What is “constructive notice?”

A person may have an accident over a condition of property, for example, a grocery store patron trips over raised asphalt in the grocery store’s parking lot, sustaining injuries.  Or, perhaps a grocery store patron slips in spilled milk in the refrigeration aisle. There are, of course, innumerable situations where someone may experience an unfortunate accident when encountering a dangerous condition of public or private property.


In which scenarios is liability created against the party that owned or maintained the property? Regarding the example with the grocery store parking lot with defective asphalt, under what circumstances does that create liability. The law in California uses a concept called “constructive notice,” which basically means that if the condition existed for long enough that someone should have discovered it, upon reasonable inspection, and done repairs, than the conduct of the property owner or maintainer was not reasonable, creating potential liability for the injuries that the customer sustained.


The California jury instruction articulates “constructive notice” as follows:


In determining whether [name of defendant] should have known of the condition that created the risk of harm, you must decide whether, under all the circumstances, the condition was of such a nature and existed long enough that [name of defendant] had sufficient time to discover it and, using reasonable care:

  • 1.Repair the condition; or
  • 2.Protect against harm from the condition; or
  • 3.Adequately warn of the condition.

[[Name of defendant] must make reasonable inspections of the property to discover unsafe conditions. If an inspection was not made within a reasonable time before the accident, this may show that the condition existed long enough so that [a store/[a/an] [insert other commercial enterprise]] owner using reasonable care would have discovered it.]

The law is articulated differently for public property conditions, as follows:



[Name of plaintiff] must prove that [name of defendant] had notice of the dangerous condition before the incident occurred. To prove that there was notice, [name of plaintiff] must prove:

[That [name of defendant] knew of the condition and knew or should have known that it was dangerous. A public entity knows of a dangerous condition if an employee knows of the condition and reasonably should have informed the entity about it.]


[That the condition had existed for enough time before the incident and was so obvious that the [name of defendant] reasonably should have discovered the condition and known that it was dangerous.]


If you have an accident as a result of some condition of property, try to take some photographs of the condition as soon as you can.