Background
David Hurd, owner of a Newport waterfront condominium, hired H & H Real Estate (operating as Hogan Associates) through agent Kevan Campbell to find a tenant. The broker presented Cynthia Dziurgot as a prospective tenant, and Hurd executed a lease from November 1, 2019 through April 30, 2020. Dziurgot paid rent through March 2020 but failed to pay April’s rent and refused to vacate. Due to the COVID-19 eviction moratorium, Hurd could not regain possession until October 2020, when he obtained a judgment for possession, $30,500 in back rent, and court costs.
Hurd subsequently sued for breach of contract and negligence, claiming the defendants should have conducted an internet search that would have revealed Dziurgot was a disbarred attorney with serious legal and criminal history, including misappropriation of client funds, contempt convictions with jail time, perjury findings, and frivolous bankruptcy filings. Hurd conceded the defendants had performed a credit and criminal background check but contended this was insufficient without an internet search.
Hurd disclosed an expert witness—a licensed real estate professional—to testify that industry practice includes conducting internet searches before presenting candidates to clients. However, after the plaintiff repeatedly failed to produce the expert for deposition, the court precluded any expert testimony. The defendants moved for summary judgment, arguing expert testimony was necessary to establish the applicable standard of care for real estate professionals. Hurd countered that the internet-search requirement fell within the “common knowledge” exception to the expert testimony requirement. The Superior Court granted summary judgment for defendants.
The Court’s Holding
The Rhode Island Supreme Court affirmed, holding that expert testimony is required to establish whether real estate professionals have a duty to perform internet searches on prospective tenants. The court reasoned that real estate professionals are state-licensed and regulated professionals with specialized knowledge and skills beyond the common knowledge of laypeople. Like medical doctors and attorneys, which are regulated professions, real estate professionals must demonstrate knowledge of state statutes, real estate law, and fair housing laws. Because laypersons do not have this specialized knowledge or experience, expert testimony is generally required to establish the existence of a duty, breach of that duty, and proximate causation in negligence actions against such professionals.
The court acknowledged a “common knowledge” exception applies when a matter is so obvious that a layperson can understand it—such as the well-known example that a surgeon should not leave an instrument inside a patient. However, whether a real estate professional should perform an internet search as part of a background check does not fall within common knowledge. The court noted that neither ordinary jurors nor judges conduct such background checks in their everyday experience, and therefore they cannot determine whether the defendants’ conduct—performing a credit and criminal check but not an internet search—breached the standard of care without expert guidance on what a “reasonably prudent” real estate professional would do.
The court also emphasized that allowing negligence liability without expert testimony would create unresolved policy questions: Which search engines should be used? How extensive should searches be? How can brokers confirm the veracity of online information? When is a search complete? The court concluded that such regulatory and policy determinations are matters for the Rhode Island General Assembly, not the courts.
Key Takeaways
- Expert testimony is required in negligence actions against real estate professionals to establish the applicable standard of care regarding the scope of background checks.
- The “common knowledge” exception to the expert testimony requirement is narrow and applies only to matters obviously within a layperson’s understanding; specialized professional practices do not qualify.
- Courts will not adjudicate professional standards that implicate legislative policy and regulatory authority; such matters must be addressed through statutory regulation.
Why It Matters
This decision clarifies that real estate brokers and agents cannot be held liable for failing to conduct internet searches on prospective tenants without expert evidence that such searches are required by industry standards. The holding protects real estate professionals from negligence liability for alleged omissions in their background check procedures unless a plaintiff can produce expert testimony establishing that the standard practice includes internet searches. The decision reaffirms the principle that professional negligence claims require expert testimony when the applicable standard of care falls outside ordinary experience.
More broadly, the decision delineates the boundary between judicial and legislative authority. The court declined to craft new professional duties through case law, instead directing the plaintiff toward the General Assembly if statutory requirements for real estate professional conduct should be amended. This separation-of-powers analysis reflects the court’s view that expanding professional duties via judicial decision-making—rather than through legislative regulation—would be inappropriate policymaking.