3 Minutes Insufficient For Constructive Notice

As I have stated in prior blogs, the owner of a location where an accident occurs is not automatically liable for the accident just because that accident occurred at that location.

Rather, the accident victim and counsel must show that the owner had a duty that the owner breached. One primary duty is to keep the premises in a reasonably safe condition. The meaning of “reasonably safe” is the subject of myriad New Jersey court decisions.

In a recent unreported Appellate Division decision, the court upheld the summary dismissal of a slip and fall case. Surveillance footage showed a man and two teenagers walking through the pharmacy section of a store. As they passed a product display, a plastic bottle fell to the floor and lost its cap. One of the teenagers picked up the bottle and put it back on the shelf. Three minutes later, the plaintiff walked through the same area and slipped and fell. The store and the plaintiff agreed that the plaintiff had slipped on some shampoo that came from the fallen bottle.

The store’s prevention specialist testified that the store’s employees were instructed to immediately clean up any spills or wet spots on the floor or to remain at the spill until other employees arrived to clean it up.

The store argued that three minutes from time of spill to time of accident was not enough time to establish that it should have known of the shampoo on the floor and cleaned it up, and asked the court to dismiss the case due to lack of constructive notice. The trial court did dismiss the case.

It is tempting to think that a Fortune 500 retail chain has the ability to pay large settlements for injuries on its premises, but in reality, such claims are carefully scrutinized and often denied. Plaintiff’s counsel must prove that the store was not maintained in a reasonably safe condition. Security videos are typically available and relied upon in the denial of such claims. Often, the store will refuse to share the video with the victim’s counsel. It is important to carefully review the facts and timeline of any such case to evaluate whether a successful outcome is likely.

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