APU Legal Studies Original

Demystifying the Law: Actual and Constructive Notice

Our Legal Studies program offers both an online bachelor’s degree in legal studies and an online master’s degree in legal studies that introduce students to the many facets of the legal profession and the prospect of perhaps continuing on to law school.

In previous articles, I’ve attempted to demystify complex legal topics such as the different types of causation and the differences between decriminalization and legalization. In this article, we’re going to look at actual and constructive notice, and why these legal concepts are so important in premises liability litigation.

We tend to reflexively think that, if we are to be held liable for an injury to someone that occurs on our property, we must first have known about whatever caused the injury. That way we could have at least had the opportunity to remedy it. After all, if we didn’t know about the cause, we couldn’t have done anything to prevent it. Right?

This may be true in some cases, but for companies that invite customers onto their properties for the sake of doing business, the duty goes beyond that which they actually know about.

The Difference between Actual Notice and Constructive Notice

Actual notice under the law is simple. It’s the idea that you actually knew about something.

For example, suppose you run a zoo and the tiger gets out of its cage. Did you see the tiger out of its cage? Did a customer tell you he saw it out of its cage? Any means by which you become aware of the actual situation gives rise to actual notice.

But constructive notice is more complicated. Constructive notice is essentially a legal fiction which holds that, while you might not have actually known about the thing in question, if you had been behaving as you should have been, you would have known about it.

Let’s go back to our zoo example. Suppose you don’t actually know about the tiger being out of its cage. But also suppose that neither you nor any of your employees or agents had walked through your zoo in days to inspect the premises.

And after the tiger tragically mauls some of your guests, a post-incident investigation reveals that it escaped because its cage had rusted and broken apart. That’s something that any prudent zookeeper would notice if he were doing what he was supposed to do and regularly inspecting the animal containment facilities.

In this kind of case, constructive notice gives injury victims a viable means by which to pursue compensation from a business that behaved negligently. As such, constructive notice really is necessary to justice.

Constructive Notice Requires that Businesses Behave Reasonably with Respect to Maintaining Their Premises

Think about what the situation might be like if there were no such thing as constructive notice. Businesses would actually be incentivized not to inspect their premises.

Because if they see a problem, then they have to correct it. But if they never see it, then they wouldn’t be held liable for anything that happens. So there would be an advantage to sticking your head in the sand and inspecting as infrequently as possible.

But fortunately, that’s not the case. Constructive notice requires that businesses behave reasonably with respect to maintaining their premises. The trouble, of course, comes in defining what “reasonable” means in each situation and context.

The zoo example was fairly blatant with respect to the element of negligence. Failing to inspect your zoo and the animal containment facilities for days at a time is unambiguously unreasonable.

Res Ipsa Loquitur and the Presumption of Negligence

It’s also worth noting that the zoo example would probably involve another legal doctrine called res ipsa loquitur, which is Latin for “the thing speaks for itself.” This doctrine basically holds that, if a particular object or condition is in the exclusive control of the proprietor and it causes harm to someone, there is a presumption of negligence because no one else but the proprietor would have touched it.

So in the case of the zoo, as long as guests were not messing with the tiger’s cage, we could probably argue that the cage was in the exclusive control of the zoo. And as such, res ipsa loquitur would call for a presumption of negligence on the zoo’s part. Cages don’t just spontaneously fail. And if the zoo was the only party touching, using, and maintaining the cage – and the cage subsequently broke – then there’s an implication that the zoo is at fault.

But what about situations where the details aren’t quite so clear? For instance, many premises liability cases hinge on slips and falls due to spilled liquids on floors.

Imagine, for example, the soda aisle in a grocery store. Now, the grocery store definitely has a duty to inspect its premises for hazards and to fix them, or the store can otherwise warn customers about these hazards when they’re identified.

But here, res ipsa loquitur would not apply because the soda aisle floor would not be in the exclusive control of the store. Customers are constantly walking on it with their carts and picking items off shelves. So if there is a spill in the aisle that causes someone to slip and fall, it’s possible that it could be caused by another customer just as it could have been caused by the store or one of its employees.

But even if such a spill is caused by another customer, that doesn’t mean the store is off the hook. The grocery store can’t just leave spills in the aisle regardless of who caused them. Store management has a duty to look out for latent (i.e., non-obvious) hazards and to address them as they find them. If they don’t, they could be found negligent by way of constructive notice.

What is reasonable for inspections in the soda aisle, though? Conceivably, a spill could happen at any moment of any day. So does that mean the store should have an employee permanently posted in the soda aisle, staring at the floor, whose sole function is to jump on spills the second they occur in order to avoid slips and falls? Of course not.

Retail Stores Need to Behave Reasonably with Respect to Inspections and Safety

But the store needs to behave reasonably with respect to inspections and safety. Reasonableness will be determined by a variety of factors, including:

  • The number of customers who traverse the aisle in a given period of time
  • The type and condition of the flooring
  • The products inventoried there
  • The likely nature of hazards (latent vs. patent)
  • The history of spills and incidents
  • The frequency for maintenance and safety walkthroughs

So “reasonable” is different in each circumstance, depending on the context. And it’s also worth noting that this duty may extend to and include persons other than actual property owners who have control and use of the premises in question.

This control and use by other parties could be pursuant to a lease, rental contract or use agreement of some kind. So if the grocery store we talked about is owned by one company, but leased and operated by another company, then there may be different levels of duty for each of the parties regarding safety and premises liability.

That liability would depend on state laws and the degree of control or involvement in the actual goings-on at the premises. So it’s always a good idea to check applicable laws on these subjects.

Nonetheless, the important thing for businesses to recognize is that constructive notice requires an active effort to inspect their premises and to do their due diligence to keep customers and employees safe. Ultimately, “I didn’t know” may not necessarily be an acceptable excuse in court.

Dr. Gary Deel is a Faculty Director with the Dr. Wallace E. Boston School of Business. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for the University, the University of Central Florida, Colorado State University and others.

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