Constructive Notice

Constructive notice is an idea in the legal world that a person may be notified by public posting of a pending legal action. This may be done in the event that the individual cannot be served personally or by mail. If the requirements for constructive notice have been met, the court deems the party to have been given notice, whether or not he actually saw the public notice.

For example, constructive notice is assumed to have been given when a legal notice is posted in a public forum, such as the city’s newspaper. Because notice was posted publicly, the person being notified is considered to have received notice, as the information was readily available to all. To explore this concept, consider the following constructive notice definition.

Definition of Constructive Notice

Noun

1. Notice that a person, exercising ordinary care and diligence as a matter of duty, would possess.

What is Notice

The U.S. Constitution contains clauses that prohibit courts from hearing a case that could unfavorably affect a party, unless that party has been given proper notice of the legal action. In order to satisfy this requirement, the notice must be provided to inform all interested parties to a lawsuit that the suit is, in fact, pending, and that it could potentially have an unfavorable outcome for them. This providing of written notice gives the defendant an opportunity to respond to the complaint, and to show up at court.

Courts may actually work with plaintiffs on cases wherein service may be difficult to perform, such as when an interested party must be located out of state, or even in prison. Because providing proper notice is so crucial to a case, and because the Constitution confirms this importance, courts will not forgive improper notice, even if the interested party or parties receive actual notice of the suit.

The type of notice that must be provided varies, depending on the jurisdiction of the court presiding over the case. Notice can be provided in-hand (“in personam“) or “in rem,” which means to anyone in the world that may be affected by the outcome of the case.

In the event of the latter, the plaintiff must inform all of the known parties of interest, then he must inform the rest of the world by “notice by publication.” This means that he must purchase a notice in a local newspaper several times over several weeks, such as when a class action lawsuit is filed against a corporation and anyone who had dealings with that corporation may be affected by the outcome of the case.

Constructive Notice

Under the law, each party to a legal action must be given notice of the action, with copies of documents filed with the court. Such notice must be provided either personally, or in some cases, by registered mail. Once initial notice has been made by personal service, the courts often allow notice of subsequent happenings within the same case to be made by mail. The rules of providing notice are specified in the Local Rules of Court, which should be available on the court’s website.

In the event all of the Plaintiff’s attempts to serve notice on the defendant fail – whether he cannot be located, or he manages to avoid personal service – the concept of constructive notice allows that defendant to be notified through public posting. The local rules of court in each jurisdiction are very specific on when public or constructive notice may be used, and how to go about it.

For example, constructive notice is considered given if an advertisement is posted in a local newspaper several times over the course of several weeks. It is assumed that either the interested party(s) saw the advertisement, or that enough people around the interested party saw the notice and would inform the interested party of the notice that they read.

Another example of constructive notice is the recording in county registries of deeds, mortgages, liens, divorce papers, and other kinds of documents that are considered public information. Because documents like these can be accessed by any member of the general public, they are considered constructive notice of events that have already taken place.

In a company, constructive notice is assumed because anyone having dealings with that company are assumed to be knowledgeable of the company’s dealings. In small claims court, it is often difficult to get a defendant to accept service. Therefore, constructive notice is a fairly common method of service in these cases.

In New York, the New York City Housing Court allows constructive notice to be effected by either a landlord or his tenant. For instance, constructive notice could be given to a landlord if the ladder to a fire escape falls apart after being climbed upon by one of his tenants. The landlord is reasonably expected to know that the deteriorating fire escape ladder poses a safety hazard to his tenants.

Constructive Notice vs. Actual Notice

Constructive notice differs from actual notice in that constructive notice assumes that the interested party to a legal action was somehow made aware of that legal action, by making the information as public as possible. Constructive notice is also known as “legal fiction” because the courts assume the interested parties have knowledge that they may not actually have. Constructive notice is often relied upon when service upon an interested party has become impossible due to the party either ignoring the process server at his door, or simply cannot be found when the service is attempted.

Actual notice, on the other hand, refers to a person being directly given notice that an existing case may affect his interests. Personal service is the act of physically handing papers to an interested party in a case. This is considered the least debatable method of providing someone with actual notice because it is difficult to deny being served when the party has to sign for the paperwork. Further, the process server also provides an affidavit of service detailing a physical description of the individual he served.

Interestingly, constructive notice is considered superior to actual notice. For instance, someone who is actually served with a summons and related papers can have the case dismissed on the ground of a lack of notice if the papers are served improperly. On the other hand, someone who is properly served and receives constructive notice but, for some reason or another, does not receive a physical copy of the summons and related paperwork will be unable to dismiss the case on the ground of a lack of service.

Constructive Notice Example Involving a Sports Injury

Karen DiPietro sued Connecticut’s Farmington Sports Arena in 2012, after her daughter sustained injuries while playing indoor soccer on the premises. Named in the suit were Farmington’s manager, operator, property owner, and the employee who was in control of the facility, and who had chosen the playing surface that DiPietro claimed had caused her daughter’s injuries.

DiPietro argued that the playing surface that was installed was too dangerous for anyone to play indoor soccer on. After the trial in the matter, the trial court granted summary judgment to the defendants. The Court’s grounds were that DiPietro had failed to provide expert testimony that would have supported her claim that the flooring itself was dangerous, as well as claiming that the Plaintiff failed to give notice to the defendant of the flooring defect.

DiPietro appealed, and the Appellate Court reversed the decision of the trial court. The Court held that expert testimony was not necessary in this case, and that DiPietro was not required to prove she had given notice of the safety problem, because the defendants were the ones who had created the unsafe condition in the first place. The defendants appealed the case to the Connecticut Supreme Court, which ultimately reversed the Appellate Court and granted summary judgment in the defendants’ favor.

In its reversal of the Appellate Court’s decision, the Supreme Court relied upon the established principle of premises liability, which states that the owners of a business:

“… do not breach their duty to invitees by failing to remedy a danger unless they had actual or constructive notice of that danger.”

The Court did agree that expert testimony was unnecessary in this case, but that DiPietro did, in fact, have the burden to prove that the defendant had such notice, which she failed to do in the Court’s opinion. The Court reasoned that constructive notice might be triggered by an inspection, or that it may originate from industry standards, or governmental regulations.

The Court believed it to be significant that no evidence had been provided by DiPietro of a defective installation of the flooring, or of any obvious defects in the playing surface. Therefore, the flooring could not have been “known” to be dangerous by simply observing it with the naked eye, and would require an expert’s confirmation of the potential hazard.

Further, the Court rejected DiPietro’s argument that she was exempt from the usual notice requirements because it was defendants had allegedly created the supposedly dangerous condition. This case is important to future cases that may rely on the grounds of constructive notice. Particularly, if a dangerous condition cannot be detected with a visual inspection, then a defendant cannot be charged with constructive notice simply because an expert testifies that scientific tests could have proven the alleged defect’s existence.

Related Legal Terms and Issues

• Affidavit of Service – A notarized document signed by a process server that notes the time, date, type of service, and identity of the person served. If the person who was served claims to have not been notified of the lawsuit, an Affidavit of Service can be presented to the court to prove otherwise.
• Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.
• Process Server – An individual whose job it is to serve individuals with legal documents, such as writs, warrants, or subpoenas.
• Summary Judgment – A final decision on the case, handed down by the judge on the basis of the statements and evidence presented, without a full trial.
• Summons – An order or citation to appear in court, or to appear before a judge or magistrate.