Beach season brings the obligatory sun, surf and throngs of tourists, along with a brand new crop of lawsuits over the many mishaps that go down this time of year at rented retreats along the coast.
South Carolina’s Vacation Rental Act requires plaintiffs to prove that the homeowner or property manager had “actual knowledge” of the property defect — such as exposed live wires or wobbly stair treads — that led to the injury.
Defendants often contend that they had no idea something was wrong with their rental. But that’s not always enough to defeat a suit, especially when there’s evidence that the house was not properly maintained.
And owners of beachfront homes need to be especially diligent when it comes to maintenance, as evidenced by a vacation rental suit out of North Myrtle Beach that recently survived motions for summary judgment.
The plaintiff, Jennifer Poage, tumbled from a boardwalk at a rental house when a railing gave way in June 2011. She sued the homeowners, David and Louanne Boehm, and their property management company, Thomas Real Estate, alleging that they’d failed to properly inspect or maintain the dangerous walkway.
In their motions for summary judgment, both defendants asserted that there was no evidence that they knew the railing was unsafe. But U.S. District Judge Mary G. Lewis denied their motions, finding in a May 6 opinion that the defendants were aware that any property exposed to ocean weather was more prone to deterioration.
Lewis cited testimony from David Boehm, who’d remarked, “It’s on the ocean. Everything rusts,” and from Poage’s construction expert, who said the “deterioration didn’t happen overnight.”
She also noted that a Thomas employee had checked the property about five months prior to Poage’s fall, but did not determine that the railing was in need of repair.
That evidenced bolstered Poage’s argument that “with the notice of wear and tear associated with salt spray, due care requires reasonable inspection and maintenance,” said Charleston attorney Gendey M. Howe III, who represents Paoge with law partner Alvin J. Hammer.
Hammer added, “You can’t just claim willful blindness. You can’t say, ‘I’m not going to look at it so I don’t have actual knowledge of it.’ You have evidence of actual knowledge when you have knowledge of the fact that it has deteriorated.”
The defendants’ attorneys, Karl S. Brehmer of Brown & Brehmer and Jimmy C. Powell Jr. of Tuner, Padget, Graham & Laney, both in Columbia, declined interview requests.
Thomas C. Brittain, a Myrtle Beach personal injury lawyer who is not involved with the lawsuit, agreed with the court’s conclusion. He said “anybody who lives at the beach or has a property at the beach understands (increased deterioration) to be a fact of nature.”
The court did not address two other issues in the case. First, the defendants had argued that while Poage was not named in the rental agreement, which included a liability waiver, she was bound by its terms because she paid money toward the rental and should therefore be classified as a tenant under the Vacation Rental Act.
And Poage is challenging the constitutionality of the act, asserting in an issue of first impression that it unfairly holds owners of rental properties to a lower standard of care than typical homeowners.
“It’s an equal protection argument,” Howe said. “There’s no rational basis to treat these groups of people differently.”
The six-page decision is Poage v. Thomas Real Estate, Lawyers Weekly No. 002-085-13.