Constructive Notice – How To Prove You Don’t Have It


The most important and impactful analysis you can make in a premises liability case is whether there was constructive notice of the defect that allegedly injured the claimant/plaintiff.  Therefore, it is imperative that all businesses understand how constructive notice is proven and all claims examiners must know how to analyze it when they receive a new claim.

The quicker a constructive notice assessment is made, the quicker you can determine if the case should be immediately settled or if you should let it go to suit and file summary judgment. 

In Illinois, if a plaintiff cannot establish that the defect was caused by the negligence of the business or its agents, the plaintiff must prove actual or constructive notice in order to impose liability.  Donoho v. O’Connell’s, 13 Ill.2d 113, 118 (1958); Thompson v. Economy Super Marts, Inc., 221 Ill.App.3d 263, 265 (3rd Dist. 1991); Kimbrough v. Jewel, 92 Ill.App.3d 813, 817 (1st Dist. 1981).  Simply put, constructive notice is whether the business (i.e. retailer, hotel, restaurant, etc.) reasonably should have known about the defect which caused injury to the plaintiff.  This determination is generally made by looking at the length of time the defect existed and whether within that length of time it reasonably should have been discovered.  Donoho, 13 Ill.2d at 118.

Unfortunately, there is no bright line rule on what length of time amounts to constructive notice (at least in Illinois).  Instead, the court looks at it on a case by case basis because many factors can go into the reasonableness analysis.  Some of the factors that are evaluated by the courts, and therefore should be evaluated by every examiner and business are the following:

Formal Inspection Policies – Does the business have an inspection policy in place and was it followed? If so, when was the last inspection and would the defect have been discovered during the inspection? Is there any surveillance footage showing whether the inspection took place and when? Will the employee who performed the inspection make a good witness, and if not, can a manager give sufficient testimony about the inspection instead?

In a litigious state like Illinois, it is a good idea for businesses such as retailers, restaurants, hotels, and gas stations to have formal inspection policies whereby an inspection of the customer/visitor area takes place on a set schedule and each inspection is documented. The documentation of the inspection can be used as proof that no constructive notice existed and can be the evidence you need to win summary judgment.

Information Inspections: If you do not have proof of a formal inspection, or the formal inspection was not done, was there an informal inspection performed that can prove no constructive notice? Did a manager or person who worked in the area walk by within a reasonable period of time prior to the incident? Is there any surveillance footage of the general incident area that can prove an employee was in the area within a reasonable period prior to the incident so it was inspected?

Even if there is no formal inspection policy or that formal policy was not complied with, there are still ways a defendant business can prove no constructive notice existed.  To do this, you and your counsel must think outside the box, know the store procedures, analyze any surveillance footage and talk to the employee witnesses.

An Ongoing Defect: Is the alleged defect something that is known to occur on a somewhat regular basis – such as ice on the floor by a soda machine, paper on the floor by an ATM, food on the floor by a salad bar or green beans on the floor in the produce department? Is there a special policy in place to address these ongoing and repetitive defects to ensure safety?

This is a favorite argument by Plaintiff’s counsel and it can be very effective.  Under this type of scenario, the best way to obtain summary judgment is if you can prove you had extra precautions or inspections in the area as a result of the ongoing defect.  You want to be able to show you understood the potential danger and took action.  This could include extra inspections, altered containers, floor mats, trash cans nearby, etc.

Number of Customers/Visitors: Did the incident take place at an extraordinarily busy time? Is it known that customer/visitor traffic increases at certain times?

This is another argument that Plaintiff’s counsel likes to use but it is generally not very effective.  Even so, it is something that should be evaluated and assessed before discovery begins.  If there is a certain day or time of day that is especially busy, it would be a good idea to take a few extra precautions regarding safety.  Those precautions can prevent incidents and be used as proof of no constructive notice.

Witnesses: Where there any customer or employee witnesses? If so, do you have their statements or know what they saw? It is imperative to know what the customers and employee witnesses saw as soon as possible. This way you have the most correct information and you can make a quicker decision about constructive notice.

Surveillance Footage: Is there a surveillance camera system? If so, is there any footage of the incident? Is there any footage of the customer/visitor in the business before and/or after the incident? Is there any footage showing when employees were last in the area? Is there footage showing the cause of the defect and when it took place?

Surveillance footage is instrumental in defending a premises liability case and is almost always available nowadays.  Business managers do not like to be responsible for preserving footage and they are generally too busy to do it properly.  Therefore, find a way around this problem that ensures the proper footage is preserved but in a cost effective manner.  The person who preserves the footage should understand how the system works and why it needs to be preserved.  The person should also know what to look for so all of the possible footage is preserved.  Then, once the disc is burned, ALWAYS watch it immediately to ensure the recording was done properly.  Remember, footage is usually only available for a few weeks to months depending on your system.  This allows for the proper person to get it recorded (i.e. trusted employee, outside investigator, company security officer, etc.).

Knowing how to perform a proper and thorough constructive notice evaluation after an incident should be second nature for you and your attorney.  The better you are at it, the better you will be at knowing when to fight a claim and when to settle, fast.

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