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August 31, 2017

Listing Broker Not Liable for Prospective Buyer's Injuries From Falling Into Empty Pool After Diving Board Collapses

The recently published case of Jacobs v Coldwell Banker held that a broker could not be held liable for injuries caused by 1) the collapse of a diving board since the broker had no notice of any defect in the diving board nor 2) for the empty pool since the danger was so obvious that any person could reasonably be expected to see it, and thus, there was no duty to remedy or warn of the condition.

The facts involve a listing agent for Coldwell Banker selling an REO property whose preliminary investigation of the backyard found no breaks, cracks or other visible damage on the diving board. Neither did a pool inspector identify any concerns about the diving board. On the MLS listing, a warning was stated: "Please use CAUTION around the empty pool."  In viewing the property, the prospective buyer stood on the base of the diving board in order to see over the fence. That's when the board broke loose from the base and the prospective buyer fell into the empty pool, sustaining serious injuries.

The previously unpublished case, filed July 25, 2017, and ordered published August 14, 2017, while precedent for issues regarding diving boards and empty pools, is also useful in its citation of cases applying fundamental legal principles including: 1) There is no liability when the defendant had no notice of a defect (in this case, the defective diving board); 2) The foreseeability of harm is typically absent when a dangerous condition is open and obvious; and 3) In such circumstances, the dangerous condition itself serves as a warning, and the agent is under no further obligation to remedy the condition.

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