Appellate Court Holds Real Estate Broker Not Liable

for Failing to Protect a Potential Purchaser from Dangers

Affiliated with an Empty Swimming Pool

In Jacobs v. Coldwell Banker Residential Brokerage Company, a California Appellate Court held that a real estate broker may not be held liable for negligence for failing to protect a potential purchaser from dangers affiliated with an empty swimming pool or diving board.  In Jacobs, Coldwell Banker marketed a vacant home for sale.  The backyard was fenced and contained an empty swimming pool and diving board.  Before listing the property, the Coldwell Banker agent visually inspected the property, including the pool and the diving board.  The only dangerous condition she observed was the empty swimming pool.  She retained a pool company to inspect the swimming pool and equipment.  The inspection report did not identify any concerns about the diving board.  The agent listed the property and advised using “Caution” around the swimming pool. 

Plaintiff inspected the property and noted the empty pool.  Plaintiff was a contractor who apparently performed regular tile work around swimming pools.  He acknowledged that he understood the potential danger of an empty pool.  Nevertheless, he stepped onto the diving board, which collapsed underneath him fell into the empty pool sustaining serious injury.  He and his wife sued Coldwell Banker for negligence and related causes of action arising out of the dangerous condition of the diving board. 

The trial court granted summary judgment in favor of Coldwell Banker and dismissed the case.  Plaintiff appealed and the appellate court affirmed holding that plaintiff failed to show negligence.  It was undisputed that Coldwell Banker had no notice that the diving board was defective.  In addition, the empty pool was itself a dangerous condition of the property, but so obvious that a reasonable person could have expected to note it and the condition itself served as a warning.  Coldwell Banker had no duty to protect plaintiff from the open and obvious danger of an empty pool.

Shannon B. Jones, Partner sbj@sbj-law.com