A broker member asked about liability if a consumer is hurt at an open house due to a slip or fall. We reached out to our legal contacts at the National Association of REALTORS® (NAR) and Idaho REALTORS® (IR) for answers…
According to Finley Maxson, Senior Counsel for NAR, “if the broker [or homeowner] knew of a hazard on the property (like a giant hole in the backyard), it is possible they may have a duty to warn visitors.” However, if there is a hidden hazard that no one would have reasonably known about, neither the broker nor homeowner would have a duty to warn those coming to view the property. Further, a listing broker would likely not be liable for a consumer’s injuries unless some special circumstance existed. But each state’s law is specific and it’s always best to check with local legal counsel.
Jason Risch, legal counsel for Idaho REALTORS®, notes that every situation would be different and Idaho does not have a specific law about open houses that would put more or less liability on a homeowner. “Therefore, like every other slip and fall circumstance, different duties are owed to different buyers, and possibly the public at an open house all depending on the facts. But those duties would always attach to the occupant/owner of the home and almost never to the listing brokerage or their agent should someone get injured during a showing or open house, for example.” In the event that a homeowner was liable, the seller’s homeowners insurance would likely cover the cost of any such injuries.
To help avoid potential issues, talk to your sellers about making their home safe for buyers and visiting agents.
A tip from the REALTOR® Magazine article, “The Safety Talk You Need to Have With Clients,” suggest sellers “turn on the lights prior to showings — whether it’s daytime or evening — so that agents and buyers can move safely through the home. [In addition], remove obvious weapons (like guns) before showings, but also not-so-obvious weapons [like] a block of knives from the kitchen counter.”
Similar care should be taken to make sure there are no tripping hazards from interior or exterior steps and thresholds, or from rugs, cords, furniture, or other items.
Note that this article is for information purposes only and does not constitute legal advice. Please seek out the appropriate legal counsel to assist with your specific situation.
Related Articles:
- “No Liability for Client’s Injuries,” REALTOR®Mag Online; http://realtormag.realtor.org/law-and-ethics/in-court/article/2009/06/no-liability-for-clients-injuries; posted June 2009; accessed April 10, 2017.
- “No Liability for Buyer’s Fall (Rucker v. Fed. Nat’l Mortg. Ass’n, No. 15; CA1755, 2016 WL 4408899),” National Association of REALTORS® website; https://www.nar.realtor/legal-case-summaries/no-liability-for-buyer-s-fall; posted October 26, 2016; accessed April 10, 2017.
- “Liability for Slips and Falls,” REALTOR®Mag Online; http://realtormag.realtor.org/sales-and-marketing/sales-coach/article/2006/03/liability-for-slips-and-falls; posted March 2006; accessed April 10, 2017.
- “Premises Liability Case Continues (Stimmel v. Osherow, 20 N.Y.S.3d 29; N.Y. App. Div. 2015),” National Association of REALTORS® website; https://www.nar.realtor/legal-case-summaries/premises-liability-case-continues; posted February 24, 2016; accessed April 10, 2017.
What about when you direct the customers to put on booties and they slip?
Thanks for the question, Larry. If this is a situation you’re facing, we recommend you speak to your broker and legal counsel. But we did follow-up with Jason Risch, a local attorney whose practice concentrates on real estate issues. While the following does not constitute legal advice, he did say that if the use of shoe covers is required at a listing or open house, for example, there could be some liability if someone is injured, but on whom that liability falls, if any, would depend on the individual circumstances.