The Big Hole

Q: My husband and I were walking in a shopping center’s parking lot.  All of a sudden, my foot went down into a hole, and I fell.  There were no other witnesses.  The hole was full of water and covered by leaves.  The next morning, my husband returned and saw a hole in that area.  It was two to three inches deep and three to four inches wide.  He took some photographs.  I think that’s the one.

A: In a trip-and-fall case, the owner will generally seek to show both (a) that he or she did not create the hazardous condition that allegedly caused the fall and (b) that he or she did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it.

The owner has constructive notice of a hazardous condition when the condition is visible and apparent, and has existed for a sufficient length of time to afford the owner a reasonable opportunity to discover and remedy it.  Often, the owner will offer evidence as to when the accident site was last cleaned or inspected prior to your fall.  Sometimes, you will be able to show that the owner had previously received complaints about the condition.

So far, the evidence seems to indicate that the hole had been there for a long time, giving rise to constructive notice.  Unless there had recently been rain, the hole’s being full of water points to this.  So does its size.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

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