Background
David Hurd, as trustee, owned a waterfront condominium at 3 Kirwin’s Lane in Newport, Rhode Island. He retained H & H Real Estate, LLC, doing business as Hogan Associates, and its agent Kevan Campbell, to find a suitable tenant. Hogan Associates produced Cynthia Dziurgot, a former attorney, and Hurd executed a lease with her for November 2019 through April 2020. Dziurgot paid rent through March 2020, stopped paying in April, and refused to vacate at the end of the term. Because of the COVID-19 eviction moratorium, Hurd was unable to evict her until October 2020, ultimately obtaining a judgment for possession and $30,500 in back rent.
Hurd sued Hogan Associates and Campbell in Newport County Superior Court on four counts: breach of contract (producing an unsuitable tenant) and professional negligence (failing to adequately screen the tenant). The alleged negligence centered on defendants’ failure to conduct a basic internet search of Dziurgot—a search that, Hurd claimed, would have revealed she was a disbarred attorney who had misappropriated client funds on four occasions, been held in contempt twice with jail sentences, submitted false documents to courts, and had active arrest warrants. Hurd disclosed an expert witness—a licensed Rhode Island real estate professional—to testify about the applicable standard of care. After repeated postponements of the expert’s deposition, the Superior Court entered a consent order giving Hurd a final thirty-day window to produce the expert. When that deadline passed without production, defendants moved for summary judgment.
The hearing justice granted summary judgment after precluding all expert testimony as a sanction. He agreed with defendants that the standard of care for real estate professionals conducting tenant background checks was not within the common knowledge of laypeople, and that without expert testimony Hurd could not establish the duty element of his negligence claim. Hurd appealed, arguing that the “common knowledge” exception applied and no expert was needed.
The Court’s Holding
The Rhode Island Supreme Court affirmed in a unanimous opinion by Chief Justice Suttell. Rhode Island requires expert testimony to establish “any matter that is not obvious to a lay person and thus lies beyond the common knowledge.” Donnelly Real Estate, LLC v. John Crane Inc., 291 A.3d 987, 994 (R.I. 2023). The exception—under which expert testimony is unnecessary—applies only where the issue is “so simple and the lack of skill so obvious” that it falls within the everyday experience of ordinary people; the canonical example is a surgeon leaving an instrument inside a patient.
The Court held that the question of whether a real estate professional must conduct an internet search in addition to a credit and criminal background check does not meet that standard. Real estate professionals are licensed and regulated under G.L. 1956 chapter 20.5 of title 5, which requires applicants to pass a written examination demonstrating knowledge of state statutes, deeds, mortgages, leases, contracts, real estate relationships, and fair housing laws, and to complete at minimum 45 classroom hours (90 hours for brokers) with a two-year full-time experience requirement for broker licensure. Because real estate professionals possess specialized knowledge not shared by laypeople, neither a judge nor a jury conducting “everyday” activities would independently know what constitutes a reasonable background check in the industry. Without expert testimony to establish the standard of care, there was no legally cognizable duty in evidence, and summary judgment was correct.
The Court also declined to define what an adequate internet search would look like, expressly observing that doing so would raise a host of regulatory questions—which search engine to use, how many to consult, how to verify accuracy, when a search is complete—that are properly for the General Assembly, not the judiciary, to resolve. Holding that an internet search was required as a matter of common knowledge would effectively add a new regulatory obligation to a licensed profession without legislative action.
Key Takeaways
- Expert testimony is required in professional negligence cases against licensed real estate professionals in Rhode Island; the day-to-day duties of such professionals, including the scope of a required background check for prospective tenants, are not within the common knowledge of laypeople.
- The common-knowledge exception to the expert-testimony requirement is narrow: it applies only where the alleged shortcoming is so obvious—like a surgeon leaving an instrument in a patient—that a layperson needs no guidance from a qualified professional to recognize the breach.
- Courts are not the appropriate forum for establishing novel professional obligations (such as a mandatory internet search) for licensed, regulated industries; such policy decisions belong to the General Assembly or the relevant licensing authority.
- Plaintiffs in real estate professional negligence cases must identify, prepare, and timely produce expert witnesses, because preclusion of expert testimony will be fatal to the negligence claim on summary judgment.
Why It Matters
For Rhode Island landlords and property owners who retain real estate brokers to procure tenants, Hurd v. Hogan Associates signals that they bear the litigation risk of proving the applicable standard of care if something goes wrong. The decision does not hold that brokers are immunized from negligence liability—a properly disclosed expert could testify that industry custom requires internet searches, and a jury could then assess whether the broker met that standard. What the decision does is foreclose plaintiffs from bypassing the expert-testimony requirement by characterizing an internet search as “obvious” common sense. Given the COVID-era eviction moratorium backdrop that amplified Hurd’s losses, the case may also prompt landlords to include contractual due-diligence specifications in their listing agreements—specifying what background checks are required—rather than relying on the broker’s independent judgment and then trying to recover in tort when the process proves inadequate.
The Court’s separation-of-powers observation is equally significant for practitioners advising real estate professionals. The Court pointedly declined to hold that internet searches are required as a matter of law, noting the unanswered questions that such a ruling would create. Real estate licensees and their counsel in the Rhode Island Association of Realtors should note that the current regulatory framework under G.L. chapter 20.5 of title 5 does not mandate any specific internet research component in tenant screening—and any expansion of that duty should be pursued through the General Assembly or the Rhode Island Real Estate Commission, not through litigation.