CACI 1111 Affirmative Defense—Condition Created by Reasonable Act or Omission (Gov. Code, § 835.4(a))

California Civil Jury Instructions CACI

1111 Affirmative Defense—Condition Created by Reasonable Act or Omission (Gov. Code, § 835.4(a))

A public entity is not legally responsible for harm caused by a dangerous condition if the act or omission of its employee that created the dangerous condition was reasonable. If [name of defendant] proves that the act or omission that created the dangerous condition was reasonable, then your verdict must be for [name of defendant].

In determining whether the employee’s conduct was reasonable, you must weigh the likelihood and the seriousness of the potential injury against the practicality and cost of either:

(a)taking alternative action that would not have created the risk of injury; or

(b)protecting against the risk of injury.

Directions for Use

This instruction states a defense to the theory that the entity created a dangerous condition of public property. (Gov. Code, §§ 835(a), 835.4(a).)

Sources and Authority

No Public Entity Liability for Reasonable Act or Omission. Government Code section 835.4(a).

“There are, of course, affirmative defenses pleaded which may require trial as well: such as … the special defense under Government Code, section 835.4 of the reasonableness, practicability, and cost of the alternative measures plaintiffs claim should have been taken to protect against a dangerous condition.”Hibbs v. Los Angeles County Flood Control Dist. (1967) 252 Cal.App.2d 166, 172 [60 Cal.Rptr. 364].)

“Reasonableness is a question of fact for the trier of fact, and is determined by weighing the probability and gravity of potential injury against the practicability and cost of the action.” (Biron v. City of Redding (2014) 225 Cal.App.4th 1264, 1281 [170 Cal.Rptr.3d 848].)

“The Court of Appeal found conceptual difficulties in the interplay between section 835, subdivision (a) (plaintiff must establish negligence) and section 835.4, subdivision (a) (providing a defense if the public entity establishes that the act or omission that created the condition was reasonable). As it noted, normally ‘negligence is the absence of reasonableness.’ That being the case, the court reasoned, one cannot reasonably act negligently. Because of this conundrum, the Court of Appeal found that section 835.4 does not provide an affirmative defense. (¶) We disagree. Section 835.4 clearly creates an affirmative defense that the public entity must establish. Moreover, the Legislature created this defense specifically for public entities. The California Law Revision Commission explained, ‘Under this section, a public entity may absolve itself from liability for creating or failing to remedy a dangerous condition by showing that it would have been too costly and impractical for the public entity to have done anything else. … This defense has been provided public entities in recognition that, despite limited manpower and budgets, there is much that they are required to do. Unlike private enterprise, a public entity often cannot weigh the advantage of engaging in an activity against the cost and decide not to engage in it. Government cannot ‘go out of the business’ of governing. Therefore, a public entity should not be liable for injuries caused by a dangerous condition if it is able to show that under all the circumstances, including the alternative courses of action available to it and the practicability and cost of pursuing such alternatives, its action in creating or failing to remedy the condition was not unreasonable.’ ” (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1137–1138 [72 Cal.Rptr.3d 382, 176 P.3d 654], footnote and internal citation omitted.)

“The reasonableness standard referred to in section 835.4 differs from the reasonableness standard that applies under sections 830 and 835 and ordinary tort principles. Under the latter principles, the reasonableness of the defendant’s conduct does not depend upon the existence of other, conflicting claims on the defendant’s resources or the political barriers to acting in a reasonable manner.” (Metcalf, supra, 42 Cal.4th at p. 1138.)

“In sum, we conclude that negligence under section 835, subdivision (a), is established under ordinary tort principles concerning the reasonableness of a defendant’s conduct in light of the foreseeable risk of harm. The plaintiff has the burden to demonstrate that the defendant’s conduct was unreasonable under this standard … . If the plaintiff carries this burden, the public entity may defend under the provisions of section 835.4—a defense that is unique to public entities.” (Metcalf, supra, 42 Cal.4th at p. 1139.)

Secondary Sources

5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 324
2 California Government Tort Liability Practice (Cont.Ed.Bar 4th ed.) §§ 12.61–12.62
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of Public Entities and Public Employees, § 61.03 (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and Officers: California Government Claims Act, § 464.86 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, §§ 196.12, 196.300 (Matthew Bender)