Aurora Loan Services foreclosed on a property and subsequently retained Rockcliff Realty to list the property. One of the features of the home was an attic converted into a bonus room that was accessible by a pull-down ladder. An Inspection Report was obtained that listed, among other things, to “remove and replace attic stair.” The ladder was pulled down and used by dozens of agents to inspect the attic. However, on August 1, 2009, Pinda Hall brought two prospective buyers to the home and advised them to be careful as they used the ladder. When she followed them up a hinge broke, the ladder failed, and she fell causing her to break her leg and injure her knees.
Hall filed a lawsuit against Aurora and the listing agents for negligence. The Trial Court dismissed the complaint based upon the Defendants’ argument that they had no notice of any defect with the stairway ladder. However, the appellate court reversed the dismissal noting that “to impose liability for injuries suffered by an invitee due to a defective condition of the premises, the owner or occupier must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition…” The listing agents failed to follow-up with the inspector to determine the basis for claiming the ladder needed to be replaced or inquiring as to whether it was safe.
PRACTICE POINTER: Real estate agents have a duty to notify visitors of marketed property of any concealed dangerous conditions of which the agent has actual or constructive knowledge. Reading Inspection Reports is not necessarily enough. Real Estate Attorney Lee Drizin also urges Real Estate Agents on the importance of follow-up inquiries and that DOCUMENTING your actions are crucial.