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?
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.
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.
"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).
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.
> What could the owner have done to ensure that this did not happen?
You can do a simple impedance test on the tree. If the tree had rot then electricity will go through the core faster due to additional water content. And they give you a nice graph to prove whether the tree is safe or dangerous.
I don't think that handy bit of knowledge has made it into the 'how to make a tree swing' manual yet but it really ought to. Also should be in 'proper care of your tree swing' over the years and the periodic inspection.
It's already pretty common knowledge for tree care in general, there's nothing specific about this for swings. Already ever major town or city around the country has an arborist or team of arborists to make sure trees don't randomly fall on people and kill them, and the way they do that is by using either this test or else just manually coring the tree by cutting out a tiny section to check for rot.
If you as an individual want to own trees, and especially if you want to let others use your property, I don't see any reason why you should be held to a lesser standard of care than any municipality across the country. If you can't afford to keep your trees safe then you can't afford the trees and/or the property.
But yeah, this definitely isn't anything beyond what you'd learn in a plant pathology 101 class in college or a basic arborist certification.
> If you can't afford to keep your trees safe then you can't afford the trees and/or the property.
1. Handling it like that might mean more cut down trees, which is probably not something the town/city has an interest in. (Maybe they should send professionals to check out all the trees?)
2. Properties can change hands much quicker than cut down trees can be regrown.
If the tree is dead or rotting then it is better to cut it down. If you're unsure of the status of a tree, you should be cautious around it until it has been tested. Basically don't climb it or put a swing on it.
I am not sure what the point of point 2 is, when you have point 1. You don't really have to cut down all the untested trees on your property, but if you're not doing testing/maintenance on the trees for ANY reason(ignorance, cost), don't be surprised when one kills someone and you're held liable for it. You should consider this before buying a property with trees. It's similar to owning a dog. If you own a dog, and it runs out and bites someone, you will likely be held liable, and the dog will likely be put down. If the dog tests positive for rabies before even biting anyone, it will be put down, similar to a dead tree being cut down.
Have you ever owned or lived in a home with trees? Ensuring that your trees are healthy is pretty standard for homeownership. Otherwise sooner or later you'll have to deal with a fallen limb on your (or your neighbor's) house or car. It's a lot easier to sleep in the middle of a snowstorm knowing that the tree overlooking your bedroom isn't going anywhere.
> Liability insurance won't save your life if you get hit by a few hundred pounds of tree.
It will give my family the money they need to bury me. It will give my dependents a bit of the money I would have given them across the rest of my life.
> 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.
Not if someone has charged me for access to the swing. It's the commercial activity that has caused the extra attention here.
> It's a tragic accident, I don't see much in terms of liability.
> Liability insurance won't save your life if you get hit by a few hundred pounds of tree. It will just move money around.
By this argument you seem to be claiming that there's no liability in cases where people die. Just because you could have stayed alive by not doing something doesn't mean there is automatically no liability.
Obviously we agree that it would be better to not sing and be alive than to swing, die, and get a payout. I'm also not sure whether there is liability here legally, or even whether I think morally there was reasonable expectation that the swing was safe.
But surely the question of liability doesn't factor in whether or not the payout brings someone back to life, and this part of your comment obscures your point a bit.
Indirectly, in a general sense, it does. The effect of liability insurance can be to push premiums higher for facilities that aren't robustly checked. If (say) a hotel chain had lots of playgrounds that weren't properly maintained, their insurer might decide to charge higher rates or even refuse coverage. This may well incentivize the hotel to improve their maintenance.
> Liability insurance protects you from this kind of thing.
No, liability insurance moves money from the insurance company to the next of kin of the person who died from having a chunk of tree crack their head open like it was an egg. It does not protect you from this sort of thing.
Uh, it does protect the owner of the property from this sort of thing (this is the perspective the article is written from, at the end encouraging those listing properties on AirBnB and the like to carry their own commercial liability policy).
Is anybody actually arguing that a property being covered by liability insurance makes the property safer? I suppose that is the case in more commercial/industrial settings where the insurance company has a list of requirements on the policy.
Change the scenario. Is it reasonable for the renter to assume that the floorboards in the building are sound? This really only differs in degree from that.
These and many other considerations like it are the reason why I stay in hotels and with people that I trust rather than in AirBNB places. I also tend to make sure there are at least two ways out of whatever place I sleep in but this is a thing that is related to one of my grandmothers dying in a fire and probably irrational.
I make sure that wherever I sleep there are at least two exits, I make sure those are un-obstructed, I hate stoves that have their burners installed in such a way that they might vent CO2 into the surroundings. I don't check for fire/CO2 monitors because I would assume that even if they are present they're not working. (Which, unfortunately seems to be the case more often than not.)
If you want to know how much the property owners care about fire safety, don't bother checking the smoke detectors, just look at what kind of lights they have next to the beds. I.e. if they are halogen or incandescent then you can tell that they probably don't give a shit about whether or not their renters die in a fire.
Wait, what good would multiple exits do in the case of CO leak (note it is CO not CO2)? A carbon monoxide leak wouldn't wake you up before killing you.
Having two exits at your disposal works wonders in case of a fire and an open window helps to make sure there is sufficient fresh air in case that heater doesn't work properly. Thanks for the CO / CO2 correction, too much time spent reading up on car pollution recently.
US fire code actually requires that there be 2 exits to any bedroom (in practice the 2nd exit is a suitable window). Of course people ignore this, but leasing out of a sleeping room that doesn't have 2 exits is likely illegal.
It's also code to have bedroom electric outlets protected by an AFCI.
I guess my point is that even though my reaction to your posts about fire is that it seems paranoid, those accommodations are supposed to be the default where I live.
I don't think anybody involved had the foresight to say that that particular swing was dangerous if they had they no doubt would have taken it down. But swings are dangerous, and users of swings should be aware of that. The very same thing could have happened to the owner of the house.
There are swings at my local park. They were designed by competent engineers. They were installed by competent builders. They're regularly maintained. The council (who own and operate the park) have insurance.
I am aware that there's some risk involved in swings - don't walk in front of one when it's being used, don't use it when I'm drunk, don't do handstands on it, but I also know that using it normally is pretty safe.
The swings in that park are indeed probably normally safe. Swings installed by homeowners are usually held to a different standard and tree swings should be considered dangerous until personally inspected before use.
There's a huge difference between me building a swing for my own use, and me building a swing that paying guests could use. They are held to vastly different levels of accountability, despite both of them being built by a homeowner.
This is exactly the point. People on AirBNB rent out their houses that they built and maintain for their own use to you the guest. That means that you get the level of construction and associated accountabilty related to private individuals, not to professional operators. It is also one of the reasons you are probably better of in a hotel if safety is a prime consideration when you're traveling. The upsides of AirBNB stays are related to interaction, living like the locals do and a less thirteen-in-a-dozen experience, the upside is definitely not that the place you will be staying in is safer or better grade when it comes to reliability than your average old home, especially not when it is a quaint old cottage in some backwater.
Then there needs to be a huge disclaimer about safety liability and people need to be given a checklist of safety items to inspect upon their arrival. There should also be a guarantee of a full refund and/or alternative accommodations if the host fails the checklist. If you really want to blame the customer and put the burden on them for their own safety, make them aware of it. The problem is that informing the consumer of all the risks is going to be less profitable because people may second guess if it's right for them, and the checklist makes AirBnB look like a lot more work.
Either the homeowner needs to see a huge disclaimer and accept liability when they place a property, or the consumer needs to see a huge disclaimer and accept liability when they rent a place, or AirBnB needs to assume responsibility and liability for both. You can't just leave it a grey area where it automatically defaults to the consumer being liable for everything, so that the homeowner and AirBnB can maximize profit while assuming zero risk.
I think a lot of your posts make you out to be an AirBnB apologist, but looking over all of them, I don't think that is the impression you're trying to make.
"Swings installed by homeowners are usually held to a different standard and tree swings should be considered dangerous until personally inspected before use."
Held to a different standard by whom? Definitely not by courts.
People renting out their homes on AirBNB do not normally see it as a business venture. They usually do not register as a business and they usually do not follow the regulations set for the hospitality business (in fact, they try what they can to avoid those regulations, associated costs and taxes).
Which is the point: the "sharing economy" encourages service provision by amateurs without regulation, oversight, formal accountability, or adequate backup.
It looks like a win because it's cheaper, but that's only true until something goes badly wrong.
Oversight and regulation aren't always a bad thing. Sometimes they prevent avoidable accidents.
> Which is the point: the "sharing economy" encourages service provision by amateurs without regulation, oversight, formal accountability, or adequate backup.
Yes.
> It looks like a win because it's cheaper, but that's only true until something goes badly wrong.
It isn't a win in my opinion, for many reasons. It violates all kinds of social contracts.
> Oversight and regulation aren't always a bad thing.
Agreed.
> Sometimes they prevent avoidable accidents.
That's a tricky one. I suspect this particular tree-swing would have killed someone, it's a coincidence that it had to be an AirBNB guest so even if this particular person may not have died the accident itself would have probably happened anyway sooner or later. Which is sort of the root of my whole argument about this being a tragedy rather than an issue of liability.
"But swings are dangerous, and users of swings should be aware of that."
Sorry, but in the US, the law and most cases say the opposite.
Generally, the onus is on the person whose swing it is, not users of swings.
I don't think the parent is arguing that the family in the story didn't deserve a settlement for his death (at least under settled US law). His point is that the man who used the swing is dead. If your ultimate goal is to stay alive, then the burden of care is on YOU. If your goal is to garner a sweet multi-million payday for your family, then swing on!!
Not have a tree swing on an old tree and advertise it? The owner bares the burden of ensuring their service is safe - not the user. Try and imagine a world where that's the opposite as you're proposing.
I live in that world. The responsibility for my life is mine and if I climb on some who-knows-how-old treeswing in some rustic cottage tied to an old tree without any leaves on it then you can be damn sure I'll check to see if it is solid before I trust my own weight to it and I'll check it myself before I let my kids play with it. Because money from some settlement won't give me back my life or my children and because trees have been known to break every now and then even when not burdened with tree swings carrying adults and even when they're healthy and not dead like this particular tree. It all boils down to personal responsibility and if you let that go then accidents can happen.
This is not the brakes of your car services by some competent mechanic in which case I can easily see a liability issue but in the case of old stuff hanging from trees different rules apply.
For that matter, when visiting a friend who has two young children and a nice swing in their garden I spent the better part of a day re-inforcing the swing and its foundation because I thought the whole thing was an accident waiting to happen.
I actually support your view but to play the other side of the argument for a bit: what you are suggesting is that the customer has to be an expert in tree health before they use a facility provided by the host. Do they also have to be an electrician before they trust the cooker wont electrocute them; or a heating expert to check the service condition of a heater so it doesn't leak CO and kill them in their sleep?
Electricity in a house is (usually!) installed by licensed electricians and inspected after installation, ditto gas and heating devices.
If you stay in someone else's apartment and it does not have a CO alarm and a stove that may or may not vent into the apartment then you should at a minimum sleep with a window open.
Tree-swings are not usually installed by licensed engineers, they are typically installed by people with a tree with a suitable profile, a rope and an old tire, any of which may fail at unpredictable times, but most likely when being used (and even more likely: when being used by an adult).
It's weird that you're championing the cause of personal responsibility while at the same time completely absolving the owner of the swing from any responsibility.
Wow if I could give +1s on this website I would do so. I've seen a lot of that way of arguing -- for example people yelling about "states rights!" and then passing laws in Texas that forbid local cities from making minimum wage laws. Why aren't they yelling about "city rights!" Obviously because it doesn't fit their agenda.
In this case I'm not sure how anyone could defend the homeowner or AirBnB when the house had a picture of the swing on the website. Granted AirBnB isn't filtering those pictures looking for potential problems (hrm, image recognition problem here that could be interesting) but the owner sure could have if he/she were trained or asked to do so. Right now they aren't -- it is just a "host your home for free and get people to give you money" without thinking about the consequences.
I can see why the homeowner might not have all the insurance or knowledged needed to make it a safe(r) place. That's why they are homeowners and not hotel or apartment owners -- they aren't that sophisticated. But is it right for AirBnB to profit off of that?
> and then passing laws in Texas that forbid local cities from making minimum wage laws. Why aren't they yelling about "city rights!" Obviously because it doesn't fit their agenda.
I agree with everything else you're saying, but as for the example of states' rights vs. city rights, - while this may appear to be inconsistent, it isn't necessarily. It appears to be a contradiction if you interpret states' rights to be an affirmation of delegation to smaller forms of government on pure principle, but that's not what it is.
Advocates of states' rights base their argument on the Constitution, which specifically affords states (and the people) all rights that aren't provided to the federal government[0]. States reserve this power because the federal government actually draws its power from the states, not the other way around[1].
This isn't an argument that generalizes to the sub-state level, because incorporated cities and towns draw their authority from the state, just as the federal government draws its power from the federation of states that form the union.
You may or may not agree with the extension of this argument to advocate for the various things that states' rights advocates promote, but I'm just pointing out that this isn't actually a paradox.
[0] The tenth amendment is the most notable example of this, but there are other parts of the constitution in which states are treated as having far more sovereignty than any other subdivision of government: https://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_...
[1] Historically, this is obvious: the states had to ratify the Constitution before it ever even came into effect!
If the owner of the swing wants to use the swing then he too has the responsibility of making sure it is safe for his/her use.
For all we know the owner of the swing tried it the day before but weighed 10 kg less than the guest and he/she never noticed a problem. For every tree-swing there is a point in its life where it will fail and a load that will cause it to fail right now.
In the US, property and tort law varies from state to state, but in general, for "invitees" (IE people you have explicitly invited to come into your property), you have a duty to not only repair and correct known dangers, but reasonably inspect, discover, and correct unknown dangers.
This is true even when it's not a situation where the guy paid for a rental and you put the pictures of the swing in the listing ;-)
By way of an example, here's a writeup on connecticut:
"The Connecticut Supreme Court described three types of invitees.
...
2. A business invitee is someone invited to enter or remain on land for a purpose directly or indirectly connected with business dealing with the possessor of land.
...
The possessor of land owes an invitee all the duties that he owes to a licensee and also: (1) the duty to inspect the premises and erect safeguards, if necessary, to render the premises reasonably safe and (2) he has liability for defects that would ordinarily be discoverable by a reasonable inspection and he has the duty to give a proper warning. But he is not liable to anyone for unknown latent defects, that could not be discovered by the exercise of reasonable care (Conn. Law of Torts, § 49).
Even if he is an invitee, the plaintiff must prove that the defendant had notice, actual or constructive, of the specific defective condition that caused the injury, and that the condition existed for a sufficient length of time to allow the possessor, in the exercise of reasonable care, an opportunity to discover it and fix it or warn of its presence (Monahan v. Montgomery, 153 Conn. 386). The possessor of land is not liable for hazards that could not have been discovered or anticipated (Conn. Law of Torts, § 49).
"
(The usual next argument is about whether it's reasonable, could have been discovered, etc.
These are generally jury questions)
> But he is not liable to anyone for unknown latent defects, that could not be discovered by the exercise of reasonable care.
And that's exactly the rub. People renting out their AirBNB properties will not study the law beforehand to establish the limits of their liability, nor will they review the entirety of their property for being safe for guests. They will go online and click a few buttons and expect some extra income from guests in their house and therefore accidents can and will happen. Nor will AirBNB send around their friendly safety inspector to make sure everything is A-OK before accepting the listing. I'm very sorry that person died but with private operators your normal expectations of service levels should go right out the window in return for a less cookie-cutter experience.
I can't see a way in which you could rule out these sort of accidents without ending up in the regular hotel business. So either AirBNB operators are hotel operators and their hosts are franchise operators and they should all just 'follow the rules' or AirBNB guests will have to take into account that they are entering an unknown private home with an unknown history of maintenance. Caveat emptor... Because in the end it is your life and the lives of your dear ones that are at risk.
" I'm very sorry that person died but with private operators your normal expectations of service levels should go right out the window in return for a less cookie-cutter experience."
This has zero effect on the law, of course, and in fact, i expect the law will get harsher in the face of AirBNB, not easier.
"AirBNB guests will have to take into account that they are entering an unknown private home with an unknown history of maintenance."
More likely what will happen is what has happened in the past:
People get sued into oblivion, and either take out insurance, have regular inspections, or stop renting their home.
Or some type of regulatory change will occur that makes airbnb untenable.
> Or some type of regulatory change will occur that makes airbnb untenable.
That would be a good thing but I think that it may be quite a while before a synchronized legal framework will materialize and the money is such that it will drive such rentals underground.
AirBNB is the talk of the town in Amsterdam, whole buildings are converted into illegal hotels (and are fire-traps to boot). There is a huge divide imo between people using AirBNB to rent out the place they normally occupy versus people setting up places with the sole intention of renting them out via AirBNB, bookings.com (which is quite popular) and the like.
The city of Amsterdam has stopped issuing permits allowing 'short stay' (which still has to be 7 days or more).
That doesn't stop people from buying up stacks of houses and converting them. One such situation with which I'm familiar converted two stacks right next to each other, 5 floors each into 20 (front and back) sections each of which fetches between 100 and 150 euros per night on AirBNB. The money involved is stupendous and the municipality has more things to do than to go after illegal hotels though they will definitely act if a situation is deemed unsafe.
When you pay money to stay in a place with advertised amenities (I'm assuming the swing was part of the listing, idk) it is expected that you can use those amenities without dying... Basically whoever makes the listing should ensure that the product they are offering the user (the abode + amenities) is hazard free.
This article says the tree was dead. The original says the tree was dead for two years. It is no secret that dead trees are hazardous. If you look at a tree which has been dead for years, it looks like it has been dead for years.
IANAL, so I won't discuss the law, but if I were operating that BNB, I would feel personally liable. It was a failure on their part to allow that tree to remain standing (let alone with a _swing on it_) and an ethical failure to take responsibility for other people's safety without fully understanding what was involved.
That said, it is a human error I've made myself (fortunately without fatal consequence).
I am reminded of the parable of the young reformer and the old guard politician. The reformer wants to remove a fence which is blocking a path, because it is inefficient to detour around it and he sees no use for it. The old guard says that, regardless of inefficiency, he won't allow the reformer to destroy something for which he sees no use, because it is very unlikely that their predecessors invested time, energy, and budget to just to frustrate his movements. Taking the fence down would invite unknown consequences on to his constituents.
AirBNB, Uber, and similar start ups are taking a crow bar to regulations they do not understand.
Which is exactly why I see this as an accident. It is very easy to see a tree as something strong and capable of supporting some amount of weight because it has done so for a very long time. Even experienced woodsmen are caught unawares by trees with regularity.
A dead tree is an accident waiting to happen and any tree without leaves is one that you should not climb into or hang weight from or even walk under until you've figured out what the exact state of affairs is.
By their nature accidents are unanticipated. As a general rule we do not proceed knowingly into certain doom. The proprietors of that BNB should surely be forgiven for making a terrible mistake, with no malice in their hearts. No one is born knowing how to run a hotel both safely and profitably (or even that they should be considering safety).
But that is precisely why we've placed barriers to entry for jobs that serve the public, to catch mistakes known to us collectively but perhaps not individually. You're right that it is your own responsibility to verify that a given course of action is safe. But it is also your responsibility not to market defective products, and to educate your users about risks associated with your product. The latter can and should be enforced by society.
Unless there's signs of rot or fungus. And if you're charging people for access to your property and using the swing to advertise you might want to check the branch will bear the weight of adults.
It would be trivial for the owner to test the limb at regular intervals (have a few people pull on the rope from an angle).
The insurance company settled, which suggests that under US law there was liability. Negligence is one of the most common sort of lawsuits in the US, looking it up I see that it is a common law concept and it's hard to find any resources that discuss it in terms of civil law. Perhaps that explains some of it.
If you are renting out your property, it should be safe for reasonable use. A swing being part of the rental should be safe to use in a normal manner, not to mention that a temporary tenant cannot possibly be expected to know the maintenance history of any fittings.
If I would rent a property through AirBNB (which I won't) I would expect it to be unsafe by default because that to me would seem to be the most prudent way to act. Ditto when I buy a used car, I inspect the thing end-to-end before I trust it, ditto when I buy a new place to live in (the one I just moved into had sub-standard electrical circuitry and I ripped everything out and replaced it with up-to-date and safe materials at considerable expense).
Properties you rent from professional operators you should be able to trust to be up to date, in a country that has a low incidence of corruption.
Anything you rent from private individuals should be considered unsafe by default.
Major rental agencies only. I would never rent a car from a private individual. Nor would I borrow a car from a private individual unless I know they keep their stuff up-to-date.
AirBNB are middlemen, they are not - surprise - in the business of renting out apartments, they are in the business of facilitating the renting out of apartments/houses/whatever and that is exactly where the problem lies. People enter properties they rented through AirBNB not from AirBNB with the same expectations that they would have entering a hotel but with a nicer ambiance. And that expectation is terribly faulty.
This is really interesting and highlights a problem with AirBNB that I hadn't thought of. OP could be an AirBNB renter and sees no issue here. A hotel or B&B owner would see the issue. And if not his insurer etc would inspect his or her facility and drive these points home. I think AitBNB is a great service but this is enlightening and highlights key differences to regulated facilities.
If I were to rent out my home on AirBNB (which I won't) I'd make damn sure that everything is in 100% working order and safe because I would not want anything to happen to my guests. Conversely, if I would rent someone else's home on AirBNB (which I won't) I would make damn sure that everything is in 100% working order too before using it simply because I would assume that the home-owner is not the one who has the most at stake if it turned out not to be the case.
The issue is not liability. It's whether there is a leg to stand on to get sued for this. In this case there is a leg to stand on to get sued. And in that case it's time and money to defend, assuming insurance does not cover this of course.
