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How to Establish Existence of Actual Notice

Posted on 01/03/19 by Malloy Law Offices in Premises Liability

There are many ways to establish existence of actual notice, such as videotape surveillance. You can look at the video and determine when the condition happened, if there are any employees who caused the condition to happen, and if they did something to remedy it.

The perfect example of such a situation would be if there was a spill in the flower section.

Let’s say a customer knocked over a thing of flowers with water in it and somebody came in and began to clean and dry up the area. If that employee left without finishing the job, and then another customer slipped and fell, and store employee knew about it, then the fault is on the store, and they are liable.

Constructive Notice

The second situation involves something called “constructive notice.” And that means the store or business did not know about the condition, but they should have known in the exercise of reasonable diligence. What that means is if a dangerous condition was present in such fashion that the store employees should have discovered the dangerous condition, then they are liable for it as long as they discovered it. This is rather hard to prove times, but it is not impossible.

So how can the constructive notice exist? Well, let’s say you have a spill. The spill has been on the floor for a long time, nobody went by or checked on it, and nobody did anything to determine whether it was present. That’s constructive notice, because if the store had been operating in a normal fashion, with employees walking around, looking around, they could have, and should have, discovered the spill and done something about it.

Determining the Time of the Spill

And how can you determine how long the spill was on the ground? If you’re lucky, you can have a video showing that it’s created. But surprising, to this day, you don’t see that in many videos. And if you do, a lot of times there’s only one which is available to the store, and is still in existence by the time you bring the claim. But what if there are track marks through the spill? What if the temperature has changed?

For instance, let’s say the spill is coffee, but it’s cold as it’s been there for a few minutes before the fall happened. The owner should have had an opportunity to check on it, discover it, and remedy it. What about if there are marks of shopping carts or footprints through it? What if it’s right there, next to where an employee is working?

There are a lot of ways to prove that the owner had an opportunity or should have known about the condition based on the circumstances surrounding the condition’s existence. Its location, its size, and how long it’s been on the ground are all important things to look at.