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Lack of Actual or Constructive Notice Defense

Jed Dietrich, Esq., Acclaimed as a New York Super Lawyer, and His Team of Aggressive, Tenacious, and Hardworking Attorneys at the Dietrich Law Firm P.C., Distinguished as an American Institute of Personal Injury Attorneys 10 Best Personal Injury Law Firm, Fight to Obtain Incomparable Results for Victims Severely Injured in Premises Liability Accidents Throughout Western New York.


Caution sign Accidents that take place on someone else's property caused by a dangerous or defective condition can result in severe injuries or worse. Whether the accident was caused by a missing handrail, inadequate lighting, or an uneven surface, unsafe property conditions that injure victims can give rise to premises liability lawsuits. Under New York Law, owners have a legal duty to maintain their property in a reasonably safe manner for all visitors, patrons, and residents. This legal duty requires landowners to remedy all known hazards within a reasonable period. Landowners can be held responsible for dangerous conditions on their property that cause injury when they knew or should have known about the condition but failed to remedy it or warn others.

Actual notice is when the property owner knows about the hazard. On the other hand, constructive notice means that the owner had reason to know about the condition. Most accidents caused by conditions that the landowner had an actual or constructive notice about could have been avoided with proper care. To prevail in premises liability claims, victims must demonstrate that the owner knew or should have known about the danger. Nevertheless, property owners can assert that they lacked actual or constructive notice. When successful, the defense can negate a landowner’s knowledge of the danger. Without this essential component, it is difficult to show the owner’s negligence.

The Dietrich Law Firm P.C.’s battle-tested attorneys believe that property owners should be held accountable for neglecting to fulfill legal obligations to remedy dangerous conditions and prevent needless accidents. If you, or a loved one, have been severely injured or worse due to an unsafe condition, it is imperative to consult with a highly experienced personal injury attorney. Jed Dietrich, Esq. has battled to obtain over $175 Million in verdicts and settlements for victims who were injured in Buffalo, New York, throughout New York State, and beyond. Our honorable commitment to exceeding your expectations and delivering an exceptional outcome is what sets us apart from the competition. The Dietrich Law Firm P.C.’s veteran team offers complimentary lawsuit evaluations and consultations. Our elite attorneys are available 24 hours a day, 7 days a week, at (716) 839-3939 or by filling out the online consultation form. There is never a fee unless we WIN for you!

The Lack of Actual or Constructive Notice Defense

In premise liability cases, victims carry the burden of proof to show that property owners were negligent. The main components of a negligence claim are duty, breach of duty, damages, and causation. To establish negligence, a victim must demonstrate the following:

  1. A condition on the property existed that was unreasonably dangerous or substandard;
  2. The landowner or other responsible party knew or had reason to know about the danger;
  3. The property owner had enough time to repair the dangerous condition or at least warn others about it, but no notice was given, and the condition remained unrepaired; and
  4. The dangerous condition was the proximate cause of the victim’s injuries.

If the victim has any evidence that the defendant knew about the dangerous condition, it must be revealed. Otherwise, the property owner can easily claim the lack of actual notice. Additionally, if the hazard was not highly visible or present for a sufficient period before the accident, to allow it to be discovered and remedied, an owner can assert the lack of constructive notice defense. Without actual or constructive notice of the dangerous condition, it will be extremely difficult to prove that the landowner was liable.

WERE YOU, OR A LOVED ONE, SERIOUSLY INJURED DUE TO A PROPERTY OWNER’S NEGLIGENCE IN BUFFALO, NIAGARA FALLS, ROCHESTER, OR OTHER PARTS OF NEW YORK STATE?

CALL JED DIETRICH, ESQ. AND HIS TOP RATED AND HIGHLY EXPERIENCED TEAM OF BUFFALO, NEW YORK PERSONAL INJURY ATTORNEYS AT (716) 839-3939 NOW TO OBTAIN THE HELP THAT YOU DESERVE!

Successfully Defeating Lack of Notice Defenses

The Dietrich Law Firm P.C.’s veteran litigation team knows how to successfully counter any lack of notice defenses that may arise. Whether the lack of actual or constructive notice defense will apply is contingent on circumstances surrounding the dangerous condition. Some highly effective tactics our attorneys have used to defeat this defense include:

Inspection routines
  1. Previous Injuries: If the same condition caused past accidents or injuries, it would be very easy to demonstrate the property owner’s actual notice, especially if the condition was never repaired.
  2. Prior Complaints: Accidents after previous complaints of unsafe conditions are very common. By showing previous complaints, especially well-documented ones regarding the condition, we can establish actual knowledge.
  3. Circumstantial Evidence: In situations where actual knowledge cannot be proven, constructive knowledge must be demonstrated. Various forms of circumstantial evidence, such as the danger’s noticeability, visibility, size, or length of existence, can help establish that the condition was so obvious that the landowner should have known about it.
  4. Reasonable Anticipation: In some cases, property owners should reasonably expect certain hazards to occur and could easily find the condition through the exercise of reasonable care. For example, parking garage owners should reasonably anticipate the garage floor to be icy after a cold winter storm.
  5. Negligent Inspection Routines: Businesses, such as restaurants and retail stores, must make all reasonable efforts to maintain safe conditions for patrons. This duty requires owners to routinely inspect their stores for dangerous conditions that may appear without warning. When accidents, such as slip and falls, occur, we can often show constructive knowledge based on the inspection records. If inspections were overlooked, our seasoned lawyers could demonstrate negligence based upon lack of adequate maintenance.

When you call the Dietrich Law Firm P.C. team, we will vigilantly investigate your case and determine the property owner’s level of knowledge regarding the dangerous condition. We are often able to demonstrate that the landowner either knew or had reason to know about the condition but failed to take sufficient measures to remedy it. Our highly experienced lawyers have a long history of obtaining justice for victims of devastating accidents and know how to defeat lack of notice defenses. Allow our elite premises liability lawyers to expose the property owner’s actual or constructive knowledge. The Dietrich Law Firm P.C., distinguished as a Best Law Firm of America, is determined, disciplined, and dedicated to obtaining the best possible results for those injured in accidents in Buffalo, New York; Rochester, New York; Niagara Falls, New York; throughout New York State and beyond. Call Jed Dietrich, Esq., recognized as an Attorney and Practice Magazine’s Top 10 Personal Injury Attorney, and his best of the best team today at (716) 839-3939 so that we can help you!


Call the Dietrich Law Firm P.C. immediately at (716) 839-3939 so that our aggressive, tenacious and hardworking personal injury lawyers can fight to obtain the best result for your personal injury claim in Buffalo, New York. We are available 24 hours a day, 7 days a week, and there is never a fee until we WIN for you!

Client Reviews
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I am a medical doctor and have worked with many of the best lawyers in Buffalo and I can say without question that Jed Dietrich is the only lawyer I would trust with my injury case in Buffalo New York. B.O.
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No one will work harder, smarter or better; I have retained Jed and he obtained the best result for my case. D.P.
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The definition of an "A" type personality-exactly who I would want to represent me in a serious personal injury case. E.S.
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