Can a listing firm be liable for floor damaged at an open house?

QUESTION: This past weekend I hosted an open house for one of my listings. Lots of potential buyers attended. At one point during the event, I walked upstairs with a prospective buyer, and I heard someone enter the front door. As I made my way down, I heard a strange noise being made on the hardwood floor. One of the guests was using a walker that was scratching the floor. We found the walker’s missing plastic foot on the front steps and refitted it, but the floor suffered significant damage right in the middle of the hall.

When I told the seller what happened, he blamed me for not being at the front door to greet the guests. He is demanding that I pay for the floor repair even though he authorized open houses in the listing agreement. Do I have to pay to fix the floor?

ANSWER: No. Paragraph 10 of Standard Form 101 (“Exclusive Right to Sell Listing Agreement”) explains to the seller that there are risks associated with showing a home that are not within the reasonable control of the listing firm. Form 101 lists a few of those risks, “including, but not limited to . . . control of visitors during or after a showing or an open house, including the taking and use of photographs and videos of the Property[.]”

Paragraph 10 of Form 101 provides that due to these inherent risks, the seller “agrees to release and discharge Firm and Firm’s agents from any and all claims, demands, rights and causes of action of whatsoever kind and nature not caused by Firm’s negligence arising directly or indirectly out of any such marketing services.” Based on the facts here, it does not sound like the damage occurred as a result of your negligence. This means you and the firm have a good defense to raise in response to the seller’s claim for damages.