This article was published on: 02/01/1998
The Law & You
Lawsuit Prevention Q&A
Open House: Who's Liable for a Visitor's Injury?
Q: Recently I was hosting an open house when a visitor suffered an injury. A couple arrived with a flashlight and measuring tape and asked whether they could look around. After I’d showed all the rooms, the husband said he forgot to check something out and headed upstairs. Unbeknownst to me, he ventured into the attic. Soon afterward, I heard a thud and the sound of cracking plaster. Not noticing that the attic didn’t have a floor, the husband had fallen through the ceiling, injuring himself and damaging the house. Who's liable for his injuries?
A: Our legal system holds landowners responsible for making the premises safe for others invited onto their properties. This duty includes known or reasonably discoverable dangerous conditions. Prospective buyers responding to a newspaper ad for an open house would therefore be protected by the law. Now let's look at the broker's potential liability when hosting an open house.
For many years most courts required a showing of actual negligence on the broker's part that caused or allowed the accident to happen. That changed as courts began to classify the real estate broker as a “possessor” of properties being shown to prospective purchasers or tenants. That led to a finding that brokers can be held jointly responsible with the landowner for warning buyers of any dangerous conditions on the premises. Some recent court decisions call for the broker to conduct an independent inspection of the premises and to warn buyers or tenants of any known dangers (Hopkins v. Fox & Lazo, REALTORSŪ, 625 A.2d 1110 [N.J. 1993]; Smith v. Inman Realty Co., 846 S.W.2d 819 [Tenn. Ct. App. 1992]).
In a few states the law now holds brokers conducting open houses accountable for inspecting the premises and warning buyers or tenants of any reasonably discoverable defects on the premises. Although the broker's duty varies from state to state, a prudent real estate professional hosting an open house for prospective purchasers or tenants will discover conditions involving an unreasonable risk of injury or harm; take steps to make the condition reasonably safe; and give adequate warning to avoid harm.
This Q&A was prepared by NAR’s endorsed errors and omissions insurance carrier, ERC, in affiliation with Kirke-Van Orsel Inc., the program administrator. For information on this E&O program, called REALTORŪ Guard, call 800/367-2296.nbsp;</b>]
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