News & Analysis as of

Constructive Notice

Marshall Dennehey

A Store Does Not Have a Duty to Constantly Monitor its Premises for Potential Hazards, and Any Alleged Failure to Monitor Is Not...

Marshall Dennehey on

Smalis v. Home Depot U.S.A., Inc., 2023 WL 8479242 (W.D. Pa. 2023) - The plaintiff, a customer of the defendant’s store, slipped and fell on water located on the floor of the men’s restroom. After the defendant removed the...more

Dinsmore & Shohl LLP

Inspecting Floors Every 15 Minutes May Defeat a “Constructive Notice” Argument in Florida Slip/Trip and Fall Lawsuits

Dinsmore & Shohl LLP on

In a 2023 trip and fall case, the United States District Court for the Middle District of Florida granted summary judgment in favor of Defendant Wal-Mart. Kozlowski v. Wal-Mart Stores E., LP, No. 5:21-cv-261-ACC-PRL, 2023...more

Marshall Dennehey

Defendant Did Not Have Constructive Notice of Uncovered Manhole to Satisfy Requirements of New Jersey Tort Claims Act

Marshall Dennehey on

The New Jersey Appellate Division affirmed granting of summary judgment for the City of Newark in a case where a manhole cover became dislodged during a heavy rain storm. The plaintiff lost control of her car after driving...more

Orrick, Herrington & Sutcliffe LLP

Colorado appeals court says electronic bank statement provided constructive notice of updated terms

On May 4, the Colorado Court of Appeals held that a plaintiff had constructive notice of updated terms and conditions in her membership agreement with a defendant credit union, which included an arbitration agreement with an...more

Wiley Rein LLP

No Coverage for Claim Deemed Made After Policy Expired When Insured First Received Actual Notice of Lawsuit

Wiley Rein LLP on

The United States District Court for the Northern District of Illinois, applying Illinois law, has held that a claim was deemed first made when the insured received actual, rather than constructive notice of the claim....more

Haight Brown & Bonesteel LLP

Constructive Notice Established as Obstacle to Relation Back Doctrine

In Organizacion Comunidad de Alviso v. City of San Jose, the Sixth Appellate District held that the relation back doctrine was inapplicable where a plaintiff received constructive notice of a defendant’s identity months prior...more

Patton Sullivan Brodehl LLP

Purchaser Has No “Notice” from an Erroneous Abstract of Judgment

A judgment creditor can record an abstract of judgment, a document that identifies the judgment debtor and the amount of the debt. The abstract usually does not identify specific property.  As long as it properly...more

Farrell Fritz, P.C.

Appellate Division Upholds Supreme Court’s Determination on Breakers Motel, East Hampton

Farrell Fritz, P.C. on

In 2018, this Blog published “Challenge to Montauk’s Motel Restaurant Fails at Supreme Court Level” discussing the Article 78 petition and plenary action entitled Jane H. Concannon Revocable Trust v. The Building Department...more

International Lawyers Network

Should You Record a Transfer or Document against a Copyright?

Suppose that you have an assignment of a copyright or a security agreement for a copyright.  Are you required to record this assignment or security agreement against the copyright registration?  Should you record this...more

Carlton Fields

Ninth Circuit Affirms District Court's Order Denying Motion to Compel Arbitration in Putative Class Action Where Defendant Failed...

Carlton Fields on

The Ninth Circuit affirmed the district court’s order denying Double Down Interactive, LLC, and International Game Technology’s (collectively, “Double Down”) motion to compel arbitration in a putative class action filed by...more

Mintz - Intellectual Property Viewpoints

Too little, too late: Federal Circuit holds that cessation of sales does not alleviate patentee’s affirmative duty to mark

In a February 19, 2020 decision the Federal Circuit held that a patentee does not escape 35 U.S.C. § 287’s marking requirement merely by ceasing sales of the practicing product. Instead, the Federal Circuit held that once a...more

Proskauer - Minding Your Business

Ninth Circuit Decision Has Significant Implications for Terms and Conditions in Smartphone Apps

A recent Ninth Circuit decision centered on something most consumers use many times every day: smartphone apps. In Wilson v. Huuuge, Inc., the Ninth Circuit affirmed the denial of defendant Huuuge’s motion to compel...more

King & Spalding

Ninth Circuit Rejects Mobile App Arbitration Agreement in Case of First Impression

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On December 20, 2019, the Ninth Circuit affirmed a Washington district court’s order denying Huuuge Inc.’s bid to arbitrate claims brought on behalf of a putative class of all smartphone users of its casino gaming...more

Carlton Fields

Ninth Circuit Affirms Denial of Motion to Compel Arbitration in Smartphone App Case Based on Obscure “Browsewrap” Arbitration...

Carlton Fields on

The Ninth Circuit recently denied a motion to compel arbitration after concluding that an arbitration agreement “buried” in difficult to access terms for a smartphone app did not put users on constructive notice that they...more

Proskauer - New Media & Technology

Browsewrap Terms Enforced Due to Customer Knowledge of Existence of Terms

Last month, a California district court granted a web-based service’s motion to compel arbitration of a putative class action brought by a user whose personal information was allegedly accessed in a massive 2016 data breach...more

Hahn Loeser & Parks LLP

OSHRC’s Recent Ruling Provides Important Guidance on Limiting Controlling Employer Liability on Multi-Employer Worksites

On Feb. 1, 2019, the Occupational Safety and Health Review Commission (OSHRC) reversed an OSHA citation issued to Suncor Energy (U.S.A.) Inc., as the controlling employer, for a fall protection violation. In this ruling, the...more

Patton Sullivan Brodehl LLP

CC&R “Subordination” Provisions and Lien Priority

In California, priority between competing liens on the same real property is usually determined by the “first in time, first in right” rule. Under that rule, different liens on the same property have priority according to...more

BCLP

Time bars under FIDIC 2017 – are more notices the answer?

BCLP on

Construction and engineering contracts often contain provisions specifying that, within a particular time, one party (traditionally the contractor) must notify the other (the employer and/or the contract administrator) of a...more

Patton Sullivan Brodehl LLP

A Lump Sum Payment of Delinquent Taxes Isn’t Enough for Adverse Possession

As detailed in prior posts, to establish a claim for adverse possession, a plaintiff must prove the following elements: For adverse possession of an easement, the plaintiff must pay the taxes as long as the easement has been...more

BCLP

Is That Your Final Answer? A Recent Court Decision Clarifies When an Action is Final for Judicial Review Under the...

BCLP on

KEY TAKEAWAYS - ..The Eleventh Circuit Court of Appeals reversed a lower court decision that denied a special use permit for a telecommunications tower based upon the timeliness of filing suit 50 days after documentation...more

Foley & Lardner LLP

Looking at an Expanding Landscape: Multiemployer Plan Withdrawal Liability

Foley & Lardner LLP on

If an employer withdraws from a multiemployer pension plan such that the employer no longer has an obligation to contribute to the plan, the withdrawing employer is generally responsible for its share of the plan’s...more

Seyfarth Shaw LLP

Suffering From Withdrawal Following An Acquisition: Private Equity Company Liable For Successor Withdrawal Liability

Seyfarth Shaw LLP on

Given the Ninth Circuit’s recent holding that successor withdrawal liability is governed by a constructive notice standard, private equity companies and other businesses seeking to acquire other enterprises should be...more

Ogletree, Deakins, Nash, Smoak & Stewart,...

Ninth Circuit’s Expansion of Successor Liability May Make Asset Purchases More Costly

On June 1, 2018, the U.S. Court of Appeals for the Ninth Circuit ruled that an asset purchaser that was deemed a successor was liable to pay the seller’s withdrawal liability even though the purchaser did not have actual...more

Ogletree, Deakins, Nash, Smoak & Stewart,...

If You Snooze, You (May) Lose Under the FMLA and ADA, Says the Seventh Circuit

In the recent case of Guzman v. Brown County, No. 16-3599 (March 7, 2018), the Seventh Circuit Court of Appeals affirmed a district court’s grant of summary judgment to an employer on claims brought under the Family and...more

Sterne, Kessler, Goldstein & Fox P.L.L.C.

Patent Marking Basics

After investing time and resources to obtain patent protection, consumer product companies should maximize their return through a well-executed patent marking plan. The details of an effective marking program must be...more

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