California Civil Jury Instructions (CACI) (2017)

1103. Notice (Gov. Code, § 835.2)

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1103.Notice (Gov. Code, § 835.2)
[Name of plaintiff] must prove that [name of defendant] had notice of the
dangerous condition before the incident occurred. To prove that there
was notice, [name of plaintiff] must prove:
[That [name of defendant] knew of the condition and knew or should
have known that it was dangerous. A public entity knows of a
dangerous condition if an employee knows of the condition and
reasonably should have informed the entity about it.]
[or]
[That the condition had existed for enough time before the incident and
was so obvious that the [name of defendant] reasonably should have
discovered the condition and known that it was dangerous.]
New September 2003
Directions for Use
This instruction is intended to be used where the plaintiff relies on Government
Code section 835(b). This instruction should be modified if the plaintiff is relying
on both section 835(a) and section 835(b) to clarify that proof of notice is not
necessary under section 835(a).
For an instruction regarding reasonable inspection systems, see CACI No. 1104,
Inspection System.
Sources and Authority
• Actual Notice. Government Code section 835.2(a).
Constructive Notice. Government Code section 835.2(b).
• “[Defendant] asserts that ‘[t]he absence of any prior accidents or injuries on the
gravel shoulder is evidence of lack of notice.’ Assuming this to be true, at most
it establishes grounds for a finding in [defendant]’s favor, which is hardly
enough to sustain a summary judgment. Nor is plaintiff required to prove that
[defendant] knew for a fact that accidents of this kind would occur. The test for
actual notice was satisfied if [defendant] had ‘actual knowledge of the existence
of the condition and knew or should have known of its dangerous character.’ ”
(Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 779–780 [140
Cal.Rptr.3d 722].)
• “To establish ‘actual notice,’ it is not enough to show that the state employees
had a general knowledge that people do leave hot coals on public beaches.
There must be some evidence that the employees had knowledge of the
particular dangerous condition in question.” (State v. Superior Court of San
Mateo County (1968) 263 Cal.App.2d 396, 399 [69 Cal.Rptr. 683], internal
citations omitted.)
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• “Whether the dangerous condition was obvious and whether it existed for a
sufficient period of time are threshold elements to establish a claim of
constructive notice. Where the plaintiff fails to present direct or circumstantial
evidence as to either element, his claim is deficient as a matter of law.” (Heskel
v. City of San Diego (2014) 227 Cal.App.4th 313, 317 [173 Cal.Rptr.3d 768],
internal citation omitted.)
• “ ‘It is well settled that constructive notice can be shown by the long continued
existence of the dangerous or defective condition, and it is a question of fact for
the jury to determine whether the condition complained of has existed for a
sufficient time to give the public agency constructive notice.’ ” (Erfurt v. State
of California (1983) 141 Cal.App.3d 837, 844–845 [190 Cal.Rptr 569], internal
citations omitted.)
• “Admissible evidence for establishing constructive notice is defined by
[Government Code section 835.2(b)] as including whether a reasonably
adequate inspection system would have informed the public entity, and whether
it maintained and operated such an inspection system with due care.” (Heskel,
supra, 227 Cal.App.4th at p. 317.)
• “In the instant case, it can be validly argued that there was a triable issue on the
question of inspection, but in determining whether there is constructive notice,
the method of inspection has been held to be secondary.” (Superior Court of
San Mateo County,supra, 263 Cal.App.2d at p. 400, internal citation omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 271
2California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.)
§§ 12.45–12.51
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.01[4][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. 1103
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