Owner Can Be Sued For Missing Steps
Published: January 9, 2012
A Norfolk Circuit Court says a prospective buyer who entered a Fannie-Mae-owned home and was seriously injured when he walked down unlit basement stairs that were missing multiple steps at the bottom, can sue Fannie Mae, but not the realty company or brokers, for common law negligence and negligence per se.
A defense of contributory negligence is rarely raised by demurrer because the complaint rarely shows it. No defendant specifically raised contributory negligence in the demurrer. FNMA raised it in its supporting memorandum, citing Baker v. Butterworth, 119 Va. 402 (1916), and Smith v. Wiley-Hall Motors Inc., 184 Va. 49 (1945).
Would the present Supreme Court rule as it did in Baker? I think not. The substantive law of contributory negligence has not changed since Baker and Smith, but the appellate reception of pretrial dismissals of negligence actions is now quite frosty. The Supreme Court has often criticized actions by circuit courts that “short-circuit” litigation. Motions to strike are disfavored in negligence actions. As tempting as it might be to find contributory negligence as a matter of law on the face of this amended complaint, if I were to do so I would probably be remiss if I did not also instruct the clerk to stamp, “REVERSE ME!” in large orange letters on the cover of the file he sends to Richmond. Thus, I believe I must consider the other arguments defendants have made.
What are the agents here alleged to have done? “On information and belief” they marketed the house as having a basement. They “or a person or persons on their behalf” took photographs of several rooms and placed a sign in the house and a lockbox behind it; they listed the property for sale and someone entered the same day; someone from JSB Realty gave plaintiff the combination to the lockbox. There is no allegation they knew of the danger; sufficient facts have not been pleaded to show they ought to have known it. There is no allegation that any agent or employee of JSB had inspected the property, or had shown it to a prospective purchaser before plaintiff entered, or was on the property when plaintiff fell. There is no allegation anyone warned JSB or the two defendant brokers of this dangerous condition. There is an allegation FNMA had an inspection made in late August 2009, but there is no claim JSB or the two brokers ever saw it or that any problem with the stairs was noted. Rule 3:18 (b) allows negligence to be pleaded “without specifying the particulars,” but there must be sufficient facts alleged to demonstrate a duty and a breach.
Plaintiff alleges a real estate agent engaged to sell property has the duties to keep the premises reasonably safe and to inspect, repair and maintain the premises. He cites no authority in support of his claim, and Turner v. Carneal, 156 Va. 889 (1931), is against him on this. I sustain the demurrer of JSB and the two brokers to the claim for common law negligence.
I overrule FNMA’s demurrer to the common law negligence claim. As the owner of the property, FNMA had a duty to use ordinary care to have the premises in a reasonably safe condition for an invitee’s visit. An invitee entering a building with an interest in purchasing it might reasonably be expected to look at the basement. A dark stairway with several missing steps is not reasonably safe.
The court also sustains the demurrers of JSB and the brokers to plaintiff’s claim for negligence per se; a real estate agent engaged to sell property does not have a legal or equitable interest in it or control it for purposes of the Virginia Maintenance Code. I overrule FNMA’s demurrer to this claim.
The court sustains FNMA’s demurrer to a claim for nuisance; to allow a nuisance claim to proceed on these facts would confuse the causes of action.
Moran v. Fed. Nat’l Mtge. Ass’n (Martin) No. CL 10-6841, Nov. 21, 2011; Norfolk Cir. Ct.; Joseph J. Perez, Alexander K. Page, Herbert V. Kelly Jr., Stephen A. Horvath, R. Craig Gallagher for the parties. VLW 011-8-222, 5 pp.