DeSousa v. Iowa Realty Co., 21-0679

CourtUnited States State Supreme Court of Iowa
Writing for the CourtMANSFIELD, Justice.
PartiesAMANDA DeSOUSA f/k/a AMANDA JOHNSTON, Appellee, v. IOWA REALTY CO., INC., Appellant.
Docket Number21-0679
Decision Date10 June 2022


IOWA REALTY CO., INC., Appellant.

No. 21-0679

Supreme Court of Iowa

June 10, 2022

Submitted March 24, 2022

Appeal from the Iowa District Court for Dallas County, Randy V. Hefner, Judge.

A real estate brokerage defendant in a slip-and-fall negligence case seeks interlocutory review of the district court's denial of summary judgment, contending that it owed no duty of care to the prospective buyer of a listed house.


Haley Y. Hermanson (argued) and Frank Harty of Nyemaster Goode, P.C., Des Moines, for appellant.

Jordan T. Glaser (argued) of Peters Law Firm, P.C., Council Bluffs, for appellee.

Jodie C. McDougal and Sarah E. Friedricks (until withdrawal) of Dentons Davis Brown, PC, Des Moines, for amici curiae, the National Association of Realtors & the Iowa Association of Realtors.

Mansfield, J., delivered the opinion of the court, in which Christensen, C.J., and Waterman, Oxley, and McDermott, JJ., joined. Appel, J., filed a dissenting opinion. McDonald, J., took no part in the consideration or decision of the case.



I. Introduction.

Possession may not be nine-tenths of the law, but it is an important concept in the law of premises liability. Under the Restatement (Third) of Torts, possessors of land owe a duty of reasonable care to entrants on that land. A possessor is defined as one who occupies and controls land, or one who is entitled to immediately occupy and control land. We have to decide today whether a listing agent who is not present meets the definition of a possessor based merely on the fact that the listing agent has to give permission to prospective buyers and their agents to view the property. We conclude that this gatekeeping function is not by itself enough to make a listing agent a possessor.

Here, the plaintiff slipped and fell when she was on the icy driveway of a home she was considering buying. Neither the owners nor anyone from the listing agency for the then-vacant home were present at the time. The plaintiff sued both the owners and the listing agency. The district court denied the agency's motion for summary judgment, reasoning that the agency-not the owners-had notice that a buyer would be viewing the home that morning. The agency applied for an interlocutory appeal, and we granted the application.

On our review, we conclude that the listing agency does not owe a duty to a prospective buyer to assure the safety of the listed property when the agency is not present and showing the property. In those circumstances, the owners, rather than the agency, retain possession. Therefore, we reverse the district


court's denial of summary judgment and remand for entry of summary judgment in favor of the listing agent.

II. Background Facts and Proceedings.

In late 2017, Matthew and Melissa Fynaardt moved from their home in Waukee to a new house about seven miles away in Urbandale. They rented out their Waukee home for a short time. The house then became vacant and the Fynaardts put it on the market to sell. They hired Joel Goetsch, a real estate agent with Iowa Realty Company, Inc., to list the home and assist them with the selling process.

Amanda DeSousa was looking to buy a home. On the evening of December 27, 2018, she contacted her agent-who was not affiliated with Iowa Realty-to ask about viewing the Fynaardts' home the following morning. DeSousa needed the appointment to be in the morning because she planned to leave town that afternoon to visit her mother in Omaha. Her agent contacted Goetsch and scheduled a viewing for 9:30 a.m. as requested.

Overnight, a winter storm rolled through central Iowa leaving one inch of snow and icy roads. DeSousa texted her mother about the weather before visiting the Fynaardt home. She told her that she wouldn't leave for Omaha as early as planned because of icy roads and a winter weather advisory that was in effect until noon that day. But DeSousa kept her appointment to visit the Fynaardt home.

When DeSousa arrived, her agent was already there, having parked her vehicle in the driveway. Goetsch was not present. DeSousa's significant other


parked their pickup truck in the driveway. DeSousa grabbed her coffee and got out of the truck. When she stepped forward on the driveway she slipped on ice and sustained injuries from the resulting fall.

On July 1, 2020, DeSousa filed a petition in the Dallas County District Court seeking damages. An amended petition filed sixteen days later named both the Fynaardts and Iowa Realty as defendants. As amended, the petition alleged that the defendants were negligent because they failed to provide adequate warning about the icy driveway and failed to remedy a hazardous condition that they had created.

Iowa Realty moved for summary judgment on January 4, 2021, arguing that it owed no duty to DeSousa because it did not own or possess the property, it had not invited DeSousa to the property, and none of Iowa Realty's agents were present when the slip-and-fall occurred. Iowa Realty also argued that the danger in question had been open and obvious. DeSousa resisted, contending that "there [wa]s a genuine issue of material fact as to whether Iowa Realty exercised any control over the property after they were contracted to sell the house."

A hearing on the summary judgment motion was held by video conference on February 9. Two days later, the court issued an order deferring ruling on the motion. Instead, it directed the parties to submit supplemental briefs on how Thompson v. Kaczinski and its progeny applied to the facts of the case. 774 N.W.2d 829 (Iowa 2009).

At this point, the parties took the deposition of Matthew Fynaardt. Matthew testified that he did not know when a potential buyer would visit the


Waukee house; Goetsch handled all of the scheduling. According to Matthew, if Goetsch was showing the home to a potential buyer, Goetsch would prepare the home to "make sure it was ready for whoever was to come." He further explained, "If anything needed to be upkept . . ., whether it's snowing out and shoes were walking in the house, he would clean up the floors, to if the driveway needed to be scooped or just the walkway or path to the house, that he would take care of that for us." But if the potential buyer's agent was the one showing the home, Matthew understood that it was his own responsibility to clear off any snow and ice after a winter storm had passed.[1] Matthew further testified that he had ownership and control of the property. Matthew acknowledged that Goetsch did not have the right to make personal use of the property, make changes to the property, or be on the property without Matthew's approval. On March 5, the parties filed their supplemental briefs and provided a transcript of Matthew's deposition.

On April 17, the district court entered a ruling denying Iowa Realty's motion for summary judgment. It reasoned as follows:

The property where this incident occurred was owned by the Fynaardt[s], but they were not occupying this residence on the day Plaintiff allegedly sustained her injuries. A reasonable juror could find that the Fynaardt[s] were unaware that the property was being shown to prospective buyers on that day, that Iowa Realty knew or should have known that the exterior walkways or driveway were slick, and that Iowa Realty should have exercised reasonable care to
ensure they were safe. Under Thompson v. Kaczinski, 7[7]4 N.W.2d 829 (Iowa 2009), summary judgment based on the argument that Iowa Realty owed Plaintiff no duty of reasonable care would be inappropriate.
Iowa Realty sought interlocutory review of this decision, and we granted that request.

On appeal, both parties focus their arguments on premises liability and whether Iowa Realty possessed the property. Iowa Realty does not argue that the danger to DeSousa was open and obvious; DeSousa does not contend that Iowa Realty's conduct created a risk to her safety. The fighting issue is whether a sales agent has a duty to protect prospective buyers from hazards on a property they are listing for sale. If no such duty exists, summary judgment should have been granted for Iowa Realty. We have retained the appeal.

III. Standard of Review.

Summary judgment is appropriate when "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Iowa R. Civ. P. 1.981(3). "We review a trial court's grant of summary judgment for correction of errors at law." Morris v. Legends Fieldhouse Bar & Grill, LLC, 958 N.W.2d 817, 821 (Iowa 2021) (quoting Van Fossen v. MidAmerican Energy Co., 777 N.W.2d 689, 692 (Iowa 2009)). In doing so, we "view the facts in the light most favorable to the nonmoving party." Id. (quoting Van Fossen, 777 N.W.2d at 692).

"While summary adjudication is rarely appropriate in negligence cases, the determination of whether a duty is owed under particular circumstances is a


matter of law for the court's determination." Id. (quoting Hoyt v. Gutterz Bowl & Lounge, L.L.C., 829 N.W.2d 772, 775 (Iowa 2013)).

IV. Analysis.

"An actionable negligence claim requires 'the existence of a duty to conform to a standard of conduct to protect others, a failure to conform to that standard, proximate cause, and damages.'" McCormick v. Nikkel & Assocs., Inc., 819 N.W.2d 368, 371 (Iowa 2012) (quoting Thompson, 774 N.W.2d at 834). Here, we must determine whether Iowa Realty owed a duty to protect DeSousa from the wintry hazards present on the Fynaardts' driveway. The district court held that a "reasonable juror could find that . . . Iowa Realty should have exercised reasonable care to ensure [the driveway was] safe." But whether such a duty exists is a question of law to be decided by the court. See id. ("Whether a duty arises out of a given relationship is a matter of law for the...

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