Prospective Buyer Cannot Recover for Injuries

An Ohio appellate court has considered whether a prospective buyer could recover compensation from a buyer’s representative for injuries suffered by the prospective buyer during her unaccompanied tour of a home under construction.

Patricia Al-Sorghali (“Prospective Buyer’) contacted real estate salesperson Terry Golden (“Salesperson”) of Modene & Associates (“Brokerage”) about her interest in an unfinished home. The Salesperson contacted the listing broker about the home’s availability, and she told the Prospective Buyer she was not certain whether there was an open house scheduled that day but that the Prospective Buyer could take a look at the home by entering through the unlocked garage.

Three weeks later, the Prospective Buyer was driving by the unfinished home and decided to take a look. She did not contact the Salesperson or the listing broker prior to the visit. When she arrived at the property, she spoke to William Rogers (“Rogers”) of Bayview Enterprises of Oregon, Ltd. (“Builder”) about whether she was at the correct address. Rogers told her she was at the correct address, and invited her to enter the house. He told her the entry stairs had not been built yet, and so the workmen were using an upside-down bucket to enter the home. Rogers helped her enter the home using the bucket, and then he went back to work on the home. The Prospective Buyer tried to exit the home using the bucket without Rogers’s assistance and she fell off the bucket, sustaining injuries.

The Prospective Buyer filed a lawsuit against the Brokerage, the Builder, and Rogers, alleging negligence and seeking compensation for her injuries. The Prospective Buyer claimed that the parties had failed to provide her with a safe exit from the home. The trial court found in favor of the defendants, ruling that an upside-down bucket constituted an “open and obvious” danger and so there was no duty to warn the Prospective Buyer about the danger posed by using a bucket as a stair. The Prospective Buyer appealed.

The Court of Appeals of Ohio, Sixth District, affirmed the trial court. Ohio law does not require an owner or occupier of land to warn invitees to the property about dangers which are “open and obvious” because a reasonable person should be expected to discover the possibly dangerous situation and take appropriate action. The Prospective Buyer argued that she had no other route except using the bucket to exit the home and so the “open and obvious” doctrine did not apply.

The court rejected this argument, as the Prospective Buyer had testified that she could have stepped down to the ground but did not want to get her clothes dirty. She also testified that she had decided to use the bucket because she was in a hurry to leave and did not expect it to be difficult since she had used it to enter the house. She also testified that Rogers had warned her about the bucket before entering the home. Therefore, the court affirmed the trial court’s rejection of the Prospective Buyer’s claims.

Sorghali v. Modene & Assoc., No. L-06-1156, 2006 WL 2709267 (Ohio Ct. App. Sept. 22, 2006).

We dodged one bullet. Do you think the Realtor had any professional or legal liability for disclosing access information and encouraging the prospect to stop by?