Airbnb lawsuit raises question of duty to warn of host’s arrest record

On this blog, we previously considered whether an Airbnb host could face liability for an assault committed by some third person.

Now, the company itself, Airbnb, faces the question of whether it can be held liable for the sexual assault of a guest, allegedly committed by an Airbnb host.

Airbnb is a well known peer-to-peer online platform enabling travelers around the world to lease and stay in others’ homes.  For each transaction on its platform, Airbnb receives a percentage as its fee.

In what the Guardian describes as “a first-of-its-kind” lawsuit, a guest sued Airbnb this week alleging that she was sexually assaulted by her host after renting a room through the online service.

The crux of the Complaint is that Airbnb wrongfully permitted the host to list property on Airbnb’s site in light of a previous arrest (involving domestic violence).

Knowledge of this prior arrest would, the lawsuit claims, have been available to Airbnb through the background checks conducted.

And, presumably, if disclosed, this information would have prevented the plaintiff from leasing the room.

The case raises basic questions of duty under premises liability actions, only this time applied to a new world.

Airbnb admits that it conducted a background check on the host in question—but claimed that the company did not bar the host from listing his property on Airbnb because he had never actually been convicted of the alleged crime.

There can be little doubt that the question of what weight an arrest alone should carry generally in our society is a legitimate one.

But this particular case raises the question of whether Airbnb can reasonably be said to have induced reliance based on the company’s assurances (implied or express) of safety:

Teresa Li, Lapayowker’s attorney, argued that Airbnb misleads users with branding that emphasizes the safety of the platform and calling it a “trusted community marketplace”.

They lure you in and give you this false sense of security,” she said.

Distilled to its essence, the question becomes did Airbnb have an affirmative duty to warn (whether as a matter of policy or foreseeability) of prior events that were revealed to the company through its background checks?

Or, from another angle, does Airbnb become a virtual landowner by listing and making properties available through its platform, sufficient to give rise to a duty to warn of associated dangers?

This question of whether Airbnb had a duty to pass on information of which the company had superior knowledge should most certainly be left for a jury to decide.

Fair Housing Act (FHA) Motion for Summary Judgment – Retaliation

Full Brief

SUMMARY

DEFENDANTS’ retaliatory misconduct is the very behavior made unlawful by Section 818 of the Fair Housing Act.

PLAINTIFF complained to DEFENDANTS of discrimination.

And the uncontroverted evidence directly shows that because of her complaints of discrimination, DEFENDANTS threatened, coerced, and intimidated PLAINTIFF, and interfered with her exercise or enjoyment of fair housing rights.

Accordingly, PLAINTIFF is entitled to judgment as a matter of law.

ARGUMENT

PLAINTIFF is entitled to judgment as a matter of law because DEFENDANTS threatened, coerced, intimidated PLAINTIFF—and interfered with her exercise and enjoyment of rights under the Fair Housing Act.

Plaintiff is entitled to summary judgment.

Title VIII of the Civil Rights Act of 1968 safeguards each person’s right to dignity in housing.  To that end, the statute prohibits discrimination creates fair housing rights, declaring that “[i]t is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States.”

Practical realities of life teach, however, that a statute merely professing to endow citizens with the right to live in freedom from discrimination with nothing more would be merely an empty promise: For an anti-discrimination law to be effective, a person must feel free to insist on and enforce those rights.

Recognizing this, Congress included in the original, and retained in the amended statute, an anti-retaliation clause which provides protection from retaliatory mistreatment, stating:

It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by section 803, 804, 805, or 806 of this title.

This Anti-Retaliation provision makes clear that to coerce, threaten, or intimidate a person, or to interfere with a person in her exercise, enjoyment, or her helping others exercise their rights—constitutes a separate, and distinct violation of the Fair Housing Act (see Hidden Village, LLC v. City of Lakewood, Ohio (2013) (“Section 3617 nowhere says that it comes into play only when a violation of one of these other sections has also occurred.”)

In other words, retaliatory conduct is unlawful in and of itself.

Section 804, identified in the Anti-Retaliation provision, is an operative clause of the Fair Housing Act prohibiting discrimination in the sale or rental of housing, stating, in part, that:

[I]t shall be unlawful … to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.

So, to coerce, threaten, intimidate a person because she exercised, enjoyed, or helped others to exercise or enjoy the right to non-discriminatory treatment in the “terms, conditions, or privileges” or “services or facilities” provided in connection with housing—or to interfere with her exercise or enjoyment of those rights—violates the Anti-Retaliation provision.

In this case, undisputed evidence establishes that DEFENDANTS coerced, intimidated, and threatened PLAINTIFF, and interfered with her rights under the Fair Housing Act—including Section 804.

By this conduct, DEFENDANTS violated the Anti-Retaliation provision; and PLAINTIFF is entitled to judgment as a matter of law.

Defendants coerced, intimidated, and threatened Plaintiff—and interfered with her fair housing rights.

PLAINTIFF is entitled to summary judgment because undisputed evidence directly establishes that DEFENDANTS retaliated against PLAINTIFF because she exercised rights granted and protected by Section 804.

As noted, the FHA broadly prohibits discrimination in housing services and facilities.

In addition to prohibiting disparate treatment in the provision of services and facilities, the statute ensures protection from mistreatment that would silence or chill an individual’s enforcement of her rights, by declaring it unlawful to “coerce, intimidate, threaten, or interfere” with or because of a person’s exercise of fair housing rights. 

The U.S. Department of Housing and Urban Development has made explicit that “[a] broad range of activities” may constitute actionable retaliatory conduct under the ANTI-RETALIATION PROVISION.

And, consistent with HUD’s guidance and Congressional intent, courts have construed the ANTI-RETALIATION PROVISION to reach “all practices which have the effect of interfering with the exercise of rights under the federal fair housing laws.

In this case, DEFENDANTS violated the ANTI-RETALIATION PROVISION by coercing, threatening, intimidating, and interfering because PLAINTIFF complained that DEFENDANTS engaged in discriminatory treatment against her because she is Arab American.Housing Discrimination Against Arab Americans

As expressly acknowledged in FHAA regulation comments, discrimination in and around one’s own home feels inherently more threatening; individuals are more vulnerable where they live—which calls for heightened protection against harassment that reaches them there:

One’s home is a place of privacy, security, and refuge (or should be), and harassment that occurs in or around one’s home can be far more intrusive, violative and threatening than harassment in the more public environment of one’s work place.

The reality remains that in this day and age, now more than ever, one protected class whose rights to safety and security in their homes must zealously be safeguarded are our citizens of Arab or Middle Eastern descent.

This is because since (at least) 2001, expressions of anti-Arab sentiment have escalated to staggering and morally unacceptable levels in this country.  Displays of hostility (overt and covert) against Arab Americans have become commonplace.

In going about their daily lives, many Arab Americans find themselves forced to confront and navigate ignorance, hostility, suspicion, thinly-veiled accusations, offensive comments, and stray remarks hinting at the devastating suggestion that—merely based on their ethnic background, religion, or national origin—they might be a terrorist.  As recognized in HUD-issued guidance, discrimination against Arab Americans is, sadly, a very real issue:

Since the attacks of September 11, 2001, persons who are, or are perceived to be, Muslim or of Middle Eastern or South Asian descent have reported increased discrimination and harassment, sometimes in connection with their housing.

This publication, and others, underscore the tragic reality that in those instances when it occurs, housing discrimination against Arab Americans may often take the form of disparate treatment stemming from accusations, insinuations, or suggestions that the aggrieved person has some connection to terrorism.

In the case at bar, based on [DEFENDANT’S] hostility, poor customer service, and terrorism-related comment PLAINTIFF inferred that a discriminatory practice was occurring and/or was about to occur.

So, PLAINTIFF complained to DEFENDANTS.

This constituted protected activity.

And, the evidence in the record directly establishes that because of PLAINTIFF’s protected activity, DEFENDANTS threatened, coerced, and intimidated PLAINTIFF, and interfered with her rights.

This constituted unlawful retaliation.

1. On April 12, 2016, DEFENDANT threatened, coerced, and intimidated PLAINTIFF because PLAINTIFF complained of discrimination.

Conduct constituting interference, coercion, or intimidation in violation of the ANTI-RETALIATION PROVISION includes (but is not limited to):

Intimidating or threatening any person because that person is engaging in activities designed to make other persons aware of, or encouraging such other persons to exercise, rights granted or protected by this part.

Or:

Retaliating against any person because that person has made a complaint, testified, assisted, or participated in any manner in a proceeding under the Fair Housing Act.

Or:

Retaliating against any person because that person reported a discriminatory housing practice.

In this case, the undisputed evidence in the record shows that PLAINTIFF complained of housing discrimination.

And on April 12, 2016, CMA responded expressly to PLAINTIFF’s complaints of discrimination by making threats of “immediate and corrective action. 

According to CMA’s own testimony, its APRIL 12 email was intended to make PLAINTIFF stop complaining of discrimination.  Moreover, by CMA’s own testimony, if PLAINTIFF had not complained specifically of discrimination, DEFENDANTS would not have treated her as they did.

The evidence in the record directly establishes that CMA threatened PLAINTIFF with “immediate and corrective actionbecause of PLAINTIFF’s complaints of discrimination.

By responding to PLAINTIFF’s protected activity with threats, intimidation, and coercion DEFENDANTS violated the Anti-Retaliation provision.

2. DEFENDANTS interfered with PLAINTIFF in the exercise of her rights by preventing her from presenting her grievances at the April 25 meeting of the board of directors.

Under the Declaration, Bylaws, Rules and Regulations of The Manor House (“Governing Documents”), every occupant has the right to seek resolution by presenting grievances to the Board of Directors.  This provision not only grants the hearing as an enforceable right—but also requires it as a condition precedent to the aggrieved person’s right to sue.

The undisputed evidence in this case shows that PLAINTIFF complied with the Governing Documents, by requesting in writing (on April 15, 2016) to present her grievances to the Board in a meeting set for April 25.

On April 19, CMA acknowledged her request, indicating PLAINTIFF would be permitted to present her grievances at the April 25 meeting.

In the interim, PLAINTIFF continued to complain of discrimination and CMA’s failure to investigate PLAINTIFF’s claims.

And, on April 22, DEFENDANT sent an email to PLAINTIFF stating PLAINTIFF would no longer be permitted to present her grievances at the April 25 meeting because of PLAINTIFF’s complaints of discrimination:

Based on what has transpired in the last few days the board of directors has decided to make Monday􏰀s board meeting an executive session only.

On April 25 (the morning the board meeting was set to take place) DEFENDANTS’ attorney wrote that PLAINTIFF was no longer permitted to attend because PLAINTIFF had requested that the accused person (Maggie Jewell) not be present at PLAINTIFF’s hearing before the Board.

The undisputed evidence directly establishes that DEFENDANTS interfered with PLAINTIFF in the exercise of her rights by preventing PLAINTIFF from accessing the April 25 meeting and relocating the meeting to an undisclosed location because of PLAINTIFF’S complaints of discrimination.

In so doing, DEFENDANTS violated the ANTI-RETALIATION CLAUSE.

3. DEFENDANTS threatened, intimidated, and coerced PLAINTIFF in their April 26, 2016 and May 6, 2016 letters because PLAINTIFF exercised her righs non-discriminatory treatment in housing services.

When DEFENDANTS, in their April 12 “CEASE ALL CONTACT” EMAIL barred PLAINTIFF from communicating with the managing agent for PLAINTIFF’s dwelling, DEFENDANTS engaged in a discriminatory housing practice: DEFENDANTS denied or limited services/facilities in connection with the dwelling based “on [PLAINTIFF’S] response to harassment.

Notwithstanding DEFENDANTS’ illegitimate attempt to strip PLAINTIFF of her rights, PLAINTIFF exercised her right to fair housing under Section 3604 by continuing to communicate with DEFENDANTS as all residents were entitled to.

On April 26, 2016 and May 6, 2016, because PLAINTIFF exercised her rights to fair housing, DEFENDANTS directly and unequivocally intimidated, coerced, and threatened PLAINTIFF.

Excerpts of those letters illustrate DEFENDANTS’ coercion, threats, and intimidation:

If, however, [PLAINTIFF] continues to harass CMA by email and voice mail, CMA may determine that she has created a hostile work environment and may terminate the contract.

If this occurs, the Association will investigate all legal remedies available to it.

If the Owners are aware of [PLAINTIFF’S] abusive behavior and her creation of a hostile work environment, they may also be found liable for violations of federal law.

[PLAINTIFF] should also retract false statements that she has published on social media sites regarding Ms. Jewell, CMA and its employees. 

If any further such conduct occurs, please be advised that CMA will IMMEDIATELY PURSUE LEGAL ACTION, INCLUDING ANY AND ALL DAMAGES THAT[PLAINTIFF’S] IMPROPER CONDUCT HAS CAUSED.

Based on the undisputed evidence in the record, by sending their April 26 and May 6 letters because PLAINTIFF exercised her rights to Fair Housing, DEFENDANTS threatened, coerced, and intimidated PLAINTIFF in violation of the ANTI-RETALIATION PROVISION.

4. DEFENDANTS fined PLAINTIFF because she complained of discrimination.

On May 8, 2016, PLAINTIFF reported unauthorized entry into her unit.  Because of this complaint, DEFENDANTS fined her.

Since unauthorized entry into one’s home may constitute discrimination under the FHA, PLAINTIFF’s complaint was protected activity.

The undisputed evidence in the record establishes that DEFENDANTS violated ANTI-RETALIATION PROVISIONS by fining PLAINTIFF for protected activity.

5. DEFENDANTS threatened, intimidated, coerced, and interfered in the May 23, 2016 letter because PLAINTIFF complained of discriminatory treatment.

In response to PLAINTIFF’s complaint of unauthorized entry into her unit, DEFENDANTS sent a 6-page letter from legal counsel in which DEFENDANTS demanded that PLAINTIFF “stop alleging in writing, on social media and verbally that CMA or anyone else on behalf of the Association entered her unit,” assessed a fine against her, and threatened additional fines if PLAINTIFF made:

Any future accusations, false statements or actions that create a hostile work environment.

Additionally, DEFENDANTS threatened additional adverse action if PLAINTIFF failed to comply with DEFENDANTS’ imposition of a discriminatory limitation/on her access to housing services:

To avoid fines, additional costs and further legal action by CMA against any of you, I strongly recommend [PLAINTIFF] run any issue by you, the Owners, before he calls the after-hours emergency telephone line.

DEFENDANTS’ May 23, 2016 letter—sent to PLAINTIFF because she engaged in protected activity by complaining of unauthorized entry into her unit and because she assisted others in the exercise/enforcement of their rights by sharing her experience online—constituted intimidation, threats, coercion, and interference.

By sending the threatening, intimidating, and coercive letter, DEFENDANTS plainly and palpably violated the ANTI-RETALIATION PROVISIONS.

CONCLUSION

The undisputed evidence directly establishes that DEFENDANTS threatened, coerced, intimidated and interfered in violation of the Fair Housing Act because of PLAINTIFF’s protected activity.

PLAINTIFF is therefore entitled to judgment as a matter of law, and summary judgment is appropriate.

Respectfully submitted

America is the only nation in the world that is founded on a creed.

After visiting in 1922, G.K. Chesterton remarked:

America is the only nation in the world that is founded on a creed.

That creed is set forth with dogmatic and even theological lucidity in the Declaration of Independence; perhaps the only piece of practical politics that is also theoretical politics and also great literature.

It enunciates that all men are equal in their claim to justice,
that governments exist to give them that justice,
and that their authority is for that reason just.

(What I Saw in America).

On Independence Day, we proudly filed our summary judgment brief on behalf of a client who opposed housing discrimination.

What better way to celebrate our nation than to stand up for the values upon which it was built.

_________

“As expressly acknowledged FHAA regulation comments, discrimination in and around one’s own home feels inherently more threatening; individuals are more vulnerable where they live—which calls for heightened protection against harassment that reaches them there:

One’s home is a place of privacy, security, and refuge (or should be), and harassment that occurs in or around one’s home can be far more intrusive, violative and threatening than harassment in the more public environment of one’s work place.  24 CFR 100 (81 FR 63054, 63055-56)

The reality remains that in this day and age, now more than ever, one protected class whose rights to safety and security in their homes must zealously be safeguarded are our citizens of Arab or Middle Eastern descent.”

(1:17-cv-00066-SCJ – Northern District of Georgia).

Posted in law

Thank you NAACP of Georgia

I was honored to have been given the opportunity to speak with the Georgia NAACP this past Saturday morning about the problem of sexual assault.

It was an emotional event for me, but as this Sexual Assault Awareness Month draws to a close, I could not be happier to be involved in this conversation.

It is a conversation we must continue to have as we repeatedly remind ourselves that 1 out of every 6 girls will, on her journey through this life, find herself the victim of a rape or an attempted rape…

1 out of every 6 girls.

Thank you to Dr. Francys Johnson (President, Georgia NAACP) and Dr. Meca Williams-Johnson for inviting me to participate.  I am forever indebted to you.

The collateral source rule: Providing an incentive for liability carriers to step up in time.

Intuitively, the collateral source rule makes sense:

If you cause me damages, and I am forced to sue you to get repaid — you should not then be able to use the fact that in the interim I had to turn to my girlfriend, employer, mom, cousin, friend or whoever to help me out  to cover the costs as a reason why the jury should not award me money….

And that’s precisely what the collateral source rule says:

The rule bars the defendant from presenting any evidence as to payments of expenses of a tortious injury paid for by a third party and taking any credit toward the defendant’s liability and damages for such payments.

This is because a tortfeasor is not allowed to benefit by its wrongful conduct or to mitigate its liability by collateral sources provided by others.

The collateral source rule applies to payments made by various sources, including insurance companies, beneficent bosses, or helpful relatives.

Hoeflick v. Bradley, 282 Ga. App. 123 (2006).

So, when a clearly at-fault driver’s insurance company drags its feet in paying a property damage claim resulting from an accident, it only makes sense that the same insurance company should not be able to then turn around and prevent a  plaintiff from presenting proof of his property damages simply because he was forced to turn to other sources for payment…

The consequences of an auto accident can be devastating in ways that are obvious and also less obvious…

Setting aside bodily injuries and physical pain and suffering, a significant amount of stress and lost time may be spent figuring out how to get alternate transportation to get to school, work, medical appointments — and how to pay for and effectuate car repairs.

These consequences are no small thing — and depending on a victim’s own financial or other life circumstances at the time of the accident, they may prove devastating.

So, let’s just agree that as between an innocent driver who finds himself the victim of another’s negligence, on one hand, and an auto liability insurance carrier,  on the other, the insurance company should be the one to pay the consequences of failing to step-up in time to cover losses caused by its insured driver.

The collateral source rule helps to accomplish this (here for sample brief arguing for admission of property damage evidence under collateral source rule).

The collateral source rule rightly provides an incentive for liability carriers to make absolutely sure that when they choose not to step up to the plate on time, they have an airtight reason — or face the consequences of failing to do so.

Posted in law

We proudly stand alongside our Arab American brothers and sisters of all faiths

We have filed suit to enforce our client’s right to stand against and live in freedom from discrimination.

The Fair Housing Act of 1968, as amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. §§ 3601 makes it unlawful to discriminate as to the terms, conditions, and privileges of housing because of an individual’s national origin. It also protects a person’s right to oppose such discrimination.

Titles VI and VII and of the Civil Rights Act of 1964 similarly prohibit discrimination in employment and education. 

We proudly stand alongside our Arab American brothers and sisters of all faiths, and alongside our Muslim brothers and sisters of all ethnicities, and will vigorously fight to defend their right to equal protection and to freedom from discrimination.

Blain LLC files lawsuit for severe burns to inmate caused by collapse of Rubbermaid Commercial Products Brute container

Our firm has filed a lawsuit for severe burns sustained by a 26 year-old man, which resulted in surgical skin grafts to both feet.

The case arose during his incarceration at USP Atlanta and involves an established practice of food service workers filling containers with kettle-heated water to wash and soak dishes.  The plaintiff, who worked in the kitchen, alleges that while he was standing nearby, a filled container collapsed, releasing scalding hot water onto his feet.

The lawsuit comes following multiple similar injuries to inmates involving plastic trash containers, which are commonly used in correctional institutions for storing or transporting hot water.

The lawsuit alleges that the global marketer Newell Brands, promoted its garbage containers in a way that encouraged commercial and institutional uses that extend beyond “merely storing trash.”

In particular, the lawsuit claims that Newell Brands promoted the container to correctional institutions as “virtually indestructible,” “one of the most versatile containers on the market,” and “suitable for extreme temperatures” despite knowledge that due to the container’s low-density polyethylene material, it tends to fail under thermal stress.

In a 2014 decision, an inmate at the Wayne Scott Unit in Texas sustained burns when a nearby plastic trash container was filled with hot water and melted.

In another Texas case, an inmate was injured when nearby plastic trash cans filled with hot water by food service workers collapsed.

And two additional cases, both decided in 2006, centered on burns suffered by inmates when containers used for transporting hot water failed.

Atlanta Business Chronicle

 

 

Can you get sued if someone is raped in your Airbnb listed space?

Airbnb, the popular space-sharing site, is a fantastic way to visit far away places and host others in your community and home. 

But bad things can happen too.  What if something unseemly, violent, or harmful happens in your airbnb space when you’re not even there — can you be held legally responsible? 

The short answer is maybe.

If you list your space on Airbnb or other site and make it available to guests for a charge, you have a duty to protect them from certain dangers — in particular, dangers that they might not perceive for themselves.

In other words, you are not responsible for ensuring the absolute safety of the people you host (by providing a bodyguard, fitting them for protective armor, or enrolling them in self-defense courses).  The law does not expect you to be an insurer of their safety.

So, if, unbeknownst to you, your guests decide to host a frat party on your space, and someone is sexually assaulted, raped, or some other crime is committed, then no, it is not likely you could be held legally responsible (unless, of course, you had reason to believe or suspect it was going to happen and did nothing to prevent it).

However, under the law you are responsible for taking reasonable precautions and warning your guests of dangers of which they might not be aware.

For instance, if you know that there is an escaped convict on the loose and that there has been a string of violent break-ins and instances of rape in the neighborhood, then you must, at minimum, warn your guests so they know to be extra careful.  If you say nothing, and your guest falls victim, then you may be held legally responsible.

The responsibility to protect your guests comes from knowing about a risk of danger that goes above and beyond the general risk of living in this world.

pexels-photo-25349

So, you don’t need to warn of general dangers like watching for cars when crossing the street, or being careful with knives when slicing tomatoes.  But you do need to warn of risks that would not be as apparent to them — and of which you know about because you live there.

It’s all about the dangers that you know about — and that your guests don’t.

The basis for legal liability in these types of situations is the host’s ‘superior knowledge’ of a dangerous condition; whether violent criminals on the loose, vicious animals, a higher incidence of crime in the neighborhood, a rash of car break-ins, or a series of armed home break-ins.
If you know of a danger in your space or neighborhood that should warrant your guests taking extra safety precautions, then under the law you have a duty to warn them.
And if you don’t, and something bad happens, it could lead to a lawsuit.