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Constructive Notice May be an Issue in a Premises Liability Personal Injury Suit

By on October 14, 2016 in Liability with 0 Comments

A business owner owes an invitee a duty to discover and eliminate dangerous conditions and to maintain their premises in a safe condition. For an injured plaintiff to prove a breach of that duty, if the owner did not create the condition, the plaintiff must prove that the defendant had actual or constructive knowledge of the condition that caused the accident. Typically, in these types of cases, the owner does not have actual knowledge and liability turns on whether the owner had constructive knowledge. That was the issue in Yazujian v. PetSmart, 2016 U.S. Dist. LEXIS 108303 (D.N.J. Aug. 16, 2016).

In Yazujian, the plaintiff went to PetSmart at about 8:30 am to provide volunteer services for an adoption agency that operated within the store. It was snowing that morning when the plaintiff arrived at the store. The plaintiff could not recall if there was a mat at the entrance of the store. At about 10:30 am, the plaintiff left the adoption area to buy cat food. While in an aisle of the PetSmart store containing dry cat food, the plaintiff slipped and fell near a clear puddle of water about 5 to 6 inches in diameter. As a result, the plaintiff fractured her patella.

The plaintiff offered no direct evidence of when or how the puddle was created. She claimed that it may have come from people tracking in snow into the store prior to the accident. The defendant presented evidence that an employee was down that aisle 20 minutes prior to the accident and did not observe any water on the floor. PetSmart did not have a surveillance camera that showed this area of the store.

Petsmart filed a motion for summary judgment, arguing that the plaintiff failed to prove that it breached its duty of care owed to the plaintiff. It asserted that plaintiff had offered no evidence that it had actual or constructive notice of the alleged dangerous condition, i.e., the water on the floor.

Here, the plaintiff did not claim that PetSmart had actual notice of the water. Rather, plaintiff argued that it had constructive notice of the condition. While this issue was a close call, the District Court found that the plaintiff had presented sufficient evidence to establish that there were issues of fact as to whether constructive notice existed and that this issue must be decided by a jury.

What factors did the court consider in reaching this decision? First, the court noted that cases have varied as to the exact length of time that a dangerous condition must exist before an owner is deemed to have constructive notice of that condition. It also depends upon the characteristics of and surrounding the dangerous condition. The courts look at where the condition was located. Was it near a high traffic area? Were there employees in the area that should have seen the spill? What is the longest amount of time the condition could have existed?

In determining the issue of constructive notice, the court looked at what steps the PetSmart employees took to avoid puddles, knowing that there was inclement weather. The plaintiff argued that PetSmart knew that there was an increased likelihood that customers would drip water inside the store and that PetSmart failed in its duty to be “especially vigilant” under the circumstances. PetSmart failed to place any additional mats at the entrance and failed to place warning signs throughout the store. Further, the plaintiff contended that, although PetSmart employees were trained to “walk the store” to make sure there was no moisture on the floor, they did not monitor the floors on any set schedule, nor did they increase the frequency on the day of the accident, even though they were aware of the increased likelihood that customers would drip water on the floor.

PetSmart argued that the plaintiff only assumed that the water came from a customer tracking in snow. However, the court found that the plaintiff had presented enough proofs that the water could have come from snow being tracked in. The plaintiff relied on statements in the PetSmart incident report that the floors were wet due to snow weather conditions and an Associate statement that they “didn’t realize … how much snow was being tracked in and melting into puddles throughout the store until after Plaintiff’s fall.”

While it was a close call, the District Court found that there was sufficient evidence to create a genuine issue of material fact whether (1) the puddle was created by snow being tracked into the store and (2) PetSmart had constructive notice of the puddle. Accordingly, the court denied the defendant’s motion for summary judgment, finding that it was up to a jury to determine whether PetSmart breached its duty of care owed to plaintiff.

While this case is an unpublished District Court opinion, it points out the difficulties in prevailing on a motion for summary judgment in a premises liability case due to a substance on the floor when (1) the defendant is unable to establish how long the substance was present on the floor; (2) the defendant is unable to establish the source of the substance; (3) the defendant has not taken extra precautions on days when there is inclement weather; and (4) the defendant has no set monitoring of the conditions of its premises.

To help defend against these types of personal injury suits, when a business owner is made aware of a fall, it should review any available surveillance cameras in an attempt to determine how and when the condition was created and, of course, preserve the video. Additionally, the owner should establish a set schedule to monitor the conditions of its premises. Extra precautions should be taken on days when inclement weather exists, such as putting down additional mats and wet floor signs and increasing employee monitoring. These inspections should be documented and the defendant should be prepared to show the frequency of this monitoring, as well as any increased inspections necessitated by the weather.

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Betsy G. Ramos

About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

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