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Appellate Division Affirms Trial Court’s Dismissal of Plaintiff’s Complaint in Real Estate/Slip and Fall Case

September 17, 2018

Robert B. Spawn reports on a recent unpublished decision from the Superior Court of New Jersey, Appellate Division.

In a recent New Jersey case, a buyer and seller agreed upon a price for a one-family home in the Borough of Metuchen and signed a sales contract on January 9, 2014.  Per the sales contract, the buyer was to obtain a purchase-money loan secured by a mortgage on the property.  After the buyer secured a mortgage lender, the lender sent a property appraiser to the house on February 12, 2014.  Plaintiff, a real estate broker who represented the buyer, accompanied the appraiser on this site visit to ensure that the appraiser had access to the property.  An hour before going to the house, plaintiff called the listing agent for the property and told her that she was going to the property with the appraiser


The steps leading to the front door of the property were covered with snow and ice when plaintiff and the appraiser arrived, and, although plaintiff entered the house without incident, she slipped and fell on the icy steps on her way out, seriously injuring her back.  Plaintiff then sued the property owner and the listing agent for compensatory damages. 


Plaintiff settled her claims against the property owner, but continued to press her claims against the defendant listing agent, arguing that the agent had an independent duty to keep the property clear of snow and ice.  The trial court disagreed and granted the agent’s motion for summary judgment and dismissed plaintiff’s complaint with prejudice.


The crux of the issue on appeal was whether the New Jersey Supreme Court’s holding in Hopkins v. Lazo Realtors applied to the matter at hand.  In Hopkins, a real estate broker held an “open house” for a residential property, and a visitor to the property tripped and fell after missing a camouflaged step.  The Hopkins court found the real estate broker liable to the visitor, stating that the broker had a duty to ensure - through reasonable inspection - the safety of prospective buyers in an open house setting.  The Hopkins court also noted that the real estate broker derived “very tangible economic benefits” from inviting prospective buyers to the open house.


Applying Hopkins to the case at bar, plaintiff argued on appeal that the listing agent had economically benefited from plaintiff and the appraiser’s February 12, 2014 visit to the subject house.  Plaintiff further argued that this economic benefit imposed a duty on the agent to protect plaintiff from ice and snow on the property.  In discarding this argument, the Appellate Division reasoned that, unlike the visitor in Hopkins, plaintiff was not present on the Metuchen property in response to an invitation by the listing agent or the listing agent’s company.  In fact, plaintiff was actually promoting her own financial interest by facilitating the approval of her client’s mortgage application.  The Court also mentioned that the danger in Hopkins (i.e., a camouflaged step) was not sufficiently analogous to the danger in plaintiff’s circumstances.  Indeed, the risk of ascending or descending an ice-covered staircase was readily discernible to plaintiff upon arriving to the property.  Therefore, the Court declined to extend the carefully tailored duty imposed on real estate brokers in Hopkins beyond an open house scenario and affirmed the dismissal of plaintiff’s complaint.


Please contact Robert B. Spawn if you have any questions or need assistance in connection with this subject.