PITTSBURGH – A real estate company and another co-defendant have denied liability in litigation filed by a man who sustained a series of injuries following a fall which took place during a real estate open house, and who then brought suit against individuals and entities he feels are both negligent and responsible for his injuries.
LaShawn Hall first filed suit in the Allegheny County Court of Common Pleas on Sept. 8 versus Paul E. Neal and Shirley L. Neal of Marion Center, Michele Kerr and David Kerr of Edgewood and Neighborhood Realty Services, of Swissvale.
“On June 8, 2021, the plaintiff was a business invitee on the subject premises. Specifically, the premises was listed for an ‘open house’, where prospective purchasers were provided the opportunity to engage in a walk-through of the property. Implicit in this ‘open house’ was the understanding that the premises would be in safe condition, free of unnecessary risks of harm to those that entered the premise. Defendant Neals implicitly warranted to individuals such as the plaintiff, and those similarly situated to him, that the premises located at 145 Oakview Avenue, Pittsburgh, PA 15218 was in a safe condition free of unreasonable risks of harm and injury,” the suit said.
“As plaintiff was walking through the subject premises, he entered the kitchen area. At no time did either Michele Kerr or David Kerr, who are believed to have been present at the premises on June 8, 2021, informed plaintiff or any other individual of dangerous conditions on the premises, areas to avoid or otherwise warned them of an unsafe environment. Suddenly, and without warning, the floor below the plaintiff gave way, and the plaintiff went crashing down through the crumbling rubble and debris to the subfloor. Multiple witnesses, both potential purchasers and representatives from the premises’ realtor, defendant Neighborhood Realty Services, observed the plaintiff helplessly fall 8-10 feet below the floor, initially landing awkwardly.”
The suit alleged the defendants were collectively negligent in permitting a dangerous condition to exist on the premises and failing to remedy it.
“As a direct and proximate result of the negligence of the defendant, as aforesaid, Hall fell violently to the ground; he sustained shock and injury to his nerves and nervous system; he was thrown violently to the floor of the basement, landing on his feet and knees with debris falling atop his head; he was bruised and battered in and about his person; he sustained injuries to his head, neck, arms, shoulders, hands, back, legs, knees and other parts of his body; he sustained a right thigh contusion; he was required to undergo shoulder surgery due to the pain discomfort the plaintiff experienced following his fall at the premises and he sustained injuries to his head, neck, arms, legs and low back,” the suit stated.
In preliminary objections filed on Oct. 17, defendants Michele Kerr and Neighborhood Realty Services denied liability for Hall’s injuries.
“Per plaintiff’s own complaint, the broker defendants were never in possession nor in control of the property. Pennsylvania law forbids imposing any premises liability on those who do not own nor control a subject property. As a matter of law, the broker defendants cannot be held liable under a theory of premises liability and must be dismissed from this action pursuant to 231 Pa. Code Section 1028(a)(4),” the objections stated, in part.
“Additionally, plaintiff alleges the broker defendants were reckless in failing to disclose any defects with the property’s flooring. However, plaintiff fails to aver conduct rising to the level required to establish a cognizable claim of recklessness. As a result, all allegations of recklessness against the broker defendants must be stricken pursuant to 231 Pa. Code Section 1028(a)(4).”
The plaintiff provided an opposing response to the preliminary objections on Nov. 23, arguing that the objections should be denied and the claims were pled properly.
“Here, the defendants claim that the broker defendants, Michelle Kerr and Neighborhood Realty Services, cannot be held responsible under a theory of premises liability. The defendant, however, misapprehends the plaintiff’s theory of liability against the broker defendants. While it is true that real estate agents/brokers ordinarily will not be held liable for injuries that occur during the course of property tours as they are not the owner of the subject property,” the objections stated.
“However, there is an exception to this proposition – when the agent is aware of a dangerous condition and failed to disclose the same to the individuals touring the property, liability can be rightly applied. The subject defect, the crumbling, dilapidated floor in the property’s kitchen posed an open and obvious risk of harm to any individual who would walk through the area. Therefore, the broker defendants had a duty to warn individuals coming onto the property of the same.”
Allegheny County Court of Common Pleas Judge Alan D. Hertzberg overruled the objections in question on Jan. 3.
“Upon consideration of defendants Michele Kerr and Neighborhood Realty Services’ preliminary objections to plaintiff’s complaint and brief in support thereof, and any response filed thereto, it is hereby ordered, adjudged and decreed that the objections are overruled,” Hertzberg said.
UPDATE
On Jan. 10, defendants Michele Kerr and Neighborhood Realty Services subsequently answered the complaint and provided new matter.
“The subject incident was caused by the negligent actions of plaintiff. Defendants violated no duty of care to plaintiff. Defendants were not negligent or careless. Plaintiff, through his own actions, inactions, or failure to act responsibly and in good faith, did not exercise reasonable care and/or diligence to avoid the alleged harm or mitigate the damages alleged in the complaint, and, therefore, plaintiff’s recovery, if any, should be barred, diminished, reduced or off-set as a result thereof. Any damages to plaintiff were caused by plaintiff’s negligent actions or inactions in failing to observe where he was walking or otherwise exercise caution and take care to avoid harm,” the defendants’ answer stated, in part.
“Plaintiff failed to walk with caution and avoid injury. Plaintiff was aware of any dangerous condition, should they be proven to exist, and the danger contained within. Plaintiff failed to obtain these defendants’ permission to enter the subject premises. Plaintiff’s claims are barred by the applicable statute of limitations. Plaintiff’s claims are barred and/or limited by the failure to mitigate damages. Plaintiff’s damages, if any, may have been caused in whole or in part by the acts, omissions or other liability producing conduct of parties over whom these defendants had no control or right of control.”
For one count of negligence, the plaintiff is seeking damages in excess of the jurisdictional limits of the Arbitration Division of the Court.
The plaintiff is represented by Fred G. Rabner of Rabner Law Offices, in Pittsburgh.
Defendants Paul E. Neal, Michele Kerr and Neighborhood Realty Services are represented by Matthew J. Beam and Andrew C. Goodermote of Scolieri Law Group, plus Kenneth J. Hardin II and Matthew J. DeMaio of Hardin Thompson, all also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-22-011345
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com