Who’s responsible for locksmith costs when a real estate agent has keys stolen?

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Who’s responsible for locksmith costs when a real estate agent has keys stolen?

My real estate agent’s house was broken into over the holiday weekend. My keys, along with keys to all her listed properties were in a purse that was stolen. She assured me that street names were not attached to keys, only address numbers. Her business cards (with the URL to the listing site) were. Because my keys, and information that could easily lead them to my property were in the possession of thieves, I hired a locksmith to re-key all exterior locks. My cost was $325.. The brokerage is now saying they are not liable for that cost. Should I sue them in small claims?

Asked on January 4, 2012 under Real Estate Law, Rhode Island

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

An employer is liable for the negligence of an employee which occurs during the course and scope of employment.  If the real estate agent is an employee of the brokerage, then you could name the brokerage and the real estate agent in a lawsuit for negligence.  If the real estate agent is an independent contractor and not an employee, then the brokerage is NOT liable for actions of an independent contractor.  You could still sue the real estate agent for negligence.

Negligence is the failure to exercise due care (that degree of care that in this case a reasonable real estate agent would have exercised under the same or similar circumstances to prevent foreseeable harm).  In order to prove negligence, you will need to prove duty (of due care mentioned above), breach of duty (failure to exercise due care by not keeping the client information secure), actual cause, proximate cause and damages.

Actual cause means but for the real estate agent not keeping the client information in a secure location, would you have incurred the locksmith expense?  If the answer is no, which appears to be the case, actual cause has been established.

Proximate cause means were there any unforeseeable, intervening acts which would relieve the real estate agent of liability?  If the burglary and theft of the purse from the real estate agent's home was unforeseeable, then she would be relieved of liability.  You could argue that since she kept all of this information in her purse, instead of in a secure location at the brokerage, it is foreseeable the purse could have been stolen and therefore, proximate cause is established and she remains liable for negligence.

Damages means the amount of compensation you are seeking in your lawsuit.  Your damages would be the locksmith's bill and court costs in Small Claims Court.  Your court costs would include the court filing fee and process server fee.


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