In an action against the owner of record and a lessee of premises to recover damages for personal injury resulting from a fall, wherein no evidence was offered to show who had possession of the premises where the plaintiff fell, no judgment could be rendered against either defendant. Where the store of the defendant lessee was closed at 6 p.m. on a cloudy day, a light precipitation of snow began at 8:12 p.m., and the plaintiff fell at 9:45 p.m., it could not be found that constructive notice of the claimed defect existed. The notice which the defendants must have received as a condition precedent of liability for the plaintiff's injury must have been notice of the defect itself which occasioned the injury, and not merely of conditions naturally productive of that defect and which subsequently in fact produced it.
MUNGER, J.
The complaint alleges that the Cutler Realty Company was the owner of record of the premises described and the other defendant, the Lerner Shops, was the lessee. The defendants say that no evidence of any kind has been offered to show who had control or possession of the premises where the plaintiff fell. I think this position is sound and it would follow that no judgment can be rendered against either defendant.
Quite aside from that, however, it is impossible to find that there existed any notice of the defective condition. No actual notice is claimed but constructive notice merely. The plaintiff finished work at 9 p.m. on the night of the injury and says she fell about 9:45. There were many hours of sunshine on the day of the injury. The day was cloudy. A light precipitation of snow began at 8:12 p.m. It is conceded that the store of the defendant The Lerner Shop closed that evening at 6 o'clock. It cannot be held that the defendants or either of them had any notice of any defective condition of the area where the plaintiff fell.