Smith v. Airbnb, Inc., A173133

• Court: Court of Appeals of Oregon
• Writing for the Court: TOOKEY, J.
• Citation: 316 Or.App. 378
• Decision Date: 15 December 2021
• Docket Number: A173133
• Parties: Amanda SMITH, Plaintiff-Appellant, v. AIRBNB, INC., a foreign corporation, Defendant-Respondent, and Barry DENNIS, Defendant.

316 Or.App. 378

Amanda SMITH, Plaintiff-Appellant,
v.
AIRBNB, INC., a foreign corporation, Defendant-Respondent,

and Barry DENNIS, Defendant.

A173133

Court of Appeals of Oregon

December 15, 2021

Argued and submitted April 9, 2021

Multnomah County Circuit Court 18CV32897; Christopher J. Marshall, Judge.

J. Randolph Pickett argued the cause for appellant. Also on the briefs were Kristen W. McCall, Kimberly O. Weingart, and Pickett Dummigan McCall LLP.

Kathleen C. Bricken argued the cause for respondent. Also on the brief was Foster Garvey PC.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.

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[316 Or.App. 379]

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[316 Or.App. 380] TOOKEY, J.

Plaintiff brought multiple claims against defendants Dennis and Airbnb, Inc., for injuries she sustained at a rental property owned by Dennis and listed on Airbnb's website. Plaintiff now appeals a limited judgment entered as to Airbnb.^[1] We reject without discussion plaintiffs assignment of error related to document production, and we write only to address plaintiffs contention that the trial court erred by granting summary judgment in favor of Airbnb based on a determination that Airbnb's liability was foreclosed under section 230 of the Communications Decency Act of 1996 (CDA 230), 47 USC § 230 (2018), which immunizes website operators from liability arising from third-party content. We conclude that CDA 230 provides immunity to Airbnb in this case, and therefore, the trial court did not err in granting Airbnb's motion for summary judgment. Affirmed.

"We review a trial court's grant of summary judgment for legal error, and we will affirm if there are no genuine issues as to any material fact and the moving party is entitled to judgment as a matter of law." Towner v. Bernardo/ Silverton Health, 304 Or.App. 397, 400, 467 P.3d 17, rev den, 367 Or. 115 (2020). "There is '[n]o genuine issue as to a material fact' when 'no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment.'" Id. (quoting ORCP 47 C). We view the facts and all reasonable inferences that may be drawn from them in the light most favorable to the nonmoving party. Id. at 401.

BACKGROUND

To celebrate plaintiffs birthday, her significant other, Havens, used Airbnb's website to book a weekend at the Old Barn in the Woods (Old Barn)—a vacation rental owned by Dennis. Dennis had used Airbnb's website to create a listing for the Old Barn. In so doing, he wrote a paragraph describing the Old Barn, and he voluntarily checked a box in a drop-down menu to indicate that, among other amenities, the Old Barn had a hot tub. Dennis's listing did not contain any warnings about hot tub safety.

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[316 Or.App. 381] On the day plaintiff and Havens arrived at the Old Barn for check in, Dennis was present and gave them a brief tour of the premises. The parties did not discuss the hot tub, which was located on a deck about 10 to 12 feet above a driveway and surrounded by a railing that was lower than required by the applicable building code. Plaintiff subsequently consumed about five alcoholic beverages throughout that evening, and around 2:00 a.m., she and Havens both went to bed. Plaintiff was unable to fall asleep, however, so she decided to use the hot tub alone. While in the hot tub, plaintiff felt "faint," as though she "was going to pass out." Feeling "dizzy" and "panicked," plaintiff attempted to climb out of the hot tub but fell over the deck railing to the driveway below, sustaining numerous physical injuries. As a result, plaintiff lay in the driveway until Havens discovered her there at around 8:00 a.m.

Plaintiff subsequently brought vicarious- and premises-liability claims against Dennis and Airbnb based on the unsafe condition of, and inadequate warnings about, the hot tub. With respect to Airbnb, plaintiff specifically alleged that Airbnb failed to "properly vet potential rental listings" on its website; failed "to obtain adequate control over" Dennis's Old Barn listing on its website; and failed to provide "basic hot tub safety" warnings to users of Airbnb's website.

Airbnb moved for summary judgment, arguing, among other points, that under CDA 230, "Airbnb cannot be held liable for the content, or lack of content, on defendant Dennis's listing, as a matter of established law." Plaintiff opposed summary judgment, and a hearing was held on Airbnb's motion.

At that hearing, Airbnb reiterated that, under CDA 230, Airbnb was immune to liability based on the content, or lack of content, provided to its website by third-party content providers like Dennis. Plaintiff responded, in essence, that Airbnb was immune under CDA 230 only if "they're simply passing on the content that Mr. Dennis provides to them without organizing it, categorizing it, [or] giving it rankings," and that Airbnb was "doing more than just simply passing on the information from Mr. Dennis." After

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[316 Or.App. 382] some discussion, the trial court sought to clarify plaintiffs position:

"THE COURT: [W]hat I hear you saying is ***, once Airbnb takes the information that [Dennis] has provided and puts the two words 'hot tub' with an emoji next to it, then that somehow has added to or subtracted from the content that was provided by [Dennis] in a way that takes away the immunity.

"Are you saying that repeating those words under a heading that says 'amenities' *** somehow that takes away the immunity?

"[PLAINTIFF'S COUNSEL]: Yes, Your Honor. That's exactly what we're saying."

Airbnb responded that "all of the factors [plaintiffs counsel is] talking about which he thinks creates or makes Airbnb an information content provider" had been previously rejected by courts interpreting and applying CDA 230.

Ultimately, the trial court granted Airbnb's motion for summary judgment and issued an order stating that there was no genuine issue of material fact relating to plaintiffs claims against Airbnb, and, as a matter of law, Airbnb was immune under CDA 230. The trial court then entered a limited judgment in favor of Airbnb, which plaintiff now appeals.

On appeal, plaintiff argues that the trial court "erred in granting Airbnb's motion for summary judgment on the basis that the CDA bestowed immunity on" Airbnb, because "Airbnb acted as a curator of its website entries" by "creating a special search category" for listings with hot tubs and "highlighting" those listings; "adding icons" to rental listings with hot tubs;^[2] asking "targeted questions" and "encourage[ing] individuals to specify whether their property has a hot tub, which is displayed in the listing"; and allowing individuals listing their property to "choos[e] answers from drop-down menus." Given "[t]his level of activity," plaintiff argues, Airbnb "is not immune from liability."

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[316 Or.App. 383] In response, Airbnb argues that the trial court did not err in granting summary judgment, because plaintiff "seeks to hold Airbnb liable as a publisher of [Dennis's] content," which "falls squarely within CDA 230's protections." Airbnb further argues that a website "is not required to be a passive conduit" in order to enjoy immunity under CDA 230, because "CDA 230 allows websites to perform some editing on user-generated content," and "courts consistently have held that arranging and organizing third-party content or making minor edits to such content does not take a platform outside of CDA 230's protections."

Given the parties' arguments, the dispute in this case centers on whether the activities identified by plaintiff take Airbnb outside the immunity provided by CDA 230. We begin our analysis by explaining the immunity provided under CDA 230 before turning to its application in this case.

CDA 230 IMMUNITY

Broadly speaking, CDA 230 "immunizes providers of interactive computer services against liability arising from content created by third parties." Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1162 (9th Cir 2008). In Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir 1997)—a seminal case interpreting CDA 230^[3]—the court explained that the purpose of Congress in providing that immunity was as follows:

"Interactive computer services have millions of users. The amount of information communicated via interactive computer services is therefore staggering. The specter of tort liability in an area of such prolific speech would have an obvious chilling effect. It would be impossible for service providers to screen each of their millions of postings for possible problems. Faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted. Congress considered the weight of the speech interests implicated and chose to

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[316 Or.App. 384] immunize service providers to avoid any such restrictive effect.

"Another important purpose of § 230 was to encourage service providers to self-regulate the dissemination of offensive material over their services."

Id. at 331 (internal citations omitted).

Reflecting those legislative concerns, courts have interpreted CDA 230 as providing two types of immunity. First, section 230(c)(1) "protects websites from liability for material posted on the website by someone else." Doe v. Internet Brands, Inc., 824 F.3d 846, 850 (9th Cir 2016). Second, section 230(c)(2) protects websites "from liability for claims arising out of the removal of potentially 'objectionable' material." Batzel v. Smith, 333 F.3d 1018, 1030 n 14 (9th Cir 2003), superseded in part by statute on other grounds as stated in Breazeale v. Victim Servs., Inc., 878 F.3d 759, 766-67 (9th Cir 2017) (quoting 47 USC § 230(c)(2)). This case concerns the first type of immunity—i.e., section 230(c)(1).

Pursuant to the text...