When Diving Off the Deep End, Make Sure There’s Water
In the recent 2017 case of Jacobs v. Coldwell Banker Residential Brokerage Co., the California appellate court ruled that a listing broker did not have a duty to warn a potential purchaser that standing on a diving board over an empty pool posed a risk of injury.
In this case, an interested buyer visited a bank-owned property, for which the MLS listing stated “Caution Empty Pool.” The plaintiff, however, decided to stand on a diving board, and inevitably fell in. As if the MLS warning—and the missing water—were not enough, this plaintiff was a contractor by trade who worked around pools and admitted to seeing that the pool was empty when he decided to give the old diving board a test.
Despite dismissing the plaintiff’s lawsuit, the court cautioned real estate professionals that, in some instances, open and obvious conditions still need to be warned against, such as when the property owner can reasonably expect users to proceed down a dangerous walkway knowing they will likely feel safe or because they are required to walk there for work purposes.
In the 2013 case of Hall v. Aurora Loan Services LLC, the listing agent and seller were held accountable when a fold-down attic staircase broke, injuring the Realtor showing the property. Under the law of agency, real estate agents owe a duty of care to all persons, including third persons, within the area of foreseeable risk. Pursuant to Cal. Civil Code § 2343, one who assumes to act as an agent is responsible to third persons as a principal for his or her acts during the course of his or her agency when his or her acts are wrongful in their nature.
What This Means for Agents
Since courts apply a “reasonable person” standard, it is best for the agent to disclose hazards to be avoided generally. Forcing the public to sign waivers is not an option and not usually a proper legal defense. Conversely, warning the public that there are dangerous conditions and to proceed with caution may scare away buyers. When in doubt, ask a real estate lawyer for verbiage or consider calling the CAR hotline for tips; since every transaction is unique, what is reasonable depends on the facts.
This article is for general information purposes and is not intended to be and should not be taken as legal advice, for each specific situation needs to be evaluated based upon the specific facts.