CACI 1103 Notice (Gov. Code, § 835.2)
California Civil Jury Instructions CACI
1103 Notice (Gov. Code, § 835.2)
[Name of plaintiff] must prove that [name of defendant] had notice of the dangerous condition before the incident occurred. To prove that there was notice, [name of plaintiff] must prove:
[That [name of defendant] knew of the condition and knew or should have known that it was dangerous. A public entity knows of a dangerous condition if an employee knows of the condition and reasonably should have informed the entity about it.]
[That the condition had existed for enough time before the incident and was so obvious that the [name of defendant] reasonably should have discovered the condition and known that it was dangerous.]
Directions for Use
This instruction is intended to be used where the plaintiff relies on Government Code section 835(b). This instruction should be modified if the plaintiff is relying on both section 835(a) and section 835(b) to clarify that proof of notice is not necessary under section 835(a).
For an instruction regarding reasonable inspection systems, see CACI No. 1104, Inspection System.
Sources and Authority
•Actual Notice. Government Code section 835.2(a).
•Constructive Notice. Government Code section 835.2(b).
•“[Defendant] asserts that ‘[t]he absence of any prior accidents or injuries on the gravel shoulder is evidence of lack of notice.’ Assuming this to be true, at most it establishes grounds for a finding in [defendant]’s favor, which is hardly enough to sustain a summary judgment. Nor is plaintiff required to prove that [defendant] knew for a fact that accidents of this kind would occur. The test for actual notice was satisfied if [defendant] had ‘actual knowledge of the existence of the condition and knew or should have known of its dangerous character.’ ” (Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 779–780 [140 Cal.Rptr.3d 722].)
•“To establish ‘actual notice,’ it is not enough to show that the state employees had a general knowledge that people do leave hot coals on public beaches. There must be some evidence that the employees had knowledge of the particular dangerous condition in question.” (State v. Superior Court of San Mateo County (1968) 263 Cal.App.2d 396, 399 [69 Cal.Rptr. 683], internal citations omitted.)
•“Whether the dangerous condition was obvious and whether it existed for a sufficient period of time are threshold elements to establish a claim of constructive notice. Where the plaintiff fails to present direct or circumstantial evidence as to either element, his claim is deficient as a matter of law.” (Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 317 [173 Cal.Rptr.3d 768], internal citation omitted.)
•“ ‘It is well settled that constructive notice can be shown by the long continued existence of the dangerous or defective condition, and it is a question of fact for the jury to determine whether the condition complained of has existed for a sufficient time to give the public agency constructive notice.’ ” (Erfurt v. State of California (1983) 141 Cal.App.3d 837, 844–845 [190 Cal.Rptr 569], internal citations omitted.)
•“Admissible evidence for establishing constructive notice is defined by [Government Code section 835.2(b)] as including whether a reasonably adequate inspection system would have informed the public entity, and whether it maintained and operated such an inspection system with due care.” (Heskel, supra, 227 Cal.App.4th at p. 317.)
•“In the instant case, it can be validly argued that there was a triable issue on the question of inspection, but in determining whether there is constructive notice, the method of inspection has been held to be secondary.” (Superior Court of San Mateo County, supra, 263 Cal.App.2d at p. 400, internal citation omitted.)