July 30, 2009
By: David K. Jaffe
Proof of Actual or Constructive Notice of Defect
Proof of Actual or Constructive Notice Required in all Premises Liability Cases
The general rule in premises liability cases is that a plaintiff must prove notice of a defect. One way to avoid proof of notice is to allege and prove that the property owner or its agent or employee acted in an affirmative manner so as to either create the defect or create a method of operation that is inherently dangerous by design. For example, if a store employee negligently leaves a dangerous object or condition on the floor, the defendant is deemed to have actual notice of the defect. An invitee must allege and prove that the defendant had actual or constructive notice of the presence of the specific unsafe condition that caused her fall.
Proof of Actual Notice
Proof of actual notice is met if the plaintiff proves that the defendant created the defect. In Tuite v. Stop & Shop Cos., 45 Conn. App. 305 (1997), the plaintiff slipped and fell on water in the floral department while walking down a narrow aisle. An employee of the defendant was nearby watering plants and the plants on the floor had nothing to prevent water from leaking out of the pots. The plaintiff claimed that the store was negligent by creating the dangerous condition that caused her injury. The Appellate Court held that "it is well established that a plaintiff does not have to prove that a defendant had actual or constructive notice of a dangerous condition when the plaintiff claims that the defendant's employees created the condition. Id. at 308.
Constructive Notice: Proof usually Turns on Length of Time Defect Existed
Since proving actual notice often is difficult, constructive notice is frequently used to meet the notice requirements. Whether the defendant had constructive notice of a defective condition turns on whether the condition existed for a length of time sufficient for the defendant's employees, in the exercise of due care, to discover the defect in time to have remedied it. While an abundance of evidence is not necessary to show a sufficient length of time existed for discovery of the condition, some evidence is required. What constitutes a reasonable length of time is a question of fact. In Winchell v. Stop & Shop Cos., 1995 Conn. Super. LEXIS 2765, proof that it had been raining for at least 2 ½ hours before the fall, and that the store placed only one mat to absorb rain was held sufficient to prove constructive notice.
Circumstantial Evidence can establish Constructive Notice
Circumstantial evidence can be used to establish constructive notice. In Sokolowski v. Medi Mart, Inc., 24 Conn. App. 276 (1991), the plaintiff slipped and fell on after shave lotion. The location of the fall was approximately 8-10 feet from where employees had been working. Five customers had been standing in the area for 15 minutes, but no one heard a bottle break. The court held that the jury could reasonably infer that the after shave lotion existed on the floor for at least 15 minutes, thereby proving constructive notice and an opportunity to remedy the defect.
A fact finder can make a reasonable inference regarding the length of time a defect existed, but it may not speculate or resort to conjecture.
Proof of Notice must be of Very Defect
Either the actual or constructive notice must be notice of the very defect which occasioned the injury, and not merely of conditions naturally productive of that defect, even though subsequently in fact producing it. However, in Marranzini v. MacDonalds, 1998 Conn. Super. LEXIS 2691, a plaintiff alleged that there were two defects and she fell on one of them. The court held that a plaintiff need not identify the exact defect, provided that she proves notice of both defects.
Condition of Material can be used to Infer Notice
The condition of the material that caused a fall could give rise to an inference that the defect had existed for a long enough period of time to infer notice. Such an inference is most likely to occur when the substance causing the fall is liquid or semi-liquid, such as water, juice, food stuffs, etc. that had congealed, spread or otherwise exhibited some indication of the amount of time it had spent in harm's way. In Hann v. 7-Eleven, Inc., 2004 Conn. Super. LEXIS 1411, the court held that it was a question of fact regarding how long a half-melted Coke slushy existed on the ground. In Yegidis v. Stop & Shop Cos., 2000 Conn. Super. LEXIS 3427, the "smushed" condition of grapes was held sufficient to establish notice. In Murolo v. First Nat'l Supermarkets, Inc., 1993 Conn. Super. LEXIS 1076, the presence of a "squished" grape on the floor was held insufficient to establish notice.
 Fuller v. First National Supermarkets, 38 Conn. App. 299, 301 (1995). The plaintiff slipped on pricing stickers on the supermarket floor. The Appellate Court held that the allegations, while not perfectly clear, alleged that the defendants created the condition on which the plaintiff fell. Consequently, the plaintiff did not have to prove notice if it proved that the defendant's conduct created the unsafe condition.
 McCororey v. Heilpern, 170 Conn. 220, 221 (1976).
 See, e.g., Kapilotis v. Shop Rite Supermarket, Inc., 14 Conn. App. 250 (1988) (plaintiff slipped on uneven section of rug, raised due to presence of candy under rug; type of candy displayed near rug; area around rug swept several times a day; raised portion of rug was visible).
 See Schwarz v. Waterbury Public Market, Inc., 6 Conn. App. 429 (1986) (child, aged 13, fell on spot of spilled mild; several witnesses observed milk, which dirty in appearance; trail of mil covered six aisle); but see Colombo v. Stop & Shop Supermarket Co., 67 Conn. App. 62 (2001) (in slip and fall on spilled milk in supermarket, evidence that milk was "dirty" insufficient to establish constructive notice).
 See Morris v. King Cole Stores, Inc., 132 Conn. 489, 494 (1946) (what constitutes a reasonable length of time is largely a question of fact to be determined in light of the particular circumstances of a case).
 See, e.g., Gulycz v. Stop & Shop Cos., 29 Conn. App. 519 (1992) (plaintiff's trousers caught on protruding screw on shelf at end of check out aisle; only evidence was plaintiff's testimony and medical bills; court held that there were no facts from which to infer length of time that hinge and screw on a shelf existed).
 Fuller v. First National Supermarkets, 38 Conn. App. 299, 301 (1995).