RPLR July 2013

 

Triable issue of fact as to whether homeowner and listing agents knew of concealed dangerous condition and satisfied duty to notify real estate agent injured while showing home to prospective buyer.

Hall v Rockcliff Realtors (2013) 215 CA4th 1134

A real estate agent showing a home for sale was injured when a hinge broke on a pulldown stairway ladder she was using. She sued the owner and the listing agents for negligence, and premises liability. The trial court granted summary judgment in defendants’ favor.

The court of appeal reversed. There were triable issues about whether defendants had actual or constructive knowledge of a concealed dangerous condition and satisfied their duty to notify the agent of it. Real estate agents have a duty to notify visitors of marketed property of concealed dangerous conditions of which they have has actual or constructive knowledge. The agent’s knowledge is imputed to the property owner, who shares with the agent liability for damages proximately caused by a breach of this duty. Here, there was a triable issue as to whether defendants knew or should have known that the ladder was in disrepair and unsafe because an inspection report recommended that the ladder be replaced. The report was delivered to the listing agents, one of whom admitted looking at it.

THE EDITOR’S TAKE: For a showing broker to be able to resist summary judgment in favor of the owner and listing brokers in her action against them for personal injuries that she suffered because they did not warn her of a hidden defect of which they had only constructive notice (rather than actual knowledge)—based on an inspection report that itself did not refer to the defect and that was equally available to all of the parties—seems to me pretty impressive, and makes the theory hard to distinguish from strict liability.

It’s almost too bad that only the showing broker was injured, because I would love to see how the court would have treated an accident suffered by the prospective buyer (who might have had a claim against the very showing broker who was the plaintiff in this case). Or an accident suffered by the listing broker (suing either the owner or perhaps the showing broker, if one but not the other had read the report). Or even an accident suffered by the owner (against one of the brokers or the inspector). Personal injury practice in premises liability situations can be pretty imaginative.—Roger Bernhardt