Summary
In Johnson v. Chupp, 2003 WL 292168 (Del.Super.Ct.), this Court ruled in a case involving negligence of a real estate agent to inspect dangerous conditions on a property that, because the "Defendants had no more control over the property than the Plaintiffs themselves had," there was no duty. The Court stated that "[w]ithout control of the property Moving Defendants had no duty to inspect.
Summary of this case from Legatski v. Bethany Forest Assoc., Inc.Opinion
Ca No. 02C-04-304-JEB
Submitted: January 24, 2003
Decided: February 11, 2003
Defendants Scott A. Venables' and Coldwell Banker Broadcreek Realty's Motion for Summary Judgment. Motion Granted.
Appearances: Philip M. Finestrauss, Esquire, Wilmington, Delaware. Attorney for Plaintiffs.
David B. Snyder, Esquire, Dover, Delaware. Attorney for Defendants Scott Venables and Coldwell Banker Broadcreek Realty.
James Hall, Esquire, Wilmington, Delaware. Attorney for Defendant Joann Conaway and Cooper Realty Associates, Inc.
Jeffrey Young, Esquire, Wilmington, Delaware. Attorney for Defendant Andrew Chupp, J r., t/a Country Craft Wood Specialty.
OPINION
This is the Court's decision on a motion for summary judgment filed by Scott A. Venables and Coldwell Banker Broadcreek Realty ("Moving Defendants"). Plaintiffs Jerome and Synthia Johnson have filed a suit in negligence alleging that they were both injured when Synthia Johnson fell into a well on a piece of property being shown to them by their real estate agent, Scott Venables. For the reasons discussed below, the motion for summary judgment is Granted.
FACTS
The facts pertinent to this motion are not in dispute. In early 2000, Plaintiffs signed an agreement of sale for an undeveloped parcel of land owned by Defendant Andrew Chupp. The property, which was located in Bridgeville, Sussex County, Delaware, was approximately 1.3 acres in size. In April 2000, while awaiting settlement, Plaintiffs and their real estate agent Defendant Venables were inspecting the property. As they were walking across the land, which was overgrown with weeds, Mrs. Johnson fell partly into an open, unmarked well hidden from view by the underbrush .
Plaintiffs filed a suit in negligence against the property owner, the owner's listing agent, and Moving Defendants. Plaintiff allege that because they were holding hands at the time Mrs. Johnson fell, husband and wife were both injured. The complaint alleges failure to inspect the property, failure to cure a hidden danger and failure to warn of the hidden danger. Plaintiffs seek compensation for physical injuries, pain and suffering, loss of enjoyment of life, medical and travel expenses, and loss of consortium on behalf of both spouses.
STANDARD OF REVIEW
Summary judgment is appropriate only where there are no genuine issues of material fact. The Court is to examine the record in the light most favorable to the non-moving party, and the burden is on the moving party to show that there are no genuine issues of fact. If such a showing is made, the burden shifts to the non-moving party to demonstrate that there are issues of fact. If the Court finds that no material fact issues exist, summary judgment is appropriate.
Oliver B. Cannon Sons, Inc. v. Dorr-Oliver, Inc., 312 A.2d 322, 325 (Del.Super.Ct. 1973).
Id.
Moore v. Sizemore, 405 A.2d 1358 (Del. 1979).
Id.
Pierce v. International Ins. Co. of Ill., 671 A.2d 1361 (Del. 1996).
DISCUSSION
Moving Defendants seek judgment as a matter of law, asserting that there are no genuine issues of material fact in dispute and arguing that a buyer's real estate agent owes no a duty to the buyer to make safe the properties shown for sale. Plaintiffs assert that the condition of the property creates a fact question and argue that a duty of care attached to Moving Defendants because of the unkempt nature of the property.
In response to Moving Defendants' assertion that there are no issues of genuine fact in dispute, Plaintiffs argue that the neglected condition of the property creates fact questions, although they stop short of identifying those questions. Plaintiffs explicitly acknowledge that the property was unkempt and overgrown and contained an identified dilapidated structure. Plaintiffs assert that these conditions increased the need to inspect for hidden dangers, but they offer no precedent to show that the duty to inspect and warn rested with the buyer's agent. The Court finds that there is no dispute that the parcel of land, including the area where Mrs. Johnson fell, was overgrown with weeds, and that this fact does not raise any other question s for the jury.
Moving Defendants argue that they are entitled to judgment as a matter of law because they had no duty to inspect the property or warn prospective buyers of any dangers. They assert that, while some courts recognize a seller's agent's duty to inspect a listed property, there is no support in Delaware or elsewhere for the imposition of such a duty on a buyer's agent. Plaintiffs offer no case law other an inapplicable case regarding independent contractors.
See Morris v. Hitchens, 1993 WL 138690 (Del.Super.).
In certain jurisdictions, a seller's real estate agent has an affirmative duty to take reasonable care to inspect the premises and either make them safe or warn invitees of the any dangerous condition. This proposition rests on the theory that the seller's agent is in possession of the property which s/he has undertaken to sell. Other courts have rejected this notion. However, in the motion at bar, the issue is whether the buyer's agent or his employer has any duty regarding the condition of a property being shown to a prospective buyer. The Court finds no precedent or support for such a duty.
See, e.g., Hopkins v. Fox Lazo Realtors, 625 A.2d 1110 (N.J. 1993); Jarr v. Seeco Construction Co., 666 P.2d 392 (Wash.App. — Div. 1 1983); Coughlin v. Harland L. Weaver, Inc., 230 P.2d 141 (Cal.App. — 2nd Dist. 1951).
Jarr v. Seeco Construction Co., 666 P.2d at 393-94.
See, e.g., Kubinsky v. Van Zandt Realtors,, 811 S.W.2d 711 (Tex.App.-Fort Worth 1991, writ denied).
To support their position, Plaintiffs argue that Moving Defendants had a duty to inspect because of the economic benefit they derived from the relationship with Plaintiffs and because of the exclusive agency agreement between them . It is true that where a real estate firm has agreed to act on behalf of a buyer in presenting a contract for purchase of real property, an agency relationship arises. As agents, real estate brokers and salespeople are fiduciaries, but the resulting duty is full disclosure of all material facts to those whom the agent represents, not a duty to buyers regarding dangerous conditions on a seller's property. As Plaintiffs' real estate agents, Moving Defendants had no more control over the property than Plaintiffs themselves had. Without control of the property, Moving Defendants had no duty to inspect, warn or otherwise make the property safe for Plaintiffs. The Court concludes as a matter of Delaware law that a buyer's real estate agent has no duty for the safety of the buyer while on a seller's property.
Heller v. Kiernan, 2002 WL 385545 at *4 (Del.Ch.).
Petenbrink v. Superior Home Builders, Inc., 1999 WL 1223786 at *8 (Del.Super.) (citations omitted).
For these reasons, the motion for summary judgment is Granted.
It Is So ORDERED.