There are several points in a transaction that generate objective risk for a listing agent. The most classic of the risks is at the open house where the agent is entrusted with raising the portcullis to the client’s castle and, in some cases, letting all comers in to view the seller’s abode. We live in a litigious age where duels are fought in the courtroom rather than with pistols; many injuries that occur to a potential buyer at a Seller’s open house could result in a lawsuit against the agent to avenge the wrong. The caselaw on open house liability of agents is blessedly sparse, and the issue has never been litigated to an appellate level in Oregon, but cases do exist in other states. For example, in Kidd v. Metro Brokers, Inc., 905 S.E.2d 316 (Ga. App. 2024), Georgian courts had to grapple with the issue for the first time in 2024. An elderly woman fell and fatally struck her head at an open house, and the estate sued the seller and brokers for the “hazardous conditions on the property” causing the death. The court reasoned that the brokers were not liable in this instance, but it was not a blanket outcome. In the Kidd case, the woman fell when walking into the garage and missed the step, which was level, lit, and sturdy. The court pointed out that “at an open house, potential buyers may reasonably expect that the broker [or agent] will be familiar with the premises and would rely on the broker’s presumed familiarity with the house, including a knowledge of all of its important features and physical characteristics.’ And such factors would ordinarily include matters related to home safety, such as ‘fire or burglar alarms, locks, and the like, and contrastingly, defects like broken steps, exposed electrical wiring, and missing or weak railings.’” Metro Brokers were not found liable by lack of a duty of care, essentially arguing that it was a routine open house and there was essentially no duty to note that a functioning stair existed. The court cautioned though, “we do not hold that real estate brokers and agents can never be considered occupiers of the land [for Georgia law purposes, this was required to find liability for injury on the premises], nor does our holding today reach the question of whether, and under what circumstances, a broker or real-estate agent may be held liable for an injury occurring during an open house.”
New Jersey had a similar case looking into the liability of a broker for a buyer’s injury on the premises in Tamasco v. Rodd, Docket No. A-1574-16T2 (N.J. Super. App. Div. Aug 27, 2018), where the Buyer accompanied an appraiser to the property and slipped on ice and injured her back while leaving the house. The buyer sued the property owner and the listing agent. The buyer argued the agent had a duty to keep the property clear of ice and snow, but the court disagreed and found that there was only a narrow duty for a real estate broker to give adequate warnings with respect to hazards readily discoverable through the broker’s inspection when they invite the public into a building. A similar “agent has no inherent duty to go back and de-ice the property” holding happened in Michigan with Anderson v. Wiegand, 567 N.W.2d 452 (Mich. App. 1997), but in each case, the holding was that the broker has a duty to take reasonable measures to mitigate risk of harm from things like snow and ice to diminish the hazard [though not “unreasonable” measures to comprehensively obliterate hazards].
Though not Oregon cases, the holdings can be informative for your practice because a substantial doctrine can be drawn from the void space of other state lawsuits: you are going to potentially be liable for not warning buyers at an open house about risks that you know about, based on a reasonable inspection [or based on “what a person would have found if they did a reasonable inspection”. It’s important to understand that it’s not a “what did you know” standard, but rather a “what would a reasonable person doing your job know” standard]. If the house has a lone stair that is a few inches taller or shorter than the rest of the stairs, and you noticed it when you nearly tripped looking around the house the first time? You should absolutely warn buyers about it. If you keep banging your head on a beam when you enter the loft or the garage, you should warn buyers about it. If you’re scared to walk onto the deck because it looks like dry rot to you, warn the buyers about your concerns. If you’ve never been in the woodshed or never gone into the detached garage, you should tell the buyer about that and disclaim anything going on in there [this sort of disclaimer may be sufficient, but it depends on the reasonability of your own failure to go into the shed/garage. If the only way in is through shimmying into an open window, you may be reasonable in not doing that, but you’d want to warn enterprising buyers that everything within is unknown risk, or just, y’know, tell the buyer not to go spelunking into abandoned outbuildings].