Hlad v. Hirsch

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

TERESA HLAD, et al.,

Plaintiffs, CIVIL ACTION NO. 3:23-CV-00785

v.

(MEHALCHICK, J.)

YOEL HIRSCH, et al.,

Defendants.

MEMORANDUM

Before the Court is a motion to dismiss pursuant to Federal Rules of Civil Procedure

12(b)(2) and 12(b)(6) filed by Defendant Airbnb, Inc. (“Airbnb”) on June 9, 2023. (Doc. 9).

On April 13, 2023, Teresa Hlad (“Mrs. Hlad”) and Steven Hlad (“Mr. Hlad”) (collectively,

“Plaintiffs”) initiated this personal injury action by filing a complaint against Defendants Yoel

Hirsch, Sarah Hirsch, Airbnb, John Does 1-10, ABC Co. 1-10, and XYZ Corporations 1-10,

(collectively, “Defendants”) in the Court of Common Pleas in Pike County, Pennsylvania, at

Docket No. 375-2023. (Doc. 1, at 1-3; Doc. 15, at 1). In their complaint, Plaintiffs assert state

law claims for negligence and loss of consortium stemming from injuries Mrs. Hlad sustained

when she slipped on snow and/or ice at an Airbnb rental property in Pike, County

Pennsylvania (“the premises”). (Doc. 15, at 5-6). Defendants Sarah and Yoel Hirsch own and

manage the premises. (Doc. 15, ¶ 2). On May 11, 2023, Defendants Yoel Hirsch and Sarah

Hirsch filed a notice of removal of this action pursuant to 28 U.S.C. § 1441(b), invoking

diversity of citizenship under 28 U.S.C § 1332(a).1 (Doc. 1, ¶ 5; Doc. 1-1, at 1-8). On June 9,

1 When Defendants removed this case from the Pike County Court of Common Pleas,

they neglected to file a copy of the complaint with the notice of removal. (Doc. 1). On January

30, 2024, the Court issued an Order directing Defendants to file a copy of the complaint filed

in Pike County Court of Common Pleas on or before Tuesday, February 6, 2023. (Doc. 14).

2023, Airbnb filed a motion to dismiss. (Doc. 9). On July 7, 2023, Airbnb filed a brief in

support of its motion and attached exhibits.2 (Doc. 13; Doc. 13-1). On June 23, 2023, Plaintiffs

filed a brief in opposition. (Doc. 10). Accordingly, the motion has been fully briefed and is

ripe for disposition. (Doc. 9; Doc. 10; Doc. 13). For the following reasons, Airbnb’s motion

to dismiss shall be DENIED.

I. STANDARD OF REVIEW

A. RULE 12(B)(2) STANDARD

Rule 12(b)(2) of the Federal Rules of Civil Procedure authorizes a defendant to move

to dismiss a complaint for lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). When raised

as a jurisdictional defense, the plaintiff bears the burden of establishing the Court’s personal

jurisdiction over the moving defendant. D'Jamoos ex rel. Estate of Weingeroff v. Pilatus Aircraft

Ltd., 566 F.3d 94, 102 (3d Cir. 2009) (citing Gen. Elec. Co. v. Deutz AG, 270 F.3d 144, 150 (3d

Cir. 2001)). Without holding an evidentiary hearing, the plaintiff meets this burden by

establishing a prima facie case of personal jurisdiction, or “by ‘establishing with reasonable

particularity sufficient contacts between the defendant and the forum state.’” Mellon Bank

(East) PSFS, Nat’l Ass'n v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992) (quoting Provident Nat’l

Bank v. California Fed. Sav. & Loan Ass’n., 819 F.2d 434 (3d Cir. 1987)); Miller Yacht Sales, Inc.

On February 2, 2024, Defendant Yoel Hirsch filed a copy of the Pike County complaint.

(Doc. 15).

2 The Court notes that Airbnb’s brief in support is untimely. See Local Rule 7.5., which

states, in pertinent part, as follows: “Within fourteen (14) days after the filing of any motion,

the party filing the motion shall file a brief in support of the motion.... If a supporting brief is

not filed within the time provided in this rule the motion shall be deemed to be

withdrawn.” However, it is the Court’s preference in this case to address the motion on its

merits, rather than deny it on a technical violation. See S. Middleton Twp. v. Amerifreight Sys.

LLC, No. 1:17-CV-0269, 2018 WL 4207765, at *1 n.1 (M.D. Pa. Sept. 4, 2018).

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v. Smith, 384 F.3d 93, 97 (3d Cir. 2004). Further, “the ultimate burden remains on the plaintiff

to demonstrate the existence of jurisdiction by a preponderance of the evidence.” LaSala v.

Marfin Popular Bank Pub. Co., Ltd., 410 F. App'x 474, 476 (3d Cir. 2011).

“[I]n reviewing a motion to dismiss under Rule 12(b)(2), [the Court] ‘must accept all

of the plaintiff's allegations as true and construe disputed facts in favor of the plaintiff.’” Pinker

v. Roche Holdings Ltd., 292 F.3d 361, 368 (3d Cir. 2002) (citing Carteret Sav. Bank, FA v. Shushan,

954 F.2d 141, 142 n.1 (3d Cir. 1992)). “Once these allegations are contradicted by an opposing

affidavit, however, [the] plaintiff must present similar evidence in support of personal

jurisdiction.” In re Chocolate Confectionary Antitrust Litig., 674 F. Supp. 2d 580, 595 (M.D. Pa.

March 4, 2009). Indeed, the plaintiff will not be able to rely on the bare pleadings alone, and

“must respond with actual proofs, not mere allegations.” In re Chocolate Confectionary Antitrust

Litig., 674 F. Supp. 2d at 595; Patterson ex rel. Patterson v. F.B.I., 893 F.2d 595, 604 (3d Cir.

1990) (quoting Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 67 n.9 (3d Cir.

1984)). Thus, Courts may look beyond the pleadings when ruling on a motion brought under

Rule 12(b)(2), as “[c]onsideration of affidavits submitted by the parties is appropriate and,

typically, necessary.” In re Chocolate Confectionary Antitrust Litig., 674 F. Supp. 2d at 595;

Patterson, 893 F.2d at 603 (“A Rule 12(b)(2) motion ... is inherently a matter which requires

resolution of factual issues outside the pleadings.”) (quoting Time Share Vacation Club, 735

F.2d at 67 n.9).

A Federal Court may exercise personal jurisdiction over a non-resident defendant to

the extent permissible under the laws of the state in which the court sits. Mellon Bank, 960

F.2d at 1221 (citation omitted). The forum state in this instance is Pennsylvania, and the

applicable long-arm statute is codified at 42 Pa. C.S.A. § 5322. Section (b) of the long-arm

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statute permits Pennsylvania courts to exercise personal jurisdiction over non-resident

defendants “to the fullest extent allowed under the Constitution of the United States and may

be based on the most minimum contact with [Pennsylvania] allowed under the Constitution

of the United States.” 42 Pa. C.S.A. § 5322(b). Further, as previously stated by this Court

regarding corporations:

Pennsylvania law authorizes general personal jurisdiction over a corporation

when the corporation carries on “a continuous and systematic part of its general

business within this Commonwealth,” 42 Pa. C.S.A. § 5301(a)(2)(iii), and

authorizes specific jurisdiction over “all persons [including corporations] who

are not within the scope of section 5301 ... to the fullest extent allowed under

the Constitution of the United States [which] may be based on the most

minimum contact with this Commonwealth allowed under the Constitution of

the United States,” 42 Pa. C.S.A. § 5322(b).

Babyage.com, Inc. v. Ctr. for Env't Health, 90 F. Supp. 3d 348, 353 (M.D. Pa. Jan. 15,

2015).

Thus, this Court may properly exercise jurisdiction over a nonresident defendant, so

long as it does not violate their due process rights. See Mellon Bank, 960 F.2d at 1221. The

“Due Process Clause of the Fourteenth Amendment requires that nonresident defendants

have ‘certain minimum contacts with [the forum state] such that the maintenance of the suit

does not offend traditional notions of fair play and substantial justice.’” Kehm Oil Co. v. Texaco,

Inc., 537 F.3d 290, 299-300 (3d Cir. 2008) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310,

316 (1945)). “Having minimum contacts with another state provides ‘fair warning’ to a

defendant that he or she may be subject to suit in that state.” Kehm Oil, 537 F.3d at 299-300

(quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)). As such, personal

jurisdiction under the Due Process Clause depends upon “the relationship among the

defendant[s], the forum, and the litigation.” Shaffer v. Heitner, 433 U.S. 186, 204 (1977).

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There are two types of personal jurisdiction federal courts may exercise— general

jurisdiction and specific jurisdiction. O’Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 317 (3d

Cir. 2007). This case implicates specific personal jurisdiction.3 “Specific jurisdiction exists

when the claim arises from or relates to [a defendant’s] conduct purposely directed at the

forum state.” Marten v. Godwin, 499 F.3d 290, 296 (3d Cir. 2007) (citing Helicopteros Nacionales

de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.9 (1984)). To determine whether specific

jurisdiction over a defendant exists, courts must engage in a three-part inquiry. O’Connor, 496

F.3d at 317. First, a court must consider whether a defendant “purposefully directed [its]

activities” at the forum state. O’Connor, 496 F.3d at 317 (quoting Burger King, 471 U.S. at 472).

Second, “the litigation must ‘arise out of or relate to’ at least one of those activities.” O’Connor,

496 F.3d at 317 (quoting Helicopteros, 466 U.S. at 414). Third, if the prior requirements are

met, “[a Court] may consider additional factors to ensure that exercising jurisdiction would

be consistent with notions of ‘fair play and substantial justice.’” O’Connor, 496 F.3d at 317

(quoting Burger King, 471 U.S. at 476).

B. RULE 12(B)(6) STANDARD

Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move

to dismiss for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.

12(b)(6). To assess the sufficiency of a complaint on a Rule 12(b)(6) motion, a court must first

3 It is clear in this case that the Court does not have general jurisdiction over Airbnb.

General jurisdiction exists when a company is either incorporated or has its principal place of

business in the forum state. Daimler AG v. Bauman, 571 U.S. 117, 137 (2014). Because Airbnb

is incorporated in Delaware and has its principal place of business in San Francisco,

California, this Court does not have general jurisdiction over it. (Doc. 9-1, ¶ 2; Doc. 13, at 1;

Doc. 15, ¶ 2). Accordingly, the Court will not consider general personal jurisdiction at this

time.

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take note of the elements a plaintiff must plead to state a claim, then identify mere conclusions

which are not entitled to the assumption of truth, and finally determine whether the

complaint’s factual allegations, taken as true, could plausibly satisfy the elements of the legal

claim. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011). In deciding a Rule

12(b)(6) motion, the court may consider the facts alleged on the face of the complaint, as well

as “documents incorporated into the complaint by reference, and matters of which a court

may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

After recognizing the required elements which make up the legal claim, a court should

“begin by identifying pleadings that, because they are no more than conclusions, are not

entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The plaintiff

must provide some factual ground for relief, which “requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[T]hreadbare recitals of the elements of

a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S.

at 678. Thus, courts “need not credit a complaint’s ‘bald assertions’ or ‘legal

conclusions’. . . .” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting

In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). Nor need a

court assume that a plaintiff can prove facts that the plaintiff has not alleged. Associated Gen.

Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

A court must then determine whether the well-pleaded factual allegations give rise to

a plausible claim for relief. “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Palakovic v. Wetzel, 854 F.3d 209, 219-20 (3d Cir. 2017) (quoting

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Iqbal, 556 U.S. at 678) (internal quotation marks omitted); see also Sheridan v. NGK Metals

Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010). The court must accept as true all allegations in

the complaint, and any reasonable inferences that can be drawn therefrom are to be construed

in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d

1250, 1261 (3d Cir. 1994). This “presumption of truth attaches only to those allegations for

which there is sufficient factual matter to render them plausible on their face.” Schuchardt v.

President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted).

The plausibility determination is context-specific and does not impose a heightened pleading

requirement. Schuchardt, 839 F.3d at 347. The Third Circuit has further instructed that if a

complaint is vulnerable to dismissal for failure to state a claim, the district court must permit

a curative amendment, unless an amendment would be inequitable or futile. Grayson v.

Mayview St. Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

II. DISCUSSION

Airbnb moves to dismiss Plaintiffs’ complaint on the basis that Airbnb is not subject

to specific personal jurisdiction in Pennsylvania and, alternatively, that Plaintiffs’ “conclusory

allegations of wrongdoing,” are insufficient to state a claim upon which relief may be granted.

(Doc. 13, at 2, 9). In opposition, Plaintiffs aver that the Court has specific jurisdiction over

Airbnb because the company “conducts substantial business in Pennsylvania” and that they

have stated valid claims for negligence and loss of consortium. (Doc. 10, at 2).

A. THIS COURT HAS PERSONAL JURISDICTION OVER AIRBNB

1. Airbnb’s contacts with Pennsylvania

To plead the Court has specific personal jurisdiction over Airbnb, Plaintiffs must show

Airbnb purposefully availed itself of the benefits and protections of Pennsylvania law and that

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Mrs. Hlad’s injuries were related to this purposeful availment. See Burger King, 471 U.S. at

475, 482; see also Hepp v. Facebook, 14 F.4th 204, 207 (3d Cir. 2021). Turning first to the

purposeful availment, Plaintiffs must demonstrate Airbnb had such “minimum contacts with

the forum state (in this case Pennsylvania) that show the defendant took a deliberate act

reaching out to do business in that state.” Hepp, 14 F.4th at 207. The determination of

minimum contacts “should be made on a case-by-case basis by assessing the ‘nature and

quality' of the contacts.’” Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 453 (3d Cir.

2003) (quoting Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1127 (W.D. Pa.

1997)). In cases implicating websites, courts in the Third Circuit apply the framework detailed

in Zippo Manufacturing Company v. Zippo Dot Com Inc. 952 F. Supp. 1119 (W.D. Pa. 2997).

Zippo is “a seminal authority regarding personal jurisdiction” of internet

businesses, Toys “R” Us, Inc., 318 F.3d at 453, and imagines a scale where, “[a]t

one end ... are situations where a defendant clearly does business over the

internet ... enter[ing] into contracts with residents of a foreign jurisdiction that

involve the knowing and repeated transmission of computer files over the

internet ... [and a]t the opposite end are situations where a defendant has simply

posted information on a [website] which is accessible to users in foreign

jurisdiction.”

Foresta v. Airbnb, Inc., No. CV 23-1379, 2024 WL 329524, at *4 (E.D. Pa. Jan.

29, 2024) (quoting Zippo Mfg. Co., 952 F. Supp at 1124).

For “interactive [websites] where a user can exchange information with the host. . . the

exercise of jurisdiction is determined by examining the level of interactivity and commercial

nature of the exchange of information that occurs on the [website].” Zippo Mfg. Co., 952 F.

Supp at 1124. However, simply having an interactive, commercial website is not indicative of

jurisdiction. Toys “R” Us, Inc., 318 F.3d at 454. “[T]here must be evidence that the defendant

‘purposefully availed’ itself of conducting activity in the forum state, by directly targeting its

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web site to the state, knowingly interacting with residents of the forum state via its web site,

or through sufficient other related contacts.” Toys “R” Us, Inc., 318 F.3d at 454.

In this case, Airbnb is a commercial website alleged to “operate[] an online

marketplace advertising, leasing, renting, and acting as broker for the premises[.]” (Doc. 15,

¶ 3). Recently, in Joseph Foresta v. Airbnb, Inc., the United States District Court for the Eastern

District of Pennsylvania held that it had specific personal jurisdiction over Airbnb because of

the company’s business relationship with Pennsylvania property lessors, renters, and brokers,

explaining:

Here, there is purposeful availment because Airbnb does business through an

interactive website that allows Pennsylvanians to search for, book, and list

properties for rent. These features, along with the remittance of money between

guests and hosts, minus fees, places Airbnb's platform far beyond “passive”

websites that are purely informational and do not provide for specific personal

jurisdiction. See Zippo Mfg. Co., 952 F. Supp. at 1124. Unlike many other

websites where individuals can sell personal property, Airbnb's business is

focused on the leasing of real property, which is necessarily and inextricably

tied to the land, and therefore, the Commonwealth where that land is found.

Airbnb is aware of the location of every property listed on its site and chooses

to let properties in Pennsylvania be listed on its site, charging fees when

reservations are made. And Airbnb places itself in the middle of the

transactions between users through its own payment processor, significantly

increasing the user interactivity and extent of business ties with Pennsylvania.

2024 WL 329524, at *3.

The court rejected Airbnb’s argument that its contacts with Pennsylvania were mainly

“fortuitous” because “unlike goods that flow through streams of commerce, houses do not

move across state lines.” Foresta, 2024 WL 329524, at *5. The court explained: “[t]he location

of a property listed for rent cannot change at any point throughout Airbnb's business

relationship with a homeowner like [Plaintiff], so it can hardly come as a shock when Airbnb

is haled into court in the state where the property is located.” Foresta, 2024 WL 329524, at *5.

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For reasons stated similarly above, this Court also concludes Airbnb has purposefully

directed its activities at Pennsylvania. See Foresta, 2024 WL 329524, at *5; see also Marten, 499

F.3d at 296. As conceded by the affidavit and Terms of Service submitted by Airbnb, the

company operates an online marketplace that is accessible to internet users anywhere in the

world and is intended to connect individuals listing their real property accommodations,

known as hosts, with potential overnight guests. (Doc. 9-1, ¶ 3; Doc. 9-2, at 2). At all times

relevant to this litigation, users who sought to transact using the platform were required to

agree to the then-current Terms of Service “by affirmatively clicking an electronic button

indicating their agreement.” (Doc. 9-1, ¶ 4). Per its Terms of Service, Airbnb is entitled to and

retains fees from the transactions it facilitates on its “online marketplace.” (Doc. 9-2, at 4, 7,

11). This contractual feature and the collection of fees from its members for use of the platform

places Airbnb in the middle of transactions between hosts and guests, “significantly increasing

the level of interactivity and extent of business ties with Pennsylvania.” Foresta, 2024 WL

329524, at *4.

Additionally, as highlighted by the Foresta court, Airbnb’s platform is focused on the

leasing of real property, which is “necessarily and inextricably tied to the land, and therefore,

the Commonwealth where the land is found.”4 Foresta, 2024 WL 329524, at *4. In this case,

4 Airbnb’s reliance on Rehman v. Etihad Airways in their brief in support is misplaced.

No. 3:19-CV-00653, 2019 WL 12095414, at *7 (M.D. Pa. Nov. 14, 2019) report and

recommendation adopted, No. CV 3:19-653, 2021 WL 780302 (M.D. Pa. Mar. 1, 2021). In

Reham, the Court rejected plaintiff’s argument that it had specific personal jurisdiction over

defendant, Etihad Airways, where the plaintiff asserted that he was in Pennsylvania when he

purchased tickets online for a flight that defendant operated. 2019 WL 12095414, at *8-9. The

flight itself was not associated with Pennsylvania but took off from New York and landed in

the United Arab Emirates. Reham , 2019 WL 12095414, at *8. This case is different because

Airbnb’s website facilitates the leasing of real property in the forum state, not plane tickets

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because the premises is located in Pennsylvania, Airbnb “directly target[ed]” guests, like

Plaintiffs’, and hosts, like the Hirschs, in the forum state. Toys “R” Us, Inc., 318 F.3d at 454;

cf. Esposito v. Airbnb Action, LLC, No. 5:20-CV-5204, 2021 WL 411140, at *4 (W.D. Ark. Feb.

5, 2021) (finding the court lacked personal jurisdiction because there was no evidence Airbnb

had targeted residents of Arkansas where the rental property in question was located not in

Arkansas, but in Argentina). Accordingly, the purposeful availment prong of the personal

jurisdiction analysis is satisfied in this case. 5 See Foresta, 2024 WL 329524, at *5.

Satisfying the second prong of the specific personal jurisdiction analysis requires

Plaintiffs to demonstrate relatedness, or a “strong relationship among the defendant, the

forum, and the litigation.” Hepp, 14 F.4th at 208; Ford Motor Co. v. Montana Eighth Jud. Dist.

Ct., 141 S. Ct. 1017, 1028 (2021). Relatedness can be satisfied so long as there is a “meaningful

link ... between a legal obligation that arose in the forum and the substance of the plaintiffs'

claims.” O'Connor, 496 F.3d at 324.

Here, Plaintiffs’ claims are based on injuries Mrs. Hlad allegedly sustained while

staying at the Pennsylvania rental property contracted through Airbnb’s website. (Doc. 15, ¶¶

15-17). Per its Terms of Service, Airbnb profited from this rental. (Doc. 9-2, at 11). Thus,

“[t]his lawsuit puts at issue Airbnb’s duties — which, to the extent they exist, clearly arise out

that can be purchased from anywhere for flights that can be boarded and taken anywhere,

thus having no connection to the purchase place.

5 In support of its motion, Airbnb cites various authorities from other jurisdictions.

(Doc. 9, at 91); Conrad v. Benson, No. 9:20-CV-1811-RMG, 2020 WL 4754332, at *4 (D.S.C.

2020); Schwartz v. Poblete, No. 20STCV22663, 2021 Cal. Super. LEXIS 5573, at *24 (Cal.

Super. Ct. Feb. 22, 2021). As the court in Foresta noted, these cases are distinguishable on the

basis that Airbnb remits fees from its members for the right to use its platform, constituting

“purposeful availment” under Zippo precedent. Foresta, 2024 WL 329524, at *5 n.5.

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of the contacts Airbnb had with Plaintiffs” in Pennsylvania. Foresta, 2024 WL 329524, at *5.

Accordingly, there is a meaningful link between Plaintiffs’ claims and Airbnb’s purposeful

availment of Pennsylvania, satisfying prong two of the specific personal jurisdiction analysis.

Having found both prongs of the specific personal jurisdiction analysis met in this case,

the Court concludes that it has specific personal jurisdiction over Airbnb.

B. PLAINTIFFS HAVE STATED VALID CLAIMS FOR NEGLIGENCE AND LOSS OF

CONSORTIUM

Alternatively, Airbnb moves to dismiss Plaintiffs’ negligence and loss of consortium

claims against Airbnb under Rule 12(b)(6), arguing that Plaintiffs have failed to allege facts

demonstrating that Airbnb possessed and/or controlled the premises or had notice of the

allegedly dangerous condition thereon. (Doc. 13, at 9). In opposition, Plaintiffs maintain that

they have stated a claim for negligence because they alleged “Defendants were negligent in

inspection, maintenance [of] their property, and failed to provide a safe environment for their

residents and visitors.” (Doc. 10, at 9). Plaintiffs further assert they sufficiently stated a claim

for loss of consortium because they have alleged “at the time of the accident, plaintiffs were

married to each other. . . and continue to suffer in the future, loss of consortium, loss of society

and affection.” (Doc. 10, at 9).

1. Plaintiffs’ Negligence Claim

To succeed on their negligence claim, Plaintiffs “must establish [Airbnb] owed a duty

of care to [Plaintiffs], that duty was breached, the breach resulted in the [Mrs. Hlad’s] injury,

and [Plaintiffs] suffered an actual loss or damages.” Merlini v. Gallitzin Water Auth., 980 A.2d

502, 506 (Pa. 2009). “In a slip-and-fall case, a plaintiff may make out a cause of action by

showing an act or omission of an owner or occupier that was the proximate cause of the

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plaintiff's injury, so long as that injury could not have been avoided by the plaintiff through

the exercise of ordinary care.” 65 C.J.S. Negligence § 237. The standard of care owed by this

owner or occupier depends on whether the person on the premises is a trespasser, licensee, or

business invitee. See McDowell v. Moran Foods, LLC, 680 F. App'x 72, 72 (3d Cir. 2017).

Business invitees are owed the highest standard of care. See Falcone, 2017 WL 220326, at

*2 (citing Traux v. Roulhac, 126 A.3d 991, 997 (Pa. Super Ct. 2015)). A business invitee is “a

person who is invited to enter or remain on land for a purpose directly or indirectly connected

with business dealings with the possessor of the land.” Falcone v. Speedway LLC, No. 14-2188,

2017 WL 220326, at *2 (E.D. Pa. Jan. 19, 2017) (quoting Charlie v. Erie Ins. Exch., 100 A.3d

244, 253 (Pa. Super Ct. 2014)). A possessor of land must protect a business invitee not only

from known dangers, but also from “dangers that might be discoverable with reasonable

care.” Traux, 126 A.3d at 997.

A possessor of land is subject to liability for physical harm caused to his invitees

by a condition on the land, if but only if, he:

(a) knows or by the exercise of reasonable care would discover the

condition, and should realize that it involves an unreasonable risk to such

invitees, and

(b) should expect that they will not discover or realize the danger, or will

fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

Neve v. Insalaco's, 771 A.2d 786, 790 (Pa. Super. 2001) (quoting Restatement

(Second) of Torts § 343 (1965)).

Here, the complaint provides that at all relevant times, “Airbnb employed, hired, and

supervised employees, servants, agents and/or contractors responsible for advertising and/or

inspecting the premise, repairing, cleaning, and keeping them in a safe and reasonable

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conditions.” (Doc. 15, ¶ 4). Additionally, that Defendants, including Airbnb,6 had exclusive

control over the premises and therefore had a duty to inspect and maintain the property to

ensure it remained reasonably free of hazards, have their employees and agents maintain the

walking surfaces, and have policies and procedures in place that ensured a safe environment

for its residents and visitors. (Doc. 15, ¶¶ 11, 19).

Plaintiffs allege that on December 25, 2022, while at the premise, Mrs. Hlad slipped

on snow and/or ice and fell to the uneven ground. (Doc. 15, ¶ 9). This fall resulted in “severe

and permanent injuries.” (Doc. 15, ¶ 9). Plaintiffs further allege that Mrs. Hlad’s injuries are

attributable to Airbnb because all Defendants, including Airbnb, breached their duty to

inspect the premises, warn of dangerous conditions, employ competent employees to

maintain the premises, locate hazards, enforce safety policies and guidelines, and monitor

conditions at their property. (Doc. 15, ¶¶ 9, 21(a-g)). According to Plaintiffs, “the defective

condition was known or should have been known to defendants for a substantial period prior

to Mrs. Hlad’s fall.” (Doc. 15, ¶¶ 10, 11). Because these allegations must be regarded as true

for the purposes of the instant motion, Plaintiffs have sufficiently alleged Airbnb breached

their duty to Plaintiffs as an entity with control over the premise, thus causing Mrs. Hlad’s

injuries and ensuing losses and damages. (Doc. 15, ¶¶ 10-12, 14-15). Accordingly, Plaintiffs

have adequately alleged a negligence claim against Airbnb.

2. Plaintiffs’ Loss of Consortium Claim

6 Whereas Plaintiffs’ allegations largely group all Defendants together, in this case, for

the purpose of a motion to dismiss, Plaintiffs have met the very liberal pleading standard set

by Rule 12(b)(6) and Rule 8(a)(2) because “[i]t is possible to determine from the [] Complaint

the alleged misconduct of each defendant.” In re Riddell Concussion Reduction Litig., 77 F. Supp.

3d 422, 431 (D.N.J. 2015). Accordingly, Plaintiffs’ allegations provide Airbnb with “fair

notice of what the. . . claim is and the grounds upon which it rests.” Fed. R. Civ. P. 8(a)(2).

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“Loss of consortium has been recognized [Pennsylvania] as a right evolving out of the

marriage relationship and is grounded on the loss of a spouse's service after injury.” Sprague

v. Kaplan, 572 A.2d 789, 790 (Pa. Super. 1990); see Burns v. Pepsi–Cola Metropolitan Bottling,

510 A.2d 810 (1986). A claim for loss of consortium is a derivative claim, meaning it is based

upon the outcome of other claims in the suit. Suniaga v. Downingtown Area Sch. Dist., 504 F.

Supp. 3d 430, 455 (E.D. Pa. 2020). Here, Mr. Hlad’s loss of consortium claim is dependent

on the viability of his wife’s claim for negligence. Patchcoski v. W.L. Gore & Assocs., Inc., No.

CV 3:19-1556, 2020 WL 4335016, at *13 (M.D. Pa. July 28, 2020). As the Court finds that

Mrs. Hlad’s negligence claim shall proceed, Mr. Hlad’s derivative claim for loss of consortium

also survives Airbnb’s motion to dismiss. Patchcoski, 2020 WL 4335016, at *13.

III. CONCLUSION

Based on the foregoing, Airbnb’s motion to dismiss pursuant to Rule 12(b)(2) and Rule

12(b)(6) is DENIED. (Doc. 9). An appropriate Order follows.

Dated: March 20, 2024 s/ Karoline Mehalchick

KAROLINE MEHALCHICK

United States District Court Judge

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