When does the past create liability in the present?

The law in California has two general scenarios where past occurrences may create liability for present events. The conditions exist where notice of a condition of property or some potentially harmful condition in the past may create liability if the condition is not corrected and someone is subsequently harmed by it. The legal conditions are entitled “active notice” and “constructive notice.”

“Actual notice” describes a condition where the defendant actually knows about a dangerous condition but does nothing to remedy it. A common example is a grocery store that sustains a spilled gallon of milk in the aisle. The spilled milk is reported to the grocery store, but it fails to clean it up. In this regard, the store has “actual notice” of the dangerous condition. Other examples are when soils consistently slides onto a neighboring property, or automobile accidents occur time and time again in the same intersection, due to the intersection’s design or the existence of a condition, such as tree branch that blocks a stop sign, where the city knows about the branch but never trims it.

“Constructive notice” is different in that the defendant does not actually know about the condition, but could and should have discovered it by reasonable inspection. Using the grocery store example, assuming yet again the spill of gallon of milk, where the store is not actually advised of the spill. Instead, the milk remains on the floor in the aisle for a half hour. Reasonable inspection by the store employees would have discovered the spilt milk and, thus, the store has constructive notice of the dangerous condition in the aisle.

Another example may be an intersection that suffers from automobile collisions time and time again, but there is no obvious reason, like the branch obstructing the stop sign in the earlier example. Perhaps the turn in the road is too sharp, so that cars consistently drive out of the lane of travel, or an roadway or area appears “accident prone.”

An exception regarding constructive notice involves the creation of the condition. When the defendant actually creates the condition, notice is established. Using again the grocery store example, suppose a store employee spills the gallon of milk. Notice of that dangerous condition is imparted to the grocery store management, which may be actually unaware of the condition (negating actual notice). Further, even if the condition had only existed moments before an accident (negating constructive notice), the creation of the condition by an employee creates liability for the store.