Constructive Notice for Liability
Slip-and-fall and trip-and-fall cases, collectively referred to as “premises cases”, are often high-risk, high-reward propositions. Whether it is a slip on black ice or days-old snow that was never removed or a trip on an uneven sidewalk, these cases frequently involve very significant injuries and often turn on the issue of “notice”. Notice can be actual, which is the so-called “smoking gun” (i.e. the defendant was actually aware of the dangerous condition) or constructive, which means that a dangerous condition existed for long enough that it could have and should have been discovered and remedied. Most premises cases fall under the second category: constructive notice. The seminal cases addressing this topic give some vivid examples: a piece of lettuce on a supermarket floor that has wilted and turned brown, a banana peel that has been stepped on so many times it is brown instead of yellow, or an icy sidewalk where it hasn’t snowed or rained for days, to name a few. The common thread in all of these cases is that there is evidence to support the conclusion that the dangerous condition which caused the accident was present for such a period of time that it should have been discovered and corrected. In the above examples, the fact that the lettuce wilted is evidence of how long it was on the floor. A piece of fresh lettuce on the floor may only have been there for 10 seconds. Without a witness who can tell us one way or another, all we can do is speculate. The same is true of the banana peel and the ice. In the absence of evidence, it is not possible for a jury or judge to decide if the length of time the condition existed was short, long, negligent, responsible, or anything else in between.