SHERRY TAMASCO VS. HELEN K. RODD VS. DUNCAN ROOKS (L-2492-15, MIDDLESEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1574-16T2
SHERRY TAMASCO,
Plaintiff-Appellant,
v.
HELEN K. RODD and DANIEL RODD,
Defendants,
and
RE/MAX PARTNERS OUR TOWN, KAREN
MARIANO, NICHOLAS MARIANO and CATHERINE
M. RICKARDS,
Defendants/Third-Party
Plaintiffs-Respondents,
v.
DUNCAN ROOKS and LEON ROOKS,
Third-Party Defendants-
Respondents.
___________________________________
Argued March 14, 2018 – Decided August 27, 2018
Before Judges Fuentes, Koblitz and Manahan.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No.
L-2492-15.
Adam L. Rothenberg argued the cause for
appellant (Levinson Axelrod, PA, attorneys;
Adam L. Rothenberg, on the brief).
Anthony P. Pasquarelli argued the cause for
respondents ReMax Partners, Karen Mariano,
Nicholas Mariano and Catherine M. Rickards
(Sweet Pasquarelli, PC, attorneys; Anthony P.
Pasquarelli, of counsel; Kenneth C. Ho, on the
brief).
Kirsch, Gelband & Stone, PA, attorneys for
amicus curiae New Jersey Association for
Justice (Gregg Alan Stone and Ronald J.
Morgan, on the brief).
PER CURIAM
Plaintiff Sherry Tamasco is a licensed real estate broker who
represented the buyer of a one-family house that was listed for
sale by defendant ReMax Partners Real Estate, LLC (ReMax), on
behalf of the owner. At all times relevant to this case, the one-
family house was unoccupied. The owner, defendant Helen K. Rodd,
does not live in New Jersey. Defendant Catherine Rickards is
associated with ReMax and was the listing broker for the property.
The buyer and seller agreed upon a price and signed the sales
contract on January 9, 2014, contingent upon the buyer obtaining
a purchase-money loan secured by a mortgage on the property.
Plaintiff decided to accompany the lender's real estate
appraiser to the property, presumably to ensure the appraiser had
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access to the site.1 An hour before going to the house, plaintiff
called Rickards and told her that she would be going to the
property with the appraiser. Rickards did not inform the property
owner, or the owner's son who resided in this State, that these
two people were going to the house. The property was covered with
snow and ice when plaintiff and the appraiser arrived. Plaintiff
especially noticed that the steps leading to the entrance door of
the house were covered in snow and ice. She held on to the railing
and she walked into the house accompanied by the appraiser. The
appraiser completed her task and left the house, leaving plaintiff
behind. As she walked down the steps, plaintiff slipped and fell,
seriously injuring her back.
Plaintiff filed a civil action against the property owner,
ReMax, and Rickards, seeking compensatory damages. Plaintiff
settled her claims against the property owner. Plaintiff continued
to press her claims against Rickards, arguing she had an
independent duty to keep the property clear of snow and ice under
the Supreme Court's holding in Hopkins v. Fox & Lazo Realtors, 132
N.J. 426 (1993). The Law Division Judge disagreed and granted
Rickards's motion for summary judgment and dismissed plaintiff's
complaint with prejudice.
1
Plaintiff had access to the lockbox that contained the key to
the house.
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In this appeal, plaintiff argues the motion judge erred in
failing to apply the public policy considerations in Hopkins to
the facts of this case. Plaintiff argues that the Court's
reasoning in Hopkins supports imposing a duty upon a real estate
broker who represents the seller to keep the property free of snow
and ice. Plaintiff cites a number of decisions that show the
factors considered by the Court in Hopkins "were not limited to
the factual context of an injury to a customer at an open house
event." According to plaintiff, Rickards could have prevented
this foreseeable risk because: (1) she knew plaintiff would be at
the property; and (2) she had access to the property to remedy the
situation.
Defendant argues the judge properly construed that the
holding in Hopkins imposed a narrowly tailored duty on a real
estate broker who invites the public to come to an open-house "for
purposes of its sale to customers, and to give adequate warnings
with respect to hazards readily discoverable through such an
inspection[.]" Hopkins, 132 N.J. at 446. Defendant emphasizes
that, unlike the plaintiff in Hopkins, here plaintiff was fully
aware of the icy condition of the steps before she decided to go
forward. Defendant urges this court to reject imposing liability
on real estate brokers under these circumstances.
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Amicus curiae, New Jersey Association for Justice, argues
that a proper application of the Hopkins factors shows the Law
Division Judge erred when he granted defendant's motion for summary
judgment. Similar to plaintiff, amicus points out that a number
of cases decided since Hopkins show the Court did not intend to
restrict the analysis to cases involving open house scenarios.
Amicus contends the motion judge's excessively narrow construction
of the Court's reasoning in Hopkins led to the erroneous conclusion
that defendant did not owe a duty of care to plaintiff.
We agree with defendant's argument and affirm. The motion
judge properly construed and applied the Court's holding in Hopkins
to find that a real estate broker does not have a duty to take
affirmative action to ensure the property of the client-owner is
clear from ice and snow.
I
On January 9, 2014, Jeffrey Jansen entered into a contract
to purchase a one-family house owned by Helen K. Rodd, located in
the Borough of Metuchen. Plaintiff is the real estate broker who
represented Jansen in the negotiations with the seller's broker
to facilitate the purchase of the house. ReMax was Rodd's real
estate broker. Defendant Rickards is a licensed real estate agent
employed by ReMax. Rodd lived in Virginia at the time. The house
was therefore vacant while it was on the market. The house was
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nevertheless accessible at all times to the listing agents; the
key was kept inside a lockbox that could be opened by entering a
code.
At approximately two o'clock in the afternoon of February 12,
2014, plaintiff advised Rickards that she was going to the property
to allow the appraiser retained by the buyer's mortgage lender to
enter the house. Plaintiff had access to the house because she
knew the code to open the lockbox. Rickards did not inform the
owner that plaintiff was visiting the property with an appraiser;
she also did not go to the property to confirm plaintiff's entry.
We cannot determine from this record whether Rickards was aware
of the icy condition of the steps. It is undisputed, however,
that she did not take any action to remedy the condition of the
property that day, or at any other time. According to Rickards,
the owner and her son were responsible for the daily maintenance
of the property, including snow removal.
The walkway from the driveway to the steps were covered in
snow and ice; the steps were also covered in snow and ice. Both
plaintiff and the appraiser saw these conditions and noted that
they "had to be careful." Plaintiff did not contact anyone at
ReMax to notify them of the property's perilous icy conditions.
She held on to the railing to climb the stairs that led up to the
house and noted that the steps were icy. The appraiser left the
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house before plaintiff. Plaintiff was thus alone when she walked
down the steps on her way out of the house. The accident happened
when she slipped descending the steps. She injured her lower back
and had to undergo fusion surgery in the lumbar region of her
spinal column. Rickards testified in her deposition that plaintiff
called her after the accident and told her "she fell on the front
porch." Rickards testified she then told the owner, who in turn
told Rickards that her son "Leon [would] take care of it."
In response to plaintiff's interrogatories, the owners of the
property stated that their "older son was to check on the premises
after each of his work days. No legal documents or written
agreements exist for this." (Emphasis added). In the course of
plaintiff's deposition, counsel for ReMax read into the record the
following statement plaintiff gave in response to an
interrogatory:
Following the accident[,] I spoke to the Rodds
[the owners of the property] during the walk-
through prior to closing. They inquired about
the accident. I indicated that I had fallen
and was in pain and still treating. The Rodds
had indicated they were in Virginia at the
time of the accident. They indicated that the
agent was supposed to take care of the
property as they understood it.
Following up on this statement, counsel for ReMax asked
plaintiff:
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Q. Did they tell you which agent was supposed
to take care of the property[?]
A. They made it seem like their listing agent.
There was no other agent.
Q. Did they tell you that the agent was
supposed to clear ice and snow from the
property?
. . . .
A. They weren't that specific. They just said
take care of.
Q. Let me ask the question this way: Other
than Mrs. Rodd saying that the agent was
supposed to take care of the property as they
understood it, did they say anything else
about what the responsibilities of the agent
were?
A. I don't recall.
II
We review the grant of a motion for summary judgment in
accordance with the same standard used by the motion judge. Globe
Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016). If there are no
genuine issues of material fact, we must "decide whether the trial
court correctly interpreted the law." DepoLink Court Reporting &
Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App.
Div. 2013) (quoting Massachi v. AHL Servs., Inc., 396 N.J. Super.
486, 494 (App. Div. 2007)). Our review is de novo, without
affording any deference to the motion judge's legal conclusions.
Nicholas v. Mynster, 213 N.J. 463, 478 (2013).
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In this appeal, we must determine whether a seller's real
estate broker owes a duty to protect a buyer's broker against
dangerous conditions on the property during a visit to the property
to advance the buyer's interest. Both parties rely on the Court's
decision in Hopkins to support their legal arguments. We thus
begin our analysis by examining how the Court framed the issue:
This appeal requires the Court to determine
whether a [real estate] broker who holds an
"open house" for the purpose of attracting
potential buyers has a duty of care with
respect to their safety, including a duty to
warn of dangerous conditions in the home. The
case arose when such a visitor, a relative of
prospective purchasers, fell down during an
open-house tour sponsored by the broker. The
fall occurred when she proceeded down from one
level of the house to another and missed a
step, which she claimed constituted a
dangerous condition because the connecting
step was camouflaged by the similar floor that
covered both levels.
[Hopkins, 132 N.J. at 431-432.]
The Hopkins Court recognized that the answer to this narrow
question implicated the broader issue of "whether a broker's duty
of care in these circumstances is to be determined by the
traditional common-law doctrine that defines the duty of care
imposed on owners and possessors of land or, instead, by more
general principles that govern tort liability." Id. at 432. The
plaintiff filed a civil action against the broker arguing that it
had a duty to warn "of any known risks inside the house or any
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risks that a reasonable inspection of the house would have
revealed." Id. at 432-33.
The Court first described the traditional common law duty of
reasonable care an owner or occupier of real property has to
business invitees, to guard and protect them against any known or
reasonably discoverable dangerous condition on the property. Id.
at 434. Justice Handler ultimately rejected applying this approach
to real estate brokers, recognizing that the inquiry should be
"whether in light of the actual relationship between the parties
under all of the surrounding circumstances the imposition on the
broker of a general duty to exercise reasonable care in preventing
foreseeable harm to its open-house customers is fair and just."
Id. at 438.
Writing for the majority of the Court in Hopkins, Justice
Handler crafted a fact-specific analytical paradigm that requires
balancing the following four factors: (1) the relationship of the
parties; (2) the nature of the attendant risk; (3) the opportunity
and ability to exercise care; and (4) the public interest in the
proposed solution. Id. at 439. Applying this approach to the
facts in Hopkins, the Court held that "a real estate broker has a
duty to ensure through reasonable inspection and warning the safety
of prospective buyers and visitors who tour an open house."
Hopkins, 132 N.J. at 448. This duty only arises in connection
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with an open house tour and when "such an inspection is a part of
the professional services that would be undertaken by a reasonable
broker in attempting to sell the house on behalf of its owner and
when the broker has had an adequate opportunity to have undertaken
that inspection." Ibid.The Court found that the nature of the relationship between
a broker and a potential buyer in an open house setting is
substantial because the prospective buyer-visitor is the invitee
of both the owner of the property "through the broker as the
owner's agent, . . . [and] the invitee of the broker as well
because the broker's own economic interests are served by the
invitation." Id. at 442. The "very tangible economic benefits"
the broker derives from this invitation implicitly creates a
commensurate degree of responsibility for the customer's safety.
Id. at 441.
Thus, under these circumstances, "a broker is under a duty
to conduct a reasonable broker's inspection when such an inspection
would comport with the customary standards governing the
responsibilities and functions of real-estate brokers with respect
to open-house tours." Id. at 444. The Court also expressly
limited the scope of the broker's legal responsibilities by noting
it does not include a duty "to warn against any dangers that are
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not otherwise known to the broker or would not be revealed during
the course of such a reasonable broker's inspection." Id. at 445.
The Court concluded its analysis by addressing the public
policy implications of its decision. Id. at 446-49. The Court
did not consider the imposition of this duty to be "an unreasonable
economic strain on a broker's livelihood" because the broker
derives economic benefits from an open house and may share any
increased costs with the owner. Id. at 446-47. The Court also
viewed the broker to be "in a better position than the homeowner
to prevent injury during the course of an open house." Id. at
447-48. Lastly, the imposition of this limited duty of care on a
real estate broker serves the public interest by creating an
incentive to take proactive measures and thereby "minimize risks
of harm" and ensures "that the application of negligence doctrine
does not unnecessarily or arbitrarily foreclose redress based on
formalisms or technicalities." Id. at 448.
Plaintiff argues ReMax and the listing broker owed her a duty
to protect her from the risk of harm created by the ice and snow
on the property because her activities benefited them
economically. This argument is unpersuasive. Plaintiff's
presence on the property that day was not in response to an
invitation by ReMAx. Plaintiff was promoting her own financial
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interest by facilitating the approval of her client's mortgage
application.
Plaintiff also argues that ReMax's relationship to the seller
implicitly included a duty to ensure that access to the property
was free of dangerous conditions like snow and ice on the entrance
way. We disagree. Remax's relationship to the seller was defined
by the terms of the listing agreement. ReMax did not agree to
provide snow removal services. In fact, in responding to
plaintiff's interrogatories, the seller conceded that she relied
on her son "to check on the property after each of his work days."
Plaintiff's attempt to characterize this acknowledgment of
responsibility by the seller as inadmissible hearsay is
unavailing. This is indisputably competent evidence as an
admission by a party opponent or as an admission against interest.
See State v. Branch, 182 N.J. 338, 358 n.7 (2005) (first citing
Reisman v. Great Am. Recreation, Inc., 266 N.J. Super. 87, 97-99
(App. Div. 1993); then citing N.J.R.E. 803(b)(4) and N.J.R.E.
803(c)(25)).
Plaintiff also argues that the second and third factors, the
nature of the attendant risk and the opportunity and ability to
exercise care, weigh in her favor. There is no factual or legal
support for imposing liability on ReMax. The risk associated with
ascending an ice-covered staircase was readably discernible to
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plaintiff when she decided to accompany the appraiser to the
property. There is no legal or public policy basis to impose the
property owner's common law burden to prevent this harm on ReMax.
See Davis v. Devereux Found., 209 N.J. 269, 296-97 (2012). Indeed,
as an intermediate appellate court, it is not our role to extend
the carefully tailored duty the Court imposed on real estate
brokers in Hopkins beyond the open house scenario. See Reyes v.
Egner, 404 N.J. Super. 433, 464 (App. Div. 2009); Rogers v. Bree,
329 N.J. Super. 197, 201-03 (App. Div. 2000).
Affirmed.
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