Sometimes a property owner should have discovered a dangerous condition before someone was injured. If not compensation can likely be recovered. What does “constructive notice” mean?

You slip and fall on a slick spot in a store. You break your ankle. You have to miss a few weeks of work.

Can you file a successful claim against the store?

Notice we didn’t say the situation happened because of an employee who mopped a spot and forgot to put a sign or warning cone up.

Should the store owner have discovered the dangerous condition before your fall? Should they have warned you of the dangerous condition or eliminated same prior to your fall?

To win a claim or case like this, you will need to demonstrate the store knew about the dangerous condition (actual knowledge) or that they should have known about the dangerous condition (constructive knowledge).

Contrast these two examples: If the situation happened as described earlier – an employee mopped the floor and failed to put up a warning sign – the store “should have known” of the dangerous condition and is likely responsible for compensating you. In fact, since a store employee created the dangerous condition actual knowledge of same will likely be presumed. However, if another customer has a drink in the store, spills a little, leaves the scene and doesn’t bother to tell the store, and then you slip on it just a few minutes later, the store likely won’t be responsible. The store will strongly argue they didn’t have a reasonable amount of time to learn of the spill and make the area safe.

On the other hand, they would likely be negligent if the spilled drink was on the ground for an hour as that would appear to be sufficient time for them to discover the dangerous condition . What if an employee walked right by the spill 5 minutes before your fall? Arguably, the store might still be found to be negligent as store employees have an affirmative duty to scan the premises for dangerous conditions.

Most Property Owners Do an Honest Job of Caring for Their Property

When you get down to it, most property owners do the right thing. They’re honest and don’t want anyone to get hurt. And they don’t want to risk a costly lawsuit either.

To meet the “should have known” test, a few standards are checked:

  • How long the dangerous condition has been present.
  • What safety procedures did the person or store have in place.
  • If you trip, did the object you tripped over have a valid reason to be there?
  • Did the legitimate reason for the object you tripped over still exist at the time of your accident?
  • Did you contribute to your own injury in some way? Were you on your smartphone? Did you go to a part of the store where customers aren’t allowed?
  • Would a reasonable person have acted in the same way you did in your slip-and-fall?
  • Were employees near the dangerous condition at the time of your trip or fall?
  • Did the property owner provide adequate warning of the dangerous condition?

A premises liability case demands a detailed analysis based on the specific facts and circumstances of the loss. If you find yourself involved in one immediately contact a personal injury lawyer to discuss whether actual or constructive knowledge of a dangerous condition can be established.