CACI No. 1112. Affirmative Defense - Reasonable Act or Omission to Correct (Gov. Code, § 835.4(b))

Judicial Council of California Civil Jury Instructions (2023 edition)

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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
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
No Public Entity Liability for Reasonable Act or Omission. Government Code
section 835.4(b).
“There are, of course, affirmative defenses pleaded which may require trial as
well: such as . . . the special defense under Government Code, section 835.4 of
the reasonableness, practicability, and cost of the alternative measures plaintiffs
claim should have been taken to protect against a dangerous condition.” (Hibbs
v. Los Angeles County Flood Control Dist. (1967) 252 Cal.App.2d 166, 172 [60
Cal.Rptr. 364].)
“Under section 835.4, subdivision (b), however, the question of the
reasonableness of the state’s action in light of the practicability and cost of the
applicable safeguards is a matter for the jury’s determination.” (Ducey v. Argo
Sales Co. (1979) 25 Cal.3d 707, 720 [159 Cal.Rptr. 835, 602 P.2d 755], footnote
“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 (11th ed. 2017) Torts, § 324
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 Government Claims Act, § 464.86 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, §§ 196.12, 196.300
(Matthew Bender)
1113-1119. Reserved for Future Use

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