Notice

Whether you’ve suffered an injury due to a slippery floor in a supermarket or tripped over an uneven sidewalk, proving notice is crucial to winning your case. If you cannot prove it, you cannot win your case, that simple. So what is notice in slip and fall accidents, and what does it mean?

What Is Notice in a Slip and Fall Accident?

In a slip and fall, trip and fall, or other injury on property claim, certain legal elements need to be established to have a winning case. Among these, the concept of notice is especially important, and often the most difficult to prove. This concept refers to whether the property owner knew or should have known about the hazardous condition, before your accident. There are three basic types of notice in these types of cases: actual notice; constructive notice; and prior written notice.

What Is the Legal Concept of Actual Notice?

Actual notice, in legal terms, refers to a situation where a property owner is directly aware of a hazardous condition on their premises. This knowledge can be through direct observation or through being informed about the hazard. Proving actual notice can establish a property owner’s responsibility for injuries resulting from the known hazard.

Example: A customer informs the management in a shopping mall about a spilled liquid in an aisle. If the management acknowledges the issue but fails to take prompt action, and subsequently a patron slips and injuries themselves, this is a clear case of actual notice. The management’s direct knowledge of the spill establishes actual notice.

How To Prove Actual Notice

Here are five common ways to prove actual notice:

• Witness Testimony: Witness testimony can be a powerful tool in proving actual notice. A witness who testifies that they told the owner about the hazardous condition before your fall is a great witness. This type of testimony establishes that the manager actually knew about the problem before your fall.
• Surveillance Footage: In today’s digital age, surveillance cameras are common on many properties. Video footage can prove that the property owner, or their representatives, directly observed, or should have observed, the hazardous condition. Footage showing a store employee walking, and looking past a spill without taking action, can be evidence of actual notice.
• Incident Reports or Complaint Records: If a hazard was previously reported, and there is documentation, these documents can serve as proof of actual notice. This is particularly relevant in businesses or public spaces where formal procedures for reporting hazards are common.
• Emails, Letters, or Other Written Communications: Written Communication to the property owner or their agents about the hazard can be compelling evidence of actual notice. An email from a tenant to a landlord about a broken step can establish an owner’s direct knowledge of the problem.
• Property Owner’s Own Statements or Admissions: Sometimes, although not often, the property owner admits to knowing about the hazard, either in conversation or in a legal setting, such as deposition or court testimony. Such admissions are direct evidence of actual notice.

What is the Legal Concept of Constructive Notice?

Constructive notice, unlike actual notice, does not require the property owner to have direct knowledge of the hazard. Instead, it is based on the idea that the owner should have known about the dangerous condition through reasonable care and inspection. Constructive notice hinges on the concept of ‘reasonableness’, ie. whether it is reasonable to expect that the owner should have been aware of the hazard.

Example: Suppose a broken step has been present on the property for several months. Even if the property owner claims that they did not know about the defect, it can be argued that they should have known about it, through reasonable care and inspection.

How To Prove Constructive Notice

Here are five ways to establish constructive notice:

• Duration of Hazard: One of the key elements in establishing constructive notice is showing how long the hazard was present before the incident. If it can be established that the dangerous condition existed for a “long enough” period of time, it can be used to argue that the property owner should have discovered and addressed it through regular inspection.
• Nature and Location of Hazard: The nature and location of the hazard can also support a finding of constructive notice. Some hazards are so obvious or in such critical areas that the property owner should have known about them. For instance, a large pothole in the main entrance of a parking lot is hard to miss.
• Regular Inspection Procedures: Evidence or lack thereof regarding the property owner’s regular inspection and maintenance procedures can be used to establish constructive notice. If it can be shown that the property owner did not have a reasonable system in place for regularly checking and maintaining the property, this might indicate constructive notice of any hazards that such inspections would have revealed.
• Pattern of Conduct of Recurring Issues: A pattern of similar, or recurring incidents or complaints regarding the same or similar hazards on the property can demonstrate constructive notice. If there have been multiple complaints or incidents involving a particular staircase, for example, the owner can be found to be responsible for this type of recurring condition.
• Expert Testimony: Expert witnesses, such as safety engineers or property maintenance specialists, can provide testimony on industry standards for property inspection and maintenance. Their input can help establish what a reasonable property inspection procedure should look like and whether the property owner’s actions (or lack thereof) were in line with these standards.

What Is The Prior Written Notice Requirement?

In cases involving municipal defendants, like the City of New York, the concept of prior written notice comes into play. Many jurisdictions provide that a claim against a municipal defendant must be dismissed, unless the municipality received written notice of the dangerous condition before the accident. This rule was designed to balance the need to hold public entities accountable while acknowledging their vast responsibilities.

Example: A resident trips and falls on a broken City sidewalk and sustains a significant injury. This claim must be dismissed unless the resident can prove that the City received written notification of the sidewalk defect before the fall. Needless to say, this is a tough requirement to satisfy.

How to Prove Prior Written Notice

While it can be difficult to prove prior written notice, here are some common ways to establish this requirement:

• Official Complaint Records: Municipalities often have formal systems for logging complaints or reports about hazards. Obtaining records of such complaints that specifically reference the hazardous condition can serve as solid evidence of prior written notice. For example, a resident files a complaint about a dangerous pothole on a street. If the complaint is officially recorded this can be used as evidence to establish prior written notice.
• Correspondence with Municipal Officials: Written correspondence, such as letters or emails, to municipal officials or departments that report the hazardous condition can serve as proof of prior written notice. This includes letters to the city council, public works departments, or other relevant municipal entities. The key is to show that the correspondence clearly described the hazard and was received by the municipality.
• Prior Notice of Claims: Prior notice of claims arising from the same defect, can also be used to satisfy the prior written notice requirement.
• Service Request Submissions: Many municipalities use online systems or mobile apps for residents to submit service requests or report issues. Records of such submissions that detail the hazardous condition can be instrumental in proving prior written notice.
• Notices from Municipal Inspections: In some cases, the hazardous condition might be identified during a routine municipal inspection. As a result, a notice or report may be generated. Obtaining these inspection reports, which document the hazard, can act as proof of prior written notice.

Bronx Slip and Fall Lawyer | Ask Questions – Get Answers

If you have any questions about notice in a slip and fall accident, contact our experienced slip and fall lawyers by email or by calling (718) 364-4000 for a free consultation. You can also fill out one of our case intake forms and we will have one of our attorneys get right back to you.

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