Summary
holding that "[t]he stigma" arising from a recent, unsolved rape that occurred in the home constituted an "intangible ... defect" the seller was required to disclose
Summary of this case from Marcantel v. Michael & Sonja Saltman Family Tr.Opinion
No. CV92-05-0957.
Decided July 29, 1993.
F. Harrison Green, for plaintiff.
Thompson, Hine Flory and Renee S. Filatraut, for defendants Realty World, William Campbell and Martin Patton.
Mark G. Gambill, for defendants West Shell, Inc. and Robert Hoff.
This matter comes before this court on three motions filed by the defendants. The defendants in this case are Connie Bradford, the original owner/seller; Campbell Realty World (hereinafter "Realty World"), the selling/listing agency; William Campbell, the owner of Realty World; Martin Patton, the agent of Realty World; West Shell Realtors, Inc., the cooperating agency (hereinafter "West Shell"); and Robert Hoff, the cooperating agent of West Shell. Counsel have agreed that these motions are to be treated as Civ.R. 56(C) motions for summary judgment.
I
This case arises from the sale of a residence located at 6027 Arcade Drive, Fairfield, Ohio. On or about October 30, 1991, a renter's daughter was raped at knifepoint in the residence owned by defendant Bradford. On or about December 20, 1991, another rape occurred in a neighboring home at 2499 E. Highland Drive; that same day, defendant Bradford listed the house for sale with defendant Realty World.
Plaintiff Kitty Van Camp submitted a written offer to purchase the home on February 4, 1992. Before closing and during a walk-through inspection of the premises with defendant Bradford, and defendant Patton and defendant Hoff present, plaintiff noticed bars on the basement windows. In response to plaintiff's inquiry regarding the purpose and necessity of the bars on the windows, defendant Bradford stated that a break-in had occurred sixteen years earlier, but that there was currently no problem with the residence. Plaintiff stated that she would like to remove the bars for cosmetic purposes, but Bradford advised her not to do so, as it was in plaintiff's best interests to leave the bars in place.
The closing on the property took place on February 21, 1992. At this time, the perpetrator of the crimes was still at large. While moving into the home, a neighbor informed plaintiff that the daughter of the last occupant had been raped in October, and that another brutal rape had occurred shortly before Christmas, in 1991. Two more rapes occurred in June and August 1992 at a nearby home, 5886 Coachmont Drive, Fairfield. Plaintiff's house was burglarized on April 8, 1992, and threatening phone calls were received by plaintiff in July 1992. Police reports submitted by plaintiff confirm that all of these crimes did in fact take place.
Plaintiff, after being informed of the rapes in her home and the surrounding neighborhood, confronted defendant Campbell, who acknowledged that he, defendant Patton, and defendant Hoff were all aware of the rapes, including the rape at the subject property.
Plaintiff filed her complaint on May 25, 1992, alleging that the defendants knew of the unsafe character of the residence and neighborhood, failed to disclose, and concealed these material facts, which would have influenced her decision to buy the property. Plaintiff seeks damages from all defendants for mental stress and anguish, for the decreased value of the property, for fraud and negligence, and for equitable relief.
The defendants have filed for summary judgment, arguing primarily that the doctrine of caveat emptor is a complete defense in a suit seeking recovery for the "stigma" attached to or the "psychological impairment" of a piece of property. Defendants also claim that a cause of action for property defects that are neither a physical or legal impairment does not exist in Ohio.
II
The rule that a seller is generally under no duty to disclose material facts about the subject matter of a sale unless a specific exception exists originates from the doctrine of caveat emptor. Powell, The Seller's Duty to Disclose in Sales of Commercial Property (Summer 1990), 28 Am.Bus.L.J. 245, at 248. At least since 1956, the principle of caveat emptor has been consistently applied in Ohio to sales of real estate relative to conditions discoverable by the buyer, or open to observation upon an investigation of the property. Traverse v. Long (1956), 165 Ohio St. 249, 59 O.O. 325, 135 N.E.2d 256. One of the earliest Ohio cases upholding this principle held that since repairs to an area of filled-in land were clearly visible upon inspection, the plaintiffs knew of the defect and caveat emptor was an applicable defense to their claim. Id. Similarly, in 1974, the Franklin County Court of Appeals held that since the seller generally has no affirmative duty to disclose patent material defects, the defendants were not liable for failing to disclose that the residence in question was serviced by well water and not city water, since the well itself and the defects in the well were both readily observable. Klott v. Assoc. Real Estate (1974), 41 Ohio App.2d 118, 121, 70 O.O.2d 129, 131, 322 N.E.2d 690, 692.
Five years later, however, the Supreme Court of Ohio held that latent defects do give rise to a duty on the part of the seller, and constitute an exception to the application of caveat emptor. Miles v. McSwegin (1979), 58 Ohio St.2d 97, 100, 12 O.O.3d 108, 110, 388 N.E.2d 1367, 1369. When latent defects are coupled with misrepresentations or concealment, the doctrine of caveat emptor does not preclude recovery for fraud. Finomore v. Epstein (1984), 18 Ohio App.3d 88, 18 OBR 403, 481 N.E.2d 1193. Fraudulent concealment exists where a vendor fails to disclose sources of peril of which he is aware, if such a source is not discoverable by the vendee. Klott, 41 Ohio App.2d at 121, 70 O.O.2d at 131, 322 N.E.2d at 692. Thus, the Supreme Court of Ohio held that the plaintiffs could sue for termites discovered after the real estate agent made the representation that the house was a "good solid home," especially since the seller was personally aware of the problem prior to the sale. See Miles. The nature of the defect and the ability of the parties to determine through a reasonable inspection that a defect exists are key to determining whether or not the defect is latent. Id., 58 Ohio St.2d at 101, 12 O.O.3d at 110, 388 N.E.2d at 1369.
In the 1983 case of Kaye v. Buehrle, the Summit County Court of Appeals affirmed a directed verdict in favor of the defendants and upheld the validity of a real estate "as is" disclaimer clause. Kaye v. Buehrle (1983), 8 Ohio App.3d 381, 8 OBR 495, 457 N.E.2d 373. Such disclaimer clauses bar suit for passive nondisclosure, but will not protect a defendant from positive misrepresentation or concealment. Id. The court found, however, that the defendants did not make any statement or false representation regarding the condition of the basement, which suffered extensive flooding after the plaintiffs purchased the property.
The following year, the Cuyahoga County Court of Appeals held that caveat emptor did not preclude the purchaser of two tracts of land from recovering for fraud due to a latent defect in the form of a blemished title, since a misrepresentation had accompanied the latent defect. See Finomore. The plaintiff in that case testified that the owner had told him that the lots were "free and clear," yet the evidence indicated that a small mortgage on the property was outstanding at the time of the sale.
In contrast to the national trend, Ohio has recently upheld the doctrine of caveat emptor with regard to real estate sales. Layman v. Binns (1988), 35 Ohio St.3d 176, 519 N.E.2d 642 ("we are not disposed to abolish the doctrine of caveat emptor" and "[t]he doctrine of caveat emptor, although virtually abolished in the area of personal property, remains a viable rule of law in real estate sales"); see, also, Jones, Risk Allocation and the Sale of Defective Used Housing in Ohio — Should Silence Be Golden? (1991), 20 Cap.U.L.Rev. 215. Conditions traditionally limiting the application of the doctrine, however, were also vigorously upheld in the court's opinion: the property defect must be open to observation or discoverable upon a reasonable inspection, the purchaser must have an unimpeded opportunity to examine the property, and the vendor may not engage in fraud. Layman at 179, 519 N.E.2d at 645. The court held that, unlike a latent defect, the structural defect of the basement wall at issue was "highly visible," and the corrective I-beams supporting the wall were open to observation by the plaintiffs. The court further acknowledged that an affirmative misrepresentation or misstatement of a material fact by the sellers regarding the condition of the wall would have precluded the application of caveat emptor, but found that no such statement was made by the defendants during the transaction.
With the recent enactment of R.C. 5302.30, the Ohio legislature has taken a bold step toward ameliorating the harsh application of caveat emptor in even patent defect real estate transactions. For sales conducted on or after July 1, 1993, the statute requires a seller of residential property to provide each prospective buyer, or his/her agent, with a prescribed disclosure form regarding various aspects of the property. Even though the official disclosure form has not yet been formally established, preliminary drafts indicate that its purpose is to disclose material matters regarding not only the physical condition of the property, but also title, survey and other matters. Sidor, Ohio's New Seller Disclosure Law (May/June 1993), Ohio Lawyer, at 8. If the seller fails to provide the disclosure form, the statute grants the buyer the powerful remedy of rescission. With this initiative, the Ohio legislature has seriously undermined the doctrine of caveat emptor as previously applied.
Virtually all of the case law regarding the buyer's duties under caveat emptor focuses on physical property defects. Thus, the case at bar is unique in that it presents issues regarding duty and liability for a so-called psychological defect in the property, namely, that the property was rendered unsafe for habitation by the plaintiff due to the serious crimes that had occurred in and near the residence.
The stigma associated with the residence at 6027 Arcade Drive is analogous to the latent property defects that have become an exception to the strict application of caveat emptor. Due to the intangible nature of the defect at issue here, a prospective buyer would have been unable to determine from a walk-through of the house in 1992 that it was the site of a serious, unsolved violent crime. Clearly, any psychological stigma that may be attached to a residence is even more undiscoverable than the existence of termites in a home, see Miles, or a defect in the title to the property, see Finomore, both of which have been deemed latent defects despite the fact that they could have been discovered through a professional inspection or title search.
Defendants' argument that the defect at issue here was readily discoverable lacks merit. Checking police records in order to ascertain the relative safety of a neighborhood or a particular residence would not be an action undertaken by even the most prudent of purchasers. When viewed in conjunction with a potential misrepresentation or concealment on the part of defendant Bradford regarding the relative safety of the home, the latent nature of the defect at issue here renders the defense of caveat emptor inapplicable.
III
The case sub judice raises the question whether Ohio should recognize a cause of action for residential property tainted by stigmatizing events that have occurred on and near the premises. The only reported case involving a psychological property defect was heard in California by the Third District Court of Appeals, and involved a house that had been the site of multiple murders ten years prior to its sale to the plaintiff. Reed v. King (1983), 145 Cal.App.3d 261, 193 Cal.Rptr. 130. The Third District held that the plaintiff buyer did have a cause of action capable of surviving the seller's motion to dismiss. The determinative issue in that case was whether the failure to disclose the murders was material. Id.
The California court "saw no principled basis for making the duty to disclose turn upon the character of the information," and held that the failure to disclose the murders was a material fact that could conceivably depress the value of the property. Id. at 267, 193 Cal.Rptr. at 133. The Third District then stated that the plaintiff could recover in her suit for rescission and damages if she was successful in proving the allegation that the murders did in fact cause a measurable decrease in the market value of the property.
For an interesting discussion and analysis of this case, see Note, Reed v. King: Fraudulent Nondisclosure of a Multiple Murder in a Real Estate Transaction (1984), 45 U.Pitt.L.Rev. 877.
The unreported opinion in Brannon v. Mueller Realty Notaries (Oct. 24, 1984), Hamilton App. No. C-830876, unreported, 1984 WL 7018, is the only Ohio decision that deals with a defect that is neither a legal nor physical impairment of property. The husband of defendant Constance Barrett had committed suicide in their home prior to its sale to the plaintiffs. In response to Linda Brannon's inquiry regarding the whereabouts of the owners, the real estate agent reportedly answered that Constance Barrett and her family moved out of the house after her husband died of an unexpected heart attack.
The Hamilton County Court of Appeals analyzed the case by discussing the elements required in order to prove fraudulent inducement warranting rescission, namely misrepresentation or concealment of a material fact that justifiably induced the party to enter into the bargain to his/her detriment. Brannon at 7. Although the court acknowledged that the agent had misrepresented the facts, the plaintiffs' claim nevertheless failed, since the court determined that the nature by which a former owner died was not a material misrepresentation that would affect the conduct of a reasonable person attempting to purchase. Brannon at 8. Further, the court noted that even though Gerald Brannon was ignorant regarding the suicide until a month after the transfer, Linda Brannon had full knowledge of the suicide prior to signing the contract, and therefore the agent's misrepresentation could not have induced her decision to effect the sale. Brannon at 6.
By engaging in this analysis, an Ohio Court of Appeals has tacitly asserted that a remedy for stigmatized residential property is available in certain circumstances. This de facto recognition of a cause of action for psychologically tainted property is the natural culmination of the trend regarding property disclosure in Ohio, and will be upheld by this court.
For an excellent summary of the trend regarding nondisclosure and caveat emptor in Ohio, see Kafker (1986), Sell and Tell: The Fall and Revival of the Rule on Nondisclosure in Sales of Used Real Property, 12 U.Dayton L.Rev. 57, 63-65.
IV
Clearly defining the cause of action for stigmatized property is necessary in order to protect the stability of contracts and prevent limitless recovery for insubstantial harms and irrational fears: misrepresentation, concealment or nondisclosure of a material fact by a seller of residential property in response to an affirmative inquiry is evidence of a breach of duty on the part of the seller. After inquiry, if the buyer justifiably relied on the misrepresentation or nondisclosure, or was induced or misled into effecting the sale to his/her detriment and damage, the buyer has met the burden of proof required to withstand a summary judgment motion.
Fraud may be committed by suppression or concealment, as well as by expression of a falsehood. Klott, 41 Ohio App.2d at 121, 70 O.O.2d at 131, 322 N.E.2d at 692 (citing 24 Ohio Jurisprudence 2d [1957] 676, Fraud and Deceit, Section 74). Even an innocent misrepresentation may, under the appropriate circumstances, justify rescission in the interests of fairness. Brannon at 7.
The misrepresentation, however, must be regarding a material fact. As adopted by the Brannon court, a misrepresentation of fact is material when it would be likely, under the circumstances, to affect the conduct of a reasonable person with reference to the transaction in question. Brannon at 8 (citing Restatement of the Law, Contracts [1932] 891, Section 470[2]). When determining whether or not a particular fact is material to the transaction at issue, the Brannon court highlighted the importance of augmenting this objective test with subjective considerations. When the individual making the misrepresentation is aware that the recipient is peculiarly disposed to attach importance to a particular subject, subjective considerations have a bearing on the subject matter; in such an instance, the misrepresentation should be deemed material, regardless of its significance to a reasonable person under similar circumstances. Brannon at 9.
When a seller receives an affirmative inquiry regarding the condition of a piece of property, the buyer is entitled to a truthful answer. In contrast to the holding in Klott v. Assoc. Real Estate, the defective-water-well case, in Foust v. Valleybrook Realty Co., the fact that the plaintiffs specifically inquired regarding the sanitary sewer system was the underpinning for the court's affirmance of the trial court's finding of fraud. See Foust v. Valleybrook Realty Co. (1981), 4 Ohio App.3d 164, 4 OBR 264, 446 N.E.2d 1122. One who responds to an inquiry is guilty of fraud if he gives equivocal, evasive or misleading answers calculated to convey a false impression, even though the answer may be literally true. 37 American Jurisprudence 2d (1968) 207, Fraud and Deceit, Section 150. Responding honestly to an affirmative inquiry regarding the condition of a residence is a lighter burden than the voluntary disclosure of a defect mandated by caveat emptor, particularly when knowledge of a stigmatizing defect is within the ready personal or actual knowledge of the seller at the time of the inquiry.
The misrepresentation or nondisclosure of the seller must cause justifiable reliance on the part of the buyer, and damage must result as a consequence of the fraudulent transaction. Both of these requirements will serve as effective limitations on seller liability and will function to prevent the bringing of meritless claims. In determining whether reliance is justifiable, courts consider the various circumstances involved, such as the nature of the transaction, the form and materiality of the representation, the relationship of the parties, the respective intelligence, experience, age, and mental and physical condition of the parties, and their respective knowledge and means of knowledge. Finomore, 18 Ohio App.3d at 90, 18 OBR at 405-406, 481 N.E.2d at 1195. When a fiduciary relationship exists, as between a realty agent and a client, the client is entitled to rely upon the representations of the realty agent. Id.; see, also, Foust. In the absence of a fiduciary relationship, the law requires a person to exercise proper vigilance in his dealings, so that where one is put on notice as to any doubt as to the truth of a representation, the person is under a duty to reasonably investigate before relying thereon. Id., 4 Ohio App.3d at 165, 4 OBR at 265, 446 N.E.2d at 1124. The prevailing trend in misrepresentation cases, however, is to place a minimal duty on the buyer to investigate and discover the true facts about the property. See Powell, supra, at 258.
A seller who is under a duty to disclose facts and fails to do so will be held liable for damages directly and proximately resulting from his silence. See, e.g., Kaye, 8 Ohio App.3d at 382, 8 OBR at 495, 457 N.E.2d at 375; Miles, 58 Ohio St.2d at 100, 12 O.O.3d at 110, 388 N.E.2d at 1369. A person injured by fraud is entitled to such damages as will fairly compensate him for the wrong suffered. See Foust, 4 Ohio App.3d at 166, 4 OBR at 266, 446 N.E.2d at 1125 (citing 25 Ohio Jurisprudence 2d [1957] 32, Fraud and Deceit, Section 201). As an additional safeguard, objective tangible harm must be demonstrated to still the concern that permitting cases of this nature to go forward will open the floodgates to rescission on subjective and idiosyncratic grounds. Accord Reed, 145 Cal.App.3d at 268, 193 Cal.Rptr. at 134.
V
The defendants in this case have argued that the prevailing trend across the nation regarding property disclosure is evidenced by the nondisclosure statutes that have been enacted in twenty states and the District of Columbia. Defendants also contend that these statutes imply that a cause of action for tainted property in Ohio is necessarily barred.
California (Cal.Civ. Code 1710.2); Colorado (C.R.S. 38-35.5-101); Connecticut (Conn.Gen. Stats. 20-329cc et seq.); Delaware ( 24 Del.C. 2929); District of Columbia (D.C. Code 45-1936); Illinois (Ill.Rev.Stat. ch. 111, ¶ 5831.1); Georgia (O.C.G.A. 44-1-16); Louisiana (La.R.S. 37:1468); Maryland (Md. Code Ann., Business Occupations and Professions, 16-322.1 and Real Property, 2-120); Missouri (R.S.Mo. 442.600); Nevada (Nev.Rev.Stat. 40.565); New Mexico (N.M.Stat.Ann. 47-13-2); North Carolina (N.C.Gen.Stat. 39-50); Oklahoma (59 Okla.St. 858-513); Oregon (O.R.S. 93.275); Rhode Island (R.I.Gen. Laws 5-20.8-6); South Carolina (S.C.Ann. 40-57-270); Tennessee (Tenn. Code Ann. 66-5-110); Utah (Utah Code Ann. 57-1-37); Virginia (Va. Code Ann. 55-524), and Wisconsin (Wis.Stat. 452.23).
These statutes generally state that sellers of real estate are not liable for failing to disclose stigmatizing events, such as the fact that a homicide, suicide, felony or death by AIDS occurred in the residence. Ohio has not adopted a nondisclosure statute of this nature.
For more information regarding nondisclosure statutes, see McEvoy (Jan./Feb. 1992), Stigmatized Property: What a Buyer Should Know, 48 J.Mo.Bar 57.
It is the opinion of this court that the nondisclosure statutes as enacted in other states still require a good faith response to an inquiry regarding a potential psychological impairment: these statutes were enacted solely to insulate sellers from liability for any failure to voluntarily and automatically disclose information regarding potential stigmas associated with property. As aptly stated by Representative Prague during the public hearings discussing Connecticut's newly adopted nondisclosure statute, "It seems to me that anybody selling a house would have to answer truthfully when a buyer asks a question. I mean, why should we tell you what the realtor should say or shouldn't say, or should reveal and shouldn't reveal. He should reveal anything that is asked of him." See AN ACT CONCERNING PSYCHOLOGICALLY IMPACTED PROPERTY, hearings on S.B. 390 before the Insurance and Real Estate Committee Hearings, Conn. General Assembly, March 6, 1990, at 254.
Nondisclosure statutes are not designed to allow sellers to make false representations regarding property defects in response to affirmative questioning by the buyer. In fact, the statutes enacted in Rhode Island, South Carolina and Georgia specifically state that the nondisclosure provision is not to be interpreted as authorization for an agent to make any misrepresentation of fact or a false statement. In addition, two other statutes contain a specific provision that codifies Brannon's "peculiarly disposed" concept whereby subjective considerations may make a fact material with regard to a particular transaction: in Connecticut or Oklahoma, if in the process of making an offer, a purchaser or lessee advises an owner in writing that knowledge of a psychological impact is important to his decision to purchase, the owner through his agent shall report in writing any findings to the purchaser or lessee. See Conn.Gen.Stats. 20-329cc et seq.; 59 Okla.Stat. 858-513. In fact, the burden on the real estate agent under this type of statute is potentially greater than the minimal duty imposed by this court in that, once asked, an agent in Connecticut or Oklahoma potentially has the affirmative duty to seek out from the seller the information sought by the buyer, rather than merely disclosing his or her actual knowledge without the duty of further inquiry.
For example, Rhode Island's statute reads: "* * * under no circumstances, shall this provision be interpreted as or used as authorization for an agent or seller to make any misrepresentation of fact or false statement." See R.I.Gen. Laws 5-20.8-6(B).
Thus, since the nondisclosure statutes of other states merely protect sellers from the burden of voluntary disclosure regarding psychological defects, and since several states have specific provisions designed to uphold honesty in residential sales transactions, the duty described in this opinion is well within the range delineated and envisioned by other state legislatures.
VI
A cause of action for stigmatized property, as previously defined and limited, is warranted in the case at bar. At this point, it is necessary to analyze the elements of the cause of action for stigmatized property in the context of the defendants' summary judgment motions, and in light of the facts of the case sub judice.
A motion for summary judgment shall be granted when there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law. Summary judgment shall not be granted unless it appears from the evidence that reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion is made. In reviewing a motion for summary judgment, the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the opposing party. Civ.R. 56(C); Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 4 O.O.3d 466, 364 N.E.2d 267.
Summary judgment is a procedural device to terminate litigation and to avoid a formal trial where there is nothing left to try. It must be awarded with caution, resolving doubts and construing evidence against the moving party, and granted only when it appears from the evidentiary material that reasonable minds can reach only an adverse conclusion as to the party opposing the motion. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1, 24 O.O.3d 1, 433 N.E.2d 615. Because summary judgment is a procedural device to terminate litigation, it must be awarded with caution. Doubts must be resolved in favor of the nonmoving party. Osborne v. Lyles (1992), 63 Ohio St.3d 326, 587 N.E.2d 825.
Construing the evidence in the light most favorable to the plaintiff, the court finds that the plaintiff has met her initial burden of proof. The court must accept plaintiff's evidence that a rape occurred in the residence at 6027 Arcade Drive, and that several other crimes occurred in close proximity to the property. Further, the court must accept plaintiff's allegation that all of the defendants involved knew that these crimes had occurred, yet failed to disclose this knowledge to the plaintiff.
Reasonable minds could construe the plaintiff's question regarding the bars on the basement windows as an affirmative inquiry directed at ascertaining the safety of the premises, and defendant Bradford's statements regarding the reason for the bars to be a misrepresentation or a nondisclosure of their current purpose. Upon the plaintiff's inquiry, defendant Bradford was simply required to tell the truth. A more difficult case would arise had there been no evidence to indicate that the plaintiff had solicited information regarding the safety of the residence.
Further, both the plaintiff and defendant Bradford are single mothers with teenage daughters. This fact alone may be sufficient to make disclosure of the rape a material fact with regard to the sale of the property at Arcade Drive, or at least may be sufficient to demonstrate that defendant Bradford should have known that the plaintiff was "peculiarly disposed" to attach importance to the subject of female-targeted crimes. Thus, a potential misrepresentation in response to plaintiff's affirmative inquiry regarding a material fact placed a duty of honesty upon the seller, and plaintiff has shouldered her initial burden in coming forward.
Numerous questions of material fact remain regarding the conversation that took place between plaintiff and defendant Bradford, and these questions preclude a granting of summary judgment. Trial is necessary to at least determine (1) whether the plaintiff did in fact inquire regarding the safety of the premises; (2) whether defendant Bradford did in fact misrepresent or fail to disclose a material fact; (3) whether plaintiff relied upon defendant Bradford's representations regarding the safety of the residence when deciding to purchase the property at 6027 Arcade Drive; (4) whether plaintiff was put on notice that there was a potential problem regarding the safety of the residence; (5) whether plaintiff reasonably conducted her duty of inspection and further inquiry when examining the property for defects; and (6) the extent and nature of plaintiff's damages. Since reasonable minds could easily come to differing conclusions regarding the evidence, defendant Bradford's motion for summary judgment is hereby DENIED.
By contrast, however, the court finds as a matter of law that the inquiry of plaintiff was directed solely to the homeowner, defendant Bradford: she alone responded to plaintiff's question regarding the safety of the residence. The real estate defendants had no duty to affirmatively speak up and disclose their knowledge of the crimes simply because they were in the room at the time the inquiry was made. Had the real estate agents similarly misrepresented or failed to disclose a material fact upon an inquiry directed to them, summary judgment in their favor would not be warranted. Even construing the facts in the light most favorable to the plaintiff, however, the court must nevertheless find that this factually distinguishable situation simply did not transpire in this case. Thus, since reasonable minds could come to but one conclusion regarding the evidence, and that conclusion is adverse to the plaintiff, the summary judgment motions of defendants Realty World, Campbell, Patton, and defendants West Shell and Hoff are hereby GRANTED.
So ordered.