"Notice" in a Slip and Fall Injury Case

To prevail in a lawsuit or insurance claim following a slip and fall injury, you must be able to show that the responsible party knew, or should have known, that a dangerous condition existed.

By Jason Lundberg, California Attorney

Black's Legal Dictionary defines premises liability as follows, "premises liability is a landowner's or landholder's tort liability for conditions or activities on the premises."  Premises liability cases generally occur when a party injures himself or herself on the property of another individual or on the property of a business.  These cases are more commonly referred to as slip and fall cases, and liability is notoriously difficult to prove.

Property Owners Duty and Negligence

In the context of a premises liability action, the duty owed by an owner or possessor of land is measured by general negligence principles and not by the status of the injured person as a trespasser, licensee, or invitee. Rowland v. Christian (1968) 69 Cal. 2d 108.  An owner or possessor of premises is under a duty to others by virtue of that possession or ownership to act reasonably to keep the premises safe and prevent persons from being injured.  Williams v. Foster (1989) 216 Cal. App. 3d 510.

For a plain-English explanation, see Premises Liability Basics: Property Possessor, Duty & Status of Entrant.

Elements of a Case

This essentially boils the case down to a basic case of negligence.  As such the injured person must establish the following:

  1. The existence of a duty on the part of the defendant to use due care;
  2. A breach of this legal duty; and
  3. The breach as the proximate or legal cause of the resulting injury.

(See Understanding Negligence in a Personal Injury Case.)

United States Liability Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal 3d 586. The determination of whether a property owner owes a duty toward an injured person requires an inquiry as to whether or not the owner has acted as a reasonable person in view of the probability of injury to others.  Salinas v. Martin (2008) 166 Cal. App. 4th 404.

The Notice Requirement

Generally, the most difficult part of these claims is proving whether or not a duty was owed to the injured party.  This is what many attorneys refer to as the notice requirement in these cases.

The party making the claim of injury has the burden to prove the owner had actual or constructive notice in order to remedy the situation.  However, a recent California Supreme Court slip and fall case held that the plaintiff need not show actual knowledge to the Defendant where evidence suggests that the condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence. See Ortega v. Kmart Corp. (2001) 26 Cal. 4th 1200.  

In the Ortega case, there was evidence that an inspection had not been made within a particular period of time prior to the Plaintiff falling.  The Court noted that something like that may warrant an inference that the condition existed long enough so that a person exercising reasonable care would have discovered it and should have discovered it.  Ortega, at 1209 - 1210.  There was evidence that an inspection of the store had not been made within at least 15 to 30 minutes, and possibly up to two hours, before the accident occurred.  The Court held that the notice/duty requirement may be shown by circumstantial evidence which proves that a dangerous condition existed for an unreasonable time.

For example, in a case where it has been raining, and a weather report illustrates that there had been rain for three days prior to the incident, a landlord’s failure to place mats outside on the slick ground may meet the above criteria as stated by the California Supreme Court.

However, each accident must be viewed in light of its own unique circumstances. Louie v. Hagstrom's Food Stores (2001) 81 Cal.App.2d 601, 608.  An owner must inspect the premises or take other proper action to learn its condition, and if, by the exercise of reasonable care, the owner would have discovered the condition, he is liable for failing to correct it.  Id. at p. 606.  It is as simple as this: If it rains, put a mat down near the entrance to the store.

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