New York Premises Cases–“Notice” Is The Critical Factor

In New York, in order to win a case when you are injured in a slip/trip and fall accident, the most important factor is proving “Notice.” Notice is the legal term which means knowledge by the defendant supermarket, shopping mall, department store, other place of business, or municipality, that a particular dangerous condition existed for a period of time, and the failure of that business owner or municipality to repair that condition despite their prior knowledge.

There are two basic types of Notice which can be proven in a dangerous premises case in New York. The first is “Actual Notice.” Actual Notice is defined as knowledge which was provided to the defendant by informing them before the accident by way of a writing or conversation, that the dangerous condition existed and needed to be repaired. For example, in a Bronx trip and fall accident, before a case can be brought against the Bronx municipality, you must prove that they were warned of the broken section of the sidewalk and failed to make repairs. This is the reason that fall down accidents are so difficult to prove against municipalities–What are the chances that someone actually wrote a letter to a municipality before your accident informing the municipality that the sidewalk was cracked or not level? One advantage that we have in prosecuting cases against the 5 boroughs of the Bronx, Brooklyn, Queens, Manhattan, and Staten Island, is the Big Apple Pothole Corporation. Essentially, what Big Apple does is chart every sidewalk in the city for defects, and then send maps to the City of New York of these specific defects, which can then be used in court to legally prove notice. Unfortunately, Big Apple’s reach does not extend past the five boroughs into the suburbs or rural New York to protect the victims of municipal negligence there.

Actual notice can also be established if it can be proven that the defendant “created the defect”, such as in a a case where the defendant owner opened up a sidewalk to work on a gas line, left the sidewalk in a dangerous condition, and then someone tripped and fell on that same section of sidewalk.

The second type of notice, which is easier to prove, is called “Constructive Notice.” Constructive Notice means that the defendant business owner “knew or should have known” of a particular condition. A classic case of constructive notice, which our office has litigated on several occasions, is when there is a leak from a faulty gutter or drainpipe, which caused water to run onto a parking lot or walkway, and then freeze, leading to a slip and fall accident on ice. In such a case, the defendant could not make the argument that they did not know about the condition, because the condition existed for a sufficient period of time for the defendant to have discovered the problem and repaired the leaky gutter or drain.