Business owners generally have a duty to protect customers from known hazards under Washington, D.C. law. To prove a dangerous condition existed in a Washington, D.C. premises liability case, a plaintiff must show that the defendant either had actual notice or constructive notice of the hazardous condition. To prove constructive notice, a plaintiff has to show the condition existed for long enough that the defendant should have known of the condition and corrected it in the exercise of reasonable care. The duration of the hazard is an important factor, and the evidence in support of constructive notice often includes evidence of how long the hazard existed. Other evidence may include, for example, the frequency that a defendant inspects for hazards. However, whether notice is sufficient to amount to constructive notice depends on the facts of the particular case.
In a recent case before a state appellate court, the court considered whether a store may have had constructive notice of a puddle of water on the floor before the plaintiff slipped and fell in it. In that case, the plaintiff slipped and fell on the puddle of water at a supermarket. The plaintiff claimed that the plaintiff was negligent because of the existence of the dangerous condition. In the course of discovery in the case, the plaintiff’s sister was deposed, who was there when the plaintiff fell. In the sister’s deposition, the sister was asked only about where the water came from and whether the puddle appeared transparent. She stated that she did not know where the water came from and believed the water was clear.
After the defendant filed for summary judgment, the plaintiff submitted an affidavit from her sister. In the affidavit, the plaintiff’s sister stated that shortly after the plaintiff fell, she saw a pool of water on the ground near a cooler. She explained the puddle was elongated and appeared to have been stepped in by multiple people because there were track marks or footprints to and from the puddle. The store argued that the affidavit should have been stricken from the record, because the affidavit repudiated the sister’s deposition testimony.