Read the full decision: Krushke v. Newsome

Illinois appellate court affirms lower court ruling in favor of real estate brokerage that it was not liable for injuries suffered by prospective buyer while visiting the property, finding that salesperson was an independent contractor and therefore not under the control of the firm.

An individual (“Visitor”) contacted a real estate professional (“Salesperson”) about a property. The Visitor had seen a “for sale” sign on the property providing the Salesperson’s contact information as well as his brokerage’s name (“Brokerage”). The Visitor scheduled a time to visit the property with the Salesperson. During the visit, the Visitor sought to inspect the property’s roof and the Salesperson obtained a ladder. The Visitor fell off the ladder and suffered injuries. He filed a lawsuit against the Salesperson and the Brokerage.

The Brokerage filed a motion seeking judgment in its favor, arguing that the Salesperson was an independent contractor and therefore the Brokerage was not responsible for the actions of the Salesperson. The Visitor stated that because the sign on the property had the Brokerage’s name, he had assumed that the Salesperson was an employee of the Brokerage. The Brokerage’s owner stated the Salesperson was classified as an independent contractor and the Brokerage did not control the actions of the Salesperson. The trial court entered judgment in favor of the Brokerage, and the Visitor appealed.

The Appellate Court of Illinois, Second District, affirmed the judgement in favor of the Brokerage. On appeal, the Visitor argued that were facts showing that the Salesperson acted as an agent of the Brokerage and thus the Brokerage was vicariously liable for his actions. The burden for establishing vicarious liability is on the party making the allegations.

The court determined that the Visitor had failed to demonstrate that Brokerage had held out the Salesperson as its employee. The only evidence provided by the Visitor was the Salesperson’s name on a sign with the Brokerage’s name and logo, and this was not sufficient to establish apparent agency. The Visitor also argued that this case was similar to other cases where the individual was classified as an independent contractor but the court had found an employment relationship. The two cases cited by the Visitor involved a pizza delivery driver and an insurance agent. However, in both cases, the employer either exercised considerable control over the individual or had given the appearance that the individual was an agent acting on behalf of the employer. Since there was no evidence that the Brokerage controlled the actions of the Salesperson nor presented the Salesperson as its apparent agent, the court rejected the Visitor’s argument and affirmed the trial court’s ruling in favor of the Brokerage.

Krushke v. Newsome , 2018 IL App (2d) 170613-U (Ill. App. Ct. Aug. 14, 2018). [Note: This case is not published in an official reporter. Before citing as precedent, legal counsel should be consulted].

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