California Civil Jury Instructions (CACI) (2017)

1008. Liability for Adjacent Altered Sidewalk—Essential Factual Elements

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1008.Liability for Adjacent Altered Sidewalk—Essential Factual
Elements
[Name of plaintiff] claims that [he/she] was harmed because [name of
defendant] was negligent in constructing and maintaining an altered
portion of the sidewalk next to [his/her/its] property. To establish this
claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] [or a previous owner] altered [or
requested the city to alter] the portion of the sidewalk that
caused the harm;
2. That the alteration provided a benefit solely to [name of
defendant]’s property;
3. That the alteration served a purpose different from ordinary
sidewalk use;
4. That [name of defendant] failed to use reasonable care in creating
or maintaining the altered portion of the sidewalk;
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s negligence was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003
Sources and Authority
• An abutting landowner who has altered an adjacent sidewalk for the benefit of
his property apart from the ordinary use for which it was designed has a duty to
employ ordinary care in making such alteration and in maintaining that portion
of the sidewalk in a reasonably safe condition. (Peters v. City & County of San
Francisco (1953) 41 Cal.2d 419, 423 [260 P.2d 55]; see Selger v. Steven
Brothers, Inc. (1990) 222 Cal.App.3d 1585, 1594 [272 Cal.Rptr. 544].)
• The duty of care regarding altered sidewalks usually arises in cases “involving
traps on sidewalks, including ‘ “coal holes, meter boxes, and other devices of
similar character located in the sidewalk which benefit the abutting owner and
are located where the general public is likely to walk . . . .” ’ ” (Contreras v.
Anderson (1997) 59 Cal.App.4th 188, 202 [69 Cal.Rptr.2d 69], internal citation
omitted.)
• Liability depends on findings of (1) special benefit to the owner’s property, (2)
alteration of sidewalk for a nontypical purpose, and (3) the degree of
exclusivity of benefit. (Contreras, supra, 59 Cal.App.4th at p. 202.)
• “The significance of the degree of exclusivity is that proportionately, the greater
the exclusivity of use, the more an improvement benefits solely the adjoining
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property and the more reasonable it is to impose upon the landowner a duty to
maintain the improvement in a reasonably safe condition.” (Seaber v. Hotel Del
Coronado (1991) 1 Cal.App.4th 481, 491 [2 Cal.Rptr.2d 405].)
• The requirement of due care in altering a sidewalk applies only to that portion
of the sidewalk that is actually altered: “The rule cited by plaintiff requires the
owner to keep the altered portion in reasonably safe condition or be liable for
injuries resulting therefrom. Plaintiff did not trip on defendant’s floral displays,
she slipped on the dog dropping, a hazard which defendant did not create.”
(Selger, supra, 222 Cal.App.3d at p. 1595.)
• “The duty to maintain portions of a sidewalk which have been altered for the
benefit of the property runs with the land, and a property owner cannot avoid
liability on the ground that the condition was created by or at the request of his
predecessors in title.” (Peters, supra, 41 Cal.2d at p. 423.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1090–1093
1Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.03[4]
(Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.29
(Matthew Bender)
PREMISES LIABILITY CACI No. 1008
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