ShareTakeaways
- Include provisions in representation agreements that address responsibility for hazardous conditions and liability for injuries that may occur during a property tour.
- Consider ways to mitigate any obvious or known hazards that exist at a property with the owner prior to showings.
- Take reasonable precautions to identify a property’s hazardous conditions to protect prospective buyers and others during in-person showings.
- Review insurance policies to ensure coverage for client injuries during showings or open houses.
On August 8, 2024, the Georgia Court of Appeals affirmed summary judgment in favor of a brokerage and its agents in a wrongful death lawsuit brought by the husband of a woman who sustained deadly injuries during a property tour. The Court of Appeals held that the brokerage and its agents exerted no measure of control over the property and therefore owed no duty of care to the woman based on a controlling Georgia statute and the listing agreement between the brokerage and the seller.
Section 51-3-1 of the Georgia Statutes and Court Rules provides that an owner or occupier of land is liable for injuries caused by the failure to keep the premises safe. The existence of a legal duty is a question of law for the court.
On October 19, 2019, Kenneth Kidd and his wife Anna accompanied their son to tour a home for sale owned by Lyons Investments, LLC (“Lyons”). The Kidd family met their son’s buyer agent at the property who accompanied the group on the tour. The listing agent was not present during the tour. Both the listing agent and the Kidd’s buyer agent were affiliated with Metro Brokers, Inc. who entered into a listing agreement with Lyons for the marketing and sale of the property.
During the tour, Anna tripped on a step, causing a fall and head injury. At the hospital, Anna slipped into a coma and passed away days later. Following Anna’s death, on June 24, 2021, Kenneth Kidd filed a lawsuit against Metro Brokers, Inc. and its agents (“Defendants”), bringing claims alleging negligence to recover Anna’s medical and funeral expenses and for loss of consortium.
At the trial court level, Defendants argued Kidd’s claims must fail as a matter of law because Defendants were not owners or occupiers of the property and therefore did not owe Anna Kidd a duty of care in keeping the premises safe. The trial court granted summary judgment in favor of Defendants, and Kenneth Kidd appealed.
On appeal, Kenneth Kidd argued that real estate brokers and agents were not exempt from the Georgia statute (Section 51-3-1) assigning liability for injuries caused by unsafe premises to owners and occupiers of land. The court analyzed the listing agreement and the case’s circumstances to determine whether Metro and its agents occupied the property and thus owed a duty of care.
Reviewing the listing agreement, the court highlighted that the agreement established that the seller, Lyons, owed a duty of reasonable care to keep the property safe for visitors viewing the property. The agreement’s provision included the duty to warn visitors of any dangerous conditions that would not be obvious. The listing agreement also included an indemnity clause holding Metro harmless from and against all claims and damages coming from visitor injuries occurring while on the property.
The court concluded there was no evidence that Metro or its agents exercised control over the premises beyond that of marketing and allowing entry to potential buyers, therefore no duty of care was owed by Defendants to individuals touring the property.
In the opinion, the court emphasized that its decision applied only to this set of facts, explaining that scenarios could exist where brokers and agents exert control and could therefore be considered occupiers of property for purposes of premises liability. The court discussed open houses and the potential of brokerage and agent liability, reasoning that during an open house, potential buyers may reasonably expect that the hosting broker or agent is familiar with the property and potentially hazardous physical defects.
The Court of Appeals affirmed the trial court’s decision to grant summary judgment in favor of Defendants.