CACI No. 1101. Control

Judicial Council of California Civil Jury Instructions (2020 edition)

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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
• “Public Property” Defined. Government Code section 830(c).
• “ ‘[C]ontrol exists if the public entity has the “power to prevent, remedy or
guard against the dangerous condition.” ’ ” (Goddard v. Department of Fish &
Wildlife (2015) 243 Cal.App.4th 350, 364 [196 Cal.Rptr.3d 625].)
• “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
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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 Government Claims Act, § 464.81 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, § 196.11 (Matthew
Bender)
DANGEROUS CONDITION OF PUBLIC PROPERTY CACI No. 1101
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