California Civil Jury Instructions (CACI) (2017)

1124. Loss of Design Immunity (Cornette)

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1124.Loss of Design Immunity (Cornette)
[Name of defendant] is responsible for harm to [name of plaintiff] caused
by the plan or design of the [insert type of property, e.g., “highway”] if
[name of plaintiff] proves all of 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
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;]
3. [or]
3. [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
New September 2003; Revised June 2010; Renumbered from CACI No. 1123 and
Revised December 2014
Directions for Use
Give this instruction if the plaintiff claims that the public entity defendant has lost
its design immunity because of changed conditions since the design or plan was
originally adopted. Read either or both options for element 3 depending on the
facts of the case.
If the applicability of design immunity in the first instance is disputed, give CACI
No. 1123, Affırmative Defense—Design Immunity. Also in this case, the
introductory paragraph might begin with “Even if [name of defendant] proves both
of these elements” (from CACI No. 1123).
Users should include CACI No. 1102, Definition of “Dangerous Condition,” and
CACI No. 1103, Notice, to define “dangerous condition” and “notice” 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
• Design Immunity. Government Code section 830.6.
• “[W]here a plan or design of a construction of, or improvement to, public
property, although shown to have been reasonably approved in advance or
prepared in conformity with standards previously so approved, as being safe,
nevertheless in its actual operation under changed physical conditions produces
a dangerous condition of public property and causes injury, the public entity
does not retain the statutory immunity from liability conferred on it by section
830.6.” (Dammann v. Golden Gate Bridge, Highway & Transportation Dist.
(2012) 212 Cal.App.4th 335, 343 [150 Cal.Rptr.3d 829], quoting Baldwin v.
State (1972) 6 Cal.3d 424, 438 [99 Cal.Rptr. 145, 491 P.2d 1121], original
• “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 v.
Dept. of Transportation (2001) 26 Cal.4th 63, 66 [109 Cal.Rptr.2d 1, 26 P.3d
332], 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.
• “[T]echnological advances . . . do not constitute the ‘changed physical
conditions’ necessary to defeat the [defendant]’s defense of design immunity
under Baldwin and Cornette.” (Dammann,supra, 22 Cal.App.4th at p. 351.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 284
Haning et al., California Practice Guide: Personal Injury, Ch. 2(III)-D, Liability For
“Dangerous Conditions” Of Public Property, ¶ 2:2865 et seq. (The Rutter Group)
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of
Public Entities and Public Employees, § 61.03[3][b] (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 (Matthew
1125–1199. Reserved for Future Use