Slips and falls

Slip and fall cases are their own chapter in the law books. They are a separate class of tort (tort is an act that causes injury and permits the victim to bring a lawsuit for damages). Slip and fall is separately indexed from the other torts and has a separate body of law that is applicable. While slip and fall cases are common, we do not associate them with litigation that arises from a real estate transaction.

It is surprising that REALTORS® are not involved in more slip and fall cases. Think about it. We invite people we do not know into homes we are not very familiar with that are owned by people that we do not know well, to walk around unattended! And even if you have shoveled the sidewalks and removed the marbles from the stairs, a fall is hardly out of the realm of possibility.

Who is liable when an injurious fall occurs? Perhaps the more easily answered question, "who will be sued?" The answer to the latter question is that, at a minimum, the listing brokerage and seller.

Owners of real property have a duty to make it reasonably safe for the business invitee. A business invitee is a customer who enters a shop to buy its wares or clothing. A business invitee is a potential buyer who has been invited into a home to inspect it for purchase. And while a seller may not be liable for the patently obviously conditions, the reasonable owner will do all that is appropriate to assure that nothing bad will occur. The listing brokerage is a likely defendant given the fact that the business purpose behind the open house is also to benefit the brokerage that earns a fee marketing the property.

Brokers and listing agents are well advised to walk around the house on the walkways and driveway to assure that they are not unduly slippery or blocked by items that have to be stepped over or around. Determining that handrails are secure and steps clear of all items is also essential. The checklist of safety concerns is fairly obvious.

Beyond the obvious, there are additional steps to be considered. It may be that your errors and omissions insurer will not cover the slip and fall. You should check with your E&O carrier and also assure that you have a general liability policy that will cover falls not covered by errors and omissions coverage.

I have had brokers ask whether there are any agreements that should be signed by the seller that will place all liability on the owner and none on the broker. A properly drafted indemnity clause written into the listing agreement or in a special open house contract might suffice. It will not preclude a lawsuit against a broker, but in the event it occurs, the broker would turn to the owner who would be contractually obligated to defend the broker and pay the damages in the event of a finding of liability. I have not seen these in use and it is hard to imagine that your requiring an indemnity would become a selling point for your listing services. Should you be inclined to consider the same, be sure that you have the document drafted by an attorney who can assure its binding effect.

Copyright © James L. Goldsmith, Esquire, CALDWELL & KEARNS, P.C., 2012

All Rights Reserved

Jim Goldsmith is an attorney with Caldwell & Kearns and serves as general counsel to PAR. A substantial portion of his practice is dedicated to providing advice and counsel to real estate licensees. He and his firm represent and defend real estate salespersons and brokers in civil lawsuits and licensing claims across the Commonwealth. Jim also defends REALTORS® in disciplinary hearings conducted by the Real Estate Commission. He routinely counsels employers on employee relations issues and is one of the voices of the PAR Legal Hotline. He may be reached at www.realcompliance.com.