Prospective Buyer Cannot Recover for Injuries

By
Real Estate Agent with Highland Realty

 An Ohio appellate court has considered whether a prospective buyer could recover compensation from a buyer’s representative for injuries suffered by the prospective buyer during her unaccompanied tour of a home under construction.

Patricia Al-Sorghali (“Prospective Buyer’) contacted real estate salesperson Terry Golden (“Salesperson”) of Modene & Associates (“Brokerage”) about her interest in an unfinished home. The Salesperson contacted the listing broker about the home’s availability, and she told the Prospective Buyer she was not certain whether there was an open house scheduled that day but that the Prospective Buyer could take a look at the home by entering through the unlocked garage.

Three weeks later, the Prospective Buyer was driving by the unfinished home and decided to take a look. She did not contact the Salesperson or the listing broker prior to the visit. When she arrived at the property, she spoke to William Rogers (“Rogers”) of Bayview Enterprises of Oregon, Ltd. (“Builder”) about whether she was at the correct address. Rogers told her she was at the correct address, and invited her to enter the house. He told her the entry stairs had not been built yet, and so the workmen were using an upside-down bucket to enter the home. Rogers helped her enter the home using the bucket, and then he went back to work on the home. The Prospective Buyer tried to exit the home using the bucket without Rogers’s assistance and she fell off the bucket, sustaining injuries.

The Prospective Buyer filed a lawsuit against the Brokerage, the Builder, and Rogers, alleging negligence and seeking compensation for her injuries. The Prospective Buyer claimed that the parties had failed to provide her with a safe exit from the home. The trial court found in favor of the defendants, ruling that an upside-down bucket constituted an “open and obvious” danger and so there was no duty to warn the Prospective Buyer about the danger posed by using a bucket as a stair. The Prospective Buyer appealed.

The Court of Appeals of Ohio, Sixth District, affirmed the trial court. Ohio law does not require an owner or occupier of land to warn invitees to the property about dangers which are “open and obvious” because a reasonable person should be expected to discover the possibly dangerous situation and take appropriate action. The Prospective Buyer argued that she had no other route except using the bucket to exit the home and so the “open and obvious” doctrine did not apply.

The court rejected this argument, as the Prospective Buyer had testified that she could have stepped down to the ground but did not want to get her clothes dirty. She also testified that she had decided to use the bucket because she was in a hurry to leave and did not expect it to be difficult since she had used it to enter the house. She also testified that Rogers had warned her about the bucket before entering the home. Therefore, the court affirmed the trial court’s rejection of the Prospective Buyer’s claims.

Sorghali v. Modene & Assoc., No. L-06-1156, 2006 WL 2709267 (Ohio Ct. App. Sept. 22, 2006).

We dodged one bullet. Do you think the Realtor had any professional or legal liability for disclosing access information and encouraging the prospect to stop by?

 

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Ambassador
2,344,959
Lenn Harley
Lenn Harley, Homefinders.com, MD & VA Homes and Real Estate - Leesburg, VA
Real Estate Broker - Virginia & Maryland

Never, never, never advise a buyer to enter a home in the "hard hat" stage without the showing builder or agent for the builder.  Never, never, never.

I read about an agent who took a buyer in an unfinished home back in 1995.  The buyer sustained a broken let when she fell through a floor and sued everyone and won.  The court said that the agent acted as the owner when taking the buyer in .

I'm "flagging" this article.  Good read. 

Not me.  I also purchased a $1,000,000 liability policy that day.

March 15, 2007 08:18 PM #1
Rainer
188,414
Laurie Manny
Long Beach CA Real Estate - Long Beach, CA
 Sue happy people just piss me off!
March 16, 2007 12:42 AM #2
Rainer
37,907
Kelly Kilpatrick
Rancho Santa Margarita, CA
Broker-Associate
It just goes to show that one can never be too careful. The agent clearly shouldn't have recommended unaccompanied access in the first place.  Given the facts, would it have mattered if the agent was present at the time the prospective buyer was injured? The prospective buyer might not have been injured if she had a helping hand from the agent - but it's just possible that she might have been injured with the agent present as well. I wonder how this case would play out in California courts.
March 16, 2007 01:35 AM #3
Rainmaker
90,946
Roger Stensland
Keller Williams Realty Puget Sound - Enumclaw, WA
King & Pierce County Homes Home Resource Group -
I'm glad that the court finally got an obvious ruling done correctly.  hoowaaa
March 16, 2007 02:02 AM #4
Rainmaker
199,655
William Collins
ERA Queen City Realty - Scotch Plains, NJ
Director of Property Management

Dave,

Thanks for the post. I agree with Laurie Manny. There is more to this than meets the eye. Anyone with half a brain going into a construction site is aware that there are dangers and risks. However, if you are looking to finance the purchase through unscrupulous means, the dangers and risks are a recognized means to an end. Shame on the Plaintiff.

March 16, 2007 06:27 AM #5
Anonymous
Anonymous
Anonymous

Some people will sue for anything and there is always a lawyer willing to take the case.  Unfortunate for our country.

March 16, 2007 07:07 AM #6
Rainer
38,586
Darren Kittleson
Keller Williams Realty/MAPS Coaching - Madison, WI
CRB, CDPE-Madison, WI

Thanks for this post.  It's encouraging to see a court ruled in such a way.  Finally, placing responsibility back on the people who seem to shirk it! 

I'm a homebuilder as well and constantly worry about this very thing happening on one of my job sites.  2 years ago in our market an agent was injured on a almost completed construction site.  She was the listing agent for this builder but was forced to sue the builder by her insurance company.  Needless to say it ruined the relationship between the builder and the REALTOR.  It's unfortunate when accidents happen.  What's worse is when insurance companies choose to not do the right thing and pay up. 

March 16, 2007 08:00 AM #7
Rainer
29,293
Michael Roberts
Real Estate Professionals of Glynn - Saint Simons Island, GA
Whatever happened to common sence and personal responsbility?  I guess they all were escorted from the building by attorneys, greedy clients and unscupulous personages.....
March 16, 2007 08:43 AM #8
Rainer
128,954
David A. Podgursky
Boynton Beach & Lake Worth Florida Real Estate Broker Associ - Boynton Beach, FL
PA

If the Realtor wasn't there. NO! 

All the pain and suffering of the Realtor is a good sign to control your clients... if they're touring on their own, then they're likely to meet someone without you.  Plus in many states you can lose them just by not walking through the door!

BUT... this was a JOB SITE... it is DANGEROUS... I personally LOVE LOVE LOVE houses under construction.  My father was a builder for about 10 years and I love the smells....  but I had friends who worked there on "safe" sites with safety riggings and everything that took falls. 

The other thing is... if you're on a site... you HAVE to be dressed for the occaision.  If she was so worried about getting dirty she shouldn't have been on a construction site.  Construction workers don't wear suits to work!

I think she should be counter-sued for all attorneys fees and lost business by all parties.

March 16, 2007 09:07 AM #9
Rainmaker
347,094
Debbie Malone
Londeree's Real Estate & Prop. Mgt - Lynchburg, VA
From Lynchburg To The Lake (434) 546-0369
Dave, thanks for the post and warning NOT to recommend stopping by construction sites. There should be a common sense law and if you sue and lose, you pay! Maybe these types of suits would decline.
March 16, 2007 10:17 AM #10
Rainer
58,052
Virginia Halter
RE/MAX Signature Properties - Harrisburg, NC
ABR, CDPE, CRS, GREEN, SFR, SRES

Unbelievable!!  She just sued everyone in sight. Our country will change someday.  I don't know what it will take but people have to remember that we all have responsibility for our own actions.  It is scary to think that someone can fall on a linoleum floor and any one of us could be held liable for their "accident."  

That is part of the problem.  When did people forget that accidents do happen.  For no good reason accidents will happen until the end of time.  Nobody's fault really.  Just an accident.  We learn from them ("hmmmm, I should never walk on buckets.") and move on.  

What is wrong with people??????  It is so far beyond common sense  anymore to know what someone will or won't sue you for.  No common sense anymore.  SCARY!

 

March 16, 2007 11:56 AM #11
Rainer
6,286
Anthony DiMattia
Rochester, NY
CBR, E-Pro

Score one for common sense! 

For me, the moral of the story is "Don't let your buyers view a property unaccompanied!" However, I think the court is correct, if she didn't feel safe, she should have sought help before stepping onto the bucket. 

 

I wish the woman who sued McDonald's for serving Hot coffee without a warning had gone in front of the same court. 

March 16, 2007 12:34 PM #12
Anonymous
Anonymous
Anonymous

A couple weeks ago I fell on my icy driveway - landed smack on my nose. I couldn't brace my fall because I had the Sunday paper in one hand and the snow shovel in the other. I think I should sue the newspaper and the maker of the snow shovel because had those items not been in my hand, I could have braced my fall. Also, I should sue the maker of my boots for not adhering to the icy drive. Suppose I could also sue the concrete people for not making my drive the non-slip kind?

Anybody noticed all the safety stickers on ladders today???

 

March 16, 2007 05:34 PM #13
Rainer
97,765
Danny Smith
DISCOVER TEXAS HOMES - Round Rock, TX
I agree that common sense has to prevail somewhere in our courts. But..we all know how sue happy our society has become. Perhaps the owners and builders could protect themselves a little better by posting a safety sign somewhere obvious on the construction site stating that this is a construction site and that they are not responsible for accidents for those not following the correct procedures, rules and guidelines. One of those guidelines could be a requirement to be accompanied by an authorized person at all times.
March 16, 2007 06:38 PM #14
Rainmaker
294,842
Ray Saenz
United Property Brokers, Inc - Aurora, CO
Homes for Sale in Aurora, Colorado - Aurora, CO

Dear Dave,

I keep looking your blogs, very interesting, keep the good work my friend

:)

 

March 26, 2007 12:59 AM #15
Anonymous
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Rainmaker
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Dave Rosenmarkle

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