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Georgia Court Finds Sufficient Evidence of Constructive Knowledge To Survive Summary Judgment

pinsMany negligence cases turn on the question of whether a defendant, like a property owner, had sufficient actual knowledge of a hazard on his or her property, such that something should have been done to correct it. For instance, a plaintiff may allege that the defendant saw the hazard or that the hazard was reported directly to the property owner. While evidence often focuses on actual notice, it is important to remember that actual notice is not the only standard for liability. Property owners can also be held liable if they had constructive notice, or should have known that a hazard existed. A recent case in the Georgia Court of Appeals illustrates this standard.

In this Georgia personal injury case, P.D. sued Rainbow Stores, USA, after she stepped on an anti-theft sensor pin while visiting a store in Georgia. The pin was on the floor while P.D. was shopping and pierced her sandal when she stepped on it, leading to nerve damage in her foot. At the time of the injury, there were multiple employees on the store floor, some of whom were attaching sensor pins to pieces of clothing. The evidence uncovered during discovery showed that neither P.D. nor the other employees noticed the sensor pin at the time that P.D. stepped on it, so they did not have actual knowledge of the hazard. Based on these facts, the trial court granted Rainbow’s motion for summary judgment and dismissed the case. P.D. appealed.

On appeal, P.D. argued that while Rainbow did not have actual knowledge of the hazard, it did have constructive knowledge. P.D. pointed to testimony establishing that shoplifting was a very serious problem at Rainbow and that sensor pins were regularly attached to all clothing at the store. Employees were permitted to attach sensor pins in the back stockroom or on the store floor, and the company was aware that sensor pins falling on the floor of the store, where they could pose a danger to customers, was a problem. This happened due to employee errors and efforts by potential shoplifters to pry the sensors off clothes and discard them on the ground. To try to protect against this problem, Rainbow instructed its employees to sweep the floors each morning and each evening at closing.

The Georgia Court of Appeals noted that constructive notice can be established in two ways. First, an employee can be in the immediate vicinity of a hazard, where it is reasonable that he or she would see it. Second, the hazard can remain around long enough that through ordinary diligence, someone should have discovered it. Here, the Court of Appeals held, P.D. had alleged sufficient evidence of the second circumstance. Specifically, the Court of Appeals held that such constructive knowledge can be inferred when a company fails to put in place a reasonable inspection procedure. While Rainbow had its employees sweep floors twice a day to protect against sensor pins, the evidence presented by P.D. suggested that perhaps this was insufficient in light of the problem that sensor pins posed and how frequently they ended up on the store floor. Ultimately, the court held that it was up to a jury to decide whether such policies were reasonable or whether they put Rainbow on constructive notice of continued hazards. It therefore reversed the lower court’s grant of summary judgment and remanded the case for further proceedings.

Even if you cannot prove that an employee or another individual had actual knowledge of a hazard that you encountered, it is still possible to bring a strong negligence or premises liability claim. By establishing that a defendant should have known, or that a defendant failed to institute proper policies and procedures that would have allowed it to know, you can show constructive knowledge of a hazard that creates liability. A creative and experienced attorney can help you craft a constructive knowledge claim even when actual knowledge does not exist. Stephen M. Ozcomert has more than 20 years of experience representing clients who have been injured in premises liability accidents in Atlanta and throughout Georgia. Call us today at (404) 370-1000 to schedule a free initial consultation, or you can reach us through our website.

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