California Civil Jury Instructions (CACI)
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 incident 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;]
[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
Directions for Use
The concepts of notice, “dangerous condition,” “protect against,” and “property of a public entity” are addressed in subsequent instructions.
For element 4, choose either or both options depending on whether liability is alleged under Government Code section 835(a), 835(b), or both.
Sources and Authority
- Government Code section 835 provides:
Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property 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, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and 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) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.
- Government Code section 835.2(a) provides: “A public entity had actual notice of a dangerous condition within the meaning of subdivision (b) of section 835 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.”
- Government Code section 835.2(b) provides, in part: “A public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 835 only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.”
- Government Code section 830 provides: As used in this chapter:
(a) “Dangerous condition” means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.
(b) “Protect against” includes repairing, remedying or correcting a dangerous condition, providing safeguards against a dangerous condition, or warning of a dangerous condition.
(c) “Property of a public entity” and “public property” mean real or personal property owned or controlled by the public entity, but do not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the public entity.
- “[A] public entity is not liable for injuries except as provided by statute [Gov. Code, § 815] and [Government Code] section 835 sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property.” (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829 [15 Cal.Rptr.2d 679, 843 P.2d 624].)
- “Plaintiff’s cause of action against [defendant] is defined by statute, specifically the portion of the Government Claims Act entitled Liability of Public Entities and Public Employees. These statutes declare a general rule of immunity and then set out exceptions to that rule. Plaintiff invokes the exception for a dangerous condition of public property, as set out in Government Code section 835. As there laid out, the cause of action consists of the following elements: (1) a dangerous condition of public property; (2) a foreseeable risk, arising from the dangerous condition, of the kind of injury the plaintiff suffered; (3) actionable conduct in connection with the condition, i.e., either negligence on the part of a public employee in creating it, or failure by the entity to correct it after notice of its existence and dangerousness; (4) a causal relationship between the dangerous condition and the plaintiff’s injuries; and (5) compensable damage sustained by the plaintiff.” (Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 757–758 [140 Cal.Rptr.3d 722], internal citations and footnote omitted.)
- “Under Government Code section 835, a public entity may be liable for injury proximately caused by a dangerous condition of its property if the entity either creates a dangerous condition on its property or fails to remedy a dangerous condition when it has actual or constructive notice of the condition and had sufficient time to take preventive measures before the injury.” (Ceja v. Department of Transportation (2011) 201 Cal.App.4th 1475, 1481 [135 Cal.Rptr.3d 436].)
- “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, supra, 4 Cal.4th at p. 836.)
- In section 835(a), “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.) The res ipsa loquitur presumption does not satisfy section 835(a). (Ibid.)
- “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 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.)
- The plaintiff need not prove both that the public entity was negligent in creating the condition and that it had notice of the condition; either negligence or notice is sufficient. (Curtis v. State of California (1982) 128 Cal.App.3d 668, 693 [180 Cal.Rptr. 843].)
- “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.)
- “The existence of a dangerous condition is ordinarily a question of fact but ‘can 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].)
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 Tort Claims Act, § 464.81 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, § 196.11 (Matthew Bender)