty in this case. If Airbnb continues to rent party properties to unvetted users, more shootings like this will occur. If Airbnb had only staffed a hotline for such calls – a minimal burden – the neighbors who were bothered by the party for hours before the shooting could have called and had the party shut down in time to prevent the bloodshed. The consequences of taking these actions are unlikely to have a palpable impact on the bottom line of one of San Francisco’s most celebrated “unicorns.”