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

• Court: New Jersey Superior Court Appellate Division
• Decided: August 27, 2018
• Docket: A-1574-16T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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,

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

2 A-1574-16T2 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.

3 A-1574-16T2 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.

4 A-1574-16T2 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

5 A-1574-16T2 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

6 A-1574-16T2 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:

7 A-1574-16T2 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).

8 A-1574-16T2 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

9 A-1574-16T2 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

10 A-1574-16T2 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

11 A-1574-16T2 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

12 A-1574-16T2 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

13 A-1574-16T2 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.

14 A-1574-16T2