California Civil Jury Instructions (CACI) (2017)

1004. Obviously Unsafe Conditions

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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
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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
1Levy 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)
CACI No. 1004 PREMISES LIABILITY
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