Wells v. Poland: Neither Broker nor Property Owner Liable for Trespassers’ Injuries
This 1998 case out of Maryland involved a beach house in Ocean City, Maryland owned by David Polland. Polland had not seen the house in several years but was aware that it was in disrepair and had received notices from the city’s Code Enforcement Office about its dangerous condition. A Code Enforcement officer had put yellow "caution" tape across the front stairs of the house, which were deemed unsound, and had placed a sign on the house indicating that it was uninhabitable. Polland listed the property for sale, "as-is" with Long & Foster Real Estate Incorporated (the "Broker") and the Broker’s "For Sale" sign was placed on the property.
Julie Wells and others were vacationing in Ocean City and noticed the "For Sale" sign in front of Polland’s house. Having made no attempt to contact the listing broker, they climbed the exterior staircase of the house to look inside. As they left, the staircase collapsed and they were injured. Claiming that they were invitees on the property, they sued Polland and the Broker. The trial court found that the injured parties were trespassers, not invitees, and it ruled in favor of Polland and the Broker on their motions for summary judgment.
On appeal, the Court of Special Appeals of Maryland explained that under Maryland law the standard of care owed by an owner or occupier of land to a person on that land depends upon the person’s reason for being there. Maryland maintains the common law classifications of invitee (meaning a business invitee), licensee by invitation (meaning a social guest), bare licensee and trespasser. Under these classifications, a property owner owes the highest duty of care to an invitee - to use reasonable and ordinary care to keep the premises "safe for the invitee and to protect the invitee from injury caused by an unreasonable risk, about which the owner knows or could have discovered, and that the invitee, by exercising ordinary care for his or her own safety, is unlikely to discover." In contrast, a property owner owes no duty to a licensee or a trespasser except to refrain from willful or wanton misconduct or entrapment.
In Maryland, one is an invitee under one of two theories: mutual benefit or implied invitation. In Wells, the injured parties claimed that they qualified as invitees under both theories. No Maryland cases have applied the mutual benefit theory in a situation such as this, where the land possessor was not a commercial business. Moreover, cases in which the mutual benefit theory has been applied have involved a clear benefit to the property owner. Here, the court found that the injured parties had no particular interest in purchasing Polland’s property; they just might have considered buying it if they liked what they saw. Therefore the court decided that their conduct did not specifically intend to benefit Polland. It stated "an unoccupied house with an open basement door and a "sale" sign out front, and nothing more, is simply not analogous to a retail store with a staff present to welcome and assist potential customers."
The injured parties argued that the open basement door, combined with the "For Sale" sign constituted an implied invitation. Again, the court disagreed, stating that a "For Sale" sign does not constitute an invitation to come onto the property. Rather, the sign merely is a means of providing information - that the property is for sale and how to contact the listing broker. The appellate court determined that the injured parties were not invitees, but were trespassers. As such, Polland did not have the duty to make the property safe for them or to warn them of any potential dangers.
The Broker argued that it did not owe the injured parties a duty because it did not own or occupy the property. Without deciding this exact issue, the court stated that if the Broker did owe the injured parties a duty, that duty would not be any more stringent than the duty owed by the property owner. Finding no evidence of willful or wanton misconduct or entrapment by Polland or the Broker (the only duties owed trespassers), the court affirmed the lower court’s decision.
Wells v. Poland, 120 Md. App. 699, 708 A.2d 34 (Md. Ct. Spec. App. 1998).
Editor's Note: To see pre-1990 Broker Liability cases organized by jurisdiction, click here.
Thanks to Susan S. Norwitch, Assistant General Counsel for Long & Foster Real Estate, Inc., for informing The Letter of the Law of this case.