CACI 1122 Affirmative Defense—Weather Conditions Affecting Streets and Highways (Gov. Code, § 831)
California Civil Jury Instructions CACI
1122 Affirmative Defense—Weather Conditions Affecting Streets and Highways (Gov. Code, § 831)
[Name of defendant] claims it cannot be held responsible for [name of plaintiff]’s harm because the harm was caused by [insert weather condition, e.g., fog, wind, rain, flood, ice, or snow] affecting the use of a public street or highway. To succeed, [name of defendant] must prove both of the following:
1.That [insert weather condition, e.g., fog, wind, rain, flood, ice, or snow] affecting the use of a public street or highway was the cause of [name of plaintiff]’s harm; and
2.That a reasonably careful person using the public streets and highways would have noticed the [insert weather condition, e.g., fog, wind, rain, flood, ice, or snow] and anticipated its effect on the use of the street or highway.
Directions for Use
The immunity provided by Government Code section 831 does not apply to: (1) effects that would not be reasonably apparent to and anticipated by a person exercising reasonable care, (2) situations where the weather effect combines with other factors that make the road dangerous, (3) sunlight that blinds drivers, or (4) where the weather conditions resulted in physical damage to or deterioration of the street or highway. (Erfurt v. State of California (1983) 141 Cal.App.3d 837, 845–846 [190 Cal.Rptr. 569]; see Flournoy v. State of California (1969) 275 Cal.App.2d 806, 814 [80 Cal.Rptr. 485].)
Sources and Authority
•No Liability for Weather Conditions. Government Code section 831.
•Weather immunity is an affirmative defense. (Bossi v. State of California (1981) 119 Cal.App.3d 313, 321 [174 Cal.Rptr. 93] [jury properly instructed regarding section 831, but issue was moot because jury did not reach it]; see also Allyson v. Department of Transportation (1997) 53 Cal.App.4th 1304, 1319 [62 Cal.Rptr.2d 490].)
•CalTrans’s duty regarding transitory conditions affecting road surface and highway safety is discretionary, not mandatory. (Allyson, supra, 53 Cal.App.4th at p. 1319.) Accordingly, section 831 immunity is available to CalTrans in appropriate circumstances. (Id. at pp. 1320–1321.)