California Civil Jury Instructions (CACI)

1101. Control

[Name of plaintiff] claims that [name of defendant] controlled the property at the time of the incident. In deciding whether [name of defendant] controlled the property, you should consider whether it had the power to prevent, fix, or guard against the dangerous condition. You should also consider whether [name of defendant] treated the property as if it were its property.

New September 2003

Directions for Use

This instruction will not be necessary in most cases. Ownership of public property is generally established as a matter of law by evidence of holding title or other similar evidence.

The power to regulate privately owned facilities is not enough, in and of itself, to impose liability on a public entity (i.e., it is not “control”). (Aaitui v. Grande Properties (1994) 29 Cal.App.4th 1369, 1377–1378 [35 Cal.Rptr.2d 123].)

Sources and Authority

  • Government Code section 830(c) provides: “ ‘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.”
  • “Where the public entity’s relationship to the dangerous property is not clear, aid may be sought by inquiring whether the particular defendant had control, in the sense of power to prevent, remedy or guard against the dangerous condition; whether his ownership is a naked title or whether it is coupled with control; and whether a private defendant, having a similar relationship to the property, would be responsible for its safe condition.” (Low v. City of Sacramento (1970) 7 Cal.App.3d 826, 833–834 [87 Cal.Rptr. 173] [city and county jointly liable for defect in parking strip fronting county hospital].)
  • “The Low-type inquiry and result are only appropriate ‘. . . [where] the public entity’s relationship to the dangerous property is not clear . . . .’ ” (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 800 [223 Cal.Rptr. 206], internal citation omitted.)
  • “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.)
  • “[I]n identifying the defendant with whom control resides, location of the power to correct the dangerous condition is an aid.” (Low, supra, 7 Cal.App.3d at p. 832.)
  • The issue of control may be decided as a matter of law if the facts are uncontroverted. (Aaitui, supra, 29 Cal.App.4th at p. 1377; Low, supra, 7 Cal.App.3d at p. 834.)
  • In Holmes v. City of Oakland (1968) 260 Cal.App.2d 378, 385 [67 Cal.Rptr. 197], the court found that the city had control over a railroad right-of-way over a city street where a city ordinance had reserved extensive powers to regulate and inspect the railroad company’s easement.
  • The requisite ownership or control must exist at the time of the incident. (Longfellow v. County of San Luis Obispo (1983) 144 Cal.App.3d 379, 383 [192 Cal.Rptr. 580]; Tolan v. State of California ex rel. Dept. of Transportation
  • (1979) 100 Cal.App.3d 980, 983 [161 Cal.Rptr. 307].)

  • “[A] public entity can be held liable for an accident caused by a condition that exists on property adjacent to a public highway if the condition ‘ “ ‘is so connected with or in such proximity to the traveled portion of the highway as to render it unsafe to those traveling thereon.’ ” ’ ” (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 841 [206 Cal.Rptr. 136, 686 P.2d 656], internal citations omitted.)

Secondary Sources

5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 250–257

2 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.) §§ 12.9–12.14

5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of Public Entities and Public Employees, § 61.01[3][b] (Matthew Bender)

40 California Forms of Pleading and Practice, Ch. 464, Public Entities and Offıcers: California Torts Claim Act, § 464.81 (Matthew Bender)

19A California Points and Authorities, Ch. 196, Public Entities, § 196.11 (Matthew Bender)