Attorney warns of litigation over falls on for-sale properties

With fall winding down and winter around the corner, we all know what comes next in Pennsylvania.

While the thought of cozying up to the fireplace while the snow falls outside may seem blissful, the reality is that ice usually comes with it. And that means someone is responsible for clearing the walkways of for-sale properties.

For Realtors® who serve as property managers, a recent case should grab your attention.

A man walking home on New Year’s morning slipped on snow that had accumulated on a makeshift cover of some sidewalk construction. His attorney sued the contractor responsible for the construction, who had placed the covering. The attorney also sued the bank that owned the property and the Realtor® who had entered into a property management agreement with the bank.

The plaintiff relied on three theories to support the action against the Realtor®:

• The Realtor® had what the law terms “premises liability” (i.e., general responsibility for the condition of the property, including the allegedly dangerous condition that caused the slip and fall). To this theory, the Realtor’s® counsel argued successfully that premises liability only accrues to those in possession of the property, and that, in Pennsylvania, “possession” is defined as “occupying the property with the intent to control it.” Since the Realtor® never occupied the property, she could not be in possession, and thus bears no premises liability.
• The Realtor® had been negligent in her hiring and supervision of the contractor who did the excavation. The Realtor’s® counsel responded that, while the agent had participated in selecting the contractor, it was in fact the bank that had technically hired the contractor and had the duty to supervise him. The court agreed that the Realtor® had served merely as a conduit between the bank and the contractor, and could not be liable for the contractor’s failures.
• The plaintiff was a “third party beneficiary” of the contract between the bank and the Realtor®, and because snow removal was one of the duties listed in that agreement, the plaintiff could raise a breach of that duty as the basis for his action against the agent. The Realtor’s® lawyer pointed out that the Realtor® herself was not responsible for snow removal, but rather was responsible to hire a snow removal contractor. The court agreed that any third party liability would accrue against that contractor rather than the agent herself.

However, before you put down that shovel, the case isn’t closed yet. The bank remains a defendant in the case and may yet seek to prove a breach of the Realtor’s® property management duties as a basis for deflecting its own liability to the plaintiff. Alas, the Realtor’s® lawyer has more work to do before a truly happy ending can be achieved.