How to Prove Notice in a Premises Liability Case

pothole in parking lot


Proving notice in a premises liability case is essential, but it can also be one of the most challenging aspects of the case. When clients hire us after they have been injured on someone’s property, we frequently do not know whether the owner or occupier of the property had the requisite notice of the dangerous condition. This can present a challenge in even deciding to accept a premises liability case in the first place. When we do take the case, it can be difficult to establish notice in the pre-suit phase, presenting challenges for valuing the claim, drafting and sending a settlement demand, and engaging in informed settlement discussions.

If you have handled your fair share of premises liability cases, you have probably received a denial of liability from an insurance adjuster who claims the insured did not have notice of the condition that caused your client’s injuries. Without the benefit of discovery, you may have found yourself powerless to rebut this assertion and then found yourself faced with the difficult decision of whether to file a lawsuit or just drop the case.

The purpose of this article is to discuss some of the ways that you can prove notice in a premises liability case. I will begin by discussing the requirement of proving notice and the different types of notice. I will then cover the different ways that notice can be established. Lastly, I will conclude by discussing some tools that can be used to gather the necessary evidence for proving notice, including some tools you can utilize in the pre-suit phase. 

What is the Legal Concept of Notice?

In order to recover damages in a premises liability case, a plaintiff is required to show that the owner or occupier of the property had notice of the dangerous condition. This notice can be actual or constructive. Because the basis for liability in a premises liability case is the defendant’s superior knowledge of the dangerous conditions, a plaintiff who has equal knowledge of the specific hazard causing the injury cannot recover damages. Robinson v. Kroger Co., 268 Ga. 735 (1997); see also LeCroy v. Bragg, 319 Ga. App. 884 (2013) (Plaintiff had equal knowledge of the pothole that caused her fall). 

The responsibility of an owner or occupant of property is not limited to actual physical defects. It is well established that liability can extend to risks created by other types of hazards, such as dangerous animals on the property or third-party criminal attacks. Beard v. Fender, 179 Ga. App. 465 (1986). 

The 3 Types of Notice

1. Actual Knowledge

Actual notice is straightforward. If the defendant knew the condition was present, then it had actual notice. One obvious example of actual notice would be a case where the defendant actually created the hazard by, for example, dropping a foreign substance on the floor. 

Defendants will frequently try to confuse the issues by arguing that, even if they knew the condition was present, they did not know or believe that it was a hazard. For example, they may argue that there was no evidence of prior falls or any other evidence that would have led them to believe that a specific condition was dangerous. This type of argument can lead a judge down a rabbit hole, so be careful to guard against it. Actual notice only requires showing that the owner or occupant had notice that the condition existed. Actual notice does not require proof that a defendant had a subjective belief that the condition was hazardous. Strauss v. City of Lilburn, 329 Ga. App. 361 (2014); see Am. Multi-Cinema, Inc. v. Brown, 285. Ga. 442 (2009).

It is also important to keep in mind that you can have circumstantial evidence of actual notice; you do not need direct evidence. For example, in Flowers v. Kroger Co., 191 Ga. App. 464 (1989), a customer slipped and fell on smashed-up vegetable debris that was in an area where the Defendant’s employees were bagging the same type of vegetables that caused her to fall. As a result, the court held that it was “inferable from the testimony of the [Plaintiff] in this case that she slipped on vegetable debris which had been dropped to the floor by the store employees who were bagging the vegetables.” Id. at 465. As a result, the court held that it was an actual notice case rather than one involving constructive notice. If you have a case with circumstantial evidence of actual notice, make sure you present it to the court that way to avoid conflating actual versus constructive knowledge.

2. Constructive Knowledge

Constructive notice exists when there is evidence that a defendant should have known that the dangerous condition existed. The question of constructive notice, as with most questions of negligence, is ordinarily for a jury to decide except in plain and undisputed cases where there is an absence of any evidence on the issue. Clark v. City of Atlanta, 322 Ga. App. 151 (2013). There are a variety of ways to prove constructive notice, which will be discussed in more detail in the next section.

3. Presumed Notice

In certain cases, notice is presumed. For example, in cases involving defective construction, notice is presumed. The reason why notice is presumed for defective construction is because of the “owner/occupier’s ‘duty to exercise ordinary care [in] inspecting the premises to discover possible dangerous conditions to which the owner/occupier does not have actual knowledge, and taking reasonable precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises.’” Cocklin v. JC Penney Corp., 296 Ga. App. 179, 183 (2009). 

There are some cases that suggest that notice is only presumed in defective construction cases if the premises were constructed by, or under the direction of, the owner. Those cases, however, seem to be limited to situations involving out-of-possession landlords who were not involved in the construction of the premises. Furthermore, if the reasoning behind the rule that notice is presumed is the owner or occupier’s duty to inspect the premises to discover possible dangerous conditions, then it should not matter who constructed the premises.  

Notice is also presumed in cases involving static conditions. Strauss v. City of Lilburn, 329 Ga. App. 361 (2014). Unlike a temporary condition such as a foreign substance on a floor, a static condition is one that does not change. Becton v. Tire King of N. Columbus, 246 Ga. App. 57 (2000). A static condition is dangerous only if someone fails to see it and walks into it. Id. The presumption of notice can be rebutted. Williams v. J.J. Butler, 253 Ga. App 116 (2001). For example, in J.J. Butler, the Court of Appeals held that the Defendant was entitled to summary judgment when it presented evidence it was not aware of the static condition, and the Plaintiff failed to present any evidence to the contrary. That case involved an alleged slight “ridge” in the pavement in a parking lot that was so small the Plaintiff did not see it prior to her fall, when she fell she stated she did not know what caused her to fall, and the Plaintiff could not relocate and identify the “ridge.”

The prior traversal rule is important to keep in mind when dealing with a case involving a static condition. Under this rule, a plaintiff is presumed to have knowledge of a static condition that he or she has successfully traversed on a prior occasion and, therefore, the plaintiff cannot recover damages for the subsequent injury. Odum v. Gibson, 245 Ga. App. 394 (2000).

9 Ways to Establish Notice

There are a variety of ways that notice can be established. Knowing these ways is critical to creating a strategy that will lead to admissible evidence to overcome summary judgment and prevail in front of a jury. Below are some of the more common methods of showing notice, and by no means is this intended to be an exhaustive list.

1. Passage of Time

Constructive notice can be found through proof that the condition existed for a sufficient length of time that the defendant should have discovered it. Kmart Corp. v. McCollum, 290 Ga. App. 551 (2008). The length of time a defect has to exist to give rise to an inference of constructive notice is ordinarily a jury question and depends on a variety of factors, including the nature of the business, the size of the store, the number of customers, the nature of the condition, and the store’s location. Clark v. City of Atlanta, 322 Ga. App. 151 (2013); The Kroger Co. v. Schoenhoff, 324 Ga. App. 619 (2013). A plaintiff does not have to show the length of time that the hazard existed unless the defendant first shows that it had reasonable inspection procedures in place and followed them. Patrick v. Macon Hous. Auth., 250 Ga. App. 806 (2001).

2. Lack of Reasonable Inspection and Cleaning Procedures

Evidence that a defendant lacked a reasonable inspection procedure can serve as the basis for establishing constructive notice. Chastain v. CF Ga. N. DeKalb L.P., 256 Ga. App. 802 (2002). Even if there is a reasonable inspection procedure in place, the defendant must demonstrate that it actually carried out the procedure during the time of the incident. Johnson v. All American Quality Foods, Inc., 340 Ga. App. 664 (2017). In order to use the lack of an inspection procedure to show notice, there must be some evidence that the hazard could have been discovered during a reasonable inspection. Blake v. Kroger Co., 224 Ga. App. 140 (1996). The reasonableness of inspection procedures is generally a question for the jury. Johnson, 340 Ga. App. at 666-67.

3. Employee in the Vicinity

Constructive knowledge can be shown through evidence that there was an employee in the immediate vicinity of the hazard who could have noticed and removed the hazard. Blake v. Kroger Co., 224 Ga. App. 140 (1996). However, “[s]howing that an employee was merely working in the immediate area of a foreign substance is not enough; the employee must have been in a position to have easily seen the substance and removed it.” Mucyo v. Publix Super Mkts., Inc., 301 Ga. App. 599 (2009).

4. Other Incidents

Evidence of prior incidents may show actual or constructive notice. The prior accident need not be identical, but it must be similar enough to show the condition and knowledge of that condition. “All that is required is that the prior accident be sufficient to attract the owner’s attention to the dangerous condition which resulted in the litigated accident.” McCoy v. Gay, 165 Ga. App. 590 (1983).

5. Statement of Employee

A statement of an employee may be admissible as a party opponent and be used to show actual or constructive notice. For example, in Watson v. Kroger Co., 231 Ga. App. 741 (1998), the Plaintiff fell on salad dressing that was dripping from a jar in the produce section. A witness testified that after the Plaintiff fell, a produce department employee told the witness “they had been meaning to clean up that area.” Id. at 742. This statement was admissible and supported an inference that the store had actual knowledge of the spilled salad dressing.

6. Video Footage and Photos

Video footage and photos are common ways to show notice. This evidence could come in a variety of forms. Although it most commonly comes from the property’s surveillance footage, there may also be footage from an adjoining property if the incident took place outside. Of course, with the prevalence of smartphones, cell phone photos and camera footage are becoming more common. Surveillance footage in particular can be particularly helpful as it may show a variety of things, including what caused the hazard, how long the hazard existed, or the frequency of any inspections. It is important to send a spoliation letter after any premises liability incident to make sure that all surveillance footage is preserved. 

7. General Disrepair and Recurring Problems

Evidence of the general disrepair of a portion of the property where an injury took place may be used to show notice. For example, general disrepair may show that the defendant had failed in its duty to carry out the periodic inspections and take reasonable steps to protect invitees. See Jackson v. Waffle House, 245 Ga. App. 371 (2000) (evidence that a parking lot had been in general disrepair used to show constructive notice of a hole that caused Plaintiff’s fall).

Likewise, evidence of recurring problems may show notice. In The Kroger Co. v. Schoenhoff, 324 Ga. App. 619 (2013), a former Kroger employee testified that she had seen water on the floor in the floral department on prior occasions. There was also evidence that Kroger anticipated the water on the floor by placing nonskid floor maters in the area; however, there were no mats on the floor at the time of the fall. This evidence was relied on to find that there was a jury question on the issue of notice and, therefore, summary judgment was not appropriate.

8. Res Ipsa Loquitor

Res ipsa loquitur exists when “(1) [the] injury [is] of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have due to any voluntary action or contribution on the part of the plaintiff.” Kmart Corp. v. Larsen, 240 Ga. App. 351 (1999). In a case where the Plaintiff was injured by a falling shelf, the Court of Appeals held that a res ipsa loquitur charge was appropriate because the shelf was in the exclusive control of the Defendant and a falling shelf ordinarily did not happen unless someone was negligent. Id.

9. Spoliation

Spoliation is “the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” Silman v. Assoc. Bellemeade, 286 Ga. 27, 28 (2009). In a premises liability case, the Defendant may have a number of different items of evidence in its possession, including surveillance footage, the hazardous condition itself, or inspection records. If a defendant fails to preserve relevant evidence despite knowledge of actual or contemplated litigation, the court may fashion a variety of remedies, including issue preclusion, an adverse inference, or striking a defendant’s answer. If a defendant, for example, fails to preserve inspection logs but tries to present other evidence that a reasonable inspection procedure was followed on the day in question, it would make sense to ask the court to find that notice existed as a matter of law and for the jury to be instructed accordingly.

Tools for Gathering Evidence of Notice

As with any type of case, there are a variety of tools at your disposal that you can use to obtain evidence of notice. Some of these are pretty obvious, like traditional discovery tools such as depositions and written discovery. Once you know how to prove notice, you can use your experience and creativity to craft a strategy for obtaining this evidence. Below are some common tools that I have used to gather evidence of notice.

1. Traditional Discovery Tools

Interrogatories and Requests for Production

I always make sure I send written discovery requests before I start taking depositions. In premises liability cases, it is not unusual to find yourself facing a litany of boilerplate objections in response to some of your requests, especially when you are asking about other injuries or lawsuits. Do not let the defendant just rest on their objections and refuse to turn over evidence that could prove vital to establishing the elements of your case. Send a good faith letter and challenge their objections.

The types of information you request depends on the type of premises liability case you have. For example, you probably do not need to ask for construction records in a foreign substance case. Likewise, you may need a number of different items in a third-party criminal attack case that you do not need in other types of premises liability cases. Below are some common items we ask for in interrogatories and requests for production in premises liability cases involving a fall:

  • Identities of all witnesses to the incident or who were in the vicinity
  • Identities of all employees working at the time
  • Documents created about the incident, such as incident reports, photographs, video footage
  • Any surveillance footage
  • All policies and procedures on inspection and maintenance procedures
  • All documents evidencing inspections and maintenance of the area (How far you go back depends on the case. You may want to go back days, weeks, months, or even years.)
  • All documents evidencing construction or modifications to the area (This obviously depends on the nature of the hazard and would be appropriate in cases involving certain static conditions or construction defect claims.)
  • Other reports of injuries
  • Other lawsuits
  • Any time somebody reported a particular condition was dangerous or hazardous
  • Communications about the condition
  • Communications about the incident
  • All policies and procedures regarding steps to follow after somebody is injured on the defendant’s property (This may be used to set up a spoliation motion or be used to get around a work product objection by showing that documents were created in the ordinary course of business and not in anticipation of litigation.)


Depositions may seem like a no-brainer, but you would be surprised how many times plaintiffs’ lawyers sit on their hands and do not take the necessary depositions. Deposing witnesses is important, but it is also important to depose corporate representatives about the company’s policies and procedures, other incidents, and a myriad of other issues that may be important to your particular case.

Non-Party Requests

Non-party document requests may be an important tool to get documents or other tangible evidence to support your case. For example, in a case involving a static condition or a construction defect, it may be important to send document requests to the companies that created the condition or maintained it. 

I have found that it is very helpful to request the underwriting file from the insurer of the property, along with a claims history. The insurer may object, but the evidence is clearly relevant and this evidence is not entitled to some sort of special protection. Underwriting files may contain evidence of inspections that the insurer performed to identify hazards. They may contain evidence of recommendations the insurer made regarding how to reduce or eliminate certain hazards. They may also contain evidence of representations that an insured made about the condition of their property or policies and procedures they followed. The importance of the claims history speaks for itself as evidence of other incidents on the property may show notice.

2. Experts

An expert witness may be able to give opinions that will help you establish notice in a premises liability case. For example, an expert may be able to testify about the reasonableness of inspection procedures. An expert may also be able to give opinions about how long a dangerous condition existed. In cases involving defective construction or static conditions, an expert may give opinions about building codes and industry standards that were not followed.

3. Witness Statements

Witness work is important in all cases. Because premises liability cases frequently result in summary judgment motions being filed, talking to witnesses and getting statements or affidavits is particularly important. You will want to get the facts that can be used to lock them into their testimony and that can be used down the road to support your opposition to a summary judgment motion. The witnesses may be the plaintiff’s shopping companion, another customer, or a former employee. Because you do not need formal discovery tools to get a witness statement (assuming they will cooperate and you do not need a subpoena), you can get important evidence to support your claim without having to file a lawsuit. Former employees can be particularly helpful. Not only may they have information about your particular incident, but they may have evidence of other incidents, the company’s policies and procedures, or whether the policies and procedures were routinely violated.

4. Cell Phone Photos and Videos

Naturally, the proliferation of camera phones has led to an increase in photo and video evidence in premises liability cases. Your client or a third-party witness may have taken photos or videos of the dangerous condition, or they may have recorded the immediate aftermath and caught an employee or customer saying something that may be used to show notice. Whatever the case may be, make sure you ask your clients and any witnesses you interview if they captured anything on their cell phones.

5. Open Records Act Requests

Open Records Act requests are great tools for gathering evidence in personal injury cases. They can be sent at any time and can be used as part of your informal investigation in deciding whether to take a case, or in gathering evidence to support a pre-suit settlement demand. You obviously want to make sure you send an Open Records Act request for all evidence related to this specific incident, such as any 911 calls and police reports. 911 call records may lead to the identity of a witness you will want to interview as part of your investigation. 911 calls may also capture statements from employees or witnesses that may be independently relevant, or that may lead to other evidence. 

In addition to sending Open Records Act requests about this specific incident, ask for 911 calls coming from the property and any dispatches of emergency personnel to that address. This may lead to evidence of other injuries on the property.


In conclusion, notice is an essential element of a premises liability case. Before you can create a strategy on how to prove the case, you must first understand what you must prove. Because the “what” varies depending on the type of case and the specific facts involved, it is important that you think critically about your case and develop a specific strategy for obtaining the necessary evidence.

While this article has endeavored to cover some of the common ways to show notice, you should always do your own legal research to see if there are any reported appellate decisions with facts similar to your own. You can use those cases, and the principles derived from them, to create a roadmap to gather the evidence to prove your case. 

To learn more about The Champion Firm and the personal injury practice areas we cover, visit our main website here. If you’re an attorney seeking to refer a case or partner with us as co-counsel, please reach out here.