Question: My husband and I were driving through a neighborhood in Chandler looking for a new home. A home in this neighborhood had an “open house” sign, and the real estate broker met us at the door. The real estate broker then walked through the home with us. When we walked into the family room, my husband tripped on some flooring which had become loose. The real estate broker said that he was sorry, and said that he had intended to put a warning sign there after the seller told him of the flooring problem. My husband severely wrenched his knee when he tripped, and he may have to have surgery. Does the real estate broker or the seller have any liability for not warning us about the loose flooring?

Answer: Both the seller and the real estate broker probably are liable for your husband’s knee injury. The seller or the real estate broker should have repaired the loose flooring, or warned you and your husband of the danger of the loose flooring before your husband tripped and injured his knee.

A seller holding an “open house” is generally required to disclose all known and dangerous conditions at the home.  A seller’s real estate broker holding an “open house” may also have an affirmative duty to first make a reasonable inspection of the home before any prospective buyers enter the home for a tour.  If that reasonable inspection reveals a dangerous condition, like loose flooring, the real estate broker must attempt to prevent an injury by making persons attending an “open house” aware of the danger that the condition presents.

Note: If the seller doesn’t have liability insurance for the home, the broker may be left paying damages to a prospective buyer injured during an open house.  A broker’s real estate E&O insurance may have an injury liability insurance component, but many insurance companies may not automatically include coverage for a personal injury at an open house.  An E&O policy that adds injury (and property damage) coverage at an open house is recommended for real estate brokers.

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