California Civil Jury Instructions (CACI)
1123. Loss of Design Immunity (Cornette)
[Name of defendant] is not responsible for harm caused to [name of plaintiff] based on the plan or design of the [insert type of property, e.g., “highway”] unless [name of plaintiff] proves the following:
1. That the [insert type of property, e.g., “highway”]’s plan[s] or design[s] had become dangerous because of a change in physical conditions;
2. That [name of defendant] had notice of the dangerous condition created because of the change in physical conditions; and
3. [That [name of defendant] had a reasonable time to obtain the funds and carry out the necessary corrective work to conform the property to a reasonable design or plan;]
[That [name of defendant] was unable to correct the condition due to practical impossibility or lack of funds but did not reasonably attempt to provide adequate warnings of the dangerous condition.]
New September 2003; Revised June 2010
Directions for Use
Give this instruction if the public entity defendant is entitled to design immunity unless the changed-conditions exception can be established. Read either or both options for element 3 depending on the facts of the case.
A public entity claiming design immunity must establish three elements: (1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design before construction; and (3) substantial evidence supporting the reasonableness of the plan or design. (Cornette v. Dept. of Transportation (2001) 26 Cal.4th 63, 66 [109 Cal.Rptr.2d 1, 26 P.3d 332].) The third element, substantial evidence of reasonableness, must be tried by the court, not the jury. (Id. at pp. 66-67; see Gov. Code, § 830.6.) The first two elements, causation and discretionary approval, are issues of fact for the jury to decide. (Cornette, supra, 26 Cal.4th at pp. 74–75; see also Alvis v. County of Ventura (2009) 178 Cal.App.4th 536, 550 [100 Cal.Rptr.3d 494] [elements may only be resolved as issues of law if facts are undisputed].) But, as a practical matter, these elements are usually stipulated to or otherwise established so they seldom become issues for the jury.
Users should include CACI No. 1102, Definition of “Dangerous Condition,” and CACI No. 1103, Notice, to define “notice” and “dangerous condition” in connection with this instruction. Additionally, the meaning and legal requirements for a “change of physical condition” have been the subject of numerous decisions involving specific contexts. Appropriate additional instructions to account for these decisions may be necessary.
Sources and Authority
- Government Code section 830.6 provides, in part: “Neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor.”
- “Design immunity does not necessarily continue in perpetuity. To demonstrate loss of design immunity a plaintiff must also establish three elements: (1) the plan or design has become dangerous because of a change in physical conditions; (2) the public entity had actual or constructive notice of the dangerous condition thus created; and (3) the public entity had a reasonable time to obtain the funds and carry out the necessary remedial work to bring the property back into conformity with a reasonable design or plan, or the public entity, unable to remedy the condition due to practical impossibility or lack of funds, had not reasonably attempted to provide adequate warnings.” (Cornette, supra, 26 Cal.4th at p. 66, internal citations omitted.)
- “The rationale for design immunity is to prevent a jury from second-guessing the decision of a public entity by reviewing the identical questions of risk that had previously been considered by the government officers who adopted or approved the plan or design.” (Cornette, supra, 26 Cal.4th at p. 69, internal citation omitted.)
- “Section 830.6 makes it quite clear that ‘the trial or appellate court’ is to determine whether ‘there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor.’ The question presented by this case is whether the Legislature intended that the three issues involved in determining whether a public entity has lost its design immunity should also be tried by the court. Our examination of the text of section 830.6, the legislative history of that section, and our prior decisions leads us to the conclusion that, where triable issues of material fact are presented, as they were here, a plaintiff has a right to a jury trial as to the issues involved in loss of design immunity.” (Cornette, supra, 26 Cal.4th at pp. 66–67.)
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, § 464.85 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, § 196.12 (Matthew Bender)