COVID-19 Resource Center

September 27, 2007

Transitory Conditions And Lack Of Notice

Most slip and fall cases hinge on general principles of premises liability. In Pennsylvania, it is well settled that the Restatement (2nd) of Torts § 343 controls premises liability claims. Our defense of retail establishments frequently focuses on these general concepts.

The Restatement (Second) of Torts § 343 requires that in order to prove liability, there must first be a "condition" which is, in fact, "dangerous." Plaintiff’s primary burden will be to offer sufficient evidence to support that such a condition did exist. Additionally, the plaintiff must establish that the defendant actually knew that such a condition existed, or in the alternative, that such a condition existed for a sufficient duration of time to provide the defendant with constructive notice. The element of notice is the central issue in a case involving a “transitory” condition.

A transitory condition is a condition that could have been created an instant before an accident occurred. For example, one patron of a store could track water into the store or spill a beverage causing the floor to become wet immediately prior to the plaintiff’s slip and fall accident. The condition caused by the first patron would not have allowed the condition to have existed for a sufficient duration of time, legally, to place the defendant on constructive notice.

While once a long shot, Courts have steadily been warming up to summary judgment motions where a plaintiff has admitted no knowledge of the source of a transitory condition or how long the condition may have existed prior to the accident. In Porro v. Century III Associates, 846 A.2d 1282 (Pa. Super. 2004), the Court held that the duration of existence is the key factor in determining if the defendant had constructive knowledge of a transitory condition.

In Porro, defendant’s motion for summary judgment was granted and affirmed on appeal. In determining whether a store had notice of a dangerous “transitory condition”, the Court held that unless the plaintiff can show that the condition was caused by the defendant or known to frequently occur, the jury may not consider the owner's ultimate liability in the absence of other evidence which tended to prove that the owner had actual notice of the condition or that the condition existed for such a length of time that in the exercise of reasonable care the owner should have known of it.

What It Means to You

Our firm has successfully relied upon the Restatement (2nd) of Torts § 343 and Porro when the plaintiff has been unable to identify the duration of time that a transitory condition existed prior to the accident. The strategic decision on filing summary judgment or other motions is case specific. While the better plaintiffs’ attorneys will prepare their clients to navigate this line of questioning, a skilled defense litigator will elicit deposition testimony from the plaintiff or other witnesses that support a summary judgment or other motion.
 

Sources

Restatement (Second) of Torts § 343; Porro v. Century III Associates, 846 A.2d 1282 (Pa. Super. 2004)