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Legal Memorandum: Hazardous Condition on Premises in PA

Issue: Under Pennsylvania law, is summary judgment appropriate where issues remain as to whether defendant had notice of the hazardous condition causing plaintiff’s injury?

Area of Law: Business Organizations & Contracts, Litigation & Procedure, Personal Injury & Negligence
Keywords: Summary judgment; Notice; Hazardous or dangerous conditions
Jurisdiction: Pennsylvania
Cited Cases: 840 A.2d 822; 740 F.2d 230; 723 A.2d 1250; 771 A.2d 786
Cited Statutes: Restatement (Second) of Torts § 343, cmt. d
Date: 11/01/2004

The commercial business owner must take reasonable care in order to ascertain the actual condition of the premises.  David v. Pueblo Supermarket, 740 F.2d 230, 236 (3d Cir. 1984) (quoting Restatement (Second) of Torts § 343, cmt. d).  “Notice of a dangerous condition can be actual or constructive.”  Gov’t of V.I. v. Pant, 30 V.I. 259, 265 (D.V.I. 1994).

Whether the defendant had constructive notice of a hazardous condition depends on the circumstances of the case, and usually involves evidence regarding the durability of the condition and its duration.  Neve v. Insalaco’s, 771 A.2d 786, 791 (Pa. Super. Ct. 2001).  Accord David, 740 F.2d at 236.  The plaintiff need not produce positive evidence of the duration of a defect if it is of a type that has an inherently sustained duration and a witness saw the defect either immediately before or after the accident.  Neve, 771 A.2d at 791 (concluding that because the raised metal grate over which the plaintiff tripped was more durable than a transitory spill and was observed at the time of the accident, there was adequate circumstantial evidence to show the defendant’s negligence).

Importantly, whether the hazardous condition existed for such a length of time or was of such character that the defendant would have discovered it with reasonable care is a question of fact for the jury.  David, 740 F.2d at 236.  Accord Moore v. A.H. Riise Gift Shops, 23 V.I. 227, 231 (D.V.I. 1987) (denying summary judgment because […]

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