Wade Clark Mulcahy LLP

To prove constructive notice in a New York premises liability case against a commercial property owner, a plaintiff must show that a defect was visible and apparent and must have existed for a sufficient period of time prior to the accident to permit a defendant’s employees to discover and remedy it.

In<em> <a href="https://www.wcmlaw.com/wp-content/uploads/2023/04/J.-G.-v.-L.I.-Adventureland.pdf">J. G. v. L.I. Adventureland</a> </em>the Appellate Division, Second Department, addressed this issue in a case where the infant plaintiff alleged emotional injuries after getting stuck on a roller coaster at an amusement park. The ride came to an unexpected stop approximately 5 to 7 feet above the ground and the plaintiff was rescued after 15 minutes. The defendants moved for summary judgment on the grounds that, among others, they did not create the allegedly dangerous condition and did not have actual or constructive knowledge of it. The Supreme Court granted the motion, and plaintiff appealed.

Plaintiff argued that the defendants failed to establish that they lacked constructive notice since the ride had stopped on previous occasions. The Court observed that a “party… who has actual knowledge of an ongoing and recurring dangerous condition can be charged with constructive notice of each specific reoccurrence of that condition.” However, it also noted that general awareness that the coaster had stopped in previous years is insufficient to legally constitute notice of the particular condition that caused the incident at issue. The Court found that the defendants demonstrated that they did not have constructive notice of any alleged dangerous condition as they submitted evidence that they inspected the roller coaster on the day of the incident, did not find any defects, did not receive any complaints about the roller coaster prior to the incident, and operated the roller coaster without any problems before the incident occurred. Since plaintiff failed to raise a triable issue of fact, the Court affirmed the lower court’s decision.

This decision echoes the longstanding rule in New York that a property owner must have enough time to discover and remedy a defect in order to have exposure under a constructive notice claim. It also highlights the importance of conducting regular inspections and maintaining accurate records to establish a solid defense in premises liability claims.

Thank you to Rebecca Pasternak for her contribution to this post. Please contact <a href="agibbs@wcmlaw.com">Andrew Gibbs</a> with any questions.