Real Estate Agent Failure to Exercise Proper Caution

Negligence Claim Denied As Claimant An Experienced Real Estate Agent Failed to Exercise Proper Caution to Protect Himself from An Observable Apparent Danger: In Leonard v. Modene and Assoc., Inc., 6th Dist. No. WD-05-085, 2006 Ohio 5471, the Sixth District Court of Appeals recently considered a case where a plaintiff real estate agent was showing a house to a prospective buyer. Believing that a door off a dimly lit hallway led to a cellar, plaintiff searched for a light switch while stepping onto what he thought would be cellar stairs. The area was, instead, an old unlighted coal bin which had no stairway. The plaintiff fell six feet down into the coal bin and sustained injuries. Plaintiff-agent then sued the real estate brokerage firm, claiming the coal bin constituted a latent hazard. The reviewing court found that there were actually two hazards confronting the plaintiff: the drop off into the coal bin and the darkness. If there was enough light to see, then the drop-off constituted an open and obvious danger, and if the room was too dark to see the drop off, then plaintiff acted in disregard of the open and obvious hazard of darkness. Id. at P56. "Thus, even presuming a factual question was created by plaintiff's testimony regarding the lighting conditions of the hallway and room, he cannot establish a negligence claim. Under either condition, the plaintiff, an experienced real estate agent, simply failed to exercise proper care and failed to protect himself from an observable, obvious hazard." Id. The court concluded that plaintiff could not establish a negligence claim against the broker and that summary judgment was warranted. Id. at P58.