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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Rainer
58,052
Virginia Halter
ABR, CDPE, CRS, GREEN, SFR, SRES
RE/MAX Signature Properties

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
Rainer
6,286
Anthony DiMattia
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
Anonymous #13
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
Rainer
97,765
Danny Smith
DISCOVER TEXAS HOMES
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
Ambassador
294,813
Ray Saenz
Homes for Sale in Aurora, Colorado - Aurora, CO
United Property Brokers, Inc

Dear Dave,

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

:)

 

March 26, 2007 12:59 AM
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Dave Rosenmarkle

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