As a long-time attorney and real estate broker, I have made it my business to keep myself and my clients out of litigation. It’s critical to stay abreast of relevant laws and interpretation of those laws by the Courts. While this case got it right, it’s an unpleasant reminder of how easy it is to be sued in this business, even when you have done nothing wrong. In a decision published earlier this week, the California Appellate Court upheld the Ventura Superior Courts’ dismissal on summary judgment of a claim against Coldwell Banker. The case arose out of a CB listing and showing of a residential property that contained an empty swimming pool. CB was also managing the property. In a true test of Darwinian theory, the prospective buyer (who happened to be a licensed contractor) climbed up on the diving board to peer over the fence. Guess what happened? Yes- the diving board broke while he was standing on it, and he fell into the empty pool, and suffered injury. He sued Coldwell Banker for negligence, and of course, his wife sued as well for “loss of consortium”- in layman’s terms, for not getting any of this genius’s loving while he was recuperating.
The Courts found that that there was no triable case against Coldwell Banker. A key consideration in such negligence cases, in evaluating an agents’ duty of care, is foreseeability of danger. In this case, the empty pool was visible to all. The agent’s MLS page included a warning to use caution by the pool. The agent obtained an inspection of the pool, which provided no indication of any problem with the diving board, and she had no way of knowing that it would break. Furthermore, the Court found that it was not foreseeable that a prospective buyer would use the diving board of an empty pool- much less as a tool to look over the fence, a purpose for which the diving board was certainly not intended. Coldwell Banker was dismissed as a Defendant. Jacobs v. Coldwell Banker Residential Brokerage Company – filed July 25, 2017, publication ordered Aug. 14, 2017, Second District, Div. Six, 2017 S.O.S. 4090
This is a win for agents, but use it as an opportunity for a refresher on properly exercising your duty of care. Take your visual inspections seriously. Use what you learn from your visual inspection and through professional inspections to disclose and appropriately warn of potential hazards. Do not allow buyers to climb up anything or investigate on their own- that’s a good standing rule. Do not leave buyers to wander unaccompanied or without warning into any area that may include a safety hazard. And most important of all, make sure your homeowners have appropriate insurance. Be safe- be informed.
ABOUT LISA PHILLIPS, ESQ / CA Bureau of Real Estate Lic# 011894
Lisa Phillips is an active Realtor in the Los Angeles area, with more than twenty years as a practicing real estate broker and attorney. Her unparalleled knowledge of real estate, from local markets and pricing to legal issues and deal-making, has made her a trusted and valuable asset to her clients. In addition to her real estate and business savvy, Lisa is passionate about helping others and works tirelessly to achieve the best results for her clients. For more information, please visit www.LisaPhillipsRealEstate.com.
