The case in question is Wheatley v. Howard Hanna Real Estate Servs., 2015-Ohio-2196 (9th Dist.
Ct. of App., Lorain Cty.), which was decided on June 8, 2015. The homeowner, Rhonda Wheatley, listed her
home through Linda Shubeck, an agent with Howard Hanna. Mrs. Shubeck scheduled
an open house that targeted other realtors. However, the advertising yard signs
did not include a “brokers-only” designation and Mrs. Shubeck did not inform
Mrs. Wheatley that members of the public may show up during the open house. In
Mrs. Shubeck’s defense, she did caution Mrs. Wheatley to secure any valuables
that were out in the open in the house. She also set up her information desk
for the open house at a location where she could observe the foyer.
After the open house, Howard Hanna learned of several thefts
that had occurred during other open house events. This prompted Mrs. Shubeck to call Mrs.
Wheatley, who discovered that almost all of her jewelry was missing, valued
over $50,000. She blamed it on a member
of the public named “Sam” who arrived during
the open house, although to my knowledge, it was never proven that the jewelry
was stole during the open house, let alone by “Sam” that she alleges.
Litigation followed and the jury found in favor of Howard
Hanna and Mrs. Shubeck. Mrs. Wheatley appealed. The appellate court sided with
the trial court and denied Mrs. Wheatley’s appeals.
No one disputed that Howard Hanna and Mrs. Shubeck owed Mrs.
Wheatley a duty of care. The jury, in looking at the facts in this case, found
that the defendants did not breach that duty.
While the open house was communicated to Mrs. Wheatley as a broker’s
only event, she was present during the first part of the open house, saw that members
of the public showed up (including the individual named “Sam,”) without objecting,
and even felt comfortable enough with the situation at the time to leave the house
while he and others were still there. Further, Mrs. Shubeck expressly advised
Mrs. Wheatley to remove valuables from the open and walked through the house
prior to anyone arriving to confirm that nothing valuable was plainly visible. When
the alleged thief, “Sam,” arrived, Mrs. Shubeck accompanied him around the house
while he toured it. Finally, while Mrs. Wheatley had put her jewelry in her
safe, she didn’t bother to lock it, and further never advised her realtor of
the existence of the safe.
As a result of all of the foregoing, the appellate court
found that credible, competent evidence was offered to show that Howard Hanna
and Mrs. Shubeck did not breach their duty to Mrs. Wheatley.
While the brokerage and its agent were vindicated in this
case, I’m sure the expense in defending against this litigation was substantial. What we can learn from this is to take better
care in what is communicated to homeowners. If members of the public, while not
specifically encouraged, will be permitted to remain and tour the home, then
the homeowner should be advised of this. Furthermore, an agent may want to
question a homeowner more closely regarding what valuables are present in the
house so additional care can be taken to ensure they are secured.
As the old saying goes, “an ounce of prevention is worth a
pound of cure.”
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