Back in 2007, two youngsters were broke and looking to raise money to make their rent in San Francisco. They decided to rent out air mattresses in their apartment to attendees of a conference because all the hotels were booked. They called their service “Air Bed and Breakfast.” In a few years, this small experiment would create the hotel industry disruptor, Airbnb. The privately held company now lists more than three million lodgings in nearly 200 countries. It is worth $31 billion: more than major hotel chains, such as Hilton.
Whilst an incredible success story, the service and internet technology platform has given rise to various potential liabilities for property owners and hosts. This article focuses specifically on the event of an injury occurring to a guest, and the question of who would potentially be liable for any damages that may follow.
As with guests, the contract between Airbnb and hosts essentially indemnifies Airbnb from any form of liability. Airbnb acts as a broker, putting willing hosts together with willing guests. In theory, it may be possible to sue Airbnb if it allowed a dangerous host to remain as a member. If however something were to happen to a guest at a first time host, Airbnb could credibly claim they had no notice of any potential danger. The Airbnb terms and conditions also state that by using the Airbnb services, all guests and hosts acknowledge that many activities offered through the Airbnb platform carry inherent risks. These parties agree that both parties assume the entire risk arising out of access to and use of the platform and any content. These include the stay at any accommodation or use of a host’s services. Hosts and therefore property owners, carry the ultimate risk of bodily injury, disability, or death, and they freely and willfully assume those risks by choosing to participate in the Airbnb services. To top it all off, Airbnb has various and extensive additional disclaimers on board.
If Airbnb cannot be legally held responsible, what recourse does an injured guest have and what liability does a host have in the event of an injury? While the Airbnb platform itself also provides certain automatic, albeit limited insurance cover for hosts, and provided the host is deemed to be the negligent party and directly responsible for the injury and related damages suffered by the guest, the host still runs the direct risk of a claim by an injured guest should Airbnb refuse to honour a claim submitted by a guest.
In terms of South African law, the basic principle is that damages resulting out of harm caused by wrongful and blameworthy conduct may be recovered. Usually, when bodily injuries are sustained, big corporations are held liable due to a breach of the duty of care to ensure that the risk of harm is mitigated at the premises which are under their control. When using the services of Airbnb however, the owner of the property is ultimately responsible to minimize the risk of harm. In short, a property owner is obligated to take reasonable steps to ensure that its premises are safe for use.
It is therefore important for all hosts to ensure that their properties are safe for use by guests before such are advertised on the Airbnb platform. Unless a guest is able to prove that a host was negligent in having failed to take reasonable steps to prevent an injury suffered by such guest, a host will be able to combat and avoid liability for damages. It may also be prudent for a host to ensure that he or she has his or her own private public liability insurance cover in the event of wishing to rent out property via the Airbnb platform.
- On January 27, 2023
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