California Jury Instruction CACI 1003 Unsafe Conditions

1003. Unsafe Conditions

[Name of defendant] was negligent in the use or maintenance of the property if:

1. A condition on the property created an unreasonable risk of harm;
2. [Name of defendant] knew or, through the exercise of reasonable care, should have known about it; and
3. [Name of defendant] failed to repair the condition, protect against harm from the condition, or give adequate warning of the condition.

New September 2003; Revised April 2007, October 2008

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Directions for Use

Read this instruction with CACI No. 1000, Premises Liability—Essential Factual Elements, in a premises liability case involving an unsafe condition on property. If there is an issue as to the owner’s constructive knowledge of the condition (element 2), also give CACI No. 1011, Constructive Notice Regarding Dangerous Conditions on Property.

Sources and Authority

• “Where the occupier of land is aware of a concealed condition involving in the absence of precautions an unreasonable risk of harm to those coming in contact with it and is aware that a person on the premises is about to come in contact with it, the trier of fact can reasonably conclude that a failure to warn or to repair the condition constitutes negligence. Whether or not a guest has a right to expect that his host will remedy dangerous conditions on his account, he should reasonably be entitled to rely upon a warning of the dangerous condition so that he, like the host, will be in a position to take special precautions when he comes in contact with it.” (Rowland v. Christian (1968) 69 Cal.2d 108, 119 [70 Cal.Rptr. 97, 443 P.2d 561].)
• “ ‘[T]he proprietor of a store who knows of, or by the exercise of reasonable care could discover, an artificial condition upon his premises which he should foresee exposes his business visitors to an unreasonable risk, and who has no basis for believing that they will discover the condition or realize the risk involved, is under a duty to exercise ordinary care either to make the condition reasonably safe for their use or to give a warning adequate to enable them to avoid the harm……. ’ [Plaintiff] was entitled to have the jury so instructed.” (Williams v. Carl Karcher Enters., Inc. (1986) 182 Cal.App.3d 479, 488 [227 Cal.Rptr. 465], internal citations omitted, disapproved on other grounds in Soule v. GM Corp. (1994) 8 Cal.4th 548, 574, 580 [34 Cal.Rptr.2d 607, 882 P.2d 298].)

• “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. Although the owner’s lack of knowledge is not a defense, ‘[t]o impose liability for injuries suffered by an invitee due to [a] defective condition of the premises, the owner or occupier “must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises……. ” ’ ” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206 [114 Cal.Rptr.2d 470, 36 P.3d 11], internal citation omitted.)

• “Where the dangerous or defective condition of the property which causes the injury has been created by reason of the negligence of the owner of the property or his employee acting within the scope of the employment, the owner of the property cannot be permitted to assert that he had no notice or knowledge of the defective or dangerous condition in an action by an invitee for injuries suffered by reason of the dangerous condition. Under such circumstances knowledge thereof is imputed to him. Where the dangerous condition is brought about by natural wear and tear, or third persons, or acts of God or by other causes which are not due to the negligence of the owner, or his employees, then to impose liability the owner must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises. His negligence in such cases is founded upon his failure to exercise ordinary care in remedying the defect after he has discovered it or as a man of ordinary prudence should have discovered it.” (Hatfield v. Levy Bros. (1941) 18 Cal.2d 798, 806 [117 P.2d 841], internal citation omitted.)
• “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.)
• “[U]nder current California law, a store owner’s choice of a particular ‘mode of operation’ does not eliminate a slip-and-fall plaintiff’s burden of proving the owner had knowledge of the dangerous condition that caused the accident. Moreover, it would not be prudent to hold otherwise. Without this knowledge requirement, certain store owners would essentially incur strict liability for slip- and-fall injuries, i.e., they would be insurers of the safety of their patrons. For example, whether the french fry was dropped 10 seconds or 10 hours before the accident would be of no consequence to the liability finding. However, this is not to say that a store owner’s business choices do not impact the negligence analysis. If the store owner’s practices create a higher risk that dangerous conditions will exist, ordinary care will require a corresponding increase in precautions.” (Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal.App.4th 472, 479 [3 Cal.Rptr. 3d 813].)

• “Although liability might easily be found where the landowner has actual knowledge of the dangerous condition, ‘[the] landowner’s lack of knowledge of the dangerous condition is not a defense. He has an affirmative duty to exercise ordinary care to keep the premises in a reasonably safe condition, and therefore must inspect them or take other proper means to ascertain their condition. And if, by the exercise of reasonable care, he would have discovered the dangerous condition, he is liable.’ ” (Swanberg v. O’Mectin (1984) 157 Cal.App.3d 325, 330 [203 Cal.Rptr. 701], internal citation omitted.)
• “[A] real estate agent has a duty to notify visitors of marketed property of concealed dangerous conditions of which the agent has actual or constructive knowledge. The agent’s actual or constructive knowledge of a dangerous condition is imputed to his or her principal, the property owner, who shares with the agent liability for damages proximately caused by a breach of this duty.” (Hall v. Rockcliff Realtors (2013) 215 Cal.App.4th 1134, 1141 [155 Cal.Rptr.3d 739].)

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Secondary Sources

6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1119-1123

1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.04 (Matthew Bender)

6 California Real Estate Law and Practice, Ch. 170, The Premises: Duties and Liabilities, § 170.02 (Matthew Bender)

11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property Owners, § 381.20 (Matthew Bender)

29 California Forms of Pleading and Practice, Ch. 334, Landlord and Tenant: Claims for Damages, § 334.51 (Matthew Bender)

36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.14 (Matthew Bender)

17 California Points and Authorities, Ch. 178, Premises Liability, § 178.23 et seq. (Matthew Bender)

California Civil Practice: Torts § 16:4 (Thomson Reuters)