CACI 1124 Loss of Design Immunity (Cornette)

California Civil Jury Instructions CACI

1124 Loss of Design Immunity (Cornette)

[Name of defendant] is responsible for harm to [name of plaintiff] caused by the plan or design of the [insert type of property, e.g., “highway”] if [name of plaintiff] proves all of the following:

1.That the [insert type of property, e.g., “highway”]’s plan[s] or design[s] had become dangerous because of a change in physical conditions;

2.That [name of defendant] had notice of the dangerous condition created because of the change in physical conditions; and

3.[That [name of defendant] had a reasonable time to obtain the funds and carry out the necessary corrective work to conform the property to a reasonable design or plan;]


[That [name of defendant] was unable to correct the condition due to practical impossibility or lack of funds but did not reasonably attempt to provide adequate warnings of the dangerous condition.]

New September 2003; Revised June 2010; Renumbered from CACI No. 1123 and Revised December 2014

Crowdsource Lawyers

Directions for Use

Give this instruction if the plaintiff claims that the public entity defendant has lost its design immunity because of changed conditions since the design or plan was originally adopted. Read either or both options for element 3 depending on the facts of the case.

If the applicability of design immunity in the first instance is disputed, give CACI No. 1123, Affirmative Defense—Design Immunity. Also in this case, the introductory paragraph might begin with “Even if [name of defendant] proves both of these elements” (from CACI No. 1123).

Users should include CACI No. 1102, Definition of “Dangerous Condition,” and CACI No. 1103, Notice, to define “dangerous condition” and “notice” in connection with this instruction. Additionally, the meaning and legal requirements for a “change of physical condition” have been the subject of numerous decisions involving specific contexts. Appropriate additional instructions to account for these decisions may be necessary.

Sources and Authority

Design Immunity. Government Code section 830.6.

“[W]here a plan or design of a construction of, or improvement to, public property, although shown to have been reasonably approved in advance or prepared in conformity with standards previously so approved, as being safe, nevertheless in its actual operation under changed physical conditions produces a dangerous condition of public property and causes injury, the public entity does not retain the statutory immunity from liability conferred on it by section 830.6.” (Dammann v. Golden Gate Bridge, Highway & Transportation Dist. (2012) 212 Cal.App.4th 335, 343 [150 Cal.Rptr.3d 829], quoting Baldwin v. State (1972) 6 Cal.3d 424, 438 [99 Cal.Rptr. 145, 491 P.2d 1121], original italics.)

“Design immunity does not necessarily continue in perpetuity. To demonstrate loss of design immunity a plaintiff must also establish three elements: (1) the plan or design has become dangerous because of a change in physical conditions; (2) the public entity had actual or constructive notice of the dangerous condition thus created; and (3) the public entity had a reasonable time to obtain the funds and carry out the necessary remedial work to bring the property back into conformity with a reasonable design or plan, or the public entity, unable to remedy the condition due to practical impossibility or lack of funds, had not reasonably attempted to provide adequate warnings.” (Cornette v. Dept. of Transportation (2001) 26 Cal.4th 63, 66 [109 Cal.Rptr.2d 1, 26 P.3d 332], internal citations omitted.)

“The rationale for design immunity is to prevent a jury from second-guessing the decision of a public entity by reviewing the identical questions of risk that had previously been considered by the government officers who adopted or approved the plan or design.” (Cornette, supra, 26 Cal.4th at p. 69, internal citation omitted.)

“Section 830.6 makes it quite clear that ‘the trial or appellate court’ is to determine whether ‘there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor.’ The question presented by this case is whether the Legislature intended that the three issues involved in determining whether a public entity has lost its design immunity should also be tried by the court. Our examination of the text of section 830.6, the legislative history of that section, and our prior decisions leads us to the conclusion that, where triable issues of material fact are presented, as they were here, a plaintiff has a right to a jury trial as to the issues involved in loss of design immunity.” (Cornette, supra, 26 Cal.4th at pp. 66–67.)

“[T]echnological advances … do not constitute the ‘changed physical conditions’ necessary to defeat the [defendant]’s defense of design immunity under Baldwin and Cornette.” (Dammannsupra, 22 Cal.App.4th at p. 351.)

Secondary Sources

5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 338 et seq.
Haning et al., California Practice Guide: Personal Injury, Ch. 2(III)-D, Liability For “Dangerous Conditions” Of Public Property, ¶ 2:2865 et seq. (The Rutter Group)
5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of Public Entities and Public Employees, § 61.03[3][b] (Matthew Bender)
40 California Forms of Pleading and Practice, Ch. 464, Public Entities and Officers: California Government Claims Act, § 464.85 (Matthew Bender)
19A California Points and Authorities, Ch. 196, Public Entities, § 196.12 (Matthew Bender)