(1) the defendant actually knew about the defective condition, but didn't fix the problem in a timely manner;
(2) the condition existed for such a lengthy period of time, or, for some other reason, the defendant should have known about the defective condition but still failed to repair it in a timely manner; or,
(3) the defendant actually created the defective condition.
There is an important exception to the foregoing rules regarding "notice," however. And that is a doctrine called "special use."
In Schwartz v. A. Russo Wrecking Inc., the defendant construction company was diverting pedestrian traffic from the sidewalk, where they were performing work, into the street. Unfortunately for the plaintiff, the construction workers directed her directly into a pothole that was in the roadway, and as a result of her fall in the pothole, she sustained serious personal injuries. In its March 31 decision denying the defendant's motion to dismiss the case which was based on their contention that they had no "notice" of the defect in the roadway, the New York County Court summarized, and then applied, the special use doctrine as follows:
"In general, a defendant in a trip-and-fall action must have notice of the defect to be liable for injuries resulting from the defect. See Gordon v. American Museum of Natural History, 67 N.Y.2d 836 (1986). However, notice of the alleged defective condition in the roadway is not needed in this case. Where, as here, the defendant makes special use of the sidewalk, the defendant has a duty to provide a safe alternative passageway for pedestrians, and the relevant inquiry is whether defendant breached that duty."
Clearly, the special use doctrine is an important exception to the rules regarding "notice."
