CACI No. 1124. Loss of Design Immunity ( Cornette )

Judicial Council of California Civil Jury Instructions (2020 edition)

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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
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;]
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
condition.]
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.
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• “[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 italics.)
• “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. 66-67.)
• “[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.)
DANGEROUS CONDITION OF PUBLIC PROPERTY CACI No. 1124
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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
Bender)
CACI No. 1124 DANGEROUS CONDITION OF PUBLIC PROPERTY
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