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Q: Walking through a toy store, glancing at a flyer, I turned a corner.
Entering the aisle, I suddenly tripped over a box of children’s blocks, half
open, and fell. While on the floor, I observed three such boxes near me on the
aisle floor. Those boxes were also displayed along lower shelves in that aisle.
A: Essentially, either the store left the boxes on the floor, or customers
did. Stores sometimes display larger items on the floor, such as perhaps these
boxes. Or, when there are too many items to fit on the shelves, stores
sometimes put the items in the aisle. On the other hand, customers often put
items where they don’t belong, like on the floor.
To the extent that the evidence indicates that the store left the boxes
there, then your attorney will argue that the store created the dangerous
condition. To the extent that the proof points to customers, then he or she will
argue that the store should have noticed this. Notice to the store can be actual
or ‘constructive’. Constructive notice requires a showing that the condition
was visible and apparent and existed for a sufficient period of time prior to
the accident to permit a defendant to discover it and take corrective action.
Proof of regular inspections and maintenance of the area in question
including an inspection and any remedial action just prior to the accident is
ordinarily sufficient to satisfy a defendant’s burden of showing no notice of a
dangerous condition. However, it is often difficult for a defendant to prove
that it had inspected the area just prior to the accident. It always helps to
have photographs. Good luck.