What Determines Whether a Property Owner Had Actual or Constructive Notice of a Dangerous Condition to Satisfy the First Element for Premises Liability?

In Gless v. Dritley Properties, No. A-16-978 (Neb. Ct. App. 2017) the Nebraska Court of Appeals answered that question.

On October 10, 2011, Laura Gless (“Gless”) slipped and fell on water on the floor inside the foyer of Elkhorn Animal Hospital, owned by Dr. Paul Dritley (“Dritley”). She filed an action on October 9, 2014 alleging that she sustained personal injuries from the fall. Gless alleged that Dritley’s negligence is the sole and proximate cause of Gless’ injuries.

Gless opened the building’s exterior door and held it open so her husband could enter. It was raining that day. As Gless stepped off the mat and onto the tile floor, she slipped. Gless testified that she did not see the water on the floor of the foyer until after she fell. She did not know how much water was on the floor. Dritley offered several witness affidavits that stated there was no noticeable water on the floor prior to Gless’s fall. Employees stated that they were very careful on rainy days to make sure there were no watery spots.

The court found Dritley established that Gless failed to produce evidence indicating how long the water had been on the floor prior to Gless’ slip and fall, or where the water had come from. The burden shifted to Gless to produce evidence that Dritley knew of the condition or should have known of the condition, and the court found she failed to meet this burden. There was no genuine issue of material fact, so Dritley was entitled to judgment as a matter of law. Gless appealed the summary judgment.

In premises liability cases, an owner is subject to liability for injury to a lawful visitor from a condition on the owner’s premises if the visitor proves that the owner either created the condition, knew of the condition, or by exercise of reasonable care would have discovered the condition; that the owner should have realized the condition involved an unreasonable risk of harm; that the owner should have expected that the visitor either would not realize the danger or would fail to protect himself or herself against the danger; that the owner failed to use reasonable care to protect the visitor against the danger; and that the condition was a proximate cause of damage to the visitor.

Gless did not claim that Dritley created the condition, so the question was whether Dritley had actual or constructive notice of a dangerous condition to satisfy the first element for premises liability. There was no evidence that Dritley or the employees saw the water on the floor. The court found that Gless did not present any evidence suggesting that Dritley had actual notice of the condition, so Gless needed to prove that Dritley had constructive notice.

In order for a defendant to have constructive notice, the condition must be visible and apparent, and it must exist for a sufficient length of time prior to an accident to permit a defendant to discover and remedy it. Gless testified that she did not know how long the water was on the floor before her fall. Gless argues that the employees had constructive notice because on the day of the incident, it was raining. However, the district court dismissed this, finding that there was no evidence how long the water had been on the floor in the location Gless’ slip and fall happened.

While there is an assumption that the water was tracked in, there is only speculation as to where it came from. Because there is no evidence that the employees or Dritley knew or should have known of the water on the floor prior to Gless’ fall, Dritley was entitled to judgment as a matter of law.

Gless claims Dritley failed to exercise reasonable care that day, saying the staff did not inspect the foyer from when they opened to when Gless fell at 10:00 AM. In a premises liability case, the plaintiff must establish that the defendant created the condition, knew of the condition, or by the exercise of reasonable care should have discovered the condition. Affidavits by the employees refute that. Again, there is only speculation that the rain was the source of the water on the floor, and there is no evidence how long the water was on the floor before Gless’ fall. Without this information the court cannot find that, through the exercise of reasonable care, the condition would have been discovered.

For the above reasons, this Court finds the district court did not err in granting summary judgment in favor of Dritley.

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