There is often confusion about when someone can sue for a premises liability case such as a slip & fall or trip & fall accident. What kind of proof is needed or what facts can actually be used in court can be very confusing for the average layperson. However, it’s not all bad news.
Landowners cannot use a defense of ignorance to be free from responsibility of harm. This is because a landowner has an affirmative duty to exercise ordinary care to keep the property in reasonably safe condition. This means that the landowner must make reasonable periodic inspections of the premises and take reasonable means to correct any dangerous conditions.
What does all this mean? This means that the plaintiff needs to show that the defendant had notice and control of the premises and the dangerous condition giving rise to the lawsuit. Notice can be either actual or constructive.
Let’s break this down further. Commercial property owners are not insurers of the safety of their patrons, they do owe their patrons a duty to “exercise reasonable care in keeping the premises reasonably safe.” This means that an owner is liable for harm that is caused by some harmful or dangerous condition, of which the owner had actual or constructive knowledge.
What is control?
The owner or occupier of any premises must have control over the subject premises in order to share liability for a Plaintiff’s personal injury claim. Control is often times established by checking the preliminary title report to determine the rightful owner on “chain of title” at the time of the accident/injury. Control can be proven against a management company if one was hired to maintain a property on behalf of the owner.
What is actual notice in a slip & fall case?
The owner of the land can establish actual notice in situations where the owner or an employee in the course of employment created a dangerous condition. But when that dangerous condition causes injury because of negligence of the owner or their employee then notice is imputed, or estimated to have a certain cash value.
Here’s an example, an employee spills some substance on the ground, or there is debris, or boxes in the middle of an aisle. In these situations actual notice exists.
What is constructive notice in a slip & fall case?
The plaintiff can also establish the owner’s notice though “constructive notice.” The way to establish constructive notice is to argue that the owner has failed to make reasonably regular inspections. This will then raise the inference that the condition has lasted long enough that the owner should have discovered and fixed the situation.
This duty to inspect is continuous, and inspections must be done frequently. The owner must take the same amount of care as the danger or risks involved. In these kinds of cases the plaintiffs should continually seek documents and depositions to discover when and how inspections were done.
This can be as varied as sweep sheets, policies, procedures and manuals on safety and inspections. These documents provide a roadmap to show just how the defendant had failed to follow their own policies and how if they had simply followed their own rules the injury would not have happened.
This means that acquiring inspection logs, sweep sheets, policy and procedure manuals, and video surveillance evidence and deposition testimony is crucial to establishing notice.
Constructive notice for pot holes, for example, can be proven against a City if repairs were made adjacent to or near a pothole that remained by arguing the owner had performed repairs nearby and should have noticed the subject defects as well.
What is notice through prior incidents?
Notice of a dangerous condition can also be established though prior incidents. These prior incidents can be admitted for the purpose of proving notice. However, it has to be established that the circumstances are the same or similar to the one at issue in the case.
However, because no two incidents are exactly the same, it sits on the plaintiff to present evidence that similar incidents have occurred. They must demonstrate that some issue of safety has existed and that the owner had knowledge of, or if they had institutional knowledge of similar accidents it should have investigated and cleared from these events.
How is it that the plaintiff can obtain information about prior instances? You can send out requests for production of documents, requesting reports of prior incidents that have occurred in the store, going back three to five years. You can ask for all reports of similar instances in the area that the plaintiff fell, and you can look to see what has occurred in the past and determine if these past instances have given notice of a dangerous condition.
Ignorance of a potential hazard does not exempt the landowner from their duty to exercise ordinary care to keep the premises of their area in reasonably safe condition. The landowner will not just admit that it had notice. This means that the plaintiff must make concentrated efforts in discovery to obtain inspection logs and any past instances of similar incidents to make an effective case.
If you have experienced a slip and fall injury and want to talk to a qualified lawyer give the Shirvanian Law Firm in Glendale, CA a call at (818) 835-5396.