Miller v. Fickett
Miller v. Fickett
Opinion of the Court
The plaintiffs appeal from a separate and final (summary) judgment entered in favor of Remax New Horizons (Remax) and Suanne DeFrancesco on a twenty-five count complaint.
DeFrancesco and her principal, Remax, were acting as sales agents for Darryl and Kathleen Fickett, the owners of a house
DeFrancesco and Remax, as brokers for the owners showing the house to prospective buyers, owed the potential buyers who visited the premises the common-law duty to warn such persons of any unreasonable danger of which Remax or DeFrancesco were aware.
The purpose of warning of nonobvious or unreasonable dangers to persons in the position of the plaintiffs is to provide such persons with the opportunity to “decide intelligently whether or not to accept the invitation, . . . [or, alternatively, to] protect himself against the danger if he does accept it.” Restatement (Second) of Torts § 343 comment b (1965). See Restatement (Third) of Torts: General Principles § 16 comment b (Discussion Draft 1999) (a warning “benefits the person by enabling the person to make an informed choice”).
The affidavit of Jeffrey Miller, father of four year old Rachel Miller, the victim, filed in opposition to the motion for summary judgment, acknowledged that DeFrancesco told him that “there were dangerous and vicious dogs on the property and that she had had prior showings [of the property] where there were problems. She also stated that she was nervous about the dogs herself. [T]here was a dangerous condition [at the premises].”
Miller’s position at trial and here is that, in these circum
Miller’s affidavit continued. Shortly after their entry into the house, they were confronted directly by one of the dogs: their attempt to see the basement area was blocked by a male Dalmatian. The plaintiffs pressed on. The tenant told Miller to open the “back door” to let the dogs out into the yard. Miller complied. After seeing the basement (presumably), the plaintiffs left the house through the “back door” — presumably the same “back door” through which the dogs had been let out by Miller’s own hand — their purpose being, according to Miller, “to see the porch and backyard.”
A reasonable person of ordinary intelligence would have known that by proceeding into the backyard the plaintiffs were exposing themselves — and in particular four year old Rachel, whose movements could be expected to be unpredictable, see Scott v. Thompson, 5 Mass. App. Ct. 372, 375 (1977) — to the risk of an attack by a “vicious” dog, and no warning by anybody of that obvious risk was necessary. See Davis v. Westwood Group, 420 Mass. at 743 n.9.
We conclude that the judgment must be affirmed as to the plaintiffs Jeffrey Miller and Dorothy Miller, individually.
The negligent conduct of the parents may not be imputed to their daughter Rachel. See G. L. c. 231, § 85D. As to Rachel, then, a mere verbal warning might well be inadequate to protect
Judgment affirmed.
The claims against Darryl Fickett and Kathleen Fickett were separately decided by summary judgment in favor of the defendants. The judgment has been affirmed in a memorandum of opinion, post 1122 (2000), issued pursuant to Appeals Court Rule 1:28, as amended, 46 Mass. App. Ct. 1001 (1998).
We express no opinion as to whether the duty to warn of known dangers is the full measure of a broker’s duty to prospective buyers.
The affidavit of DeFrancesco states that she told the tenant of the property to be sure that the dogs the tenant owned were “either in the cellar or tied in the backyard.” Miller’s affidavit does not assert that he was told of De-
Miller’s affidavit is silent as to what precautions, if any, he took to protect his four year old daughter.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.