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Jim Porter: Real estate agents be aware of bad court case

Jim Porter

Pinda Hall v. Aurora Loan Services LLC is a lousy court Opinion; and now California law. Let me get that out front. If you disagree, honk twice. If you agree, send me $100.

“Showing” Home

Aurora Loan Services foreclosed on a home in Lafayette, then listed the property for sale with Jon Wood and Holly Sibley of Rockcliff Realty. The house had an attic “bonus room” accessed by a pull-down stairway ladder, which folded, then retracted and recessed into the attic’s opening.

More than 100 real estate agents and potential buyers toured the home. One of the agents was plaintiff Pinda Hall who visually inspected the ladder and felt it looked safe, yet told her clients to be careful as they used the ladder.

Hall followed her clients up the ladder, but a hinge broke and the ladder and Hall fell. She fractured a leg and injured her knees.

Loss of Consortium

Hall and her husband sued for negligence and premises liability, as well as loss of consortium, which would be Mr. Hall’s claim that he lost the affection, so to speak, of his injured wife.

I know plenty of folks who have lost their spouse’s consortium — however having nothing to do with a broken leg and bad knees. But, I digress.

Owner Aurora and the listing agents defended the lawsuit claiming they had no notice or knowledge of a defect in the stairway ladder.

The trial court agreed and ruled in their favor. Pinda Hall appealed. But, you knew that because otherwise you wouldn’t be reading about this case.

Contractor’s Inspection Report

After the listing and before Hall had her fall, a contractor prepared a report on the house titled “Estimate for Repairs” that went through a number of basic aesthetic and safety shortcomings. The report was sent to the listing agents and was left on the kitchen counter.

Buried in the report next to “install smoke detector” and “install shower head” was “Stair-Remove and replace attic stair.” There was no other evidence the attic stair was defective even though it had been seen by many agents and prospective purchasers and used by several.

The inspection contractor later testified in his deposition that the stairs did not appear to him to be dangerous when he inspected, and he could not recall why he even listed the stairs other than they are “crummy” products and “they’re functional but they just look bad.”

Bear in mind dear readers, that is the sum and substance of all the evidence the retracting stairs were defective. In my opinion, none.

Premises Liability

Agents, here’s the law: “To impose liability for injuries suffered by an invitee (such as a prospective buyer) due to a defective condition of the premises, the owner or occupier “must have either actual or constructive knowledge of a dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises.”

As the Court of Appeal pointed out, there were only two, decades-old cases that specifically address the duty of real estate agents to warn of known, but concealed dangerous conditions, when showing property.

You sharp agents already know that if the listing agents had knowledge of a defective stairway, that knowledge is imputed to Aurora even though Aurora never saw its property. Are you writing this down?

Marketed Property

This Court ruled against the listing agents and the lender/homeowner: “We conclude that a real estate agent has a duty to notify visitors of marketed property of concealed dangerous conditions of which the agent has actual or constructive knowledge. The agent’s actual or constructive knowledge of a dangerous condition is imputed to his or her principal, the property owner, who shares with the agent liability for damages proximately caused by a breach of this duty.”

Porter’s Take

The Court of Appeal, I believe incorrectly, if I have not made that clear, concluded the contractor’s inspection report created “a triable issue” whether the defendants should have known the stairway ladder was a concealed danger. The case may proceed to the jury, who I hope has more common sense.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City and Reno.He may be reached at porter@portersimon.com or at the firm’s web site http://www.portersimon.com.


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