• Drew D. Helms

How Fast Does Snow Melt?

The Third Circuit says snow doesn't melt fast enough to permit summary judgment on a lack of constructive notice theory. In Johanna Cortes v. BJ's Wholesale Club defendant's summary judgment win was overturned because the Third Circuit found a triable issue of fact existed regarding whether a puddle of water created by melting snow had existed long enough to charge defendant BJ's Wholesale Club with constructive notice of the dangerous condition.


Apparently in New Jersey the general rule is much the same as it is here in California: a plaintiff must show that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident and a defendant has constructive notice when the condition existed for such a length of time as reasonably to have resulted in knowledge and correction had the defendant been reasonably diligent. Also like in California, constructive notice can be inferred in various ways, including from the characteristics of the dangerous condition. For example, in California the size of a spill of a viscous liquid like pancake syrup might be considered to show how long it had been spreading out on the floor.


In this case, the Third Circuit said the fact that the snow had time to melt into water was enough to defeat summary judgment because a jury could draw the inference that the rate of snow melt indicated the condition had existed long enough that BJ's should have been aware of it had they been diligent. The court did not, though, state that constructive notice existed as a matter of law anymore than the lack of constructive notice. The court just held that a jury needed to decide.


California law, particularly as interpreted by judges reluctant to grant summary judgment, seems likely to produce the same result. However, while California does allow plaintiffs to use circumstantial evidence to suggest summary judgment-defeating inferences, the best counter is always direct evidence of how long a condition existed. Through the use of security video or other means of proving when a dangerous condition was created, in combination with good inspection policies, defense counsel can obtain summary judgment in premises liability claims.


Contact me if you have any questions about a particular set of facts to see whether your case might be subject to summary judgment. Customers spill things, other customers slip, and neither of those facts of life should keep your business stuck in prolonged litigation.

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