Liability for Negligent Creation of a Dangerous Condition

Geoff Trachtenberg

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When someone gets hurt on property or on a roadway, the issue that is litigated is typically whether there was sufficient "notice" to the property owner or entity responsible for the roadway. Often, however, proving such notice is not required where the defendant is responsible for creating the dangerous condition. As the Arizona Supreme Court recognized in Isbell v. Maricopa County, 198 Ariz. 280, 283, 9 P.3d 311, 314 (2000) (citation omitted):

As an abstract proposition, the County's argument is correct: a governmental entity may be held liable for the negligence of a third party that creates a dangerous condition only if the government has actual or constructive notice of the condition. On the other hand, a plaintiff need not establish "notice" if a government agency itself creates or causes the dangerous condition.

Thus, "if the city itself caused the defect, . . . or if the repairs or improvements were defective when made, . . . notice of the defects is not a prerequisite to holding the municipality liable." Wisener v. State, 123 Ariz. 148, 150, 598 P.2d 511, 513 (1979).