When a Buffalo resident is injured as a result of, for example, slipping at a department store or tripping over a broken sidewalk, he or she must prove that the party responsible for maintaining the area where the fell took place had “notice” of the condition that led to the fall. If it cannot be proven that the responsible party did have notice, then that person or business cannot be successfully sued for damages.
Notice is the legal term which means the business or municipality was aware that the dangerous condition leading to the accident had existed for some period of time, but still failed to repair that condition. In New York State, there are basically two different types of notice that may come into play in slip and fall cases: Actual and Constructive.
Proof of Actual Notice requires evidence that the defendant was informed, in writing or verbally, that the dangerous condition existed. Obviously, absent a witness coming forward, this can be difficult to prove. Actual Notice may also be established if the defendant actually created the condition, such as digging up an area where people walk during construction and leaving it open.
Fortunately, many slip and fall cases do not require that Actual Notice be proven, but instead require proof of Constructive Notice. Constructive Notice requires evidence that the defendant knew, or should have known, about the condition leading to injury. Proving that a defendant “should have known” about a particular situation, such as reoccurring instances of water pooling on a walkway, is much easier than proving that they had actually been informed of the condition. All that is required is proof that the defect was there long enough that the defendant should have discovered and corrected it.
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