44. If the pedestrian sues the seller to recover damages for his injuries, will the pedestrian prevail?

Land possessors owe multiple duties. They owe a duty to individuals who enter the land (the invitee/licensee/trespasser hierarchy). They also owe a duty to individuals on nearby land (e.g. neighbors) and individuals passing by the possessor's land (e.g. pedestrians, dogwalkers, etc., though this duty exists mainly for artificial conditions). When selling property, they owe a duty to disclose known, nonobvious, dangerous conditions to the buyer (note that this is the same type of duty owed to licensees). These duties continue even after a sale — the seller still owes a duty to third parties until the buyer has a reasonable opportunity to discover the nonobvious dangers on the property.

B is correct. The seller's duty to pedestrians in this question remains because it is merely the day after the sale, and the loose slates were a dangerous, nonobvious condition that the seller knew about from prior windstorms. Thus, this answer correctly states the duty owed. If the sale had occurred sometime earlier such that the new owner had time to observe the problem, however, then the seller would no longer be liable for the original condition of the roof. The new owner would have had a duty to repair the roof once he had time to discover the dangerous condition.

A is incorrect. This answer misapplies the law. Just as a possessor of real property is not liable for all defective aspects of the property, neither is a seller of real property. To hold otherwise would be to impose strict liability, and even the highest land possessor category, invitees, imposes a duty only as to dangerous, nonobvious conditions of which the possessor knows about. This answer choice is based on a strict liability standard is therefore incorrect.

C is incorrect. This answer misapplies the law. A possessor of real property's duties continue even after a sale—the seller still owes a duty to third parties until the buyer has a reasonable opportunity to discover the nonobvious dangers on the property. Thus, the seller's duty to pedestrians in this question remains because it is merely the day after the sale, and slates that blow off during windstorms are a dangerous, nonobvious condition that the seller knew about from prior windstorms.

D is incorrect. The pedestrian's knowledge of the slates being dangerous in a windstorm could be considered contributory negligence. In a contributory negligence jurisdiction, that could bar the pedestrian's recovery. However, the MBE instructs test-takers to apply pure comparative negligence except when directed otherwise. Thus, this answer is incorrect since it applies to contributory negligence.