Constructive Knowledge, the Hammer and the Nail of Premise Liability

The Center for Disease Control reports that fall injuries are among the 20 most expensive medical conditions with average hospital costs of $35,000.00.  The wide and innumerable factual scenarios presented in trip, slip and fall incidents have blurred the line of conduct that creates legal liability for a premises owner or occupier.   While property owners try to maintain focus of how to fulfill their general duty to their patrons and the public at large, focus on one of the basic principles of premises liability can assist in reducing property hazards and liability claims.

The basis of an owner’s liability is a superior knowledge of the condition that subjected the invitee plaintiff to an unreasonable risk of harm.  Bramblett v. Earl Smith Floors, Inc., 227 Ga. App. 296, 297, 488 S.E.2d 766 (1997).  No matter the factual scenario presented to the court for adjudication, a plaintiff must still present evidence that a premises owner had (1) actual or constructive knowledge of the hazard; and (2) that he or she lacked knowledge of the hazard despite the exercise of ordinary care due to an action or a condition within the owner’s control.  Washington v. J.D. Royer Wholesale Florist, 275 Ga. App. 407, 408, 620 S.E.2d 626 (2005).  As few cases turn on a culpable party’s actual knowledge, an analysis of the conduct that creates constructive knowledge provides more clarity on the line between successful risk management and a large liability exposure.

As lawsuit and tort claims arise following an injury, it is easy for hindsight bias to expand or exaggerate all the signs a party should have recognized would naturally lead to a foreseeable injury.  But legal negligence is the result of foresight, not hindsight.  There is no duty to foresee and warn against dangers that are not reasonably expected and which would not occur except under exceptional circumstances or from unexpected acts of the injured person.  Langston v. Home Depot U.S.A., Inc., 251 Ga. App. 240, 241, 554 S.E.2d 223 (2001).  Proprietors can reduce risks and provide safer establishments by gaining a better understanding of the law’s expectations of reasonable conduct that satisfies the standard of ordinary care to keep the premises safe.

Constructive knowledge may be shown by evidence that a proprietor’s employee was in the immediate area of the hazard and had a reasonable opportunity to correct the hazardous condition or by showing that the hazard existed for a sufficient period of time that the proprietor should have discovered and removed it.  Esposito v. Pharr Court Assoc., L.P., 334 Ga. App. 434, 779 S.E.2d 675 (2015).  In Esposito, the plaintiff slipped and fell on a substance on the floor when she visited her husband at a nursing home.  Constructive knowledge of the substance was not imputed to the premises owner even through the owner’s receptionist was 15 to 18 feet from the substance on the floor.  Id. at 436.  In affirming the grant of summary judgment, the court held that “showing that an employee was in the vicinity of the foreign substance is not sufficient to preclude summary judgment.  It must be shown that the employee was in a position to have easily seen the substance and removed it.”  Id. at 438.  The plaintiff’s own testimony that the substance was camouflaged by the floor, which was light tan and brown in color, and the existence of a reasonable inspection procedure by the proprietor provided a shield against tort liability.

The absence of a routine inspection procedure for hazards can lead to an opposite result for a proprietor.  In Gaskin v. Berry’s Boat Dock, 780 S.E.2d 83, 84 (Ga. Ct. App. 2015), the Georgia Court of Appeals reversed the grant of summary judgment and held that an issue of fact remained as to whether the defendant had constructive knowledge of the hazard.  The court’s holding emphasizedthat constructive knowledge may be inferred when there is evidence that the owner lacked a reasonable inspection procedure.  In Gaskins, the plaintiff sustained injury when a pipe and chain railing post on the ramp to a boating dock gave way and caused his fall.  Plaintiff’s expert opined that the pipe and railing were attached to rotten wood that lost its structural integrity.  Gaskin, 780 S.E.2d at 84.  Despite the plaintiff’s use of the ramp on prior occasions, the Court held that the defendant’s failure to establish as a matter of undisputed fact the existence of a reasonable inspection procedure that it carried out at the time of the incident created an issue of fact of the defendant’s constructive knowledge of the ramp’s condition.  It is not enough that a proprietor staffs an employee that fixes conditions as they are found; the proprietor must demonstrate the existence of a reasonable inspection procedure.

While a proprietor is not expected to make its property injury proof, prudent risk management asks and has answers to the following questions:

  • Does the proprietor have a routine inspection procedure that can be documented or proven to be in existence at the time of the injury?
  • Does the inspection procedure assess the nature of the hazard and the likelihood of harm, be it naturally occurring or foreign in nature?
  • Does the establishment maintain a log of the cleaning schedule and completed maintenance repairs?
  • Is there an employee training or safety program that provides ongoing education?
  • Does the establishment keep wet floor or hazard signs on the premises that employees use when “hazardous” conditions arise?
  • Is the proprietor knowledgeable of the entity that bears the responsibility for the maintenance of sidewalks and curbs and are these areas painted in contrasting colors?
  • With what frequency are exterior lights checked?
  • Do the grounds maintain a video surveillance system that has a set retention schedule?
  • Are there multiple means of ingress and egress to the building’s entrance?
  • Are the safety programs/procedures subject to an audit to measure their efficiency in risk reduction?

While a checklist of suggestions on inspection protocols can never be exhaustive, a procedure tailored to the particular facility may be a turning point on meeting the standard of care and eliminated allegations of constructive knowledge of a hazard.


Dawn N. Pettigrew