When is Someone Else Responsible for Your Injury?
Notice • Actual Notice • Constructive Notice
You fall on a bunch of grapes on the floor of a supermarket and injure yourself. Is the supermarket responsible? You fall down a stairway in your apartment building when you trip on a loose stairway tile and end up in the hospital. Can the landlord be held legally responsible? The lighting in the hallway of an office building is not working and you fall over some boxes left in that hallway by one of the tenants, suffering a fractured nose.. Will you be successful in a lawsuit against the building owner?
While each of these scenarios may seem quite different, each has an element in common. It is an element that may well be one of the most important issues in almost every type of injury lawsuit. It is an element that can, and often does, spell the difference between success and failure in many, if not most, lawsuits.
Lawyers call this element “NOTICE”. What lawyers are asking is whether or not a person who might be held to be legally responsible for an injury actually knew about the defect or condition that caused the injury (“ACTUAL NOTICE”). In the event the potentially responsible person did NOT know of the defect or condition that caused the accident, an equally important question will be whether that person SHOULD HAVE KNOWN about that defect or condition .
When we ask whether that potentially legally responsible person SHOULD HAVE KNOWN, we are asking whether or not the defect or condition existed for a long enough period of time that the potentially responsible person can be reasonably expected to have found out about that defect or condition within that time – regardless of whether or not they actually did find out (“CONSTRUCTIVE NOTICE”)!!
In our first example, when did the grapes fall onto the floor of the supermarket? Were the grapes dropped by another customer just a minute or two before our victim slipped and fell on the grapes? Or were the grapes on the floor a half hour earlier during which time supermarket employees probably passed that location, or could reasonably have been expected to pass that spot, several times, but failed to pick the grapes up. PROBLEM: Proving how long the grapes were on the floor. If the issue are tiles on a building stairway or light in a hallway, the testimony of witnesses, such as other tenants in that building, would easily show the existence of the defective condition for a period of time. It is much more difficult in the supermarket situation. We would usually have to rely either on other customers (forget about store employees !!) or even on the “victim” him/herself if, for example, the “victim” passed the exact spot where the grapes were located fifteen minutes or a half hour earlier and could state, with certainty, he/she saw the grapes on the floor at that time.
Another problem: if the “victim had seen the grapes earlier, why didn’t she/he avoid them the second time around?–Which is why you need a good lawyer !!.
Most often, if there is no ACTUAL NOTICE or CONSTRUCTIVE NOTICE, then a lawsuit will not be successful. There are many exceptions, often created by law, and it is essential that you consult an experienced attorney to discuss your individual situation.
Posted by New York Personal Injury Lawyer Steve Orlow