Keeping Maintenance and Inspection Records to Refute “Constructive Notice” of Defects Claims

Q An employee of a tenant at the office building I own is suing me for negligence, claiming that my property manager's failure to repair a loose step caused the employee to fall down a stairway, injuring his back and neck. The manager had recently fixed other loose steps on the staircase, but hadn't noticed a problem with the step that later injured the employee. Could I be liable for his accident even though the step had become faulty since the original repairs?

A Yes, if the tenant's employee can prove that your property manager (whose liability is imputed to you because he is your employee and “agent”) had “constructive notice” that the step was faulty. That was the situation in a case similar to yours, where a Washington appeals court determined that an office building owner could be held liable for an injury caused by a loose step on a staircase. Although the building's property manager was unaware that the particular step that caused the fall was broken, he had fixed other parts of the staircase and that should have put him on notice that the whole structure was deteriorating, needed to be replaced, and, therefore, could cause future accidents as it continued to fall apart.

In that case, two of a tenant's employees complained that the steps in the lower portion of the building's exterior staircase were unstable. As a result of the complaints, the property manager fixed those steps. But he didn't inspect the rest of the staircase, despite the fact that he used the staircase during daily visits.

After one of the employees fell on another step, she sued the owner, claiming that he had breached his duty of care to the building's tenants and their employees because of his property manager's failure to repair the step despite having constructive notice of the deteriorating condition of the entire staircase, which made future accidents foreseeable.

The owner asked the court for a judgment in his favor without a trial. The owner argued that the tenant's employee had failed to produce evidence that the property manager—and, therefore, he—had either actual or constructive notice of the defective step. A trial court ruled in the owner's favor without a trial, but an appeals court reversed the ruling for two reasons.

Evidence of Constructive Notice

The appeals court noted that, to pursue her negligence claim, the tenant's employee had to show:

• A duty owed to her by the owner;
• A breach of that duty;
• A resulting injury; and
• A proximate—that is, direct—cause between the breach and her injury.

The court pointed out that an owner's legal duty to a person entering a property depends on whether the person is a “trespasser,” “licensee,” or “invitee,” such as the tenant's employee.

An owner is liable to an invitee for an unsafe condition on the land if he has actual or constructive notice of the unsafe condition. The court noted that an owner—or one of its employees or agents, like a property manager—must inspect for unsafe conditions and “repair, safeguard, or warn” as may be reasonably necessary for invitees’ protection under the circumstances.

In addition, the owner is considered to have had constructive notice of a defect where the condition “existed for such time as would have afforded him or his agent sufficient opportunity, in the exercise of ordinary care, to have made a proper inspection of the premises and to have removed the danger.”

Here, the tenant's employee presented evidence that: several steps in the staircase were loose a month before the accident; the property manager visited the building and walked up and down the staircase daily; he inspected the staircase immediately after the accident, fixing the step that caused it and several other loose steps; and the owner replaced the entire staircase soon after.

Jury Could Determine Breach from Evidence

Determining whether a defective condition has existed long enough for an owner exercising reasonable care to discover it is ordinarily a question of fact for the jury, said the appeals court. But a jury could reasonably infer from the facts presented by the tenant's employee that the staircase had been deteriorating for at least a month prior to the employee's accident, and that the property manager had sufficient time and an opportunity to discover the dangerous condition during his daily visits to the office building and to fix it, said the appeals court. The property manager's knowledge of the dangerous situation was imputed to the owner.

Accordingly, the appeals court ordered a jury trial to determine the ultimate issue of whether the owner breached its duty of care to the tenant's employee, causing her injury [Smith v. Winther Properties, LLC, et al., September 2010].

To refute a constructive notice of defects claim and defend against such claims in the future, ask your property manager to keep detailed records of his repairs and his inspection of the areas surrounding the repair site. If possible, hold regular meetings to talk about the condition of the property and any issues that could foreseeably lead to accidents.