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You were going to visit a friend, and as you were walking into his apartment building, you fell over a defective walkway causing you to break your leg. Turns out the building owner knew of the walkway defect but never fixed it. The next day it's all fixed. Because he fixed it now, does that mean he's responsible for your accident?

The short answer is “No.”

The longer answer is “Maybe.”

Here's what I mean. In this fact pattern where you are walking to a friends house and trip over a broken part of the walkway, it is critical to know whether the owner or the person who maintains the property knew that there was a defective or dangerous condition.

Why is that important?

It's important because if that person knew about a dangerous condition and failed to timely correct it, that could provide a basis to show that they are legally responsible for the injury that you suffered.

There is a concept in law known as 'actual notice' and 'constructive notice'.

What this means is that if somebody in the past had gone to the owner and told him “Hey, I just want to let you know there's a broken area of your walkway that somebody's going to trip on, fall and get hurt, you need to fix it now.” If somebody had told the owner that, and you could prove that the owner had that conversation, there is a possibility you could show at trial that the owner had 'actual notice' that they knew about this defective walkway.

Being able to prove that the owner actually knew about this dangerous condition may be extremely challenging. It may be impossible to know whether anyone had such a conversation. It may also be impossible to learn whether the owner is telling the truth when he says “Nobody ever told me there was a problem there.”

If you are unable to show that the owner or person who maintained the property specifically knew about this dangerous condition, then another way to show responsibility is by a legal concept known as 'constructive notice'.

That means that even though the owner may not have been told specifically about this exact defect, the owner “should have known” about the dangerous condition.

Why should they have known?

If they maintain the property on a regular basis, they have an obligation to make sure it is maintained properly. They have an obligation to inspect. It would likely be necessary to hire construction experts and engineers to look at the defect and estimate how long this defective condition had existed before the injury occurred.

In a case where someone does in fact get injured because of a defective walkway, and now the owner of the property quickly tries to remedy the matter so that no other people get injured, does the mere fact that he has taken corrective action to fix the problem reveal his culpability and responsibility to the original injured victim?

The law in New York says no.

This is known as a “Subsequent remedial measure” and cannot be used in a lawsuit to show that the owner of the property knew or should have known that there was a defect that could cause someone injury.

From a practical standpoint, it seems like simple common sense that if someone gets hurt, and the property owner immediately fixes it so nobody else gets hurt, you would think that that means the only reason he is fixing it is because he now recognizes, too late, that this problem caused this person's fall and they suffered injury because of that.

Although that makes perfect common sense, the law in New York does not allow us to use those corrective measures as proof positive that the owner of the property knew that the walkway was defective and dangerous. That is why it is so critical for us to  show that the owner knew and had actual notice either in writing or someone told him about the dangerous condition so that he should have fixed it in a timely and responsible manner.

Alternatively, if we cannot show that the owner knew there was actual written or oral notice about the dangerous walkway, then we must show the jury that this condition had to have existed for a significant period of time and it was obvious for all to see.

So really, hindsight and the fact that the owner tried to remedy the dangerous condition after somebody already got hurt does not prove liability, although in the minds of most people, it should.


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer