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Rochester Personal Injury: What Is the Lack of Actual Constructive Notice Defense?

Jed Dietrich, Esq., Is Recognized as A Super Lawyer and Elite Lawyer of America. If You, Or a Loved One, Sustained Injuries in a Rochester or Monroe County Accident, The Dietrich Law Firm P.C. Could Help You Secure the Justice, You Need and the Compensation You Deserve.


Rochester Personal Injury: What Is The Lack Of Actual Or Constructive Notice Defense?When a landlord, business, or private homeowner does not perform routine maintenance, they put themselves and the public at risk for potentially catastrophic injuries. If you, or a loved one, have been hurt in a Rochester-area premises liability accident that was not your fault, you could be entitled to significant compensation through an insurance settlement or personal injury lawsuit. However, property owners are often reluctant to admit wrongdoing, especially if a mistake has the potential to jeopardize their profits.

While New York State and Rochester law both mandate that property owners ensure their premises are safe for the public, the courts recognize that landlords and lessees are not omniscient. The lack of actual or constructive notice defense protects defendants who never had a chance to do the right thing. Under this defense, a property owner who did not have the opportunity to recognize or amend a hazardous condition cannot be held accountable for any ensuing accident or injury the hazard might cause.

Although this defense can prevent bad-faith plaintiffs from making frivolous claims, businesses sometimes allege they never received notice of obvious and long-standing hazards—dangerous obstacles that any reasonable landlord would have noticed, repaired, or removed. Without the right representation, a lack of actual or constructive notice defense could jeopardize an otherwise worthy personal injury claim, forcing an accident victim to accept a lowball settlement or even lose their right to legal relief.

Fortunately, the Dietrich Law Firm P.C. is committed to providing our clients across Rochester and Western New York with the highest level of personal injury service available. We have seen firsthand the damage premises liability accidents can inflict, not only on individual victims but entire families, too. Jed Dietrich, Esq., a recognized Super Lawyer and American Institute of Trial Lawyers Litigator of the Year, does not believe that anyone should be forced to bear the burden of another person’s poor decision. Since founding the Dietrich Law Firm P.C. in 2005, Jed Dietrich, Esq., has helped his clients secure more than $175 million in damages from negligent property owners, landlords, and businesses. We could help you, too. Please send us a message online or call us at 585-939-3939 to schedule your free, no-obligation consultation as soon as possible.

The Elements of a Typical Premises Liability Case

Property owners have a legal obligation to provide a safe environment for tenants, visitors, and the general public alike. Similarly, visitors are expected to take reasonable and situationally appropriate measures to protect their physical well-being. Before a prospective plaintiff files a lawsuit, they should be able to demonstrate that:

  1. They Had a Legal Right to Be On The Property: Ordinarily, a premises liability claimant must be able to demonstrate that they were legally permitted to be on the property where the accident occurred. However, even if they were trespassing, they may still be eligible to file a personal injury claim, provided they establish that the owner knew they were trespassing or was aware that other people frequently enter the property without permission.
  2. The Property Owner Neglected Their Duty of Care: New York State law states that property owners have a legal duty of care to maintain their properties in a reasonably safe condition. This duty of care entails performing routine maintenance, as well as the remediation of known hazards. So, if a property owner comes to know, or should have known, of a dangerous condition, their duty of care could require either correcting the condition or warning the public of its existence.
  3. The Property Owner’s Negligence Caused the Injury: Personal injury plaintiffs must provide evidence that the property owner’s negligence caused their injury. While this might seem like a relatively simple task, even a seemingly open-and-shut premises liability claim could present unexpected challenges.

When a premises liability case is being negotiated or tried, the defendant—and their insurer—could claim that they never had sufficient opportunity to recognize and remediate a dangerous condition. Sometimes called the lack of actual or constructive notice defense, this argument suggests that a property owner should not be liable for an injury caused by unforeseeable or uncontrollable circumstances.

Occasionally, businesses raise the lack of actual or constructive notice defense even when they were aware of an adverse condition. In a worst-case scenario, your personal injury case could come down to a battle of two very different perspectives. However, the Dietrich Law Firm P.C. could help you overcome this seemingly insurmountable defense. Our experienced attorneys could investigate every aspect of your Rochester premises liability accident, collect and analyze evidence, and construct your compelling case for recompense. Please call us at 585-939-3939 to discuss your best strategies for recovery.

The Differences Between Actual and Constructive Notice

A property owner receives notice of a dangerous condition when:

  1. The property owner notices a dangerous condition;
  2. The property owner should have noticed a dangerous condition, whether in the course of routine operations or as the consequence of a readily apparent event, such as a snowstorm; or
  3. Another party informs the property owner of a dangerous condition.

New York State premises liability doctrine further categorizes notice as either:

  1. Actual: Actual notice is a fairly straightforward concept. A property owner receives actual notice of a hazardous condition when the condition is brought to their attention. The actual notice could happen firsthand if the property owner, an employee, or a customer reports a hazard. Additionally, actual notice could occur if the property owner or a representative for the property owner receives verbal or written notice of a confirmed or suspected adverse condition.
  2. Constructive: Constructive notice is comparatively subjective. In contrast to actual notice, constructive notice occurs when the property owner should be aware that a dangerous or potentially dangerous condition exists. For example, Rochester often experiences lake effect snow in the winter. If a property owner knew that it snowed overnight, they could be reasonably expected to anticipate that visitors might have to traverse snow and ice-covered walkways to enter the premises.

When a property owner receives actual or constructive notice of a controllable hazard, they have a legal duty to protect visitors from danger. If a property owner neglects their duty of care, an accident could happen. If you, or a loved one, have been injured by a negligent Rochester landlord, business, or homeowner, you could be entitled to significant damages. Please send the Dietrich Law Firm P.C. a message online to schedule your free consultation.

HAVE YOU OR A LOVED ONE BEEN INJURED IN A SERIOUS ROCHESTER OR MONROE COUNTY PREMISES LIABILITY ACCIDENT? CALL JED DIETRICH, ESQ., AND HIS TEAM OF HIGHLY QUALIFIED ROCHESTER, NEW YORK, PERSONAL INJURY ATTORNEYS AT 585-939-3939

NOW TO OBTAIN THE HELP THAT YOU NEED!

Overcoming The Lack of Actual or Constructive Notice Defense

Overcoming The Lack of Actual Or Constructive Notice DefenseThe lack of actual or constructive notice defense is almost entirely contingent on the circumstances leading up to the accident and surrounding the dangerous condition. If a wrongdoer alleges that they never received notice of an obvious hazard, the Dietrich Law Firm P.C.’s team of experienced legal professionals could overcome their defense through vigorous investigation. We could scrutinize:

  1. Previous Injury Reports: If the same dangerous condition caused or contributed to other accidents, the Dietrich Law Firm P.C. could demonstrate that the defendant should have been aware of the hazard but never took sufficient action to remedy it.
  2. Prior Complaints: If you, or another concerned party, reported the condition to the property owner or a representative of the property owner, we could persuade an insurance company, a judge, or a jury that the defendant received actual notice.
  3. Circumstantial Evidence: The Dietrich Law Firm P.C. could combine physical evidence, eyewitness testimony, and common sense to make a compelling argument. New York State courts do consider circumstantial evidence when evaluating premises liability claims.
  4. Set and Setting: In some cases, a property owner should be able to reasonably anticipate certain hazards. For example, the owner of a business next to a schoolyard should expect that children might neglect or fail to recognize hazards that reasonable adults would know to avoid.
  5. Internal Policies and Practices: Just because a property owner has an active maintenance or repair policy does not mean that they have safe premises. If a property owner does not take reasonable measures to mitigate or remove a dangerous condition, they could still be liable for damages even if they tried to remedy it.

The Dietrich Law Firm P.C. is dedicated to representing the victims of premises liability. When we take on a new case, we commit to advocating our clients’ best interests. If a negligent property owner refuses to negotiate your claim in good faith or tries to blame you for the catastrophic accident they caused, our attorneys could collect and analyze the evidence needed to overcome their best defenses. You do not have to suffer in silence. Please send us a message online or call us at 585-939-3939 today.


Call the Dietrich Law Firm P.C. immediately at 585-939-3939 so that our aggressive, tenacious, and hardworking personal injury lawyers can fight to obtain the best result for your personal injury claim in Rochester, New York. We are available 24 hours a day, 7 days a week, and there is never a fee until we WIN for you!

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