2:22-cv-07081
E.D.N.YSep 29, 2023Background:
- The Wiener family rented a Sag Harbor house via Vrbo/HomeAway for August 2022; a fire at the property caused the deaths of two family members and plaintiffs sued the homeowners (Peter and Pamela Miller and two LLCs) and the Vrbo defendants (HomeAway.com, Inc. and Vrbo Holdings, Inc.).
- Plaintiffs allege Vrbo "listed and marketed" the property and communicated safety representations provided by the Millers, and rely on Vrbo's "Book with Confidence" materials.
- At a March 29, 2023 pre-motion conference the Court found the original complaint threadbare, ordered an amended complaint, and the Vrbo defendants then moved to dismiss the amended pleading under Rule 12(b)(6).
- The central legal questions were whether Section 230 of the Communications Decency Act immunizes Vrbo from claims based on host‑provided content, whether Vrbo owed any duty (physical control or a "special relationship") to plaintiffs, and whether contract/warranty claims were artful pleading to evade Section 230.
- The Court concluded Section 230 bars all claims against HomeAway/Vrbo, and independently found no special relationship or physical control by Vrbo; it dismissed all claims against the Vrbo defendants with prejudice.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Section 230 immunity for consumer‑protection/statutory claims | Vrbo listed/marketed the property and communicated host safety representations, so it is liable for false statements and violations of NY GBL §§349/350 | Vrbo is an interactive computer service that published third‑party host content and is immune under 47 U.S.C. §230(c)(1) | Section 230 bars the claims; dismissed |
| Negligent misrepresentation (special relationship) | Wieners relied on Vrbo's safety info and the Book with Confidence guarantee when renting | No special relationship or duty exists between Vrbo and users; reliance was unreasonable given disclaimers and ability to contact host | No special relationship; negligent misrepresentation dismissed |
| Breach of contract / implied warranty | Artfully pleaded contract/warranty claims to hold Vrbo responsible for the listing/content | Such claims implicitly require treating Vrbo as publisher of third‑party content and are barred by Section 230; no actual contract with Vrbo is plausibly alleged | Claims are attempts to evade §230 and are dismissed |
| Negligence / premises liability / wrongful death | Vrbo owed a duty of care to ensure property safety | Vrbo had no ownership, possession, or physical control of premises and thus no duty | No duty due to lack of physical control; negligence, wrongful death, and conscious pain claims dismissed |
Key Cases Cited
- Force v. Facebook, Inc., 934 F.3d 53 (2d Cir. 2019) (Section 230 protects interactive services for publication and removal decisions regarding third‑party content)
- Marshall's Locksmith Serv. Inc. v. Google, LLC, 925 F.3d 1263 (D.C. Cir. 2019) (Section 230 immunity covers publication of false statements by third parties)
- Herrick v. Grindr, LLC, 306 F. Supp. 3d 579 (S.D.N.Y. 2018) (no negligent misrepresentation absent a special relationship; neutral platform assistance is protected)
- Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12 (1st Cir. 2016) (claims fail where liability would require treating defendant as publisher of third‑party content)
- Cohen v. Facebook, Inc., 252 F. Supp. 3d 140 (E.D.N.Y. 2017) (Section 230 implicated by claims that implicitly rely on third‑party content)
- Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) (publishing includes decisions about posting or excluding third‑party material)