California Civil Jury Instructions (CACI)

1112. Affirmative Defense—Reasonable Act or Omission to Correct (Gov. Code, § 835.4(b))

A public entity is not responsible for harm caused by a dangerous condition if its failure to take sufficient steps to protect against the risk of injury was reasonable. If [name of defendant] proves that its conduct was reasonable, then your verdict must be for [name of defendant].

In determining whether [name of defendant]’s conduct was reasonable, you must consider how much time and opportunity it had to take action. You must also weigh the likelihood and the seriousness of the potential injury against the practicality and cost of 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 had notice of a dangerous condition (that it did not create) and failed to take adequate protective measures. (Gov. Code, §§ 835(b), 835.4(b).)

Sources and Authority

  • Government Code section 835.4(b) provides: “A public entity is not liable under subdivision (b) of Section 835 for injury caused by a dangerous condition of its property if the public entity establishes that the action it took to protect against the risk of injury created by the condition or its failure to take such action was reasonable. The reasonableness of the action or inaction of the public entity shall be determined by taking into consideration the time and opportunity it had to take action and 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 protecting against the risk of such 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]; see also Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 720 [159 Cal.Rptr. 835, 602 P.2d 755].)
  • “Unlike section 830.6 relating to design immunity, section 835.4 subdivision (b), does not provide that the reasonableness of the action taken shall be determined by the ‘trial or appellate court.’ ” (De La Rosa v. City of San Bernardino (1971) 16 Cal.App.3d 739, 749 [94 Cal.Rptr. 175].)
  • “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. But, as the California Law Revision Commission recognized, public entities may also defend against liability on the basis that, because of financial or political constraints, the public entity may not be able to accomplish what reasonably would be expected of a private entity.” (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1138 [72 Cal.Rptr.3d 382, 176 P.3d 654].)

Secondary Sources

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

2 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.) §§ 12.63–12.65

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)