California Civil Jury Instructions (CACI) (2017)

1011. Constructive Notice Regarding Dangerous Conditions on Property

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1011.Constructive Notice Regarding Dangerous Conditions on
Property
In determining whether [name of defendant] should have known of the
condition that created the risk of harm, you must decide whether, under
all the circumstances, the condition was of such a nature and existed
long enough that [name of defendant] had sufficient time to discover it
and, using reasonable care:
1. Repair the condition; or
2. Protect against harm from the condition; or
3. Adequately warn of the condition.
[[Name of defendant] must make reasonable inspections of the property
to discover unsafe conditions. If an inspection was not made within a
reasonable time before the accident, this may show that the condition
existed long enough so that [a store/[a/an] [insert other commercial
enterprise]] owner using reasonable care would have discovered it.]
New September 2003; Revised February 2007, October 2008
Directions for Use
This instruction is intended for use if there is an issue concerning the owner’s
constructive knowledge of a dangerous condition. It should be given with CACI
No. 1003, Unsafe Conditions.
The bracketed second paragraph of this instruction is based on Ortega v. Kmart
(2001) 26 Cal.4th 1200 [114 Cal.Rptr.2d 470, 36 P.3d 11]. Ortega involved a store.
The court should determine whether the bracketed portion of this instruction applies
to other types of property.
Sources and Authority
• “It is well established in California that although a store owner is not an insurer
of the safety of its patrons, the owner does owe them a duty to exercise
reasonable care in keeping the premises reasonably safe.” (Ortega, supra, 26
Cal.4th at p. 1205, internal citation omitted.)
• “We conclude that a plaintiff may prove a dangerous condition existed for an
unreasonable time with circumstantial evidence, and that . . . ‘evidence that an
inspection had not been made within a particular period of time prior to an
accident may warrant an inference that the defective condition existed long
enough so that a person exercising reasonable care would have discovered it.’ ”
(Ortega, supra, 26 Cal.4th at p. 1210, internal citation omitted.)
• “A store owner exercises ordinary care by making reasonable inspections of the
portions of the premises open to customers, and the care required is
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commensurate with the risks involved.” (Ortega, supra, 26 Cal.4th at p. 1205,
internal citation omitted.)
• “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.” (Ortega, supra, 26 Cal.4th at p. 1206, internal
citations omitted.)
• “Courts have also held that where the plaintiff relies on the failure to correct a
dangerous condition to prove the owner’s negligence, the plaintiff has the
burden of showing that the owner had notice of the defect in sufficient time to
correct it.” (Ortega, supra, 26 Cal.4th at p. 1206, internal citations omitted.)
• “The plaintiff need not show actual knowledge where evidence suggests that the
dangerous condition was present for a sufficient period of time to charge the
owner with constructive knowledge of its existence.” (Ortega, supra, 26 Cal.4th
at p. 1206, internal citations omitted.)
• “We emphasize that allowing the inference does not change the rule that if a
store owner has taken care in the discharge of its duty, by inspecting its
premises in a reasonable manner, then no breach will be found even if a
plaintiff does suffer injury.” (Ortega, supra, 26 Cal.4th at p. 1211, internal
citations omitted.)
• “We conclude that plaintiffs still have the burden of producing evidence that the
dangerous condition existed for at least a sufficient time to support a finding
that the defendant had constructive notice of the hazardous condition. We also
conclude, however, that plaintiffs may demonstrate the storekeeper had
constructive notice of the dangerous condition if they can show that the site had
not been inspected within a reasonable period of time so that a person
exercising due care would have discovered and corrected the hazard. In other
words, if the plaintiffs can show an inspection was not made within a particular
period of time prior to an accident, they may raise an inference the condition
did exist long enough for the owner to have discovered it. It remains a question
of fact for the jury whether, under all the circumstances, the defective condition
existed long enough so that it would have been discovered and remedied by an
owner in the exercise of reasonable care.” (Ortega, supra, at pp. 1212–1213,
internal citations 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.)
• “Although no two accidents happen in the same way, to be admissible for
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showing notice to a landowner of a dangerous condition, evidence of another
similar accident must have occurred under substantially the same
circumstances.” (Howard v. Omni Hotels Mgmt. Corp. (2012) 203 Cal.App.4th
403, 432 [136 Cal.Rptr.3d 739].)
Secondary Sources
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 6-A, Liability For
Defective Conditions On Premises, ¶ 6:1 et seq. (The Rutter Group)
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 6-B, Landlord
Liability For Injuries From Acts Of Others, ¶ 6:48 et seq. (The Rutter Group)
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.04
(Matthew Bender)
11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property
Owners, § 381.20 (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)
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