The Court of Appeals for the Fourth Circuit held that under certain circumstances the trial court can determine as a matter of law whether a party had actual or constructive knowledge of a defective condition which caused injury. In Hoschar v. Appalachian Power Co., 739 F.3d.163 (4th Cir. 2014) plaintiff allegedly suffered a lung infection while working as an independent contractor in defendants’ plant. He claimed that the fungus which led to his injury was caused by bird manure in the soil where he was working.
A NIOSH Publication on OSHA’s website explained that the fungus grew best in soils having a high nitrogen content especially those enriched with bird manure or bat droppings. Plaintiff argued that because the NIOSH Publication was disseminated through various means and was generally available to the defendant the risk of infection was foreseeable to defendant and gave rise to a duty to at least warn plaintiff of the bird manure and the risk. The Court found that there was no evidence that defendant had seen or knew of the NIOSH Publication and therefore it had no duty to warn plaintiff. Plaintiff claimed that the court erred in finding that the defendant could not have constructive knowledge of the hazard on his premises because it is a factual determination that must be made by a jury in every instance. The court did not buy this contention and said:
“Contrary to Appellants’ assertion, however, this question does not automatically go to a jury. The determination of whether APCO had actual or constructive knowledge of a histoplasmosis risk relates to whether a legal duty was owed to Mr. Hoschar in the first place. See Hawkins, 633 S.E.2d at 35 (“[B]efore an owner can be liable under a negligence theory, he must have had actual or constructive knowledge of the defective condition which caused the injury.”). It is true that often, whether or not an individual has actual or constructive knowledge of a risk is a question of fact that cannot be resolved without weighting conflicting evidence. But where, as here, the facts are undisputed, the district court can make this determination as a matter of law. See Fed.R.Civ.P. 56(a) pp 175 – 6).”