It is the duty of all landowners to keep their premises in a reasonably safe condition in order to prevent people on-premises from becoming injured. If you are injured as a result of an allegedly dangerous condition on someone else's premises, then to impose liability on a defendant, there must be evidence that the dangerous condition existed, and that the landowner either 1) actually "created the condition", or 2) had actual or constructive notice of it and failed to remedy it within a reasonable time. The easiest way to understand "constructive notice" is to know that it exists whenever it is shown that reasonable diligence would have produced actual notice of the dangerous condition.
If you or a loved one has been seriously injured in a slip, trip and fall accident, please reach out to one of our White Plains slip, trip and fall attorneys, who will fight for your right to economic justice. Contact a Westchester County premises liability attorney today.
Slippery floors and "foreign objects" found on them.
These are just two examples of dangerous conditions that can lead to serious on-premises injury. While it may seem intuitive that a landowner is always liable for injuries suffered under such conditions, this is actually not the case. In order for liability to be established in a slip and fall case, something called "notice" must first be proven. For example, if someone were to fall in a supermarket by slipping on a foreign object such as a grape squashed on the floor, the store owner might or might not be liable. This is because it is often difficult, if not impossible, to demonstrate that the owner had "notice" of the dangerous condition for a long enough period of time to discover and remedy it. The squashed grape could have been there for five minutes or five hours. The difficulty for the plaintiff is proving how long it was there.
If someone slips on a floor that is alleged to be slippery because it has been waxed or polished, is the owner of the premises always responsible?
Surprisingly, in New York, the answer is "No." Showing that a floor, on which you have slipped, has been recently waxed or polished is not enough to establish liability. Rather, it must be shown that the wax or polish was applied in a negligent manner. Proving this may be difficult, and expert testimony is often required.
Snow and Ice as Examples of a Dangerous Condition
People are sometimes surprised to learn that during an ongoing storm, sometimes called "a storm in progress," a property owner has a reasonable time after the snowfall has stopped before his or her duty to use reasonable care begins.
However, if a landowner's snow removal efforts during a storm create or exacerbate an allegedly hazardous condition, and this causes you to slip and fall, he or she may be held liable. For example, if a landowner removes newly fallen snow from a sidewalk, but fails to apply salt or sand, and later that day there is a radical temperature swing, a "black ice" patch may form. If this happens, then the landowner’s efforts have actually made the walkway more dangerous than if he or she had not shoveled it at all.
Another example of a landowner creating a more dangerous condition, both during and after a storm, is one in which he or she moves snow and piles it in large mounds, but never removes the mounds, and never applies any salt or sand in the area. If the mounds of snow later melt and re-freeze, and you slip on an ice patch near a mound, the landowner may be held liable. KK&S has successfully litigated similar fact patterns many times over its long history as a top-rated New York law firm.
What if the landowner is a public entity like a city, town, village, county, or the State?
The same basic rules of premises liability apply to both private and public landowners. However, there are certain prerequisites that must be complied with before you can sue a public entity, such as a municipality or a public corporation. So, for example, while uneven sidewalks and potholes in the street may be dangerous conditions, if you are injured because of them, proving liability is often quite difficult.
This is because first, there are different substantive rules that apply to governmental entities. For example, even if a village or a town has actual notice of a dangerous condition such as a pothole or a crumbling sidewalk, unless it can be proven that something called "prior written notice" has been filed with the proper person, the entity is "immune" from suit. In other words, if no proof of prior written notice is on file, there is no case. This is a harsh and often unfair rule, but it is the law.
This rule is a bit different with respect to county roads, though, where "constructive notice" can be used under Highway Law § 130(2) to avoid the otherwise harsh terms of a county’s "prior written notice" law on the books. The rules involved are quite complicated, and the law and its contours are constantly being refined through litigation.
Second, there are often different and complicated procedural steps that must be followed, depending upon which type of public entity is involved (e.g., a "public corporation," a "public authority," etc.). Further complicating this is the fact that it is sometimes difficult to know who the real landowner is. Whether you will sue, for example, the "State" or the "Department of Transportation" is a determination that can only be made by an experienced attorney.
In most instances, the Notice of Claim provisions of General Municipal Law § 50-e will apply. The first step under this rule is to complete a Notice of Claim and serve it within 90 days of the date of the incident on the proper defendant. The Summons and Complaint can then be filed 30 days after the Notice of Claim is served. (However, if the public corporation has noticed a so-called 50-h hearing [a deposition of you], then the summons and complaint can be served after the 50-h hearing takes place.)
Importantly, the 90-day Notice of Claim requirement is not just a "time limitation." It is actually a jurisdictional condition precedent to the lawsuit. This means that if it is not served on the proper defendant within 90 days, your case could be over before it begins. (Sometimes, by making a special motion, one can obtain permission to file a "late" Notice of Claim.) In any event, the outside time limit, known as the "statute of limitations", is usually a year and 90 days from the date of the incident. There are many "land mines" in these types of cases, and KK&S is here to help you avoid them and to preserve and protect your legal rights.
In cases where the State is the proper defendant, however, jurisdiction is conferred in the Court of Claims, where different procedural provisions set forth in the Court of Claims Act apply.