REAL ESTATE: Freddie Mac, as possessor of property where Plaintiff fell through basement access, had duty to use ordinary care in maintaining the property in a reasonably safe condition and warn of hidden/lurking damages… unrelated buyer’s agents who had previously seen the opening did not have a duty… Molloy.
Sheri Young was visiting a residential property in Hot Springs 2/1/12 to potentially buy it as an investment. While viewing the interior of the house she fell down an unmarked/uncovered 2×3 basement access door in the middle of the floor of the utility room as she was walking across the room. On 1/30 or 1/31, while showing the property to clients unrelated to this litigation, Trudy Berge of Century 21 and Janell Clarke of Keller Williams had witnessed the uncovered access; neither closed the door or covered the opening. Freddie Mac was the owner, and pursuant to a Master Listing Agreement, Flathead Land & Home was responsible for sale, management, maintenance, preservation, and inspection of unsafe conditions. Young sued Freddie Mac, Flathead Land & Home and Dusty Dziza, Berge and Century 21, and Clarke and Keller Williams. She seeks summary judgment holding Freddie Mac liable for negligence. Berge and Clarke request summary judgment on the basis that they did not owe a duty of care.
Young’s motion for summary judgment is denied. Freddie Mac was the undisputed owner of the property and as a matter of law had a duty to use ordinary care in maintaining it in a reasonably safe condition and warn of any hidden or lurking damages. However, whether it breached this duty is a question of fact. Contrary to Young’s assertion, this is not an instance “when reasonable minds cannot differ and questions of fact can be determined as a matter of law.” The facts are analogous to Brown (Mont. 1995) in which a substitute newspaper carrier fell when he missed a step in a sidewalk. Brown reiterated the general rule that what constitutes reasonably safe premises is a question of fact and concluded that reasonable minds could differ on whether the home owner should have illuminated the approach to his home or warned of the danger. Limberhand (Mont. 1985) similarly found that a material fact issue existed as to whether an open & obvious irrigation ditch could present sufficient danger to persons using the landowners’ property so that by not taking remedial or warning measures the owners may have breached their duty to keep the premises reasonably safe. Reasonable minds could differ as to whether the uncovered opening here was a condition making the premises unsafe and as to what remedial steps Freddie Mac was reasonably required to take. There is also a material fact question as to whether the uncovered access was an obvious condition. If it was a known or obvious condition and the Plaintiff was foreseeably on the premises, Freddie Mac can escape liability unless it should have anticipated the harm despite such knowledge or obviousness. Richardson (Mont. 1997). Young contends that she did not see the opening and was not aware that it was there, but testified in her deposition that she had an unobstructed view of the room. Berge and Clarke testified that the opening was easily noticeable. Whether Freddie Mac should have anticipated that one unfamiliar with the residence would see the opening and avoid it — and therefore avoid injury — is a fact question for the jury, not the Court. Brown; Richardson (whether the possessor should have anticipated the harm depends on the “degree of ordinary care which reasonable persons would use under the same or similar circumstances”). Young argues that Freddie Mac cannot avoid its duty by hiring Flathead Land & Home to maintain the property. While that does not obviate Freddie Mac’s duty to Young, it may speak to whether it fulfilled that duty. Contrary to Young’s contentions, reasonable minds can differ as to this issue.
Berge and Clarke did not owe a common law duty to Young, Flathead Land & Home, or Freddie Mac. Some jurisdictions have found that the duty of care when the alleged tortfeasor is the possessor of property extends to a real estate agent. Others have associated such a duty with a real estate agent’s relationship with a client, exclusive right to the property, contractual duty to maintain the property, and/or extensive knowledge of the property. Berge and Clarke had no discernable relationship with either the property or Young. They were not the possessors, did not have contractual rights to it, were given no specific opportunity to inspect it, and did not interact with Young. Their mere observation of the condition is insufficient to give rise to a duty. Although Schuff (Mont. 2002) held that a tortfeasor’s duty must be considered in light of his knowledge of the danger, knowledge by itself does not create the relationship upon which the duty is premised. Unlike Schuff, where the injured party was on a boat and the driver’s negligent act of driving over rocks led to the injury, there is no indication that Berge or Clarke created or caused the condition that resulted in injury. There is no indication that buyer’s agents are held to a higher standard of care vis-à-vis a listing agent/owner or a potential purchaser under the common law. Unlike seller’s agents, buyer’s agents have no control of the premises and have limited access. Realistically, a buyer’s agent has no greater control over the property than a potential buyer, and buyer’s agents and potential buyers are equally able to discover and avoid dangers. Absent a duty in the first instance, actual knowledge and foreseeability of the injury alone are insufficient to establish liability by Berge and Clarke. The hypothetical that comes to mind is that of one walking down the street who notices an uncovered man-hole. The person knows that it is likely and foreseeable that some passerby could walk into it and be harmed, but the person generally does not a duty to do anything to prevent this foreseeable injury unless she undertakes some remedial effort. Nor does public policy support imposition of a duty here. The uncertainty surrounding the nature of potential conditions and buyer’s agents’ limited access to properties (and complete lack of exposure to most of the potential purchasers) make imposition of a duty unwise. Such a notion would shift the duty to maintain a property in a safe condition from the party with the power and ability to do so to any interested visitor. Montana law places the duty of care squarely on the owner/possessor of the property, Richardson, who likely maintains insurance for this type of eventuality.
Nor do the facts trigger a statutory duty by Young. The statutes cited by Young and Flathead Land & Home reference general liability for negligence as it relates to willful acts, MCA 27-1-701, and duties owed by a buyer’s agent to the seller and the seller’s agent, MCA 37-51-313(5). The duties arising under 37-51-313(5) regard adverse material facts that may affect the buyer’s ability to purchase a property, not the property’s physical condition. Absent duty, summary judgment for Berge and Clarke is appropriate.
Young v. FHLMC, Flathead Land & Home (Dziza), Century 21 Real Estate, Berge, Keller Williams Realty Northwest Montana, and Clarke; FHLMC v. Dziza and Flathead Land & Home; 42 MFR 80, 10/15/14.
Lindsay Beck & Monte Beck (Beck & Amsden), Bozeman, for Young; Stephanie Hollar (Smith, Walsh, Clarke & Gregoire), Great Falls, for Freddie Mac; Angela Jacobs, Benjamin Hammer, and Todd Hammer (Hammer, Jacobs & Quinn), Kalispell, for Flathead Land & Home & Dziza; Robert Phillips & Christopher Fagan (Phillips Haffey), Missoula, for Berge and Century 21; William Ballew (Spoon Gordon Ballew), Missoula, for Clarke and Keller Williams.
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