Constructive Notice of Hazardous Conditions

July 24, 2009

By: David K. Jaffe

If a slip and fall injury results from some unreasonably dangerous condition existing on the premises about which the owner or occupant lacks actual knowledge, the plaintiff may still be entitled to a recovery by showing that the defendant had constructive notice of the hazard. Generally, constructive knowledge refers to that kind of knowledge a person exercising reasonable diligence should have had under any given set of circumstances.

In order to constitute constructive notice, a defect must be visible and apparent and must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it. The requirement of constructive notice in slip and fall cases prevents the defendants from simply claiming lack of actual knowledge of any dangerous conditions or defects on the premises, since it imposes a duty to make reasonable inspections for the purpose of discovering the existence of such hazards.

However, if the injury occurs as the result of a hazardous condition about which the landowner or occupant has neither actual or constructive knowledge, liability for negligence will ordinarily not be imposed, at least if the dangerous condition was not caused by the defendant or was otherwise unforeseeable. To impose any greater duty than this upon ordinary landowners and premises occupants would be tantamount to making them insurers of the safety of all who may enter their premises.

Constructive notice as to the existence of any particular hazard depends upon a number of factors such as the type of foreign substance involved, the length of time that it has been permitted to remain on the premises, the number of other entrants who may be present, the proximity of the hazard with respect to the occupant's employment, as well as the location of the hazard within the premises.

Each of these factors, of course, will also vary from case to case. For example, the length of time necessary for a particular foreign substance to remain unattended on the floor of a crowded supermarket in order to establish constructive notice against the defendant will necessarily vary depending upon the individual circumstances, and no set time limitation can ever be established for purposes of conclusively determining the existence of constructive knowledge of such a hazard.

Thus, while a lapse of only five seconds would almost certainly appear to be an insufficient basis upon which to charge the defendant with constructive notice of the presence of a foreign substance on the floor, in some circumstances, such as if the defendant's method of operation creates a nearly continuous, recurring potential for the creation of certain types of hazards, the court may simply infer constructive knowledge regardless of how brief the actual time lapse may have been. As a general rule, the longer the period of time that a hazard can be proven to have existed on the premises without removal, the greater the likelihood of inferring the defendant's constructive notice of the condition.