Question:
Your current sellers go to an open house (without you). They go to the basement and the husband trips down the stairs – misses three stairs and blows out his back. They had to call the open house agent from upstairs to help him get to car.
Now your clients want to know if they can put in a claim.
How do you PROFESSIONALLY answer this?
Answer:
You specifically asked about how to respond “professionally”. It’s set out in the Code of Ethics:
8. (1) A registrant shall advise a client or customer to obtain services from another person if the registrantis not able to provide the services with reasonable knowledge, skill, judgment and competence or is not authorized by law to provide the services.
No information, discussions, material, or exam questions exist through OREA or RECO in respect to the liability for tripping and falling.
If a registrant is to say anything at all, they should recommend that the individual contacts a lawyer.
In this case, if there is third party liability at all, it is likely only the homeowner. But, what did they do “wrong”? We could make something up, like they waxed and polished the steps excessively that a reasonable person would slip and fall, or the steps and risers were misaligned etc., however, people have been using the steps without incident for 20 years and the homeowner didn’t just clean the staircase. Essentially, that leaves the adult person using the steps for the first time to be cautious and watch out for their own safety. Usually, that means “no liability” on anyone other than the person who fell.
As we move into the winter months, it’s possible for the stairs to be covered in ice and snow. The person hosting the Open House will have to watch for that. It’s one reason for the “shoes off” policy. If a person fell on a piece of ice going downstairs, then, it could be the responsibility of the person conducting the Open House. They would be under a legal obligation to watch for this sort of thing. The Indemnification provision under the Listing Agreement would not apply in the case of the registrant’s negligence.
Brian Madigan LL.B., Broker