Leonard v. Modene & Assoc.: Listing Broker Not Liable for Other Agent's Fall

An Ohio appellate court has considered whether a buyer’s representative could recover from a listing broker for injuries suffered by the buyer’s representative while showing a home to prospective buyers.

Douglas W. Leonard (“Buyer’s Representative”) found a listing on the multiple listing service (“MLS”) that he thought his clients might be interested in purchasing. Anthony Harp (“Listing Broker”) of Modene and Associates, Inc. (“Brokerage”) was the listing broker for the property, and so the Buyer’s Representative called the Brokerage to setup a showing time and obtain the lockbox number.

The Buyer’s Representative drove his clients to the property. While on the property, the Buyer’s Representative searched for a light switch down a dark hallway. Not finding one, he opened a door he thought went to the cellar to continue his search for a light switch. In fact, the door opened up to a coal bin. The Buyer’s Representative fell down the coal bin and suffered injuries.

The Buyer’s Representative filed a lawsuit against the Brokerage, arguing that the Brokerage had a duty to warn him about the coal bin. The Brokerage argued that the “open and obvious” hazard doctrine or “step-in-the-dark” doctrine removed any duty by the Brokerage to warn the Buyer’s Representative. The trial court ruled in favor of the Brokerage, and the Buyer’s Representative appealed.

The Court of Appeals of Ohio affirmed the trial court. Landowners have a duty to an “invitee” (a person invited to the property for a business purpose) on their property to maintain the premises in a reasonably safe condition and to warn invitees of “latent or hidden dangers”. However, there is no duty to warn invitees about “open and obvious” hazards that invitees would reasonably be expected to discover on their own, such as a large, open hole. The “step-in-the-dark” rule makes a person who steps from a lighted area into total darkness liable for his/her injuries under the comparative negligence theory. “Comparative negligence” allows a jury to assess each party’s culpability for the resulting injury.

Looking at the facts of this case, the court determined that both doctrines precluded recovery by the Buyer’s Representative. The Buyer’s Representative testified he could not see into the darkened area and he could not find a light switch and so he stepped into a dark area at his own risk. Even if there had been enough light to see into the coal bin, the extra light would have also shown the Buyer’s Representative that the coal bin represented an “open and obvious” hazard.

The court also ruled that the Buyer’s Representative had no recovery under a comparative negligence theory because there was no evidence that the Brokerage even knew that the coal bin existed and so could not have warned of this potential danger. Therefore, the court ruled that the Buyer’s Representative had no claims against the Brokerage.

The court also stated that “there was nothing in the law which requires a real estate [brokerage] to warn invitees of open and obvious dangers on premises it has listed for sale”. The Listing Broker and the principal broker of the Brokerage both testified that they take precautions when entering the dark areas in stranger’s homes because of the potential hazards, such as carrying a flashlight with them and using extra caution.

Leonard v. Modene & Assoc., No. WD-05-085, 2006 WL 2988483 (Ohio Ct. App. 2006). [This is a citation to a Westlaw document. Westlaw is a subscription, online legal research service. If an official reporter citation should become available for this case, the citation will be updated to reflect this information].

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