Slip & Fall – Constructive Notice Dangerous Condition

There is an interesting premise liability case filed last year in the Circuit Court of Appeals of Tennessee at Knoxville that found vomit on the floor of a Hardee’s restaurant for approximately three minutes was a sufficient length of time to charge defendant with constructive notice of the dangerous condition. 

The case at issue is styled Kyle Beverly, et al. v. Hardee’s Food Systems, LLC, 2015 WL 3745423 (Tenn. Ct. App., April 14, 2015), perm. app. denied 10/16/2015.  This appeal followed a successful summary judgment in the trial court, which found there was no evidence to support constructive knowledge on the part of the defendant.  The videotape from Hardee’s showed two employees were busy serving customers during the three minute time period the condition existed before the fall.  The trial court found (correctly in my opinion) the vomit did not existed on the floor long enough that the defendant, using ordinary care, should have discovered and corrected the unsafe condition.

Under Tennessee law, constructive notice is defined as “information or knowledge of a fact imputed by law to a person because he could have discovered the fact by proper diligence, and his situation was such as to cause upon him the duty of inquiring into it.”  See Hawks v. City of West Moreland, 960 S.W.2d 10, 15 (Tenn. 1997).  Plaintiff can prove constructive notice by presenting evidence that the condition existed for a length of time that the owner/occupier in the exercise of reasonable care, should have become aware of the condition.

In reversing the Trial Court below, the Court of Appeals found there was evidence in the record that “could potentially” establish constructive notice and, as a result, summary judgment was inappropriate.  Specifically, the Court found that there were factual considerations that should have been considered, e.g., the nature of the business, the revolving number of patrons, and the nature of the danger, its location, and the foreseeable consequences.  In considering these various factors, the Court found that there were sufficient facts from which a reasonable jury could infer that the condition existed for such a length of time that one exercising reasonable care would have discovered it.

As with all premise liability cases, each case needs to be considered on its face based on the facts presented.  Not all premise owners will be charged with constructive notice under the same circumstances presented by this case.  It seemed clear that the fact that this was a fast food restaurant played some role in the Court’s decision as to what would be a reasonable response of the employee to the existence of a dangerous condition on the floor.  Nevertheless, this case reminds all premise owners of its responsibility to have periodic inspections.  The frequency of the inspections needs to be narrowly tailored to the type of business operation.  If you have questions or concerns regarding whether your business’ policies and procedures are adequate to prevent these types of claims, please do not hesitate to contact us directly.

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