CACI 1011 Constructive Notice Regarding Dangerous Conditions on Property

New September 2003; Revised February 2007, October 2008

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This instruction is intended for use if there is an issue concerning the owner’s constructive knowledge of a dangerous condition. It should be given with CACI No. 1003, Unsafe Conditions.

The bracketed second paragraph of this instruction is based on Ortega v. Kmart (2001) 26 Cal.4th 1200 [114 Cal.Rptr.2d 470, 36 P.3d 11]. Ortega involved a store. The court should determine whether the bracketed portion of this instruction applies to other types of property.

•“It is well established in California that although a store owner is not an insurer of the safety of its patrons, the owner does owe them a duty to exercise reasonable care in keeping the premises reasonably safe.” (Ortega, supra, 26 Cal.4th at p. 1205, internal citation omitted.)

•“We conclude that a plaintiff may prove a dangerous condition existed for an unreasonable time with circumstantial evidence, and that … ‘evidence that an inspection had not been made within a particular period of time prior to an accident may warrant an inference that the defective condition existed long enough so that a person exercising reasonable care would have discovered it.’ ” (Ortega, supra, 26 Cal.4th at p. 1210, internal citation omitted.)

•“A store owner exercises ordinary care by making reasonable inspections of the portions of the premises open to customers, and the care required is commensurate with the risks involved.” (Ortega, supra, 26 Cal.4th at p. 1205, internal citation omitted.)

•“Because the owner is not the insurer of the visitor’s personal safety, the owner’s actual or constructive knowledge of the dangerous condition is a key to establishing its liability.” (Ortega, supra, 26 Cal.4th at p. 1206, internal citations omitted.)

•“Courts have also held that where the plaintiff relies on the failure to correct a dangerous condition to prove the owner’s negligence, the plaintiff has the burden of showing that the owner had notice of the defect in sufficient time to correct it.” (Ortega, supra, 26 Cal.4th at p. 1206, internal citations omitted.)

•“The plaintiff need not show actual knowledge where evidence suggests that the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence.” (Ortega, supra, 26 Cal.4th at p. 1206, internal citations omitted.)

•“We emphasize that allowing the inference does not change the rule that if a store owner has taken care in the discharge of its duty, by inspecting its premises in a reasonable manner, then no breach will be found even if a plaintiff does suffer injury.” (Ortega, supra, 26 Cal.4th at p. 1211, internal citations omitted.)

•“We conclude that plaintiffs still have the burden of producing evidence that the dangerous condition existed for at least a sufficient time to support a finding that the defendant had constructive notice of the hazardous condition. We also conclude, however, that plaintiffs may demonstrate the storekeeper had constructive notice of the dangerous condition if they can show that the site had not been inspected within a reasonable period of time so that a person exercising due care would have discovered and corrected the hazard. In other words, if the plaintiffs can show an inspection was not made within a particular period of time prior to an accident, they may raise an inference the condition did exist long enough for the owner to have discovered it. It remains a question of fact for the jury whether, under all the circumstances, the defective condition existed long enough so that it would have been discovered and remedied by an owner in the exercise of reasonable care.” (Ortega, supra, at pp. 1212–1213, internal citations omitted.)

•“To comply with this duty, a person who controls property must ‘ “ ‘ “inspect [the premises] or take other proper means to ascertain their condition” ’ ” ’ and, if a dangerous condition exists that would have been discovered by the exercise of reasonable care, has a duty to give adequate warning of or remedy it.” (Staats v. Vintner’s Golf Club, LLC (2018) 25 Cal.App.5th 826, 833 [236 Cal.Rptr.3d 236].)

•“Generally speaking, a property owner must have actual or constructive knowledge of a dangerous condition before liability will be imposed. In the ordinary slip and fall case, … the cause of the dangerous condition is not necessarily linked to an employee. Consequently, there is no issue of respondeat superior. Where, however, ‘the evidence is such that a reasonable inference can be drawn that the condition was created by employees of the [defendant], then [the defendant] is charged with notice of the dangerous condition.’ ” (Getchell v. Rogers Jewelry (2012) 203 Cal.App.4th 381, 385 [136 Cal.Rptr.3d 641], internal citation omitted.)

•“Although no two accidents happen in the same way, to be admissible for showing notice to a landowner of a dangerous condition, evidence of another similar accident must have occurred under substantially the same circumstances.” (Howard v. Omni Hotels Mgmt. Corp. (2012) 203 Cal.App.4th 403, 432 [136 Cal.Rptr.3d 739].)