Slip and Fall: Actual vs. Constructive Knowledge

In New Orleans and throughout Louisiana, a store owner must exercise reasonable care in keeping his business clean, clear and in a reasonably safe condition. This duty includes a reasonable effort in keeping store areas free of any hazardous conditions which may cause a personal injury. A customer, or any other person lawfully on the property, may bring a personal injury claim of negligence against the merchant for any damages suffered as a result of a fall due to unsafe conditions.

In addition to the general elements of negligence, a customer would also have to prove that:

(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.

(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.

(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

Proving the higher burden of actual or constructive knowledge has been a sticking point for many a personal injury case. “Actual notice” means that the merchant affirmatively knew of the condition, while “constructive notice” means the personal injury victim has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care.

Depending upon the circumstances of a case, Louisiana courts have offered varied and conflicting interpretations of “constructive notice,” including its critical “period of time” proviso, over the years. Even if a merchant had actual or constructive notice, a merchant would also have to fail in exercising reasonable care in remedying the potential harm.

If you or a loved one has suffered a personal injury, learn about your legal rights from an experienced New Orleans personal injury attorney by filling out our free, no obligation case review form located on this website.