California Civil Jury Instructions (CACI) (2017)

1100. Dangerous Condition on Public Property—Essential Factual Elements (Gov. Code, § 835)

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1100.Dangerous Condition on Public Property—Essential
Factual Elements (Gov. Code, § 835)
[Name of plaintiff] claims that [he/she] was harmed by a dangerous
condition of [name of defendant]’s property. To establish this claim,
[name of plaintiff] must prove all of the following:
1. That [name of defendant] owned [or controlled] the property;
2. That the property was in a dangerous condition at the time of
the incident;
3. That the dangerous condition created a reasonably foreseeable
risk of the kind of injury that occurred;
4. [That negligent or wrongful conduct of [name of defendant]’s
employee acting within the scope of his or her employment
created the dangerous condition;]
4. [or]
4. [That [name of defendant] had notice of the dangerous condition
for a long enough time to have protected against it;]
5. That [name of plaintiff] was harmed; and
6. That the dangerous condition was a substantial factor in causing
[name of plaintiff]’s harm.
New September 2003; Revised October 2008, December 2015, June 2016
Directions for Use
For element 4, choose either or both options depending on whether liability is
alleged under Government Code section 835(a), 835(b), or both.
See also CACI No. 1102, Definition of “Dangerous Condition,” and CACI No.
1103, Notice.
Sources and Authority
• Liability of Public Entity for Dangerous Condition of Property. Government
Code section 835.
• Actual Notice. Government Code section 835.2(a).
• Constructive Notice. Government Code section 835.2(b).
• Definitions. Government Code section 830.
• ‘The Government Claims Act (§ 810 et seq.; the Act) ‘is a comprehensive
statutory scheme that sets forth the liabilities and immunities of public entities
and public employees for torts.’ Section 835 . . . prescribes the conditions
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under which a public entity may be held liable for injuries caused by a
dangerous condition of public property. Section 835 provides that a public
entity may be held liable for such injuries ‘if the plaintiff establishes that the
property was in a dangerous condition at the time of the injury, that the injury
was proximately caused by the dangerous condition, [and] that the dangerous
condition created a reasonably foreseeable risk of the kind of injury which was
incurred.’ In addition, the plaintiff must establish that either: (a) ‘[a] negligent
or wrongful act or omission of an employee of the public entity within the
scope of his employment created the dangerous condition,’ or (b) ‘[t]he public
entity had . . . notice of the dangerous condition . . . a sufficient time prior to
the injury to have taken measures to protect against the dangerous condition.’ ”
(Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1105–1106 [190
Cal.Rptr.3d 850, 353 P.3d 773], internal citations omitted.)
• “[A] public entity may be liable for a dangerous condition of public property
even when the immediate cause of a plaintiff’s injury is a third party’s negligent
or illegal act (such as a motorist’s negligent driving), if some physical
characteristic of the property exposes its users to increased danger from third
party negligence or criminality. Public entity liability lies under section 835
when some feature of the property increased or intensified the danger to users
from third party conduct.” (Castro v. City of Thousand Oaks (2015) 239
Cal.App.4th 1451, 1457−1458 [192 Cal.Rptr.3d 376], internal citation omitted.)
• “Subdivisions (a) and (b) of section 835 obviously address two different types
of cases. However, what distinguishes the two types of cases is not simply
whether the public entity has notice of the dangerous condition. Instead, what
distinguishes the two cases in practice is who created the dangerous condition.
Because an entity must act through its employees, virtually all suits brought on
account of dangerous conditions created by the entity will be brought under
subdivision (a). In contrast, subdivision (b) can also support suits based on
dangerous conditions not created by the entity or its employees.” (Brown v.
Poway Unified School Dist. (1993) 4 Cal.4th 820, 836 [15 Cal.Rptr.2d 679, 843
P.2d 624].)
• “[T]he res ipsa loquitur presumption does not satisfy the requirements for
holding a public entity liable under section 835, subdivision (a). Res ipsa
loquitur requires the plaintiff to show only (1) that the accident was of a kind
which ordinarily does not occur in the absence of negligence, (2) that the
instrumentality of harm was within the defendant’s exclusive control, and (3)
that the plaintiff did not voluntarily contribute to his or her own injuries.
Subdivision (a), in contrast, requires the plaintiff to show that an employee of
the public entity ‘created’ the dangerous condition; in view of the legislative
history . . . the term ‘created’ must be defined as the sort of involvement by an
employee that would justify a presumption of notice on the entity’s part.”
(Brown, supra, 4 Cal.4th at p. 836.)
• “Focusing on the language in Pritchard, supra, 178 Cal.App.2d at page 256,
stating that where the public entity ‘has itself created the dangerous condition it
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is per se culpable,’ plaintiff argues that the negligence that section 835,
subdivision (a), refers to is not common law negligence, but something that
exists whenever the public entity creates the dangerous condition of property.
We disagree. If the Legislature had wanted to impose liability whenever a
public entity created a dangerous condition, it would merely have required
plaintiff to establish that an act or omission of an employee of the public entity
within the scope of his employment created the dangerous condition. Instead,
section 835, subdivision (a), requires the plaintiff to establish that a ‘negligent
or wrongful act or omission of an employee of the public entity within the
scope of his employment created the dangerous condition.’ (Italics added.)
Plaintiff’s interpretation would transform the highly meaningful words
‘negligent or wrongful’ into meaningless surplusage, contrary to the rule of
statutory interpretation that courts should avoid a construction that makes any
word surplusage.” (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121,
1135 [72 Cal.Rptr.3d 382, 176 P.3d 654], original italics, internal citation
omitted.)
• “In order to recover under Government Code section 835, it is not necessary for
plaintiff to prove a negligent act and notice; either negligence or notice will
suffice.” (Curtis v. State of California (1982) 128 Cal.App.3d 668, 693 [180
Cal.Rptr. 843], original italics.)
• “A public entity may not be held liable under section 835 for a dangerous
condition of property that it does not own or control.” (Goddard v. Department
of Fish & Wildlife (2015) 243 Cal.App.4th 350, 359 [196 Cal.Rptr.3d 625].)
• “For liability to be imposed on a public entity for a dangerous condition of
property, the entity must be in a position to protect against or warn of the
hazard. Therefore, the crucial element is not ownership, but rather control.”
(Mamola v. State of California ex rel. Dept. of Transportation (1979) 94
Cal.App.3d 781, 788 [156 Cal.Rptr. 614], internal citation omitted.)
• “Liability for injury caused by a dangerous condition of property has been
imposed when an unreasonable risk of harm is created by a combination of
defect in the property and acts of third parties. However, courts have
consistently refused to characterize harmful third party conduct as a dangerous
condition—absent some concurrent contributing defect in the property itself.”
(Hayes v. State of California (1974) 11 Cal.3d 469, 472 [113 Cal.Rptr. 599, 521
P.2d 855], internal citations omitted.)
• “[P]laintiffs in this case must show that a dangerous condition of property—that
is, a condition that creates a substantial risk of injury to the
public—proximately caused the fatal injuries their decedents suffered as a result
of the collision with [third party]’s car. But nothing in the statute requires
plaintiffs to show that the allegedly dangerous condition also caused the third
party conduct that precipitated the accident.” (Cordova, supra, 61 Cal.4th at p.
1106.)
• “The existence of a dangerous condition is ordinarily a question of fact but ‘can
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be decided as a matter of law if reasonable minds can come to only one
conclusion.’ ” (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1347
[75 Cal.Rptr.3d 168].)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 249–285
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 6-C, Immunity
From Liability, ¶ 6:91 et seq. (The Rutter Group)
Hanning et al., California Practice Guide: Personal Injury, Ch. 2(III)-D, Liability
For “Dangerous Conditions” Of Public Property, ¶ 2:2785 et seq. (The Rutter
Group)
2 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.)
§§ 12.9–12.55
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.01 (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and
Offıcers: California Government Claims Act, § 464.81 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, § 196.11 (Matthew
Bender)
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