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Issue: Adequacy of notice. Please discuss.

This could easily be a leftover question from last month’s bar exam. The topic: Premises liability. The issue: Adequacy of notice. Here are the facts.

You’re a shopowner in Marblehead, Mass., a grand old town along the Atlantic, north of Boston. The U.S. Navy was founded here, in fact. You own an old building with gutter problems. In fact, your problem is a falling gutter problem.

How do you make sure no one gets hurt, or, you wonder, how do you make sure no one gets hurt and sues you? You put up a bright orange hazard cone and you tape a sign to it that says, “Beware of falling gutter.” (See actual sign in the picture above, taken in Marblehead, Mass., this afternoon). You also tape some signs to the adjacent window sills, but the wind blows them closed.

Law school exam question: Have you given adequate notice to the public? It’s pretty open and obvious. And the sign surely makes one look up in wonder, then walk past out in the street.

But if a person on the sidewalk somehow missed the orange cone and only looked at the window sills, he could get whacked by a falling gutter. Tort law in Massachusetts is a lot more plaintiff-friendly than the Old Dominion, but probably would be of no help on the bar exam in Virginia.

Common sense question: Why don’t you just get the gutters fixed?

By Paul Fletcher

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