California Civil Jury Instructions (CACI) (2017)

1003. Unsafe Conditions

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1003.Unsafe Conditions
[Name of defendant] was negligent in the use or maintenance of the
property if:
1.A condition on the property created an unreasonable risk of
harm;
2. [Name of defendant] knew or, through the exercise of reasonable
care, should have known about it; and
3. [Name of defendant] failed to repair the condition, protect against
harm from the condition, or give adequate warning of the
condition.
New September 2003; Revised April 2007, October 2008
Directions for Use
Read this instruction with CACI No. 1000, Premises Liability—Essential Factual
Elements, in a premises liability case involving an unsafe condition on property. If
there is an issue as to the owner’s constructive knowledge of the condition
(element 2), also give CACI No. 1011, Constructive Notice Regarding Dangerous
Conditions on Property.
Sources and Authority
• “Where the occupier of land is aware of a concealed condition involving in the
absence of precautions an unreasonable risk of harm to those coming in contact
with it and is aware that a person on the premises is about to come in contact
with it, the trier of fact can reasonably conclude that a failure to warn or to
repair the condition constitutes negligence. Whether or not a guest has a right to
expect that his host will remedy dangerous conditions on his account, he should
reasonably be entitled to rely upon a warning of the dangerous condition so that
he, like the host, will be in a position to take special precautions when he
comes in contact with it.” (Rowland v. Christian (1968) 69 Cal.2d 108, 119 [70
Cal.Rptr. 97, 443 P.2d 561].)
• “ ‘[T]he proprietor of a store who knows of, or by the exercise of reasonable
care could discover, an artificial condition upon his premises which he should
foresee exposes his business visitors to an unreasonable risk, and who has no
basis for believing that they will discover the condition or realize the risk
involved, is under a duty to exercise ordinary care either to make the condition
reasonably safe for their use or to give a warning adequate to enable them to
avoid the harm. . . .’ [Plaintiff] was entitled to have the jury so instructed.”
(Williams v. Carl Karcher Enters., Inc. (1986) 182 Cal.App.3d 479, 488 [227
Cal.Rptr. 465], internal citations omitted, disapproved on other grounds in Soule
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v. GM Corp. (1994) 8 Cal.4th 548, 574, 580 [34 Cal.Rptr.2d 607, 882 P.2d
298].)
• “Because the owner is not the insurer of the visitor’s personal safety, the
owner’s actual or constructive knowledge of the dangerous condition is a key to
establishing its liability. Although the owner’s lack of knowledge is not a
defense, ‘[t]o impose liability for injuries suffered by an invitee due to [a]
defective condition of the premises, the owner or occupier “must have either
actual or constructive knowledge of the dangerous condition or have been able
by the exercise of ordinary care to discover the condition, which if known to
him, he should realize as involving an unreasonable risk to invitees on his
premises. . . .” ’ ” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206 [114
Cal.Rptr.2d 470, 36 P.3d 11], internal citation omitted.)
• “Where the dangerous or defective condition of the property which causes the
injury has been created by reason of the negligence of the owner of the
property or his employee acting within the scope of the employment, the owner
of the property cannot be permitted to assert that he had no notice or
knowledge of the defective or dangerous condition in an action by an invitee
for injuries suffered by reason of the dangerous condition. Under such
circumstances knowledge thereof is imputed to him. Where the dangerous
condition is brought about by natural wear and tear, or third persons, or acts of
God or by other causes which are not due to the negligence of the owner, or his
employees, then to impose liability the owner must have either actual or
constructive knowledge of the dangerous condition or have been able by the
exercise of ordinary care to discover the condition, which if known to him, he
should realize as involving an unreasonable risk to invitees on his premises. His
negligence in such cases is founded upon his failure to exercise ordinary care in
remedying the defect after he has discovered it or as a man of ordinary
prudence should have discovered it.” (Hatfield v. Levy Bros. (1941) 18 Cal.2d
798, 806 [117 P.2d 841], internal citation omitted.)
• “Generally speaking, a property owner must have actual or constructive
knowledge of a dangerous condition before liability will be imposed. In the
ordinary slip-and-fall case, . . . the cause of the dangerous condition is not
necessarily linked to an employee. Consequently, there is no issue of respondeat
superior. Where, however, ‘the evidence is such that a reasonable inference can
be drawn that the condition was created by employees of the [defendant], then
[the defendant] is charged with notice of the dangerous condition.’ ” (Getchell v.
Rogers Jewelry (2012) 203 Cal.App.4th 381, 385 [136 Cal.Rptr.3d 641],
internal citation omitted.)
• “[U]nder current California law, a store owner’s choice of a particular ‘mode of
operation’ does not eliminate a slip-and-fall plaintiff’s burden of proving the
owner had knowledge of the dangerous condition that caused the accident.
Moreover, it would not be prudent to hold otherwise. Without this knowledge
requirement, certain store owners would essentially incur strict liability for slip-
and-fall injuries, i.e., they would be insurers of the safety of their patrons. For
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example, whether the french fry was dropped 10 seconds or 10 hours before the
accident would be of no consequence to the liability finding. However, this is
not to say that a store owner’s business choices do not impact the negligence
analysis. If the store owner’s practices create a higher risk that dangerous
conditions will exist, ordinary care will require a corresponding increase in
precautions.” (Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal.App.4th 472, 479
[3 Cal.Rptr. 3d 813].)
• “Although liability might easily be found where the landowner has actual
knowledge of the dangerous condition, ‘[the] landowner’s lack of knowledge of
the dangerous condition is not a defense. He has an affirmative duty to exercise
ordinary care to keep the premises in a reasonably safe condition, and therefore
must inspect them or take other proper means to ascertain their condition. And
if, by the exercise of reasonable care, he would have discovered the dangerous
condition, he is liable.’ ” (Swanberg v. O’Mectin (1984) 157 Cal.App.3d 325,
330 [203 Cal.Rptr. 701], internal citation omitted.)
• “[A] real estate agent has a duty to notify visitors of marketed property of
concealed dangerous conditions of which the agent has actual or constructive
knowledge. The agent’s actual or constructive knowledge of a dangerous
condition is imputed to his or her principal, the property owner, who shares
with the agent liability for damages proximately caused by a breach of this
duty.” (Hall v. Rockcliff Realtors (2013) 215 Cal.App.4th 1134, 1141 [155
Cal.Rptr.3d 739].)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1119–1123
1Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.04
(Matthew Bender)
6 California Real Estate Law and Practice, Ch. 170, The Premises: Duties and
Liabilities, § 170.02 (Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
Owners, § 381.20 (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 334, Landlord and Tenant:
Claims for Damages, § 334.51 (Matthew Bender)
36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.14
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.23 et seq.
(Matthew Bender)
California Civil Practice: Torts § 16:4 (Thomson Reuters)
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