Actual Notice of Hazardous Conditions

July 25, 2009

By: David K. Jaffe

Special Problems in Proving Slip and Fall Injuries

A crucial factor in establishing liability for a slip and fall injury is showing that the defendant had notice of the hazardous condition. Without such notice, no liability will attach. The plaintiff may satisfy this burden by proving actual notice, or by showing constructive notice. Evidence on such points as statements by the defendant or its employees, the duration of the hazard, and the frequency of inspections may be introduced to help establish notice. Injuries on self-service premises may require special attention. Either party may attempt to introduce expert testimony on factors such as the slipperiness of the floor or design of the premises.

The imposition of liability upon an owner or occupant in control of commercial premises for failure to maintain the aisles and floors in a reasonably safe condition, or for failure to warn of the dangers associated therewith, is predicated upon the defendant's superior knowledge as to the condition of the premises under its control. Typically referred to as "actual knowledge," this concept is based upon what the landowner actually knows regarding the existence of the injury-causing dangerous condition, as opposed to mere "constructive" (or imputed) knowledge that relates to what a reasonably prudent person would (or reasonably should) have known about the danger. In this respect, the concept of "actual knowledge" is based upon a subjective determination as to what the individual landowner actually did (or did not) know, whereas "constructive" knowledge is based upon a much more objective determination.

In proving the landowner's "actual knowledge" of an injury-causing dangerous condition courts will typically permit any evidence that reasonably establishes the landowner's awareness of the existence of the hazard prior to the time of the injury. Thus, even in the absence of specific evidence that the landowner was subjectively aware of the existence of a dangerous condition on the premises prior to the plaintiff's injury, mere evidence that the landowner had previously received specific complaints or reports of the dangerous condition, or that the landowner had approved previous work orders for repairing a dangerous condition on the premises will ordinarily suffice in establishing the requisite "actual knowledge." The absence of any such evidence, of course, may also be offered to negate the existence of the landowner's "actual knowledge."

Virtually every jurisdiction requires, as a part of the plaintiff's prima facie case in a slip and fall action, proof that the landowner or occupant had some type of notice as to the existence of the injury-causing hazardous condition. The only exception to this rule arises in situations in which the occupant has affirmatively created the harmful condition, in which case most courts do not require any additional proof as to the defendant's knowledge of the specific hazard.

If the defendant has actual knowledge of a dangerous condition existing on the premises, which present a hazard to persons who may reasonably be expected to enter thereon, courts have had little hesitancy in imposing liability for negligence if slip and fall injuries proximately ensue. Such actual notice may occur if the defendant has either first-hand knowledge of the dangerous condition, or if such knowledge may be directly attributable to the defendant through the acts or omissions of an employee acting within the scope of his or her employment. Actual knowledge may also be demonstrated by proof that other persons have experienced similar falls on the same premises. If the plaintiff in a slip and fall case is able to establish that the defendant had actual notice, no further allegations of notice are necessary, although the better practice might be to allege the existence of both actual notice and constructive knowledge.

One of the best ways of proving that the defendant had actual notice of a particular hazard or defect existing on the premises is through direct testimony of the defendant or its agents and employees. Since knowledge of an employee obtained while working in the course and scope of the defendant's employment is generally imputed directly to the defendant, the requirement of actual notice is often satisfied by proof that either the defendant or an employee had acquired knowledge of a specific defect or hazardous condition existing on the premises prior to the time of the injury. Although such incriminating testimony is often difficult to obtain, it should be admissible as an adverse party admission. In order for such testimony to be admissible, the plaintiff is generally required to show that the person who made the statement was in fact actually employed by the defendant, and also that such person was acting within the scope of their employment at the time when the statement was made.

Actual notice of a particular hazard may also be established through third persons who testify that they warned the defendant directly of the dangerous condition prior to the injury-causing accident. Similarly, under the "excited utterance" exception to the traditional hearsay rule, statements made by the defendant or the defendant's employees at or near the time of an accident may be admissible to establish actual notice through independent third party witnesses who contemporaneously observed the events.