On December 20, a Pennsylvania federal judge refused to toss out a suit against PetSmart Inc. by a woman who alleges she slipped and fell in a puddle of dog urine. U.S. District Judge Mia Roberts Perez denied the company’s motion for summary judgment in the suit filed by Vera Dominiak, stating that the frequency with which pets urinate in the store aisles can let a jury conclude that PetSmart breached its duty to keep the aisles clear.

Per Law 360:

According to the suit, Dominiak was picking up her dog from grooming at 5:50 p.m. on Nov. 8, 2020, and was walking down the main aisle of the store when she slipped on a puddle of liquid, which an incident report identified as urine.

In its bid for summary judgment, the store did not dispute that Dominiak slipped, fell and was injured by a puddle of urine, but instead argued that it had neither actual nor constructive notice of the puddle.

However, Judge Perez wrote that it is up to a jury to decide whether PetSmart had actual or constructive notice of the puddle.

What is actual and constructive notice in a premises liability case?

In premises liability cases, two important legal concepts come into play: actual notice and constructive notice. These concepts help determine whether a property owner can be held responsible for injuries or damages resulting from a hazardous condition on their premises.

• Actual notice: Actual notice pertains to the explicit knowledge that a property owner possesses regarding a dangerous condition on their property. This means that the owner is aware of the specific hazard, having received information about it through direct communication, written notification, or another means that brings the condition to their attention. Legal proceedings often require tangible evidence, such as written communication, complaint records, or witness testimony, to establish actual notice.
• Constructive notice: In contrast, constructive notice operates as a legal assumption that the property owner should have been aware of a hazardous condition because it either existed for a significant amount of time or was so apparent that a reasonable person would have noticed it. Constructive notice doesn’t rely on explicit knowledge but instead on the idea that, through reasonable diligence and routine inspection of the premises, the property owner should have discovered and addressed the hazard. Factors like the duration of the hazard, inspection frequency, the nature of the property, and the apparentness of the danger contribute to establishing constructive notice.

In premises liability cases, establishing either actual notice or constructive notice is paramount to proving the property owner’s negligence. If the owner knew about the hazard (actual notice) or should have known about it through reasonable diligence (constructive notice) but failed to address it, they may be held liable for any injuries or damages caused by the hazardous condition

Law360 points out the following regarding the case:

A jury should decide whether those measures were sufficient and whether the store properly followed its procedures on the day of the accident, the judge wrote. In addition, she wrote that the store’s layout — which lacked an “oops station” in the main aisle and had a policy of inviting dogs in — lends weight to Dominiak’s claim that the store helped create the hazard.

And even if Dominiak can’t show that the store had actual notice of the puddle, a jury could conclude that the puddle was there long enough that PetSmart should have been aware of it through an exercise of reasonable care, the judge wrote.

With Reif testifying that her floor inspection would have taken place between 5:00 p.m. and 5:20 p.m., and Dominiak slipping around 5:50 p.m., the puddle could have been there for up to half an hour, the judge wrote, noting that the puddle was in a central location in the store’s main aisle, through which most patrons would walk their dogs.

Court documents state the following:

Plaintiff has come forth with evidence sufficient to raise a genuine dispute of material fact as to whether Petsmart had actual or constructive notice of the puddle of urine that caused her to fall. Accordingly, Defendant’s motion for summary judgment is denied.

This means that the case will proceed to a jury to decide.

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