(The opinions expressed here are those of the author, a

columnist for Reuters.)

By Jenna Greene

May 7 (Reuters) - Sebastian Mejia died in the shower of

an Airbnb ( ABNB ) rental in Brazil in 2022, the alleged victim of carbon

monoxide poisoning from a faulty water heater. A Fulbright

scholar, the 24-year-old Florida native was studying the

country's indigenous communities.

That same year, an American woman staying at an Airbnb ( ABNB )

in Croatia allegedly shared his fate, as did a trio of American

tourists at an Airbnb ( ABNB ) in Mexico City, a man on a work trip to

San Luis Potosí, Mexico, and a Loyola Marymount graduate student

at an Airbnb ( ABNB ) in Guadalajara in late 2021, court records show.

None of the properties was equipped with detectors that would

have alerted occupants to the odorless, colorless gas, the

victims' families' allege in a series of wrongful death lawsuits

against Airbnb ( ABNB ).

As the cases make their way through the courts, they raise

questions about the reach of Airbnb's ( ABNB ) arbitration agreement and

whether the short-term rental platform has a duty to protect its

users from harm caused by third parties at properties it says it

"does not own, have a right to access, or control."

To find otherwise, Airbnb ( ABNB ) argues in court papers, would

"radically expand tort liability."

A spokesperson for the publicly traded San Francisco-based

company, which reported more than $11 billion in revenue last

year, said in a statement that there "have been over 2 billion

guest arrivals on Airbnb ( ABNB ), and incidents are exceptionally rare."

The spokesperson added that Airbnb ( ABNB ) has given away more than

280,000 free combined smoke and carbon monoxide detectors to

hosts.

On Thursday, Airbnb ( ABNB ) lawyers from O'Melveny & Myers will face off

at a hearing in San Francisco Superior Court against counsel for

the widow of José Peñaloza Herrera to argue that the claims fail

as a matter of law and should be dismissed. Herrera, a Mexican

citizen, had been on a work trip to install machinery at an

automotive plant when he died of carbon monoxide poisoning while

sleeping in a room that contained a gas-powered water heater and

other appliances, according to the complaint.

Pedro Echarte, a partner at the Florida-based Haggard Law Firm

who represents plaintiff Yessica Garcia Cardenas, argued in

court papers that there have been at least 19 deaths due to

carbon monoxide poisoning at Airbnb ( ABNB ) rentals abroad since 2013.

Airbnb ( ABNB ) did not respond to my requests to confirm that

number, which Echarte told me is based on news reports of the

deaths.

By the time Herrera died in December 2022, the company

should have known it was a "systemic problem," Echarte said,

especially at properties in Central and South America, where

fuel-burning water heaters that can emit carbon monoxide are

more common.

Airbnb ( ABNB ) was "on notice of repeated incidents of its guests

dying" from the gas, he argued, but "inadequately responded to

the danger."

To be clear, carbon monoxide poisoning doesn't just happen at

Airbnbs. For example, the teenage son of former New York Yankees

outfielder Brett Gardner died of carbon monoxide poisoning in

March while staying at a five-star hotel in Costa Rica,

authorities determined last month.

Assigning liability, however, can be far murkier when travelers

rent from a third-party host. The big question: What duty - if

any - does Airbnb ( ABNB ) owe its customers to keep them safe?

After a carbon monoxide death of a Canadian tourist in Taiwan,

plaintiffs alleged that Airbnb ( ABNB ) in a 2014 blog post (available

here on the internet archive the Way Back Machine) stated it

would "require all Airbnb ( ABNB ) hosts to confirm that they have

(carbon monoxide detection) devices installed in their

listing."

That apparently didn't happen, given the subsequent lawsuits.

When I asked Airbnb ( ABNB ) why, the spokesperson didn't provide an

explanation. However, if a guest now books a listing where the

host doesn't report having a carbon monoxide detector, Airbnb ( ABNB )

flags it in the booking confirmation, along with a

recommendation to bring a portable detector. (You can buy one

starting around $25.)

Plaintiffs lawyers argue Airbnb ( ABNB ) should have reasonably

foreseen there would be subsequent deaths by carbon monoxide

poisoning at properties without the alarms - and should be held

liable for negligence and premises liability as a result.

"The tragedy is that these deaths were so easily avoidable,"

said James Ferraro, who along with partner Jose Becerra

represents Rosa Martinez, whose son Sebastian Mejia died in

Brazil.

In suing Airbnb ( ABNB ), Martinez alleges not just wrongful death - the

only cause of action in Echarte's case - but also asserts

broader claims including fraud, negligence and breach of

fiduciary duty. She also seeks injunctive relief to force Airbnb ( ABNB )

to remove all active listings without carbon monoxide alarms.

Airbnb ( ABNB ) initially asserted the entire case was subject to

arbitration based on its terms of service. On appeal, it

eventually withdrew its argument that the wrongful death claims

were within the scope of the agreement.

In March, the First Appellate District Court in San Francisco

split the case, sending the portion seeking survivor benefits -

relief for claims such as fraud that would have belonged to

Mejia and passed to his successors in interest - to arbitration.

However, the court ruled the wrongful death claims could be

tried in court, as could the claim for public injunctive relief.

Left unanswered: What if there are inconsistent rulings in

the two forums?

Last fall, a federal judge in San Francisco faced a similar

dilemma in a lawsuit involving Monique Woods, the Airbnb ( ABNB ) guest

who died in Croatia. U.S. District Judge Maxine Chesney sent the

successor-in-interest claims to arbitration and stayed the

wrongful death claims. Chesney also noted that plaintiff Cindy

Woods, the victim's mother, created an Airbnb ( ABNB ) account in 2013

and agreed to arbitrate all disputes.

To conserve judicial resources and ensure consistency, the

judge put the arbitration first.

"Here, the outcome of the wrongful death claims will depend upon

the arbitrator's decision as to the viability of the survival

claims," she wrote. That's because the arbitrator will make

findings on the same primary issues, such as what duties Airbnb ( ABNB )

owes its customers and whether the breach of any such duty was a

proximate cause of injury.

Of course, that also means the arbitrator is empowered to

decide if the wrongful death claims can move forward, even if

the claims themselves won't be arbitrated.