California Civil Jury Instructions (CACI) (2017)

1122. Affirmative Defense—Weather Conditions Affecting Streets and Highways (Gov. Code, § 831)

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1122.Affirmative Defense—Weather Conditions Affecting Streets
and Highways (Gov. Code, § 831)
[Name of defendant] claims it cannot be held responsible for [name of
plaintiff]’s harm because the harm was caused by [insert weather
condition, e.g., fog, wind, rain, flood, ice, or snow] affecting the use of a
public street or highway. To succeed, [name of defendant] must prove
both of the following:
1. That [insert weather condition, e.g., fog, wind, rain, flood, ice, or
snow] affecting the use of a public street or highway was the
cause of [name of plaintiff]’s harm; and
2. That a reasonably careful person using the public streets and
highways would have noticed the [insert weather condition, e.g.,
fog, wind, rain, flood, ice, or snow] and anticipated its effect on
the use of the street or highway.
New September 2003
Directions for Use
The immunity provided by Government Code section 831 does not apply to: (1)
effects that would not be reasonably apparent to and anticipated by a person
exercising reasonable care, (2) situations where the weather effect combines with
other factors that make the road dangerous, (3) sunlight that blinds drivers, or (4)
where the weather conditions resulted in physical damage to or deterioration of the
street or highway. (Erfurt v. State of California (1983) 141 Cal.App.3d 837,
845–846 [190 Cal.Rptr. 569]; see Flournoy v. State of California (1969) 275
Cal.App.2d 806, 814 [80 Cal.Rptr. 485].)
Sources and Authority
• No Liability for Weather Conditions. Government Code section 831.
Weather immunity is an affirmative defense. (Bossi v. State of California (1981)
119 Cal.App.3d 313, 321 [174 Cal.Rptr. 93] [jury properly instructed regarding
section 831, but issue was moot because jury did not reach it]; see also Allyson
v. Department of Transportation (1997) 53 Cal.App.4th 1304, 1319 [62
Cal.Rptr.2d 490].)
• CalTrans’s duty regarding transitory conditions affecting road surface and
highway safety is discretionary, not mandatory. (Allyson, supra, 53 Cal.App.4th
at p. 1319.) Accordingly, section 831 immunity is available to CalTrans in
appropriate circumstances. (Id. at pp. 1320–1321.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 279
651
0027
2 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.)
§§ 12.80–12.81
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.03[5] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and
Offıcers: California Government Claims Act, § 464.85 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, §§ 196.12, 196.301
(Matthew Bender)
CACI No. 1122 DANGEROUS CONDITION OF PUBLIC PROPERTY
652
0028