CACI 1008 Liability for Adjacent Altered Sidewalk—Essential Factual Elements

California Civil Jury Instructions CACI

1008 Liability for Adjacent Altered Sidewalk—Essential Factual Elements

[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed because [name of defendant] was negligent in constructing and maintaining an altered portion of the sidewalk next to [his/her/nonbinary pronoun/its] property. To establish this claim, [name of plaintiff] must prove all of the following:

1.That [name of defendant] [or a previous owner] altered [or requested the city to alter] the portion of the sidewalk that caused the harm;

2.That the alteration provided a benefit solely to [name of defendant]’s property;

3.That the alteration served a purpose different from ordinary sidewalk use;

4.That [name of defendant] failed to use reasonable care in creating or maintaining the altered portion of the sidewalk;

5.That [name of plaintiff] was harmed; and

6.That [name of defendant]’s negligence was a substantial factor in causing [name of plaintiff]’s harm.

Sources and Authority

An abutting landowner who has altered an adjacent sidewalk for the benefit of his property apart from the ordinary use for which it was designed has a duty to employ ordinary care in making such alteration and in maintaining that portion of the sidewalk in a reasonably safe condition. (Peters v. City & County of San Francisco (1953) 41 Cal.2d 419, 423 [260 P.2d 55]; see Selger v. Steven Brothers, Inc. (1990) 222 Cal.App.3d 1585, 1594 [272 Cal.Rptr. 544].)

The duty of care regarding altered sidewalks usually arises in cases “involving traps on sidewalks, including ‘ “coal holes, meter boxes, and other devices of similar character located in the sidewalk which benefit the abutting owner and are located where the general public is likely to walk … .” ’ ” (Contreras v. Anderson (1997) 59 Cal.App.4th 188, 202 [69 Cal.Rptr.2d 69], internal citation omitted.)

Liability depends on findings of (1) special benefit to the owner’s property, (2) alteration of sidewalk for a nontypical purpose, and (3) the degree of exclusivity of benefit. (Contreras, supra, 59 Cal.App.4th at p. 202.)

“The significance of the degree of exclusivity is that proportionately, the greater the exclusivity of use, the more an improvement benefits solely the adjoining property and the more reasonable it is to impose upon the landowner a duty to maintain the improvement in a reasonably safe condition.” (Seaber v. Hotel Del Coronado (1991) 1 Cal.App.4th 481, 491 [2 Cal.Rptr.2d 405].)

The requirement of due care in altering a sidewalk applies only to that portion of the sidewalk that is actually altered: “The rule cited by plaintiff requires the owner to keep the altered portion in reasonably safe condition or be liable for injuries resulting therefrom. Plaintiff did not trip on defendant’s floral displays, she slipped on the dog dropping, a hazard which defendant did not create.” (Selger, supra, 222 Cal.App.3d at p. 1595.)

“The duty to maintain portions of a sidewalk which have been altered for the benefit of the property runs with the land, and a property owner cannot avoid liability on the ground that the condition was created by or at the request of his predecessors in title.” (Peters, supra, 41 Cal.2d at p. 423.)

Secondary Sources

6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1231–1234
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.03[4] (Matthew Bender)
17 California Points and Authorities, Ch. 178, Premises Liability, § 178.29 (Matthew Bender)