finding it appropriate to impose liability on real estate brokers for injury sustained during open-house as long as the duty to warn and inspect arises only in “severely circumscribed” circumstances that extends only to a “limited class” of plaintiffs
How later courts described this case
- finding it appropriate to impose liability on real estate brokers for injury sustained during open-house as long as the duty to warn and inspect arises only in “severely circumscribed” circumstances that extends only to a “limited class” of plaintiffs
- stating that "[a]n owner or possessor of property owes a higher degree of care to the business invitee because that person has been invited on the premises for purposes of the owner that often are commercial or business related"
- explaining that "[w]hether a person owes a duty of reasonable care toward another" involves "identifying, weighing, and balancing several factors," including "the relationship of the parties"
- setting forth that the determination of whether a duty exists requires consideration of public policy including "the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution."
Written by the judges who cited it.
Later courts went against this
Declined to follow by Rogers v. Bree, 329 N.J. Super. 197 (2000)
We decline to extend Hopkins to the facts of this case.
Distinguished
Distinguished by D'Alessandro v. Hartzel, 422 N.J. Super. 575 (2011)
And unlike Hopkins, supra, where plaintiff fell in a house because she was unaware that a step down was necessary due to the floors on both levels being “camouflaged,” i.e., covered with the same pattern vinyl, 132 N.J. at 432, 625 A.2d 1110, here the entrance and lower level were clearly distinguishable being of different materials and colors.
The opinion
CLIFFORD, J.,
concurring in judgment.
Caught between a rock and a hard place — the rock of the Court’s somewhat complex explication of the real-estate broker’s duty, and the hard place of the dissent’s near-hysterical forecast of doom, despair, destruction, and the demise of Western civilization — I write but briefly to express my concurrence with the Court’s judgment.
At the outset I confess that (apparently unlike the rest of the Court) I see this case as, in today’s parlance, “no big deal,” in the sense of a cataclysmic change in the law. We just nudge the law forward an inch or so. True, for the first time we apply to real-estate brokers a duty to inspect and warn under certain circumstances. But those circumstances are severely circumscribed (the context of an open-house tour); those to whom the duty extends comprise only a limited class (prospec *452 tive buyers and visitors); and the duty itself is founded, on well-established, even hoary, authority (the majority opinion, a stunning masterpiece of scholarship, reaches back to reacquaint us with cherished old friends such as Palsgraf v. Long Island Railroad Co., 248 N.Y. 339 , 162 N.E. 99 (1928), and Heaven v. Pender, 11 Q.B.D. 503 (C.A.1883)!). Take, for instance, the following from one of the more contemporary cases cited in the majority opinion:
The traditional test of negligence is what a reasonably prudent person [here, a real-estate broker] would foresee and do in the circumstances [here, the tour of an open-house by prospective buyers and invitees]; duty is clearly defined by knowledge of the risk of harm or the reasonable apprehension of that risk.
[People Express Airlines, Inc. v. Consolidated Rail Corp., 100 N.J. 246, 262 , 495 A.2d 107 (1985).]
Unlike our dissenting colleague, therefore, I am satisfied that more than ample authority supports the imposition of a duty on the broker “to inspect and warn [only of] defects that are reasonably discoverable through an ordinary inspection of the home undertaken for the purpose of its potential sale.” Ante at 448, 625 A.2d at 1120.
However, rather than complicate the matter by requiring expert proof of the “customary standards governing the responsibilities and functions of real-estate brokers with respect to open-house tours,” ante at 444, 625 A.2d at 1118, I would be content to leave the law pretty much as stated in the Appellate Division’s neat little six-page opinion, reported at 252 N.J.Super. 295 , 599 A.2d 924 (1991). Relying on the Restatement (Second) of Torts section 383 (1969), that court held that
the broker has a duty to warn his invitees of dangerous conditions on the premises of which he has actual knowledge and [that] he should expect that the invitees will not discover for themselves. * * * [H]e has as well a duty to make a reasonable inspection of the premises prior to the arrival of his invitees to determine if there are any reasonably discoverable dangers requiring such a warning.
[ 252 N.J.Super. at 302 , 599 A.2d 924 .]
Judges and juries parse their way through issues based on those stated principles of law every day, and I foresee no *453 difficulty in their accommodating those concepts to the setting of this case.
The dissent reminds us, post at 455-456, 625 A.2d at 1124, that “[b]rokers currently charge a sizeable commission fee to sell a house.” I perceive no intolerable burden, no injustice, in requiring them to take a look around and tell folks about any reasonably-discernable dangers before they stroll through on an open-house tour. Remember: we are talking “open house” here, not “open season” on brokers. As the Appellate Division observed:
The broker is clearly not a guarantor of the safe condition of the premises. He is not responsible for latent defects of which he has no knowledge. He is not required to correct any defects of which he does have knowledge. He is not required to warn against any dangers beyond those [that] would be revealed by a reasonable broker’s inspection designed to assure the safety of prospective buyers touring the house. But the broker must take a modicum of care to assure, by appropriate warning, the reasonable safety of those whom he invites to the premises in his own economic interest.
[252 NJ.Super. at 302, 599 A.2d 924 .]
I concur in Part IV of the Court’s opinion and in the judgment affirming the Appellate Division.