May 29, 2014 • Premises Liability
On behalf of Rosenberg, Minc, Falkoff & Wolff, LLP
In the area of premises liability law, a landowner is charged with the duty to act as a reasonable person and maintain its property in a reasonably safe condition in view of all circumstances, including the likelihood of injuries to others, the seriousness of the injury and the burden of avoiding the risk.
A property owner can be liable for dangerous conditions on the property which cause injury.
when the property owner either knew or should have known about the dangerous condition but did not act to fix the hazard or warn others about the danger. When the owner actually knows about the danger, they are said to have actual notice. If the owner does not actually know of a danger but “should have known” about the danger, this is called constructive notice.
Over the years, the New York courts have explored the “actual or constructive notice” requirement, and case law in this area has been relatively static. In the seminal case is Gordon v. American Museum of Natural History, the New York Court of Appeals established that for an owner or landlord to be held liable for an allegedly defective or hazardous condition, they must have had either actual or constructive notice of the alleged defect. To constitute constructive notice, the Court said, a defect must be visible and apparent and it must exist for a sufficient length of time, prior to the accident, to permit the defendant’s employees to discover and remedy it. Awareness of a general condition is insufficient to prove a prima facie case of negligence against a defendant.
Constructive notice may be established in various methods, including the passage of time, the failure to inspect and if the condition is recurrent. Case law holds a passage of time from one inspection to another may constitute constructive notice. For example, in Villaurel v. City of New York, 59 AD3d 709, 873 NYS2d 740 (2nd Dept. 2009), a bus passenger slipped and fell on ice while alighting from a bus. The evidence showed the ice to be present for at least 30 minutes prior to the fall with the last inspection being 18 hours prior. The Court found that it was reasonable for a jury to infer the ice existed for a substantial period of time prior to the accident. See also Maldonado v. City of New York, 93 AD3d 407,939 NYS2d 60 (1st Dept. 2012) (morning inspection, evening accident is sufficient passage of time to infer constructive notice); Negri v. Stop and Shop, 65 NY2d 625, 491 NYS2d 151, 480 NE2d 740 (1985) (30 minutes sufficient passage of time to infer constructive notice).
Case law also states that constructive notice may also be imputed to a landowner through the landowner’s duty of reasonable care to conduct periodic inspections of the area of the potential defect. If no program of inspection is put in place, constructive notice is imputed. See Perez v. 2305 University Avenue, LLC, 78 AD3d 462, 911 NYS2d 38 (1st Dept. 2010); Hayes v. Riverbend Housing Company, Inc., 40 AD3d 500, 836 NYS2d (1st Dept. 2007). The failure of a premises owner to conduct a diligent inspection constitutes negligence if the inspection would have revealed the defect. See Hayes, supra; Personius v. Mann, 20 AD3d 616, 798 NYS2d 195 (3rd Dept. 2005).
Constructive notice is an important tool to successfully litigate a premises liability case.
Finally, case law establishes that constructive notice may be established if the injury producing condition is a dangerous recurring condition. Where a landowner has actual knowledge of a recurrent dangerous condition in a specific area, it may be charged with constructive notice of each specific recurrence of it. See Agosto v. City of New Rochelle, 114 AD3d 625, 979 NYS2d 689 (2nd Dept. 2014)
In sum, landowners have a duty to know the condition of the property, and if they are to win their case in the pre-trial stages, must supply testimony as to when it last inspected the area and what it looked like at the time of the last inspection. However, if it is established that the landowner created the condition, neither actual nor constructive notice is required in the proof of a case.
Since it is not always possible to prove creation or actual notice of a dangerous condition,
The office of Rosenberg, Minc, Falkoff and Wolff performs careful and thorough investigations that enable the injured party to show that the defendant either knew or should have known about the dangerous condition but did not take reasonable steps to fix it, thus allowing for a successful recovery.