Slip and Fall, Part 2: Notice to Landowner Provable With Recurring Condition
September 25th, 2017
What if you are injured on someone else’s property by falling in a puddle of water caused by a leaky roof? You are wondering if you have a claim against the landowner. Then you find out that the same puddle and leaking roof were there other times before your fall. In fact the owner had received complaints about – or even tried to fix – the leaky roof, but water continued to puddle. You likely do have a claim because you have discovered a “recurring condition.” A recurring condition puts a landowner on notice of a dangerous condition on his property before you fell, invoking his duty to exercise reasonable care for the safety of guests, like you, reasonably expected to be on his premises. A recent Rhode Island Supreme court case, Aubin v. MAG Realty, LLC, provides guidance on how to prove recurring conditions in premises liability cases.
Aubin v. MAG Realty, LLC.
In Aubin v. MAG Realty, LLC, the main issue was whether or not plaintiff Aubin met his burden of proof to show that his slip and fall was the result of a recurring condition. Mr. Aubin had slipped on a patch of “black ice” in the paved parking area adjacent to his apartment building, owned by defendant MAG Realty, LLC. During trial, Mr. Aubin offered testimony that MAG Realty created a dangerous condition in the parking area because it plowed snow onto a grassy area just above the blacktop parking lot. During the day when the temperature no longer fell below freezing, plowed snow would melt onto the driveway and later at night when the temperature returned to freezing, melted snow would freeze over to black ice.
At trial Mr. Aubin’s wife testified that at least twice, Mr. Aubin had complained to MAG Realty about ice forming in the parking lot. Her testimony demonstrated that the black ice in the parking lot was a recurring condition. In defense, MAG Realty argued that Mr. Aubin only complained generally about icy conditions in the parking area, not about the specific patch of ice that he fell on, so MAG Realty had insufficient notice of the dangerous condition.
To decide this dispute, the Court looked to its prior holding in Dawson v. Rhode Island Auditorium, Inc.: even though a building owner did not have notice of the specific leak that caused the plaintiff’s injuries, the owner had sufficient notice because its roof was generally leaky during heavy rains. Similarly, in the Aubin case, MAG Realty had notice that icy conditions existed on its property during certain types of weather, and that icy conditions would come and go as the weather changed. It would be impractical for a tenant to have to call his landlord every day to complain about new patches of ice to satisfy the notice requirement. Therefore, Mr. Aubin did meet his burden of proving that MAG Realty had notice of the dangerous icy parking lot conditions, through his and his wife’s testimony.
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