California Civil Jury Instructions (CACI)
1104. Inspection System (Gov. Code, § 835.2(b)(1) & (2))
In deciding whether [name of defendant] should have discovered the dangerous condition, you may consider whether it had a reasonable inspection system and whether a reasonable system would have revealed the dangerous condition.
[In determining whether an inspection system is reasonable, you may consider the practicality and cost of the system and balance those factors against the likelihood and seriousness of the potential danger if no such system existed.]
[If [name of defendant] had a reasonable inspection system but did not detect the dangerous condition, you may consider whether it used reasonable care in maintaining and operating the system.]
New September 2003
Directions for Use
Read the first paragraph and one or both of the bracketed paragraphs as appropriate to the facts.
Sources and Authority
- Government Code section 835.2(b) provides, in part:
On the issue of due care, admissible evidence includes but is not limited to evidence as to:
(1) Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (considering the practicality and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property.
(2) Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition.
- “Constructive notice may be found where the dangerous condition would have been discovered by a reasonable inspection.” (Straughter v. State of California (1976) 89 Cal.App.3d 102, 109 [152 Cal.Rptr. 147], citing to Stanford v. City of Ontario (1972) 6 Cal.3d 870, 882 [101 Cal.Rptr. 97, 495 P.2d 425].)
- “The questions of whether a dangerous condition could have been discovered by reasonable inspection and whether there was adequate time for preventive measures are properly left to the jury.” (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 843 [206 Cal.Rptr. 136, 686 P.2d 656], internal citations omitted.)
- “Although judicial decisions do not always link the issue of constructive notice to the reasonable inspection system . . . , the Tort Claims Act indicates that, absent other persuasive evidence, the relationship between constructive notice and inspection may be crucial.” (California Government Tort Liability Practice (Cont.Ed.Bar 3d ed. 1992), § 3.37.)
5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 271
2 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.) §§ 12.48–12.50
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of Public Entities and Public Employees, § 61.03[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)