California Civil Jury Instructions (CACI)

1111. Affirmative Defense—Condition Created by Reasonable Act or Omission (Gov. Code, § 835.4(a))

A public entity is not legally responsible for harm caused by a dangerous condition if the act or omission of its employee that created the dangerous condition was reasonable. If [name of defendant] proves that the act or omission that created the dangerous condition was reasonable, then your verdict must be for [name of defendant].

In determining whether the employee’s conduct was reasonable, you must weigh the likelihood and the seriousness of the potential injury against the practicality and cost of either:

(a) taking alternative action that would not have created the risk of injury; or

(b) protecting against the risk of injury.

New September 2003; Revised April 2007, April 2008

Directions for Use

This instruction states a defense to the theory that the entity created a dangerous condition of public property. (Gov. Code, §§ 835(a), 835.4(a).)

Sources and Authority

  • Government Code section 835.4(a) provides: “A public entity is not liable under subdivision (a) of Section 835 for injury caused by a condition of its property if the public entity establishes that the act or omission that created the condition was reasonable. The reasonableness of the act or omission that created the condition shall be determined by weighing the probability and gravity of potential injury to persons and property foreseeably exposed to the risk of injury against the practicability and cost of taking alternative action that would not create the risk of injury or of protecting against the risk of injury.”
  • Government Code section 835.4 is an affirmative defense. (Hibbs v. Los Angeles County Flood Control Dist. (1967) 252 Cal.App.2d 166, 172 [60 Cal.Rptr. 364].)
  • “[T]he question of the reasonableness of a public entity’s action in any particular situation is one of fact for a jury.” (Swaner v. City of Santa Monica (1984) 150 Cal.App.3d 789, 810 [198 Cal.Rptr. 208].)
  • “The Court of Appeal found conceptual difficulties in the interplay between section 835, subdivision (a) (plaintiff must establish negligence) and section 835.4, subdivision (a) (providing a defense if the public entity establishes that the act or omission that created the condition was reasonable). As it noted, normally ‘negligence is the absence of reasonableness.’ That being the case, the court reasoned, one cannot reasonably act negligently. Because of this conundrum, the Court of Appeal found that section 835.4 does not provide an affirmative defense. (¶) We disagree. Section 835.4 clearly creates an affirmative defense that the public entity must establish. Moreover, the Legislature created this defense specifically for public entities. The California Law Revision Commission explained, ‘Under this section, a public entity may absolve itself from liability for creating or failing to remedy a dangerous condition by showing that it would have been too costly and impractical for the public entity to have done anything else. . . . This defense has been provided public entities in recognition that, despite limited manpower and budgets, there is much that they are required to do. Unlike private enterprise, a public entity often cannot weigh the advantage of engaging in an activity against the cost and decide not to engage in it. Government cannot ‘go out of the business’ of governing. Therefore, a public entity should not be liable for injuries caused by a dangerous condition if it is able to show that under all the circumstances, including the alternative courses of action available to it and the practicability and cost of pursuing such alternatives, its action in creating or failing to remedy the condition was not unreasonable.’ ” (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1137–1138 [72 Cal.Rptr.3d 382, 176 P.3d 654], footnote and internal citation omitted.)
  • “The reasonableness standard referred to in section 835.4 differs from the reasonableness standard that applies under sections 830 and 835 and ordinary tort principles. Under the latter principles, the reasonableness of the defendant’s conduct does not depend upon the existence of other, conflicting claims on the defendant’s resources or the political barriers to acting in a reasonable manner.” (Metcalf, supra, 42 Cal.4th at p. 1138.)
  • “In sum, we conclude that negligence under section 835, subdivision (a), is established under ordinary tort principles concerning the reasonableness of a defendant’s conduct in light of the foreseeable risk of harm. The plaintiff has the burden to demonstrate that the defendant’s conduct was unreasonable under this standard . . . . If the plaintiff carries this burden, the public entity may defend under the provisions of section 835.4—a defense that is unique to public entities.” (Metcalf, supra, 42 Cal.4th at p. 1139.)

Secondary Sources

5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 272

2 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.) §§ 12.61–12.62

5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of Public Entities and Public Employees, § 61.03 (Matthew Bender)

40 California Forms of Pleading and Practice, Ch. 464, Public Entities and Offıcers: California Torts Claim Act, § 464.86 (Matthew Bender)

19A California Points and Authorities, Ch. 196, Public Entities, §§ 196.12, 196.300 (Matthew Bender)