Did Anyone Notice That?

In most personal injury actions where is is alleged that there is a dangerous condition the plaintiff or claimant must deal with the issue of notice. Thus if the allegation is that there is a crack in the sidewalk, ice on the walkway, pothole in the parking lot, that the ceiling collapsed, or water on the stairway, usually one of 3 things must be proven. 1) The defendant had "Actual Notice" of the condition. This means that the defendant who owns or is in charge of the property knew of the condition either by his own observation or someone specifically told him about it. For example, the store manager saw the water on the lobby floor before the customer slipped on it. Or a fellow customer previously saw the condition and complained about it to the manager. 2) The defendant had "Constructive Notice" of the condition. This means that the condition existed for such a long period of time that the defendant should have become aware of it. For example, after the customer falls, another patron approaches her and says "I saw that water on the floor 45 minutes ago". Sometimes that the condition has existed for a significant period of time is clear by its very nature. For example, a portion of the sidewalk raised a number of inches by a tree root does not happen overnight, but takes a long time to form. 3) The defendant "created" the condition. This means that through their own actions the defendant created a dangerous condition. For example, whenever the machine sprayed water on the vegetables in the supermarket some of the water ended up on the floor causing a puddle, which the customer slipped and fell on. The question of notice is often raised by the defendants, in all sorts of cases. A case in the news this week is of interest. The plaintiff was a prisoner at the Nassau County Correctional Facility. He was bit on his penis (you can't make this stuff up) by a rat (the furry kind, not the kind who rats out other criminals). The defendant, the County of Nassau, moved the court to dismiss the complaint, arguing that they did not have any notice of a rodent problem. You decide if there was notice. The evidence presented was that prior to this incident: -There were 11 formal grievances in the 23 prior months. -A petition had been presented from 50 inmates on the issue. -Another inmate had been bitten by a mouse. -A rodent part had been discovered in an inmate's meal. -The correction officer who responded to the subject incident testified that he had received at least 100 informal inmate complaints about rodents in cells. The judge felt that there was enough evidence of prior notice that the jury should decide the case at trial. If you have any questions or comments, please contact us. - Marc Miner, Esq. Zalman & Schnurman is a New York law firm that concentrates in personal injury actions such as construction accidents, motor vehicle accidents, bicycle accidents, premises liability, trip and falls, slip and falls, snow and ice cases, medical malpractice, traumatic brain injuries, etc. Learn more at www.1800Lawline.com, or contact us at 1-800-LAWLINE, or 1-800-529-5463 New York City, Bronx, Brooklyn, Manhattan, Queens, Staten Island, Nassau County, Suffolk County, Westchester County, Rockland County. The information provided here is for informational purposes only and is not meant as legal advice or to cover all possible facts or factors. An attorney should be consulted to discuss specific facts and laws.

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