California Civil Jury Instructions (CACI)

1004. Obviously Unsafe Conditions

If an unsafe condition of the property is so obvious that a person could reasonably be expected to observe it, then the [owner/lessor/occupier/one who controls the property] does not have to warn others about the dangerous condition.

New September 2003

Directions for Use

Defendants may have a duty to take precautions to protect against the risk of harm from an obviously unsafe condition, even if they do not have a duty to warn. (Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 121–122 [273 Cal.Rptr. 457].)

Sources and Authority

  • Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition. (6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1126.) However, this is not true in all cases. “[I]t is foreseeable that even an obvious danger may cause injury, if the practical necessity of encountering the danger, when weighed against the apparent risk involved, is such that under the circumstances, a person might choose to encounter the danger. The foreseeability of injury, in turn, when considered along with various other policy considerations such as the extent of the burden to the defendant and consequences to the community of imposing a duty to remedy such danger may lead to the legal conclusion that the defendant ‘owes a duty of due care’ [to the person injured.]” (Osborn, supra, 224 Cal.App.3d at p. 121, internal citations omitted.)

  • It is incorrect to instruct a jury categorically that a business owner cannot be held liable for an injury resulting from an obvious danger. (Osborn, supra, 224 Cal.App.3d at p. 116.) There may be a duty to remedy a dangerous condition, even though there is no duty to warn thereof, if the condition is foreseeable. (Id. at pp. 121–122.)
  • In Felmlee v. Falcon Cable TV (1995) 36 Cal.App.4th 1032, 1039–1040 [43 Cal.Rptr.2d 158], the court found that an instruction stating that the defendant “owed no duty to warn plaintiff of a danger which was obvious or which should have been observed in the exercise of ordinary care” was proper: “The jury was free to consider whether Falcon was directly negligent in failing to correct any foreseeable, dangerous condition of the cables which may have contributed to
  • the cause of Felmlee’s injuries.” (Id. at p. 1040.)
  • One court has observed: “[T]he ‘obvious danger’ exception to a landowner’s ordinary duty of care is in reality a recharacterization of the former assumption of the risk doctrine, i.e., where the condition is so apparent that the plaintiff must have realized the danger involved, he assumes the risk of injury even if the defendant was negligent. . . . [T]his type of assumption of the risk has now been merged into comparative negligence.” (Donohue v. San Francisco Housing Authority (1993) 16 Cal.App.4th 658, 665 [20 Cal.Rptr.2d 148], internal citations omitted.)

Secondary Sources

6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1125–1127

1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.04[4] (Matthew Bender)

11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property Owners, §§ 381.20, 381.32 (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, § 178.25 et seq. (Matthew Bender)