Must a Landowner Have Notice Before I Can Recover Damages?
By: Jeffrey Shaw, Esq.
Published: August 29, 2019
Yes, unless the landowner caused the dangerous condition in the first place.Remember, in order to prevail in a premises liability case (slip and fall, trip and fall, etc.), you must prove there was a dangerous condition (hazard) on the defendant’s land. But, that isn’t all — you must also show the landowner knew about the dangerous condition of “should” have known about the dangerous condition.This requirement is called knowledge or “notice.”Often, defendants will claim they had no notice of the defect and should not have known about it. This will defeat your claim before a trial is held if the defendant can show it did not have “notice” of the defect (a legal document entitled “Motion for Summary Judgment” asks the Judge to throw out the case before trial happens).In short, a defendant must know about the dangerous defect in order to fix it. The law will not hold the business or landowner responsible unless you can show the defendant knew or should have known about it. Obviously, it is much easier to prove a broken sidewalk existed for a long time on the defendant’s property rather than a grape that was knocked from the produce cooler a minute earlier. The longer the defect existed, the more likely you are to persuade a jury that you deserve compensation for your injuries.
Defining Notice in a Premises Case
You must be able to illustrate notice in a slip and fall accident case, which means that you must be able to show that the responsible party should have known or knew that a dangerous condition existed and that in failing to correct this or to warn you about it, left you to suffer the consequences.
Kinds of Notice — Actual Knowledge vs. Constructive Knowledge
One of the most challenging parts of proving a slip and fall injury claim is illustrating whether or not any duty was owed to the injured party. This refers to a term that many attorneys reference as the requirement for notice in these cases. The party that is bringing forth the claim of an injury bears the burden to prove that the owner or manager of the property had constructive or actual notice in order to fix the situation.Actual notice is much easier for victims to understand. This means that the owner of the property was indeed aware of a potential hazard and did not take the appropriate steps to remove the hazard or to notify you about it. If the accident happened on their property and you can show it was a breach of duty, the doors are open for compensation.Snow and ice hazardous conditions are a mixed bag. Obviously, it is easy to see when a snowfall occurs. The landowner should know when it is snowing, especially with smartphones to help aid weather forecasting for all people.But, it is common for a business owner to claim he or she did not realize there were icy conditions on the land. The business owner or landowner will allege that it is “impossible” to monitor a property 24/7 to check for snow and ice. While this is true, the landowner is not held to a standard of knowing the presence of ice or snow at all times, but rather whether a reasonable landowner would have known and done something about it to improve safety for customers.
What is Constructive Knowledge
The second type of notice — constructive knowledge — is more challenging to prove in a court of law and requires the experience of a dedicated lawyer like Attorney Jeff “JJ” Shaw to establish. This is known as constructive notice or construtive knowledge. This simply means the property owner or occupier “should have known” about the dangerous condition on the land and fixed it or warned about it.”Should have known” means you may not be able to prove that the property owner himself actually knew about the hazard that caused you to slip and fall, but that a reasonable person would have.An important consideration in constructive knowledge cases is the identity of the defendant itself. It is a lot easier to prove that Walmart should have known about an upcoming ice storm than Jim’s Local Grocery. Walmart, for example, has huge assets and lots of employees at its disposal to protect its property. Jim might be running the store himself. The law takes into consideration what a reasonable person in the same or similar circumstances would do when deciding whether negligence took place.
How Does Shaw Law Offices Prove Actual or Constructive Knowledge
The best and only way to prove actual or constructive knowledge in a premises liability case comes through proper investigation. This investigation is called “discovery” under Indiana law. It includes written questions, requests to see documents and videotape, inspections and oral questioning of witnesses with knowledge.The best and easiest way to prove “actual” knowledge of a defect is an admission from the landowner himself that he knew the defect existed. In the case of a broken sidewalk, this can occur with regularity during the investigation. A statement out of court (called a deposition) allows Attorney Jeff “JJ” Shaw to ask the landowner directly if he knew about the broken sidewalk and what steps were taken to fix the danger or warn about it.
The best way to prove “constructive knowledge” is to show the method of inspection by the landowner or business owner. Even if a dangerous condition of the land was temporary, the landowner must still inspect his property on a reasonable timely basis for problems. No longer can a landowner bury his head in the sand and put the onus of discovery upon the customer.
Attorney Jeff “JJ” Shaw has over 30+ years of experience in performing investigations of landowners and business owners where people were injured on the property.
Call or Text Shaw Law Offices at (877) 225-5742 and get Attorney Jeff “JJ” Shaw working on your case sometimes within 10 minutes of your call from the comfort of your own home.