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Actual Versus Constructive Notice in Premises Liability Cases


Slip-and-falls or trip-and-falls are among the most common types of personal injury cases. A slip or trip and fall can often happen in the blink of an eye, and the general public may not know of the nuanced law behind liability. Whether there was a  spilled liquid on the ground in the store you were visiting,  poorly maintained sidewalks with dangerous ridges or unevenness, or unmitigated snow and ice outside of an establishment, slip-and-fall or trip-and-fall cases can get very complex. Fortunately, Sherwood Law Group vigorously investigates and litigates slip-and-fall and trip-and-fall cases.
Generally, in negligence cases, a landowner or business owner owes their patrons a duty of ordinary care to maintain their premises to remove or mitigate slip-and-fall or trip-and-fall risks. Milevski v. Ingalls Memorial Hospital, 123 N.E.3d 449, 457 (2018) (quoting Nguyen v. Lam, 2017 IL App (1st) 161272, ¶ 20)). Thus, if the defendant created the risk of harm, they breached that duty of ordinary care. See Mueller v. Phar-Mor, Inc., 336 Ill. App. 3d 659, 668 (2000) (plaintiff struck by a sliding door at a store that was not correctly placed). 
However, as in most cases, the dangerous condition was usually not created by the landowner or business owner. Instead, it appeared through the actions of a third party (spill/drop) or by the forces of nature (rain/snow/ice). Therefore, one must prove that the landowner or business owner breached that duty of ordinary care owed unto them. See Haslett v. United Skates of Am., Inc., 2019 IL App (1st) 181337, ¶ 41. 
Accordingly, Illinois courts have repeatedly held that a business owner breaches its duty to patrons who slip on a foreign object in three circumstances: (1) where the object was placed there by the negligence of the proprietor; (2) his servants knew of its presence; or (3) the object was there a sufficient length of time so that, in the exercise of ordinary care, its presence should have been discovered (i.e., the proprietor had constructive notice of the object). Id. (citing Milevski, 123 N.E.3d 449).
Thus, the crux of most, if not all, slip-and-fall or trip-and-fall cases is establishing that the defendant had notice of the potentially dangerous condition. Legally, notice comes in two forms: actual and constructive notice. Notice refers to a defendant’s state of mind or the knowledge they had or should have regarding the potentially dangerous condition. This cannot be proven if the landowner or business owner did not know or should not have known about the dangerous condition in the first place.
First, actual notice refers to a defendant “actually” knowing that the potentially dangerous condition exists. Haslett, 2019 IL App (1st) 181337, ¶ 52. While actual notice is relatively straightforward and establishing it is usually the preferred strategic route, often the obstacle with actual notice is proving it. When proving actual notice is feasible through statements or other evidence, there is a clear path to establishing it. However, when establishing actual notice is impossible, constructive notice is the alternative.
Second, constructive notice comes into play when the defendant’s actual knowledge of the potentially dangerous condition is not provable. Thus, constructive notice refers to a condition that the defendant should have known about. Id. Usually, constructive notice is used when the potentially dangerous condition remained unmitigated for a long time or was present in an area that foreseeably would cause or regularly causes similar hazards. Time is considered a “material factor,” and it is the plaintiff’s burden of proof to establish that the condition was present for a sufficient period that it should have put the defendant on “notice” of its existence. Milevski, 123 N.E.3d at 457-58 (quoting Tomczak v. Planetsphere, Inc., 315 Ill. App. 3d 1033, 1040 (2000).
Establishing notice is vital to any slip-and-fall case or trip-and-fall case, and it can be tricky to prove. If you injure yourself in a slip and fall accident, you may be able to recover the cost of your medical treatment. Compensation for any lost wages may also be recovered if you demonstrate that your injury caused you to either miss work or work reduced hours. Finally, you may be able to recover from the pain and suffering associated with the injury, plus any negative impact this injury had on your regular activities.

 The facts need to be scrutinized in every slip and fall accident. If you have been injured in a slip and fall accident, it is crucial you immediately contact an experienced personal injury attorney, especially with the shortened statute of limitations. Every day counts. The personal injury lawyers at Sherwood Law Group have experience handling such complex cases and can help determine if you have a premise liability case.  For a free evaluation of your trip and fall case, contact Sherwood Law Group at 312.627.1650 or
Categories: personal injury