The difference between actual and constructive notice in premises liability in NC is what the defendant knew and what they should have known. Even if the defense didn’t know of a dangerous condition before it caused injury, they may still be held liable because of constructive notice.
Our experienced Wilmington premises liability lawyers at Horton & Mendez, Injury & Car Accident Attorneys discuss the question: What is the difference between active and constructive notice for NC premises liability claims?
Defining Actual vs. Constructive Notice
Actual notice is what someone actually and personally knows.
Constructive notice is what someone should know, based on the circumstances. Even if the person doesn’t know, they’re legally treated as if they did know.
A property owner is not an insurer of its visitors’ safety. To be liable for an injury, the property owner must have either actual or constructive knowledge of the unsafe condition. Evidence that the condition exists for a period before the injury can support a finding of constructive notice.
Actual Notice v. Constructive Notice Explained
For example, a store has both front and back entrances. Customers regularly use both entrances. After a storm, a tree is obstructing the back entrance. If several employees walk in the back entrance, going around the tree, the store has actual notice of the danger.
On the other hand, say no employees use the back entrance for a month. No employees walk the property to look for hazards during that time, either. But customers continue to use the back entrance. In that case, it may be reasonable to conclude that the store had constructive knowledge of the danger. Enough time had passed that the store should have discovered the fallen tree and addressed it.
Why “Notice” Matters in a Premises Liability Case
For a defendant to be liable for a premises liability accident, they must have known about the dangerous condition. Their knowledge may be actual or constructive. Constructive notice can be enough to make a property owner liable for an injury. Proving the amount of time that the danger existed can be critical to proving knowledge. (See Hinson v. Cato’s, Inc., rejecting a claim where the plaintiff did not provide any information about how long the negligent situation existed to give actual or implied notice.)
Examples of Actual Notice in NC Slip and Fall Cases
Example #1
In Shepard v. Catawba College, a spectator at a college baseball game fell from the bleachers.
The bleachers were 86 years old and made of wood. The victim fell 13 to 15 feet down the bleachers, landed on the pavement, and broke their back.
The victim argued the college was liable because the bleachers had visible rotting wood. They claimed the bleachers were past their life expectancy and hadn’t been inspected. They said the bleachers contained gaps that were too great.
The court said that evidence that the bleachers deteriorated over their 80-year lifespan could be sufficient evidence of constructive notice. The court allowed the claim to proceed.
Example #2
Roumillat v. Simplistic Enterprises, Inc. involved a slip and fall when leaving a Bojangles restaurant in North Carolina. The plaintiff slipped on a substance in the parking lot. They broke their kneecap and needed surgery. The plaintiff described slipping on a black, thick, grease-like substance.
The court said that there was no evidence presented that the defendant was aware of the dangerous condition or should have been aware of it. They said the substance was likely left by a third party. The case illustrates how evidence of constructive or actual notice is critical to a premises liability claim.
Example #3
In Smith v. Walmart Stores Inc., the victim sought damages for a slip and fall in a store in Wilmington, North Carolina. The plaintiff said the entrance to the store was wet and slippery.
The court said that the defendant is charged with knowledge of a condition that it negligently creates or negligently fails to correct after actual or constructive notice. The court said the jury should decide if there was enough time to impute knowledge.
How Constructive Notice Is Proven with Circumstantial Evidence
Circumstantial evidence suggests that something is true, without directly proving it. Circumstantial evidence can prove constructive knowledge.
One way that circumstantial evidence can prove constructive knowledge is the amount of time that has elapsed since the existence of the dangerous condition. You may show related known conditions, such as knowledge of a roof leak that resulted in a slippery floor surface.
What Role Surveillance and Maintenance Records Play
Surveillance and maintenance records may play a role in proving actual or constructive notice.
Surveillance video may show how long a danger existed. It may show employees discovering the danger or what measures they took to mitigate it. Operational records may show a failure to address a danger or inadequate maintenance.
Challenges in Proving Notice
When you suffer a personal injury, you may not know whether the defendant had actual or constructive notice. Evidence may be in the possession of the property owner. For example, there may be an inspection record that noted the dangerous condition. There may be prior incident reports. Challenges in proving notice can arise. You may not even know what you’re looking for.
As you prepare your case, remember actual notice vs. constructive notice and that either can be sufficient to award compensation to an injured victim. Formal discovery requests must be specific, asking for records and reports that may be helpful. Witness questioning must be effective. In addition, you may rely on expert testimony. A lawyer can assist you in addressing challenges in proving actual vs. constructive notice as you prepare your case.
Contact an Experienced Wilmington Premises Liability Lawyer
If you have been hurt on someone else’s property, understanding the difference between actual vs. constructive notice can be critical to winning your case. Horton & Mendez, Injury & Car Accident Attorneys, is an experienced team of litigators. We identify what’s important to build your case, including how to prove actual or constructive notice for a premises liability claim. Call or message us now.
